By Christopher Truxler & Nicole Baarts

Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.

“If I had a gun with two bullets and I was in a room with Hitler, Bin Laden, and Toby, I would shoot Toby twice.”

Popular culture is rife with amusing expressions of office tension that can provide healthy relief to real world frustration. But as comical as some might find the antics of The Office’s Michael Scott, no one wants to witness these sort of threats in person. Although California law arms employers with strict laws to prevent workplace violence, to best protect the workplace, employers should proactively manage the possibility of violence rather than waiting for a threat to appear.

California Civil Procedure Code section 527. 8 defines workplace violence as assault, battery, or stalking, and permits employers to obtain a restraining order against “any individual” who makes a credible threat of violence that can reasonably be construed to be carried out at the workplace. It also empowers employers to obtain a court order requiring those who threaten violence to temporarily turn their weapons over to the police or sell or store their weapons with a licensed gun dealer. And if a restrained person violates the court’s temporary order, the District Attorney may press criminal charges.

But let’s face it: no one wants to get to this point. Luckily, there are several things employers can do to manage workplace violence before everyday frustrations snowball into a credible threat of violence.

“At least we care enough about our employees that we are willing to fight for them.”

First, implement a companywide workplace violence policy. According to the Bureau of Labor Statistics, over 70 percent of U.S. workplaces lack a formal policy that addresses workplace violence. Without guidance from employers on how to address troublesome coworkers, employees may unwittingly escalate the threat of violence by responding on their own. The company should maintain an environment that minimizes isolation and resentment and that fosters open communication.

Second, be on the lookout for early warning signs and encourage employees to report threats or symptoms of violence. These signs may include a recent life- or mind-threatening illness, expressions of paranoia or persecution, and the deterioration of workplace friendships. Most of all, listen to your employees. If they bring a threat posted on social media to your attention, ask Human Resources to investigate. And be sure to address and document problematic behavior as it occurs.

Third, if a credible threat is made, immediately alert security or the police, collect all relevant evidence, and seek legal advice to assist with an appropriate response, which may include petitioning the court for a temporary restraining order. At the same time, ask Human Resources to investigate (if HR has not already done so) and consider retaining an outside firm to conduct an independent threat assessment. Typically, this process involves an independent investigation into the suspect as well as a workplace inspection to identify points of vulnerability, such as unmonitored entrances into the workplace. An independent threat assessment may reveal that the suspect does not pose a credible threat. On the other hand, the assessment may reveal that serving the suspect with court papers may increase the risk of violence. Conducting a thorough threat assessment should allow the employer to put in security measures by the time any temporary restraining order is served.

Fourth, remember that workplace violence restraining orders can also protect more than the workplace and extend to threatened employees’ homes, family members, cars, and even their children’s school.

Workplace Solutions: Protective orders provide an invaluable defense to credible threats of workplace violence; but employers should proactively manage the specter of workplace violence before it occurs rather than waiting for a legitimate threat to emerge. Many incidents of workplace violence are preventable (or at least controllable) through the implementation of company policies and by remaining aware of possible warning signs. If you have any questions about workplace violence, we recommend that you speak to your favorite Seyfarth attorney, as we are well experienced in this area. We hope you never need a restraining order. But if you do, we’ll guide you through what can be a nerve-wracking experience.

Edited By: Coby Turner

By Annette Tyman, Randel K. Johnson, and Michael L. Childers

Seyfarth Synopsis: The U.S. District Court for the District of Columbia vacates the Office of Management and Budget’s (OMB) prior order staying the implementation of the revised EEO-1 Report which required employers to report W-2 wage information and total hours worked.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (OMB) stayed the implementation of the pay data collection portions of the revised EEO-1 Report. That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.

In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. We anticipate that the Court’s decision will be appealed.

Seyfarth Shaw offered testimony on behalf of the U.S. Chamber of Commerce and submitted comments on the revised EEO-1 Report outlining the employer community’s significant concerns with the burden, benefit, and confidentiality of the proposed changes. In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate along with a supporting declaration and testimony regarding the burden estimates which helped prompt OMB’s decision to suspend the implementation of the pay data collection requirement.

Impact to Employers

The Court’s decision has significant implications for employers. As we have previously reported, the current EEO-1 Report filing deadline is on May 31st. That filing did not envision the collection of pay data.

We anticipate that the EEOC will issue a statement to employers regarding the stay with further direction regarding the implementation date of the pay data collection component of the EEO-1 Report in the very near future. It is highly unlikely that employers would be required to provide the required pay data during the May 31st reporting cycle.

