By Pamela Q. Devata, Esther Slater McDonald, John Drury, and Connor M. Bateman

Seyfarth Synopsis: As part of an evolving trend of narrowly interpreting the FCRA’s “standalone” disclosure and “clear and conspicuous” disclosure requirements, the Ninth Circuit has held that users of consumer reports may violate the FCRA and ICRAA by including “extraneous” state law notices and potentially “confusing” language in background disclosure forms.

Both the Fair Credit Reporting Act (FCRA) and California’s Investigative Consumer Reporting Agencies Act (ICRAA) regulate background screening and the process employers must follow when procuring background reports on applicants. Under both statutes, before procuring a consumer report (i.e., a criminal or other background report) on an applicant, employers and other users of consumer reports must provide the applicant a “clear and conspicuous disclosure” that “a consumer report may be obtained for employment purposes” and further require that the disclosure must be “in a document that consists solely of the disclosure.”

Yesterday, the Ninth Circuit Court of Appeals held that this statutory language, whether derived from the FCRA or ICRAA, prohibits employers from including any superfluous information in the disclosure document. Thus, at least within the Ninth Circuit, employers cannot include disclosures required by other state laws in the same document that contains the disclosure required by the FCRA. The court also indicated that any language in the disclosure document that could confuse a reasonable person about his or her rights under the FCRA or ICRAA likely will violate the laws’ “clear and conspicuous” requirement.

Discussion of the Facts & Opinion

The case, Gilberg v. California Check Cashing Stores LLC, involves a putative class action filed by Desiree Gilberg, a former employee of CheckSmart Financial, LLC. Before starting work, Gilberg signed a form entitled “Disclosure Regarding Background Investigation,” which stated that CheckSmart may obtain the applicant’s background report, and that the applicant had the right to request a copy of his or her report. The form also included information regarding the applicant’s right to obtain a copy of the report under various state laws. Gilberg alleged that this disclosure violated the FCRA and ICRAA. The Ninth Circuit agreed and reversed the district court’s grant of summary judgment to CheckSmart.

First, the court held that by including other state-mandated disclosure information, CheckSmart’s disclosure form violated the FCRA’s standalone document requirement. Citing its earlier decision in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), the court reiterated that “the statute [means] what it [says]: the required disclosure must be in a document that consists ‘solely’ of the disclosure.” Id. at 496 (internal alterations omitted). Although Syed involved an employer who included a liability waiver in the same document as the disclosure, the court held that the FCRA’s use of the word “solely” prohibits “any surplusage” in the disclosure document, including any state-mandated disclosure information. The court rejected CheckSmart’s argument that the inclusion of such additional information furthers the FCRA’s disclosure purposes, noting that CheckSmart’s form included information on state laws that were inapplicable to Gilberg and referenced documents that were not part of the FCRA-mandated disclosure. The court held that such “extraneous information is as likely to confuse as it is inform . . . [and] does not further FCRA’s purpose.” In any event, the court held that the statute’s purported purpose could not overcome its plain language.

Second, the court held that the disclosure, though “conspicuous,” was not “clear.” Analyzing the clarity requirement, the court explained that a reasonable person would not understand the following language in the disclosure:

The scope of this notice and authorization is all-encompassing; however, allowing CheckSmart Financial, LLC to obtain from any outside organization all manner of consumer reports and investigative consumer reports now and, if you are hired, throughout the course of your employment to the extent permitted by law.

The court took particular issue with the use of the term “all-encompassing,” noting that CheckSmart failed to explain the meaning of that language or how it could impact an applicant’s rights. The court further noted that the second half of the sentence, after the semicolon, lacked a subject and was incomplete. Although it appears that CheckSmart intended to use a comma instead of a semicolon, the court held that the sentence, as drafted, “suggests that there may be some limits on the all-encompassing nature of the authorization, but it does not identify what those limits might be.”

