[HCoop-Misc] Ragingwire Telecommunications

[Steve Taylor]

Nathan Kennedy <ntk at hcoop.net> writes:

> To all HCooperators,
> Every now and then I bring up current issues relating to the cooperative
> and internet hosting sectors.  I hope I do not bore you too much, but I
> would like to tell you about an important development yesterday regarding
> RagingWire, a company that operates a 200,000 square foot
> datacenter/colocation facility in the Sacramento, California area.  I seem
> to recall its name being mentioned when we were searching for colos,
> although it did not make it into the final list of candidates.
>
> In any event, I'll need to provide a bit of a background introductory
> civics lesson for those international members or others who may not be
> familiar with the intricacies of US law--feel free to skip the next three
> paragraphs.  The USA is a federal system, with the federal government of
> the United States of America as an overlapping umbrella over the
> independent government structures of the fifty states.  Most crimes are a
> matter of state law, but there are federal crimes also.  In particular,
> various drugs are separately illegal under both state and federal law;
> possession of marijuana is illegal under the United States Code and under
> the criminal statutes of every state.  You can be prosecuted for
> possessing marijuana by the federal government anywhere, and by the state
> where you happen to live.  The vast majority of enforcement other than
> major trafficking is done by state and local police prosecuted under state
> law in state courts.
>
> Now, some years ago California voters used a ballot initiative to pass a
> law there allowing doctors to prescribe medical marijuana as treatment for
> genuine illnesses without retaliation, and giving patients and caregivers
> a defense to prosecution under state law for possession of marijuana if
> they have a valid doctor's prescription.  Since then several other states
> have passed similar laws.
>
> The federal government has taken a position that marijuana is still
> illegal for patients in these states under federal law, and has continued
> to enforce these laws by busting up medical grow operations and
> prosecuting patients in federal court.  Since the federal government
> doesn't have the resources to prosecute much local crime, the vast
> majority of patients prescribed cannabis in California are unmolested by
> the authorities, but there have been a few high-profile cases.  For
> instance, Peter McWilliams, who wrote a lot of groundbreaking, very funny
> and popular books on personal computing back in the 70s and 80s (I have
> several).  He pretty much invented the idea of a humorous computer manuals
> for the end-user long before the concept of "For Dummies" came along (and
> they were much better written).  He also was terminally ill with AIDS back
> when the antivirals weren't so great.  He smoked pot with a doctor's
> prescription to counter the nausea from the drugs, was prosecuted by the
> federal government even though it was legal under state law, and died in a
> jail cell choking on his own vomit.
>
> Anyway, civics lesson over.  Fast-forward to 1999.  Gary Ross lives in
> California.  He hurt his back in the Air Force and receives partial
> disability pay, suffering from chronic pain.  After trying several drugs
> his doctor recommends that he try cannabis, which he does.  In 2001 he is
> offered a job by RagingWire, which he accepts.  Shortly afterwards, he is
> required to give a urine sample and tests positive for THC.  He shows the
> board that he has a legal prescription for his disability; the board
> thinks about it, then fires him for using pot.
>
> In turn, Ross sued RagingWire for wrongful termination based on disability
> discrimination.  RagingWire hires the best labor law firm in the country,
> and spent the last seven years on litigation and appeals--in all
> likelihood, spending much more on the litigation than whatever Ross's
> salary would be.  Yesterday, the Supreme Court of California handed down
> their decision, which is reported at
> http://www.courtinfo.ca.gov/opinions/documents/S138130.PDF
>
> The court found in favor of RagingWire.  That isn't really what disturbs
> me--it's reasoning on the law is sensible enough--so much as the way
> RagingWire has behaved in this matter.  Medical marijuana is not a big
> issue on my radar.  I'm not a fan of the weed and I'm glad I don't have a
> physical condition where I was in the dilemma of having to choose between
> that and other options that don't work as well.  What bothers me is this
> kind of treatment of an employee by a internet company and the message and
> precedent set by this action.
>
> So anyway, I have written up a little open letter that I would like to
> send to RagingWire.  Although I talk about my role at HCoop I make it
> clear that it is my own opinion only, however if anyone else would like to
> add their name to it please send me an email.  Or reply to this list if
> you have any feedback about this letter before I send it.  It would be
> good if companies like RagingWire understand that even if they win in
> court, these kinds of antisocial actions have economic consequences.
>
> -ntk
>
> Note, obviously this is "published" now since this list is open, but
> consider the following a draft until I submit it to RagingWire.
>
> Letter:
>
> To the Directors and Officers of RagingWire Telecommunications, Inc.,
>
> I am a founding member, director, and officer of HCoop, Inc., an internet
> hosting cooperative that provides flexible managed hosting solutions to
> its member-owners at cost.  In that capacity, I participate in all major
> purchasing and business decisions.  Of course, our most important outside
> relationship is with our colocation providers who provide us with our
> physical plant, power, network connections, and bandwidth.
>
> So the news of _Ross v. RagingWire_ is of enormous interest to me.  In
> searching out business partners, the usual metrics of price, terms,
> service, rates, power, bandwidth, peering, latency and associated
> guarantees are the starting point.  But given the complexity of a
> colocation investment and the breadth of the market, in the end it is
> intangibles that seal the deal.  Besides my duties at HCoop, I am also a
> law student.  Having read the Califorinia Supreme Court's opinion on _Ross
> v. RagingWire_, I can tell you that there is such a thing as being right
> on the law, winning in the courtroom, and still being wrong in your
> position.
>
> You were ably represented by Jackson Lewis, one of the finest employment
> law firms in the nation.  The case was thoroughly briefed, and the court's
> exposition and application of the law was sound.  But at the end of the
> day, what happened is that you interviewed and hired a disabled air force
> veteran on the merits, and then threw him out on his butt because he was
> taking prescribed medicine speciifically authorized by state law.  And
> then, for good measure, you litigated it up all the way to the Supreme
> Court to make sure that anyone in Mr. Ross's position doesn't have a leg
> to stand on.
>
> This is of course your right, but that doesn't make it right.  What you
> did to Mr. Ross alone would be enough nearly enough to eliminate
> RagingWire from consideration outright on ethical grounds alone.  But it
> goes beyond that.  RagingWire argued that it was merely complying with
> state and federal Drug Free Workplace Acts.  This is completely illusory.
> As the dissent in _Ross_ points out, neither act applies to drug usage
> outside the workplace--additionally, neither requires either
> drug-screening or mandatory termination policies, and RagingWire has
> provided not a single example of a contractor losing a government bid due
> to an employee in Mr. Ross's position.
>
> This points to the obvious conclusion.  If this is how you treat your own
> employees, how will you treat your clients; in particular, how will it
> respond to onerous, overbearing, or unlawful government conduct?  You are
> willing to sue your disabled employee all the way up the Supreme Court to
> fire him for taking his meds because you are supposedly afraid that there
> is some chance it might lose a government contract that it might otherwise
> get--without so much as a prod from the government to do so.  How could I
> as a customer trust that you would not cave in to the most unreasonable
> and unlawful government demands to the detriment of my company and my
> clients, or, as you did with Mr. Ross, preempt government, act as your own
> investigative and judicial force?
>
> The costs of litigating this case were clearly much greater than any risk
> of lost future opportunities.  Moreover, I and others consider the values
> and employee morale of all prospective providers, because it is the right
> thing to do and because these companies are the most healthy and provide
> the best service.  I would never partner with a company that is bleeding
> revenue on these kinds of purely voluntary crusades, and until such time
> as RagingWire disavows this case and takes remedial action, I will always
> have to advise my colleagues and associates to do the same.
>
> This opinion is solely my own and does not represent the view of HCoop, Inc.
>
> Sincerely,
> Nathan Kennedy
>
>
> _______________________________________________
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> HCoop-Misc at lists.hcoop.net
> https://lists.hcoop.net/listinfo/hcoop-misc