We will continue to monitor the situation and will provide updates as they become available.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Organizational Strategy & Analytics or Labor & Employment Teams.

 

By Ronald Gart and Christa Dommers

Seyfarth Shaw LLP has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year’s survey revealed that, despite the dramatic increase in the number of states legalizing marijuana, 85% of respondents are putting the brakes on investing in cannabis use real estate or leasing space to the cannabis industry. This is not surprising, given the current state of federal law, lack of credit availability from financial institutions, and lack of title insurance.

What about the other 15% who do plan on investing in CRE for marijuana use? Most (70%) do not plan to invest anytime soon, indicating an investment horizon of at least 2-5 years. Notably, however, 20% of those respondents planning to participate in the industry already have their hands in the pot business.

View the full survey results

 

By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Latoya R. Laing and Erin Dougherty Foley

Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.

Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.

Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:

Employee Opt-Out

The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:

  • 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
  • 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
  • 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
  • 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)

Statute of Limitations

Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).

Notice Requirement

The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.

The Illinois Human Rights Commission

The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:

  • Decreasing the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.

Charge Proceedings

In an effort to create more transparency in Commission and IDHR proceedings the statute provides new requirements for how claims are processed, litigated, decided, and ultimately published.

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute now requires that Commission decisions are based on neutral interpretation of the law and the facts.
  • The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

775 ILCS 5/7-109.1 – 5/8B-103

Employers Covered under the Act

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.

More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.

Still have Questions?

Consider signing up for the March 14, 2019 “What’s Happening in Illinois” Breakfast Briefing that will be conducted at Seyfarth’s Chicago office.

In the meantime, for more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

 

By Brent I. ClarkBenjamin D. BriggsMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through.  The contractor later testifies in a deposition that he did not ask them to work on the roof.  Lesson No. 1: don’t lie when you’re providing sworn testimony, especially when there exists discoverable evidence to the contrary.  Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

Between May and July 2018, New Jersey-based RSR Home Construction was cited twice by OSHA after two incidents on the same job in which workers fell from a roof and were seriously injured.  As part of its investigation into the safety incidents, OSHA took the sworn deposition of the company’s owner, Robert Riley.

According to the criminal complaint filed against RSR earlier this month in Federal District Court in New Jersey, OSHA specifically questioned Riley at his deposition about whether he had directed a construction worker, at any time, to perform repairs on the roof, or to direct others to perform repairs to the roof.  United States v. Riley, No. 19-MJ-3515 (D.N.J. Feb. 14, 2019).  Riley testified, unequivocally, that that he had not.

OSHA, however, discovered that Riley had in fact sent text messages to employees on both occasions directing them or others to perform repairs on the roof.  Riley now faces a perjury charge in federal court where, if convicted, he faces a potential penalty of five years in a prison and a $250,000 fine.

For employers, this case provides yet another reminder that it is never a good idea to lie to government inspectors, especially when providing sworn testimony.  This also demonstrates the importance of being properly prepared and familiar with all relevant facts before providing testimony or statements during an OSHA investigation.  In this age of electronic media, emails, video, and text messages, data is simply too readily available to those parties needing it to prove the truth.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

 

By Kyla J. Miller and Erin Dougherty Foley

Seyfarth Synopsis: According to the 4th Circuit, a female employee who was subjected to false rumors that her promotion was a result of sleeping with the boss can levy her claim for sex-based discrimination against her employer. The Court held that the Company served as a catalyst for the gossip stemming from one jealous co-worker, and held that these types of rumors are inherently based on sex stereotypes regarding women’s advancement and role in the workplace.

A three judge panel for the 4th Circuit found that subjecting a female employee to false rumors that she had an affair with her boss to obtain a promotion could violate Title VII. Parker v. Reema Consulting, No 18-1206 (4th Cir. February 8, 2019). Plaintiff–a warehouse manager–was good at her job. So good, in fact, that she climbed her way to the top at an unmatched speed. Starting as an entry level clerk, over the course of two years she managed to receive six separate promotions that led her to a management role.

But as they say–success attracts envy. Two weeks after receiving her latest promotion, a male colleague, who had started at the same time as Plaintiff but had trailed behind her in his own advancement, started a rumor that Plaintiff was having an affair with the boss who promoted her. The rumor was not true, yet it spread like wildfire. Soon, the highest ranked manager at the company started engaging in the gossip. After the rumor spread, Plaintiff alleged that her male coworkers treated her with hostility and disrespect, and that the manager himself accused Plaintiff of “bringing the situation to the workplace” after she requested a meeting to discuss her concerns. The manager also stated he could not recommend her for promotion and that he should have fired her when she started “huffing and puffing about the BS rumor,” according to the Complaint.