The court further noted that the following language would likely confuse a reasonable reader:

New York and Maine applicants or employees only: You have the right to inspect and receive a copy of any investigative consumer report requested by CheckSmart Financial, LLC by contacting the consumer reporting agency identified above directly.

In the court’s view, this language could be construed to mean that only New York and Maine applicants have the right to inspect and receive a copy of the report rather than to mean that only New York and Maine require consumers to be notified of their rights at this stage of the application process.

The court’s reasoning appears inconsistent with the statutory text. The FCRA and ICRAA require that the disclosure that a background check will be obtained to be “clear and conspicuous,” and the first two sentences of the CheckSmart disclosure plainly disclose that a report may be obtained for employment purposes:

CheckSmart Financial, LLC may obtain information about you from a consumer reporting agency for employment purposes. Thus, you may be the subject of a ‘consumer report’ and/or an ‘investigative consumer report’ ….

Rather than considering the disclosure form as a whole, the court focused on discrete sentences without considering them in the context of the entire form. The court also did not explain how a state-law notice that a consumer has a right to obtain a copy of the report made it unclear that a report would be obtained.

Interestingly, it appears that neither the Court nor the parties addressed whether the plaintiff even had standing to sue. Unlike in Syed, Gilberg did not allege that the disclosure confused her or that she did not understand that she would be subject to a background report. Thus, the more appropriate route for the Ninth Circuit would have been to dismiss the claim under Syed, which held that a consumer has standing to sue if she was confused or did not understand that she was authorizing a background check. Instead, the court took the opportunity to hold that the disclosure form could have confused a consumer even though no one, not even the plaintiff, had made such an allegation.

Employer Outlook

This case serves as yet another reminder to employers to carefully review their background check disclosure and authorization forms and processes. Both the FCRA- and ICRAA-mandated disclosures should be set out in separate, standalone documents, entirely distinct from any other application paperwork, including even applicable disclosures mandated by other state laws. Further, although courts apply a “reasonable person” standard to assess a disclosure’s clarity, Gilberg may portend a movement toward an even more exacting standard. In light of this evolving trend, employers should make sure to use language that is impeccably clear, concise, and free from any typographical errors or wording that could confuse the least sophisticated consumer about his or her rights under the FCRA or any comparable state laws.

Pamela Q. Devata is a partner in Seyfarth’s Chicago office, John Drury is Senior Counsel in the firm’s Chicago office, Esther Slater McDonald is a partner in the Firm’s Atlanta office, and Connor M. Bateman is an Associate in the firm’s Atlanta office. If you would like further information about Fair Credit Reporting Act disclosure and authorization forms or best practices for compliance with the FCRA, please contact your Seyfarth attorney, or Pamela Devata at pdevata@seyfarth.com, Esther McDonald at emcdonald@seyfarth.com, John Drury at jdrury@seyfarth.com, or Connor Bateman at cbateman@seyfarth.com.

By Latoya R. Laing, Thomas E. Ahlering, and Erin Dougherty Foley

Seyfarth Synopsis: Following an opinion by the Illinois Supreme Court, the 9th Circuit will discuss the Illinois Biometric Privacy Act issue — whether the Act requires class plaintiffs to show that they suffered actual harm in order to seek statutory damages and injunctive relief. A California District Court certified a class of Illinois users who claim Facebook used their biometric data in a way that violated the Illinois Biometric Privacy Act. Facebook appealed the ruling arguing that the plaintiffs could not be considered “aggrieved” individuals as required by the statute.

The Case — Patel et. al. v. Facebook Inc., Case No. 18-80052, — is pending in the U. S. Court of Appeals for the Ninth Circuit. Plaintiffs allege that Facebook violated Illinois’ BIPA when it unlawfully collected and stored biometric data on Facebook users without prior notice or consent. 2018 U.S. Dist. LEXIS 30727, *4.

Facebook filed a motion to dismiss the class action, asserting that plaintiffs lacked standing under Article III. Facebook argued that the collection of biometric information without notice or consent did not result in “real-world harms.”