[This is an attempt to shorten the RagingWire letter. If it's useful, use it.
The last three paragraphs are unchanged -- because I was running low
on "re-writer's inspiration" of other ways to say it.

In part I've tried to improve the impact; I lack the perspective of
companies or employees facing similar issues.

Typo in original: specifically has an extra "i"

Remember to adjust, in the body of the letter, your credentials as
writer (ntk writes as law student and HCoop officer).

suggested Subject: Loss of Business, Respect, Referrals After Ross v.
RagingWire Victory]


To RagingWire,

Would RagingWire rely on a company known for its inhumane
treatment of employees? On a company whose profits went into
litigation against its employees? Probably not, until the company had restored
"humane treatment of employees" to its reputation.

I cannot rely on such a company. I am a founding member, director, and
officer of HCoop, Inc., an internet hosting cooperative that relies on
colocation providers for physical plant, power, network
connections, and bandwidth.

Nor can I ignore inhumane actions in choosing business partners. The
usual metrics of price, peering, terms, and so on are initially
considered. But intangigles like "how do they treat their employess"
become the deciding factor.

Nor can my conclusions as a law student make such a company reliable.
Having read the court's opinion in _Ross v. RagingWire_, you may have
been right on the law and won in the courtroom, but you were still
wrong in your actions: you hired, then fired a disabled air force
veteran because of the medicine he was taking -- prescribed
medication specifically authorized by state law.

Nor can expensive litigious habits make a potential business partner.
You litigated _Ross v. RagingWire_ to the Supreme Court; no one in Mr.
Ross's position would have a leg to stand on. But the costs of
litigating this case were clearly much greater than any risk of lost
future opportunities.

Nor does your treatment of your own employees bode well for clients.
How could I as a customer trust that you would not cave in to the most
unreasonable and unlawful government demands to the detriment of my company
and my clients, or, as you did with Mr. Ross, preempt government, act as
your own investigative and judicial force?

Moreover, I and others consider the values and employee morale of all
prospective providers, because it is the right thing to do and because
these companies are the most healthy and provide the best service.

I would never partner with a company that is bleeding revenue on these
kinds of purely voluntary crusades, and until such time as RagingWire
disavows this case and takes remedial action, I will always have to
advise my colleagues to do the same.

This opinion is solely my own and does not represent the view of HCoop, Inc.

Sincerely,
Nathan Kennedy

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end of letter 

Steve Taylor
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