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Articles Posted in Privacy

Digital technology has brought all sorts of conveniences into our lives, but these conveniences might come at a significant cost for some people. Our daily activities leave a trail of information behind, which is accessible to credit reporting agencies (CRAs). Employers often ask to conduct credit checks as part of the hiring process. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., offers some protection to job applicants by making this process reasonably transparent. An employer must provide job applicants with various disclosures, particularly if it decides not to hire an applicant because of information in their credit report. A proposed class action currently pending in New Jersey claims that a transportation network company (TNC), also known as a rideshare company, failed to provide disclosures required by the FCRA to prospective drivers. Cuccinello v. Uber, Inc., No. 2:15-cv-06604, am. complaint (D.N.J., Dec. 7, 2015). The complaint also alleges FCRA violations against a CRA.

A person’s credit report potentially includes their complete financial history for the previous seven years, if not longer, along with other information about their current life and history. This might include criminal convictions and arrests, marriages, divorces, and children. In order to protect people’s privacy, the FCRA places restrictions on the CRAs that collect consumer credit information and issue credit reports, as well as on individuals and businesses that request those reports.

An employer that wants to obtain a job applicant’s credit report must give the applicant “a clear and conspicuous disclosure,” stating that it intends to use the report “for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A). The disclosure must be provided “in a document that consists solely of the disclosure.” Id. The job applicant must consent in writing to the issuance of a credit report for this purpose. CRAs are not permitted to issue a credit report unless the employer certifies that it has complied with these provisions. Id. at § 1681b(b)(1).

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Smartphones, mobile devices with an ever-expanding list of capabilities that make the “phone” part seem like an afterthought, have become a common feature of daily life throughout the U.S. Most smartphones include cameras capable of taking both pictures and video, often with better quality than some of the best digital cameras of a few years ago. This feature has made smartphones an indispensable tool in a wide range of legal matters, from police brutality investigations to employment law cases. The National Labor Relations Board (NLRB) recently found that an employer violated federal law by barring employees from using smartphones to take pictures or make recordings without permission. Whole Foods Market Group, Inc., et al., 363 NLRB No. 87 (Dec. 24, 2015). The policy, while perhaps not originally intended to do so, prevented workers from documenting workplace conditions that violate federal or state employment laws.

The NLRB investigates and adjudicates alleged violations of the National Labor Relations Act (NLRA), the federal statute that protects the right of workers to organize for collective bargaining and other purposes, and to engage in other “concerted activities” aimed at protecting workers’ rights. 29 U.S.C. § 157. In the present case, the NLRB was investigating whether a policy prohibiting smartphone use constituted “interfer[ence] with, restrain[t], or coerc[ion of] employees in the exercise of [their] rights” to engage in concerted activity. 29 U.S.C. § 158.

The use of smartphones to take photographs and record videos in the workplace, and to record conversations among employees or between employees and supervisors, can assist employees and their advocates in building a case under various employment statutes. This might include, for example, an audio recording of a supervisor making derogatory statements about employees of a certain race, sex, or religion, used in support of a claim for discrimination under Title VII of the Civil Rights Act of 1964 or the New Jersey Law Against Discrimination. The NLRA protects these activities, but wiretap statutes present a separate challenge.

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Winter and spring are “flu season” throughout the U.S. and much of the world, and millions of people obtain flu vaccine shots in order to obtain some protection against the disease. Influenza, or the “flu,” can be a very serious disease. The health care industry has required employees to obtain annual flu shots for some time, but other employers have also begun to require flu shots. Some people cannot get flu shots for medical reasons, and others decline them for a variety of personal reasons. Several recent lawsuits have considered whether New Jersey law prohibits employers from taking adverse action against an employee who refuses to get a flu shot, based on various theories of religious discrimination.

For most people, a case of the flu means a few miserable days in bed, but it can mean hospitalization or even death for some. According to the Centers for Disease Control and Protection (CDC), the annual death toll from 1976 to 2007 ranged from a low of around 3,000 to a high of close to 49,000 in a single season. The vast majority of fatalities are people who are 65 years old or older.

Preparing a vaccine against seasonal influenza, the type of the disease that rears its head during the winter and spring months, is difficult, since it requires advance predictions of which strains are most likely to appear. Unlike vaccines for childhood diseases like measles and whooping cough, a flu vaccine obtained one year is not likely to provide protection beyond that year. It is also not guaranteed to prevent the flu. It only bolsters the immune system.