The District Court denied Facebook’s motion, noting that BIPA’s plain language supported a finding of standing. The court pointed to the subsections of the BIPA in so much that it “vested in Illinois residents the right to control their biometric information by requiring notice before collection and giving residents the power to say no by withholding consent.” Since the plaintiffs in this case were never offered the opportunity to withhold consent, the court rejected Facebook’s argument and found standing satisfied under the allegations. The District Court went on to certify the plaintiffs as a class; Facebook appealed the certification to the 9th circuit. The Court will issue an opinion on the appeal in the coming months.

In 2017 we blogged about an Illinois Appellate Court ruling which held that a Plaintiff must allege an actual injury to be “aggrieved” under the Act in order to seek statutory damages and injunctive relief. In that decision, the Court noted that “if the Illinois legislature intended to allow for a private cause of action for every technical violation of the Act, it could have omitted the word ‘aggrieved’ and stated that every violation was actionable.” Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, *4.

The decision represented a win for employers because class action suits brought under the BIPA frequently consist of cookie cutter complaints merely alleging technical violations of the BIPA (i.e., failure to obtain written consent, failure to maintain a “publicly available” biometric privacy plan, and failure to provide notice of biometric retention and destruction policies) and not an actual injury (i.e., identity theft). Plaintiffs in Rosenbach filed an appeal to the Illinois Supreme Court; Oral arguments were heard on November 20, 2018.

On September 28, 2018, the Illinois Appellate Court in the First District held that a statutory violation alone was sufficient to establish standing in BIPA claims. In Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, the Court held that “the Act does not require actual harm in addition to a violation of the Act to file suit” pursuant to “both the plain language of the statute itself and its legislative history and purpose.” In Sekura, the Plaintiff purchased a membership with L.A. Tan, which required her to scan her fingerprint.

In her complaint, the Plaintiff noted that L.A. Tan (1) never informed her of the specific purpose or length of time for which her information was stored, (2) that she was never informed of any biometric data retention policy, (3) she never signed, nor was she provided with a written release allowing L.A. Tan to collect or store her fingerprints, and (4) she never signed a release allowing L.A. Tan to disclose her biometric data with any third party.

The Court found this sufficient to satisfy the “aggrieved” person standard as required by the Act, reversing the Trial Court’s decision. Defendant Schaumburg Tan, Inc., appealed the Appellate Court’s Decision, an opinion on the case is pending.

On January 25, 2019, the Illinois Supreme Court issued a decision which reversed the Illinois Appellate Court decision in Rosenbach. The Supreme Court focused its analysis on the basic principles of statutory construction and the Illinois legislature’s intent when drafting the Act.

A person may be “aggrieved” when “a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree or judgment.” The term “aggrieved” has been defined this way by Illinois courts long before the creation of the BIPA. The Court noted the Illinois legislature must have been “aware of that precedent and acted accordingly” when drafting the BIPA. Section 15 of the BIPA imposes a duty upon private entities with regard to the collection, retention, disclosure, and destruction of a person’s or customer’s biometric identifiers. Because section 20 of the BIPA authorizes a private right of action, — and offers no other enforcement mechanism — the Court provides that “it is clear the legislature intended for this provision to have substantial force.”

Ultimately, the Court held that “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an ‘aggrieved’ person.”

Class action lawsuits alleging violations of BIPA have increased tremendously over the last few years. Following the Supreme Court’s decision, it is likely that the number of BIPA cases filed will continue to increase. Therefore, employers should remain vigilant and ensure that they are in compliance with the BIPA’s requirements.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

 

By Raymond C. Baldwin and Christine Mary Costantino

Seyfarth Synopsis: The Fourth Circuit recently found that reducing a current employee’s voluntary overtime opportunities – despite the absence of a reduction in overall income – could be considered a tangible or materially adverse employment action sufficient to support a claim for retaliation and potentially foreclose an employer’s ability to rely on the Fargher/Ellerth defense to defeat hostile work environment claims based on sexual harassment. The Fourth Circuit stopped short of deciding whether every such reduction could be considered a tangible or materially adverse employment action, suggesting that was a determination to be made by the jury. But the Court’s analysis in this decision provides important reminders for employers as they address internal complaints of harassment. Tamika Ray v. International Paper Company, Case. No. 17-2241 (4th Cir. Nov. 28, 2018).

