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but it’s unclear whether a properly
conducted check would have thwarted
his leak anyway, said Moritz. Snowden
considered himself a righteous
whistleblower, an attitude cursory
background checks wouldn’t detect.
Although out of step with current
employment practices, the availability
of mental health counseling might suss
out the state of mind of employees
with access to potentially weaponized
information — as well as actual, literal
weapons such as guns, said Heidi Li
Feldman, professor of law, associate
professor of philosophy, Georgetown
University Law Center.
Employers should find out whether
counselors can be helpful in identifying
when an employee might be under
pressures that could lead them to disclose
classified information, Feldman said.
A single employer is unlikely to
impose mandatory counseling or
psychological testing on its employees,
she said, but collectively they might,
if sufficiently motivated, move the
“Social change happens when
people, like employers, bear excessive
or unfair costs of a problem,” at
which time they may seek help from
a trade association or state chamber
of commerce to nudge social change,
Feldman said. It would be similar to
the series of events that ultimately
produced smoke-free workplaces.
Supervisors should also monitor
employees’ work habits and stressors,
Hudak said. His wife, a nurse, observed
one of her staff members was “getting
hammered” every night at a local bar.
His wife watched closely and
offered help. She also documented
her observations and made sure the
employee didn’t have access to the
hospital’s drug closet.
TO BE OR NOT TO BE LIABLE
In general, said Feldman, an
employer can be held liable for its
employees’ criminal acts when it is in a
good position to influence the criminal
actor’s actions, and they’re responsible
for the torts of their employees when
acting in the course of employment.
The exception could be where the
employee is a senior executive and the
conduct is imputed to the organization,
said John Denton, JD, managing
Liability laws aren’t as draconian as
they may sound, Feldman said.
“People get very anxious when
they think the law says, ‘You have to
prevent all crimes of parties other than
In fact, the law requires employers
to be “a reasonable person of ordinary
prudence.” But what is “ordinary
A court may consider different
metrics, said Hudak, such as a CAP
index, which assigns a number from 0
(lowest) to 2,000 (highest), predicting
the chance of a certain kind of crime,
such as homicide or auto theft, at a
When considered with incident
reports on the property and 911 calls,
“A CAP index would tell the court
that you’ve done homework, that you
know foreseeability,” said Feldman.
A crime committed using, say,
a company computer while the
employee is off the clock is a defensible
position, said Farley. Written policies
and procedures about what employees
may and may not do will bolster a
case, as will formal training. A strong
anti-corruption tone at the top may
also mitigate liability risk, said Mark
W. Jenkins, senior managing director,
Glassratner Advisory & Capital Group
SUSANNAH LEVINE writes about health
care, education and technology. She can be
reached at; firstname.lastname@example.org.