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The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against employees on the basis of “disability,” as defined by the statute, and requires them to provide “reasonable accommodations” to disabled employees and job applicants. 42 U.S.C. §§ 12102, 12112(b)(5)(A). The ADA’s definition of “disability” includes a wide range of conditions that “substantially limit[] one or more major life activities.” Id. at § 12102(1)(A). Courts have found that infection with the human immunodeficiency virus (HIV) may constitute a disability under the ADA. The Equal Employment Opportunity Commission (EEOC) recently published two guidance documents addressing the rights of HIV-positive employees and job applicants.

The U.S. Supreme Court first ruled that an HIV infection may constitute a disability under the ADA in 1998, although it did so without a clear majority of justices. Bragdon v. Abbott, 524 U.S. 624, 655 (1998); see also Fiscus v. Wal-Mart Stores, 385 F.3d 378, 383 (3rd Cir. 2004). In order to qualify for ADA protection, an individual must demonstrate a limitation on their “life activities” caused by their condition. The regulations implementing the ADA state that, by “substantially limit[ing] immune function,” an HIV infection can qualify as a substantial limitation. 29 C.F.R. § 1630.2(j)(3)(iii).

The New Jersey Law Against Discrimination (NJLAD) also protects employees and job applicants from disability discrimination, including discrimination based on an HIV infection. The definition of “disability” under the NJLAD expressly includes “AIDS or HIV infection.” N.J. Rev. Stat. 10:5-5(q). Unlike the ADA, the NJLAD’s definition of “disability” does not require evidence of substantial impairment of life activities. The NJLAD also requires employers to make reasonable accommodations for employees with disabilities, unless doing so would create an “undue hardship.” N.J.A.C. § 13:13-2.5(b).

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A putative class action is alleging that an internet retailer conducts background checks of job applicants in violation of federal consumer protection law. Information about individuals’ credit history has become critically important for a wide range of purposes. Background checks for criminal history have long been common in the hiring process, but background checks for credit history have also become widespread. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs access to, use of, and disclosure of consumer credit information for various purposes, including employment. The lawsuit claims that the defendant failed to follow the FCRA’s procedures for use of background information in the hiring process. Feldstein v. Amazon.com LLC, et al., No. 3:15-cv-07322, complaint (D.N.J., Oct. 5, 2015).

The FCRA governs activities by both credit reporting agencies (CRAs), which collect consumer credit information and package it in reports, and individuals and companies that obtain these reports and use them to evaluate individual consumers for various purposes. The FCRA defines a “consumer report” as information collected by a CRA about credit history and various personal details, including criminal history, intended for use in decisions about matters like credit, insurance, or employment. 15 U.S.C. § 1681a(d).

Prior to requesting a report from a CRA, an employer must provide “a clear and conspicuous disclosure…in writing to the” job applicant that they intend to obtain a consumer report, and they must obtain the applicant’s authorization. 15 U.S.C. § 1681b(b)(2). If the employer makes an adverse hiring decision based on information in a consumer report, the FCRA requires it to notify the applicant in advance and provide a copy of the report and a written statement of the applicant’s right to dispute its contents. 15 U.S.C. §§ 1681b(b)(3), 1681g(c).

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The Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq., protects employees from privacy violations and discrimination in employment based on information obtained through DNA tests and other procedures. It also prohibits employers from requiring employees to submit DNA samples, with narrowly defined exceptions. Some states have similar laws, such as New Jersey’s Genetic Privacy Act of 1996, N.J.S.A. § 10:5-43 et seq., which amended the New Jersey Law Against Discrimination to prohibit employment discrimination based on “genetic information,” N.J.S.A. § 10:5-12(a). Few court decisions have considered the scope of these laws’ protections, however. A recent court decision and jury verdict, however, in Lowe, et al v. Atlas Logistics Group Retail Svcs. (Atlanta), LLC, No. 1:13-v-02425, complaint (N.D. Ga., Jul. 22, 2013), suggests that these laws could provide an very effective defense against discrimination and employer intrusions into employee privacy.