Procedural History

A current employee of International Paper Company (IPC) filed a lawsuit in the United States District Court of the District of South Carolina, asserting claims of sexual harassment and retaliation. Specifically, the plaintiff claimed that she had been subjected to a hostile work environment based on sexual comments and requests for sex by her supervisor for almost a decade, and that when she reported the behavior, she was denied the opportunity to work certain overtime hours. The District Court granted summary judgment in favor of IPC on both claims, and Plaintiff appealed the judgment on both counts.

Factual Background

Tamika Ray began working for IPC in 2002. She had the same supervisor, Johnnie McDowell, from the time of hire until 2013 when she transferred to a different department. However, she continued to report to McDowell when her new supervisor was not present.

Ray claimed that, starting in 2003, McDowell engaged in inappropriate conduct, including making overt sexual comments to Ray, asking Ray to engage in sexual activity with him and offering to pay her for sexual acts. Ray contends that McDowell continued this conduct despite her repeated requests that he stop.

Ray did not report this alleged conduct to anyone at IPC until 2013 – ten years after it allegedly began. At that time, she told her new supervisor and one other supervisor that McDowell would not leave her alone and was “ragging” her because she refused to have sex with him. IPC’s anti-harassment policy requires that a supervisor who is notified of potential harassment or discrimination report it to his manager, a human resources representative, or to IPC’s legal department. Both supervisors to whom Ray reported the alleged harassment offered to “say something” about Ray’s allegations. However, Ray, indicating she feared retaliation, asked the supervisors not to take action and consequently neither of the supervisors formally reported her complaint under that policy. Despite declining this offer to intervene, Ray allegedly continued to reach out to her new supervisor regarding McDowell’s conduct.

In early 2014, McDowell confronted Ray, asking whether she had reported him for sexual harassment. McDowell told Ray that such a report could get him in a lot of trouble and she denied making any such report.

In the Spring of 2014, McDowell told Ray that she was no longer permitted to perform “voluntary” overtime work before her shift began.   Previously, Ray had often arrived four hours before her shift to work overtime and the compensation from this overtime work represented a significant portion of her income. Ray was still permitted to work post-shift mandatory overtime hours, but she alleged that other employees in the same position were still allowed to work pre-shift voluntary overtime after McDowell instructed Ray not to do so.

In late September 2014, Ray finally reported McDowell’s alleged sexual harassment to IPC’s human resources department. She reported that he repeatedly propositioned her to have sex and identified witnesses who could corroborate her allegations. IPC conducted an investigation of the complaint, including interviewing those witnesses identified by Ray. Although McDowell denied the allegations of harassment, the Fourth Circuit indicated that the investigator concluded that McDowell’s denial was not credible. Nonetheless, there was no eyewitness to corroborate Ray’s allegations and IPC did not discipline McDowell. IPC did instruct McDowell to refrain from further communication with Ray.

In her deposition Ray admitted that the sexual harassment stopped after the September 2014 investigation, but also claimed that McDowell would still stare at her at times and “sabotaged” her work. She reported these complaints to the human resources department in November 2014 and June 2015, and they were investigated. Again, McDowell was not disciplined but only instructed to stop adjusting the production line on which Ray worked in an effort to interfere with her ability to get her job done. Ray, still employed by IPC, filed her lawsuit in November 2015.

