October 3, 2007 6:20 AM PDT

Police Blotter: Fired worker blames porn on malware

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Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Hospital respiratory therapist files lawsuit against hospital for unlawful termination, blaming malicious software for bookmarking pornographic Web sites.

When: U.S. District Judge Sarah Evans Barker rules on September 26.

Outcome: Hospital wins motion to dismiss.

What happened, according to court documents and other sources:
David Farr was once employed as a respiratory therapist at St. Francis Hospital in Indianapolis, Ind. He started there in October 2000 and was the only male respiratory therapist.

All of the seven respiratory therapists share a small office divided into individual cubicles with one computer in the center of the room. Each therapist is assigned a password, though it's unclear whether logs are kept of each user's individual activities.

In July 2005, Farr's supervisor informed him he was suspended from work because pornographic entries were found in his "Favorites" file, apparently a reference to Web sites bookmarked. Farr denied being responsible and said he was rebuffed when he asked for details about the allegations.

Farr was fired in August 2005. An e-mail message from the hospital's lawyer at the time claims to "have evidence that provides us with reasonable belief that he was accessing pornographic Web sites on his work computer."

After losing his job, Farr went through the formal grievance process listed in the hospital handbook and met with no success. He filed a lawsuit after the grievance committee upheld his termination in December 2005.

What makes this case relevant to Police Blotter is that Farr claims that "St. Francis failed to install and update effective antivirus protection on its computers" and that any pornographic bookmarks were inserted by malicious software. He also claims that antivirus software was required by Health Insurance Portability and Accountability Act.

Farr even retained a computer forensics specialist who concluded: "No one had intentionally loaded the list of Web sites on the computer. Rather, the list was placed on the respiratory therapists' computer by a common and well-known Internet virus that promotes fee-generating pornographic sites."

That is plausible. One of the malicious programs known to inject porn bookmarks is CoolWebSearch, also called CWS or CoolWWWSearch, and it's been around since 2003. Some reports have estimated that 5 million sites are infected with it and that more than 60 strains of it exist.

Probably the most famous example of someone seemingly ensnared by malware is the criminal prosecution of substitute teacher Julie Amero, who was arrested after the computer (which had been in use by the students) began displaying porn ads. Amero's conviction was overturned and she was granted a new trial in June.

In Farr's case, though, the courts weren't as willing to listen. The district judge granted St. Francis' request to dismiss four counts in Farr's complaint: allegations of unfair dealing, negligence, defamation, and wrongful discharge. (He has also alleged gender discrimination, saying he was singled out because he was male.)

The thing is, though, that it should have been relatively easy to figure out if Farr had actually been a customer of those pay-to-play porn sites. A cursory examination of the browser's cache and other log files would have showed whether just the home pages were visited (probably malware) or whether pages requiring payment were visited (probably a human). In addition, antispyware tools would have detected the presence of malicious software. However, there is no evidence that the hospital did either type of analysis.

Excerpts from the judge's opinion:
Farr argues that St. Francis breached two duties owed to him: 1) a duty imposed by the St. Francis Handbook to conduct a "thorough and fair investigation of allegations of wrongdoing that can result in termination of employments," and 2) a duty imposed by HIPAA, to install and maintain antivirus software on the computer used by the respiratory therapists in the course of their employment.

Although artfully phrased, Plaintiff's first claim is nothing more than a general claim of negligent performance of an employment at-will contract on the part of St. Francis. As such, Plaintiff has failed to state a claim as Indiana has heretofore refused to acknowledge a cause of action in negligence based upon an employer's defective performance of an employment contract.

Plaintiff's second allegation of negligence also fails to state a claim as HIPAA does not create a duty on the part of employers to protect employees from computer-virus-related injuries; instead, HIPAA creates a duty owed by St. Francis to its patients to maintain the confidentiality of their protected health information...

The Indiana Supreme Court currently recognizes only three exceptions to the presumption that employment without a defined or ascertainable duration, or without a specific job security agreement, is terminable at-will: 1) when the employee supplies adequate independent consideration in return for permanent employment; 2) when termination contravenes a clear statutory right or duty; and 3) when the employee establishes promissory estoppel. (The complaint) implicates only the second of these exceptions, the public policy exception. In this count, Farr asserts that the termination of his employment constitutes wrongful discharge because St. Francis terminated him in order to cover up its violation of HIPAA.

