December 3, 2012

From The Denver Business Journal

By Heather Draper

Colorado's "employment-at-will" legal doctrine means an employer can, in theory, fire an employee for anything. Employment issues get murkier when they involve an employee's off-duty activities. And those activities are getting increasing attention, with the advent of social media, a tight job market and increasing political divisiveness.

In addition, social media and smart phones "have blurred that bright line between workplace and home life," so Sean Gallagher cautions employers about litigation risks whenever they look at their employees' Facebook or other social media accounts because they open themselves up to allegations of privacy violatons.

"That's why, the lesson for employers in all of this is to focus on the job and what the employee is doing in the workplace, "he said.

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About Sean Gallagher

For more than 25 years, Sean Gallagher has handled a broad range of strategic counseling and litigation matters in courtrooms across the country, including a successful oral argument in the Supreme Court of the United States. His practice emphasizes three general areas: complex commercial litigation, employment litigation/counseling, and constitutional/public policy matters. Representative commercial litigation experience includes cases involving claims for fraud and misrepresentation, securities fraud, antitrust violations, consumer protection violations, trademark and copyright infringements, environmental whistleblowing, violations of the False Claims Act, and corporate governance disputes.

Mr. Gallagher also assists his clients in implementing proactive employment policies that minimize the risk of litigation. When necessary, however, he represents employers in litigation involving non-compete agreements, employment discrimination, civil rights violations, Sarbanes-Oxley violations, retaliatory discharge, breach of contract, ERISA violations and libel/slander. He also has extensive experience with negotiating and litigating executive employment agreements, representing both executives and employers. Mr. Gallagher is one of the founding editors of The Practitioner's Guide to Colorado Employment Law, the state’s definitive treatise on employment law since 1999.

Mr. Gallagher has also handled a broad spectrum of public policy, constitutional, and election matters, including several First Amendment cases of national significance. He successfully represented two U.S. Secret Service agents in the Supreme Court of the United States in Reichle v. Howards, 566 U.S. ___ (2012), where he obtained a unanimous decision on behalf of his clients in a case involving the scope of civil liability of Secret Service agents protecting the President and Vice-President. He successfully represented a member of the President’s advance team in a case involving alleged viewpoint discrimination by the White House (Weise v. Casper, 593 F.3d 1163, cert. denied 131 S.Ct. 7 (2010)). He represented the telemarketing industry in a constitutional challenge to the FTC and FCC’s Do Not Call registry (Mainstream Marketing Svcs. v. FTC, 359 F.3d 1228 (10th Cir. 2004) as well as a state university in a First Amendment retaliatory termination case (Kemp. v. State Bd. of Agriculture, 803 P.2d 498 (Colo. 1990). Mr. Gallagher has also represented the governor of Colorado in the state's congressional redistricting litigation, a U.S. Congressman in a congressional election recount and three presidential campaigns.

As an adjunct to his litigation practice, Mr. Gallagher has nationally recognized experience in the field of electronic discovery. He is a member of The Sedona Conference’s Working Group on Best Practices for Electronic Document Retention and Production, and helped lead a team which drafted the conference’s commentary on “Proportionality in the e-Discovery Process.” He has lectured extensively on electronic discovery matters.