The Decision

The Fourth Circuit vacated summary judgment in favor of IPC on both counts, finding that there were material disputes of fact on those issues that were dispositive of the District Court’s decision. Although decided under different legal constructs for each claim, the Fourth Circuit’s opinion generally looked at whether a reasonable jury could decide that reduction in certain overtime hours could be considered a tangible or materially adverse employment action, and whether there was a causal nexus between the harassment and/or protected activity and McDowell’s decision to eliminate portions of Ray’s overtime hours.

In vacating summary judgment in favor of IPC on the sexual harassment claim, the Fourth Circuit found that a jury could find that McDowell’s eliminating the opportunity for certain, even if not all, overtime work and the resulting loss of income was a tangible employment action – i.e., represented a significant change in Ray’s benefits. Therefore, the employer could be held strictly liable by a jury and could not rely on the Faragher-Ellerth defense to obtain summary judgment. The Fourth Circuit also found that, because McDowell offered Ray money for sex, including on one occasion following his elimination of these overtime hours, it was “impossible to separate McDowell’s motive for eliminating Ray’s voluntary overtime work from McDowell’s inappropriate conduct,” requiring the jury to determine whether there was a nexus between the overtime reduction and the sexual harassment.

Moving to the retaliation claim, the Fourth Circuit again emphasized that a loss of voluntary overtime hours, notwithstanding an increase in Ray’s overall overtime compensation for the year, could constitute a materially adverse action because there was evidence that voluntary overtime compensation constituted a significant piece of Ray’s earnings before McDowell’s decision. And although the Fourth Circuit acknowledged that Ray could not establish a precise timeline between her internal complaints and the alleged adverse action, her testimony that she had complained multiple times was sufficient to create a material dispute of fact with respect to the prima facie case.

The Fourth Circuit’s decision remanding the case for further proceedings leaves open the ultimate question of whether the reduction in overtime hours in these circumstances will be deemed materially adverse and related to the alleged sexual harassment and/or protected activity. Nonetheless, the Court’s analysis offers employer’s insight on navigating internal complaints, investigations and employment decisions.

Employer Takeaways

Although the ultimate holding was based on alternative legal arguments, the facts underlying this unfavorable decision for employers, and the EEOC’s arguments around those facts in its amicus brief in support of plaintiff, highlight the importance of ensuring compliance with internal harassment reporting policies and the execution of internal investigation procedures. Specifically, managers, supervisors and human resources personnel should understand that reporting harassment is mandatory. A failure to properly pursue complaints, even where an employee specifically indicates that he or she would prefer it not reported, opens the door to significant liability for the employer.

Additionally, the decision highlights the importance of a thorough investigation of the circumstances surrounding a harassment complaint. The record in this case does not make clear why the elimination of voluntary overtime hours was not addressed as part of the formal internal investigation. But, it should serve as a warning for employers to take a broad and close look at a complainant’s working conditions as part of an investigation because, as this case demonstrates, the preventative measures put in place by an employer and its investigation and remediation efforts will not be a defense if the alleged harasser has negatively impacted the employee’s working conditions in a manner unknown to the employer.

And finally, employers and managers should understand that an employee doesn’t have to be terminated, demoted or suffer an overall loss in pay or benefits to sustain a claim. Thus, even seemingly small adjustment to an employee’s working conditions can be construed as “tangible” and “materially adverse,” creating the potential for broader liability for employers and thus should be made only after careful consideration and, if necessary, consultation with counsel.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

 

 

 

 

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.

On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers.  However, there are some pro-defense nuances that are worth pointing out.

By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”  The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.)  The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.”  The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA.  The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.

From the defense perspective, there are several useful points in the decision.

First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website.  The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line.  However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.

Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”

Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.”  Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.

In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets.  That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

 

By Nila Merola and Cameron A. Smith

Seyfarth Synopsis: Both houses of the New York State Legislature passed the Gender Expression Non-Discrimination Act, which prohibits discrimination on the basis of gender identity or expression and adds offenses motivated by gender identity or expression to the hate crimes statute.