Congress enacted GINA in 2008, so the statute has not amassed much of a track record in the court system. The Equal Employment Opportunity Commission (EEOC) has brought suit under GINA in several cases around the country for a wide range of practices:

– In EEOC v. Fabricut, Inc., the EEOC alleged that an employer violated GINA by allegedly refusing to hire a job applicant it thought had carpal tunnel syndrome, and by asking for her medical history. The employer settled the suit for $50,000.
– A class discrimination suit against a New York nursing home, EEOC v. Founders Pavilion, Inc., claimed that the employer unlawfully requested genetic information from job applicants. The defendant settled for $370,000. A lawsuit against another New York nursing home with similar allegations, EEOC v. BNV Home Care Agency, is still pending.
– A lawsuit against several seed and fertilizer companies for alleged medical and genetic information inquiries during the hiring process, EEOC v. All Star Seed, Inc., et al., resulted in a $187,500 settlement.
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The New York City Council passed legislation in April 2015 amending the city’s anti-discrimination law to prohibit employment discrimination based on information found in an employee’s or job applicant’s consumer credit history. This is part of a broader trend of laws at the city and state levels around the country that limit the use of background checks when making employment decisions. Similar laws have been introduced in the New Jersey Legislature, but they have not passed either chamber. New Jersey law offers some protection for consumers with regard to their credit information, including restrictions on when and how employers may access credit reports.

The federal Fair Credit Reporting Act (FCRA), the New Jersey Fair Credit Reporting Act (NJFRCA), and other statutes regulate the collection, distribution, and use of information by credit reporting agencies. These statutes define “consumer reports” in part as financial and personal information about a consumer, communicated in writing or verbally, that is intended for use “in establishing the consumer’s eligibility for…employment purposes.” 15 U.S.C. § 1681a(d)(1)(B), N.J. Rev. Stat. § 56:11-30(1)(b), N.Y. Gen. Bus. L. § 380-A(c)(1)(ii). Under New Jersey law, an employer may not obtain a person’s credit report unless they provide notice in a particular form to the person and obtain the person’s consent. N.J. Rev. Stat. § 56:11-31c.

The New Jersey statute does not prohibit an employer from taking adverse action against an employee or job applicant based, in whole or in part, on information contained in a consumer report. If the employer does take adverse action against a person, however, it must first provide the person with a copy of their consumer report and a notice of their rights under the NJFCRA and the FCRA. N.J. Rev. Stat. § 56:11-31e.
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An employer demanded that its employees allow around-the-clock monitoring of their whereabouts and then terminated an employee because of her refusal to comply, according to a lawsuit filed last month. Arias v. Intermex Wire Transfer, LLC, et al, No. _____, complaint (Cal. Super. Ct., Bakersfield Co., May 5, 2015). The lawsuit’s claims include invasion of privacy, retaliation, and wrongful termination. The case involves smartphone and Global Positioning System (GPS) technology, and it may therefore present questions that are relatively novel to the legal system. The retaliation claim is based on a California statute that is similar to laws in New Jersey and New York.

The plaintiff began working for the defendant as an account manager in February 2014. According to her complaint, her supervisor told her that she was expected to keep her phone powered on at all times in order to receive calls from clients. In April 2014, the defendant allegedly instructed its employees to install a mobile application (“app”) known as Xora on their smartphones. This app uses the phone’s GPS capabilities to track users’ whereabouts and movements.

The plaintiff’s supervisor allegedly told her that the company would be monitoring employees during both work and non-work hours. While she did not object to monitoring during work hours, the plaintiff claims that she objected to off-hours monitoring as an invasion of her privacy, and that she believed the defendant’s request was illegal. She states in her complaint that she removed the Xora app from her phone in late April 2014, and that on May 5, 2014, she was terminated.
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The Patient Protection and Affordable Care Act (ACA, or “Obamacare” to some) creates a variety of incentives to encourage employers to create and sponsor “wellness programs” for their employees. Several federal agencies, including the Department of Labor (DOL), have issued rules implementing these incentives within the requirements of federal statutes like the Health Insurance Portability and Accountability Act (HIPAA). The Equal Employment Opportunity Commission (EEOC), which enforces employment nondiscrimination statutes, was not involved in those rulemaking processes. It issued a Notice of Proposed Rulemaking in March 2015, stating that it will review how the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., affects the wellness program provisions of the ACA. It issued a proposed rule in April.

The Public Health Service Act (PHSA), as amended by HIPAA and the ACA, defines a “wellness program” as “a program offered by an employer that is designed to promote health or prevent disease.” 42 U.S.C. § 300gg-4(j)(1)(A). HIPAA prohibits discrimination in group health plans, in terms of eligibility, benefits, and other factors, based on a participant’s health. It makes one exception, however, by allowing discounts, rebates, or other benefits for participants who follow an employer-sponsored wellness program.

The DOL, the Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS) jointly issued a final rule implementing the HIPAA nondiscrimination provisions for wellness programs. 71 Fed. Reg. 75014 (Dec. 13, 2006). The rule established two types of wellness programs: participatory programs, which should be made available to all similarly-situated employees regardless of their health status; and health-contingent programs, which may be tailored to employees’ particular health needs, such as a program to help employees quit smoking.

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A former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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