The public policy exception to the at-will doctrine can be "generalized to the proposition that an employee who has been fired for exercising a statutory right or refusing to violate the law has a claim for wrongful discharge." This is a narrow exception to the at-will doctrine, and the Indiana Supreme Court has expressed its reluctance to broaden it absent direction from the state legislature.

Despite the reiteration of the narrowness of the public policy exception by the Indiana Supreme Court, Plaintiff implores us to extend the public policy exception to allow a claim for wrongful discharge when an employee is fired out of expediency to cover up an alleged violation of law by the employer. To bolster his argument, Plaintiff claims that his termination contravenes Plaintiff's "right to live his life free of specious and knowingly false accusations that were designed to hide his employer's wrongs." Although it is likely that most people would like to live a life free from specious and false accusations, Plaintiff fails to indicate how such a freedom is clearly secured by statute (specifically, HIPAA).

See more CNET content tagged:
therapist, Police Blotter, hospital, malicious software, termination

16 comments

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The fired employee should be rehired.
not a week goes by at my job where I have to reinstall Windows XP because of porn malware using backdoors in the OS to put links and otehr software that further the goal to show even more porn in popups that the user never asked for.


Is the Hospital wrong for firing? Yes.
Posted by inachu (963 comments )
Reply Link Flag
Agreed
Hospital (along with the judge) needs to get a course on "virus 101". There are much more advanced viruses that will put stuff on your computer that a basic user (health therapist) would never know.

Firing an employee based on stuff found on a common computer shared across multiple users is just plain INJUSTICE. What happened to "Innocent till proven guilty" ???

This poor guy will have to carry this badge of disgrace all his life, across jobs, social circle, relatives etc...
Posted by envy21 (3 comments )
Link Flag
Stupid but legal
The way I read the judge's opinion, it sounds like Indiana is not a "right to work" state, i.e., employers can fire employees any time they want without cause. There are a few exceptions, and the fired guy tried to shoehorn his case into those exceptions, but the judge didn't buy it.

He should have argued instead for sexual discrimination, which falls under federal law. If he could have shown a history of discriminatory treatment, with this firing on flimsy evidence as the culmination, then he would have stood a chance.

Bottom line: Under Indiana law, the judge made the right decision. But the hospital was stupid to fire the guy, unless there is more to the story that we haven't heard about. (And neither side has any motivation at this point to tell the public any further bad stuff about the guy, if there is any.)
Posted by dmm (336 comments )
Reply Link Flag
Canned for other reasons
Only someone totally STUPIDO would bookmark porn sites at work.

Probably BADWARE or some such, but I suspect the hospital was looking for an excuse to remove him and this was most convenient.

Unfortunatly he will have to fight this or it WILL haunt him on other jobs he applies for.
Posted by SteamChip (594 comments )
Reply Link Flag
How Does It Even Matter?
It's interesting that looking at pornography is considered to be unquestionably a firing offense, as if some moral outrage had been perpetrated. It's all part of the same Christian Right mentatilty that prevents PBS stations from allowing curse words in a war documentary. It seems to me the only real offense involved is wasting time at work--but then far more of that is done on entertainment, shopping, auction, and social networking websites, which likely won't get an employee summarily fired.
Posted by Logotrope (10 comments )
Reply Link Flag
mentality?!?
quote>>It's all part of the same Christian Right mentatilty<<

I could be wrong, BUT Somehow, for some reason i don't think athistic Communist Chinese mentality would allow it either
and "summary firing" of another sort may occur.
Posted by SteamChip (594 comments )
Link Flag
Let me guess...
....you're "single", right? Perhaps living at home still??

If you *honestly* cannot see the issue with looking at pornography at work -- and at a hospital, no less -- then I suggest you have deeper, darker issues to deal with.

Get your head on straight.
Posted by yipcanjo (75 comments )
Link Flag
Mixing issues
A nurse has unsupervised access to physically helpless and emotionally vulnerable people. Health care professionals should put aside sexuality on the job (barring being a member of a sexual health care profession, and I think even California shut that down, as good an idea as it might be).

As for your incredibly naive and provincial statement regarding "Christian Right mentality", may I point out that the various Leftist regimes (Communist, Socialist, and Fascist) killed people for viewing porn? And that you can get your head sawn off for viewing porn in some Moslem countries? Anyone trying to persuade you that intolerance is unique to Christianity, or any other ideology, is trying to make a fool of you.
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