On January 15, 2019, both the New York State Senate and Assembly passed the Gender Expression Non-Discrimination Act (“GENDA” or the “Act”). Governor Cuomo is expected to sign the Act into law. GENDA’s effective date will be thirty days after Governor Cuomo signs the Act into law (except for the provisions amending the Penal Law and Criminal Procedure Law, which will not be effective until November 1, 2019).

GENDA adds Subdivision 35 to Section 292 to the Executive Law, which defines “gender identity or expression” to mean “a person’s actual or perceived identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The Act also amends the State Executive Law, Civil Rights Law, and Education Law to prohibit discrimination in employment, housing, education, and public accommodations, among others, based on gender identity or expression. GENDA also amends the State penal law and criminal procedure law to include certain offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.

Since 2008, GENDA has passed the Assembly 10 times, but has consistently failed in the Senate. In 2016, the New York State Division of Human Rights adopted new regulations that ban discrimination and harassment on the basis of gender identity, gender dysphoria, and transgender status, but GENDA now writes those regulations into law. With GENDA’s passage, New York State joins at least nineteen other states, the District of Columbia, and 157 cities and counties in the United States, including New York City, that have already passed gender-inclusive legislation.

This is a good time for all employers to review their existing anti-harassment and anti-discrimination policies to ensure that they comply with both the New York City Human Rights Law and GENDA. Employers should also ensure that they incorporate gender identity, gender expression, and the status of being transgender into their anti-harassment and anti-discrimination trainings, and clarify that discrimination or harassment on those bases is unlawful.

The attorneys at Seyfarth Shaw LLP are available to provide any assistance with ensuring that you have robust anti-harassment and anti-discrimination policies in place. We can also provide interactive anti-harassment training tailored to your company’s specific business and needs.

By Daniel B. Klein and Christopher W. Kelleher

Seyfarth Synopsis: While we await the proposed regulations due by March 31, 2019, the new Department of Family and Medical Leave has provided several points of clarification of which employers should be aware, as we gear up for implementation of the Massachusetts Paid Family and Medical Leave (PFML) Law.

As we previously reported, last summer, the Massachusetts Legislature passed the “Grand Bargain” bill, which will gradually raise the minimum wage, will phase out the time-and-a-half premium pay requirement for retail workers on Sundays and holidays, and will provide paid family and medical leave to Massachusetts workers. The Department of Family and Medical Leave is required to publish proposed regulations for public comment by March 31, 2019.

In the meantime, however, the Department has posted FAQs online that provide some points of clarification on the new PFML Law, and employers should take note of a few key highlights:

  • We already knew that beginning July 1, 2019, all Massachusetts employers will be required to contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee’s wages. The Department has now clarified that the contribution will be limited to 0.63% on the first $128,400 of an individual’s annual earnings (note that this figure may be adjusted annually);
  • In addition, while inconsistent drafting in the PFML Law caused some debate regarding the start date for employees being able to claim leave benefits, the Department has clarified the starting dates as follows:
    • On January 1, 2021, employees can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee’s own serious health condition; and
    • On July 1, 2021, employees can begin claiming benefits to care for a family member with a serious health condition.

The recent updates including the Department’s FAQs can be found here for employers and here for employees, and it should be noted that the State may continue to tinker with the FAQs leading up to the March 31 deadline for proposed regulations. We will continue to provide updates as to any significant events that occur with respect to the PFML Law.

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”. Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..” The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.” The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Rhandi Childress Anderson and Erin Dougherty Foley

Seyfarth Synopsis: Sixth Circuit Court of Appeals clarifies that employers have discretion to provide a reasonable accommodation as identified through the interactive process. Once an employee abandons the interactive process, the employer has no duty to accommodate.

Under the Americans with Disabilities Act (ADA), the purpose of the interactive process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Employers may erroneously believe that the interactive process as a tool is something utilized by and beneficial to employees. However, the Sixth Circuit has recently shed light on just how the interactive process protects employers from having to make on-the-spot accommodations of an employee’s choosing.