Plaintiff brought a claim to Human Resources about the situation. According to the Company, they held a meeting with all management, including Plaintiff, to defuse the situation, then ordered all employees participate in sexual harassment training. Despite that, the manager later fired Plaintiff, stating she created a hostile work environment for the employee who started the rumor, and blaming her for insubordination.

Plaintiff sued the company for sex discrimination and retaliation under Title VII, including a claim for hostile work environment. The District Court tossed the hostile work environment claim–finding that mere bullying and harassment based on the false rumor was not based on her sex. In his opinion, the Judge stated, “the problem for Ms. Parker is that her complaint as to the establishment and circulation of this rumor is not based upon her gender but rather based upon her alleged conduct, which was defamed by, you know, statements of this nature.” He went on to explain, “clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It is based upon false allegations of conduct by her.”

Plaintiff appealed–now grabbing the attention of the EEOC and 50 women’s and equal rights groups who filed amicus briefs on her behalf. On appeal, the crux of Plaintiff’s argument was that the rumors were grounded in traditional sex stereotypes regarding women’s advancement and role in the workplace. The rumor stemmed from a male subordinate who was jealous that Plaintiff was advancing quicker than her male counterparts–an idea that by its nature implicated sex. Further, Plaintiff argued that the reaction her superiors had to the rumors–especially the disparate treatment and hostility that resulted from it–further demonstrated how intertwined her gender was to the harassment.

The 4th Circuit agreed. Siding with Plaintiff, the Court found that the rumor implied that Plaintiff “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” The 4th Circuit found it plausible that this rumor invoked a perception that generally women, not men, use sex to achieve success. And it is this double standard that subject women, not men, to perceptions that they will sell their bodies to get ahead. The rumor’s sexual undertone was enough to find Plaintiff plausibly alleged she suffered harassment because she is a woman.

Takeaways

In the age of #MeToo, it is critical employers stay on top of rulings that implicate hostile work environment claims. As this case demonstrates, courts are increasingly leaning towards a finding that stereotypes that could be associated generally with one gender over the other are intertwined with “sex” for purposes of Title VII. Employers should be aware that rumors about women “sleeping their way to the top” may very well implicate sex stereotypes. Quashing these types of rumors and ensuring management handle the situation appropriately is critical to avoiding vulnerability to Title VII claims about workplace gossip.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Brent I. Clark, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties. Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).

A recent decision from the U.S. Court of Appeals for the Fifth Circuit highlights the risks posed to employers in the healthcare and social assistance industries by uncorrected or unaddressed customer-on-employee violence.

Fifth Circuit Reverses Lower Court’s Summary Judgment Ruling

Gardner involves a nurse who alleged that an assisted living facility allowed a hostile work environment to be created by nonemployees by not preventing a resident’s repetitive harassment. The plaintiff, a Certified Nursing Assistant, “often worked with patients who were either physically combative or sexually aggressive.”

The Court explains that under 29 C.F.R. § 1604.11(e)—one of Title VII’s sexual harassment provisions— “an employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Gardner’s experiences with one patient at the CLC facility rose to a new, dangerous level. According to the Court, “[the patient] J.S. was an elderly resident who lived at Plaza between 2006 and 2014. He had a reputation for groping female employees and becoming physically aggressive when reprimanded. J.S. had been diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.” J.S. had a long history of violent and sexual behavior toward both patients and staff at the facility.

Gardner refused to care for J.S. again due to the continued harassment, and asked to be reassigned. Her request was denied. She ended up going to the emergency room for injuries she sustained at the hands of J.S., and did not return to work for three months. Shortly after her return, she was fired.

In reversing the district court, which had concluded that a hostile workplace did not exist, the Fifth Circuit held that the “evidence of persistent and often physical harassment by J.S. is enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser.”

Customer-on-Employee Violence in the OSHA Context

Federal OSHA currently enforces workplace violence via the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees. Significantly, and unsurprisingly, OSHA has also considered whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).

Additionally, note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and are required, as of April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

Workplace violence may affect numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.

According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. In 2014 data from the Bureau of Labor Statistics’ (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.

State and Federal OSHA has clearly been keeping an eye on this industry and these incident rates. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

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.