Starting a business can be an intimidating venture, but certainly a rewarding one when you already have customers before even opening your doors. This is often the practice for hairstylists whose business model relies on loyal clients who follow them from salon to salon. But what are the legal ramifications for a stylist taking her client list with her in order to open her new business? In August of 2017 in Huntsville, Alabama, the result was an arrest for felony computer tampering.
My client Crystal had been a hairstylist for almost 20 years when she moved to a new location in Madison, Alabama. Instead of renting booth space, as many stylists often do, she received a commission for the services performed. One of the requirements for moving into the new space was uploading her client list to the salon’s client management software for the purposes of scheduling appointments, keeping track of billing, and just the general streamlining of office management. Although stylists were required to input their clients’ information to this software, they were always told that those client lists were theirs to keep if they ever left the salon for a new gig.
In July of 2017, after being unhappy at this salon, Crystal decided to open her own business. Departing was not easy. On the day she quit, a situation arose between the owner and another stylist that ended with the police being called to the salon. This was the proverbial straw that broke the camel’s back and solidified Crystal’s decision to leave for good.
At the end of the day, she packed up her things and went home. She got on her computer, logged into her account on the salon’s software program, clicked on her name, retrieved her client list, and deleted it from the system. Her friend (the other stylist mentioned above) asked that Crystal retrieve her list as well since she had been locked out of the system. Crystal complied.
Two weeks later, Crystal discovered there was a warrant for her arrest for the charge of computer tampering. In Alabama, computer tampering occurs when “A person who acts without authority or who exceeds authorization of use…by knowingly (1) altering, damaging, deleting, or destroying computer programs or data.” It becomes a felony when the actor acts outside the scope of his/ her employment and “if the actor’s intent is to commit an unlawful act or obtain a benefit, or defraud or harm another.” §13A-8-112(a)(2) and (b)(1-2), Ala. Code, 1975. The State argued that Crystal was an employee of the salon who wrongfully deleted the client list in order to receive a benefit (e.g. open her own business).
At trial, the State brought three witnesses to testify against Crystal. First, the salon owner testified about the chaos that ensued after discovering Crystal had quit unexpectedly and deleted her clients from the system. She explained that Crystal was an employee of hers and that Crystal did not have permission to delete the list. The State also introduced the testimony of another hairstylist who corroborated the owner’s testimony as well as the testimony of Crystal’s husband who pled the 5th when I asked him what the current state of their marriage was (spoiler: they are going through a divorce). This got a chuckle from the jury. Crystal then testified on her own behalf along with a former colleague, and both of them explained they were independent contractors who were assured from day one that their clients would remain theirs should they ever decide to leave the salon.
Fortunately for her, the jury used their common sense and acquitted Crystal on both the felony and the underlying misdemeanor offenses. While we delight in the outcome of this case, we are concerned about the liberal application of this statute to a woman seeking to start her own business! Surely this is not what the legislators intended when drafting this law. Crystal was an independent contractor (she filed 1099s each year) in an industry where the common practice is to notify existing customers of their stylists’ new location.
The debate in this case centered around whether Crystal exceeded the scope of her employment when she deleted the list. One of the side effects of retrieving her client list was getting information from customers who may have “belonged” to someone else, but for whom my client may have performed a service at one time. There was conflicting testimony about whether a customer was actually deleted from the entire system when she deleted her list, but my client stated that this was certainly not her intent. Ultimately, the salon was able to recover the names of every single one of those deleted contacts.
So where is the computer tampering? She didn’t hack into any system, install malware, or commit any data breach. But according to the State, Crystal exceeded the scope of her duties when she deleted client information.
All of this was tried before a jury, who weighed the evidence and held the State to its burden of proof, finding Crystal not guilty of both the felony and lesser included misdemeanor offenses. But the question that seemed to permeate the courtroom throughout the trial was: why are we trying this case? Is this really a criminal matter? I say that’s a hard no. In my opinion, this was a waste of taxpayer dollars to prosecute someone over something that should have been handled in civil court in the first place. Are we now prosecuting people who are trying to make a better life for themselves by improving their employment? Do hairstylists in Alabama need to be fearful about taking their clients with them when they move salons? I’ve never spent so much time in a criminal case studying breach of contract and employment law.
While my client was acquitted, others in our criminal justice system aren’t so lucky. Alabama has one of the highest incarceration rates in the country. Our prisons are overcrowded and understaffed, and this country as a whole incarcerates far too many low level offenders. While I appreciate the job security, I am appalled that we are wasting time prosecuting cases like this. I have an idea of a solution to our overcrowded prison population, and it does not involve building more prisons.
*This article is published with client permission*