In Brumley v. United Parcel Service, Inc., the Plaintiff Melissa Brumley, who worked primarily as a sorter, injured her back while unloading heavy packages from a UPS truck. After receiving worker’s compensation and taking a leave of absence, she initially returned to work with two return-to-work notes that included permanent lifting restrictions and a statement that Brumley may return to “local sort.” Even though it was unclear exactly how Brumley requested an accommodation, upon receipt of Brumley’s return-to-work notes UPS initiated an internal ADA interactive process, and pursuant to that process, asked Brumley to submit two medical forms that would allow it to evaluate further her restrictions and identify possible accommodations. Brumley remained on leave as a result of this request.

Thereafter, and after nearly a month delay in providing UPS with the requested medical documents, Brumley met with UPS’s Human Resource Manager. At that meeting, UPS indicated that they were reviewing Brumley’s restrictions and considering positions she could fill. However, Brumley disclosed at that meeting that she desired to voluntarily discontinue the interactive process and return to her doctor to have her work restrictions lifted. Because Brumley’s lifting restrictions were ultimately removed by her doctor, she ultimately returned to work without accommodations. After Brumley’s restrictions were lifted, UPS closed the interactive process and Brumley returned to work.

Nevertheless, several months later, Brumley sued UPS for failure to accommodate and disability discrimination, among other claims — in other words for keeping her off work during the time that they were evaluating her “return to local sort” restrictions from her doctor. The district court granted summary judgment in UPS’s favor on all claims and Brumley appealed. On appeal, Brumley argued, among other things, that UPS should have allowed her to work in local sort when she returned to work because her doctor’s note stated that she was able to do that work.

The Sixth Circuit affirmed the district court’s decision and found that an employer’s refusal to provide an accommodation to the position of the employee’s choice immediately upon the employee’s request is not, in and of itself, a failure to accommodate under the ADA. UPS had discretion to provide a reasonable accommodation as identified through the interactive process. Once Brumley voluntarily abandoned that process, UPS could not be liable for failing to provide a reasonable accommodation.

Takeaways for Employers

With ADA claims on the rise, employers should remember the importance of a formal (and documented) interactive process to identify a reasonable accommodation that works for the company, even if that process takes time. Employers can view the interactive process as both a shield and a sword for defending itself against claims of failure to accommodate. The duty to engage in the interactive process applies equally to both employers and employees. If the employee opts-out of the interactive process, the employer is under no duty to proceed with an accommodation. This decision is an important reminder that the interactive process under the ADA is not just a requirement for employers to engage in good faith—it also demands the same from employees before they can claim a failure to accommodate.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees’ requests for accommodations, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations Team.

By Samantha L. Brooks and Karla Grossenbacher

Seyfarth Synopsis: Employees’ use of their personal social media accounts in ways that could impact an employer’s business present challenges to employers.

In this case, a Maryland state government employee claimed that she was retaliated against for a Facebook post where she referred to a Maryland gubernatorial candidate as an “a**clown.” In granting a preliminary injunction and reinstating an employee’s job duties, the U.S. District Court for the District of Maryland held that reassignment of the employee’s duties three days after the Facebook post was retaliation for protected speech, particularly where the employer could not demonstrate how the post harmed the employer. Thomson v. Belton, No. ELH-18-3116, 2018 WL 6173443 (D. Md. Nov. 26, 2018).

The plaintiff served as the public information officer for the Natural Resources Police (NRP), a subdivision of the Maryland Department of Natural Resources (DNR). She was a public employee and not a political appointee. As the public information officer, plaintiff acted as a spokesperson for the DNR, responded to media inquiries, administered the NRP’s social media accounts, and issued press releases, among other duties.

On September 17, 2018, while in her home, using her own electronic device and her own Facebook account, she responded to a Facebook post of a colleague by referring to Maryland gubernatorial candidate Ben Jealous as an “a**clown.” Plaintiff’s comment was prompted by Mr. Jealous’ decision to veto a reporter’s participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. The following day, plaintiff’s supervisor asked her whether she had posted “*a**clown” on Facebook. She acknowledged that she had, offered to delete the post, and immediately did so of her own volition. Of note, plaintiff’s Facebook post did not violate the DNR’s social medial policy. Less than one week after the post, plaintiff was stripped of the majority of her media-related duties and they were reassigned, although she was permitted to draft press releases. Neither her title nor salary were changed.

On October 9, 2018, plaintiff filed suit against Mark Belton, Secretary of the DNR, in his individual and official capacity alleging violations of plaintiff’s rights under the First and Fourteenth Amendments. She also filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction which, upon agreement by the parties, was treated as a Motion for Preliminary Injunction.

The defendant argued that plaintiff was demoted because of protracted performance issues, and not because of the Facebook post. Specifically, the defendant highlighted three instances where plaintiff had failed to communicate the happening of newsworthy events, including the discovery of a chest containing human bones at a beach in Ocean City, Maryland, the drowning death of a child, and a news article that reported a motor vehicle accident involving an NRP officer which resulted in the death of a family pet.

Since plaintiff was a public employee, the Court considered plaintiff’s claim under the Connick/Pickering standard, i.e. (1) whether there was an adverse action, (2) whether the employee was speaking as a citizen on a matter of public concern, (3) whether the employee’s interest in speaking on the matter of public concern outweighed the government’s interest in managing the workplace, (4) and whether the employee’s speech was a substantial factor in the adverse action. Thomson, 2018 WL 6173443 at *15. See Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

Adverse Action

The Court found that the plaintiff was subject to an adverse action. Prior to the reassignment of her media-related duties, plaintiff’s most important and most significant duties involved direct contact with the media. After reassignment, she was prohibited from such direct contact. The Court found that her new role — without the media duties — was less prestigious and less interesting. Id. at 21. The Court also noted plaintiff’s reassignment was neither trivial nor de minimus solely because plaintiff’s pay and some responsibilities remained unchanged.

Matter of Public Concern

The Court noted that plaintiff’s comment pertained to a matter of public concern. The Court further noted that discussion about political candidates — including plaintiff’s one word Facebook comment — fell within the realm of First Amended protected speech. The Court held that plaintiff’s comment was “in response to the posts of others on the issue of the candidate’s decision to veto a reporter from serving on the panel for a key election debate. This suggests that she was participating in an online public discussion . . . .” Id. at *22. Finally, the Court noted that plaintiff was speaking as a private citizen and not in the course of her official duties.

Employer’s Interest in Managing the Workplace

Defendant did not provide any evidence that plaintiff’s speech harmed NRP or DNR operations. The only harm the defendant could identify was that calling a political candidate a derogatory name and using inappropriate language was contrary to goals of the NRP. The Court held, however, that “inappropriate language unrelated to the employee’s employment, and spoken outside the workplace, does not intrinsically harm the employer’s interests.” Id. at 27.

Speech was a Substantial Factor in Adverse Action

The Court held that the reassignment of plaintiff’s duties was in retaliation for her Facebook post. The temporal proximity of plaintiff’s job assignment, just three days after Facebook post, clearly demonstrated that plaintiff’s protected speech was a substantial factor in the reassignment of her duties. Id. at 24. Of note, the Court noted that the record did not corroborate defendant’s claims that plaintiff had performance issues.

The court ultimately held that plaintiff was entitled to a preliminary injunction requiring the immediate reinstatement of plaintiff’s job duties.

Private Employer Takeaways

Have a social media policy! Employees who work for private, non-governmental employers do not generally have First Amendment protection for their speech in the workplace. Before taking any action based on an employee’s speech on social media, employers should first consult their social media policies to determine whether there has been a violation of the policy. Employers should also determine if the employee has some other interest at issue, such as speech that could implicate the protections of Title VII, speech that could violate the employer’s EEO or anti-harassment policy, or speech that implicates an employee’s rights under various union regulations, before taking any action.

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.