Business LawEmployment Law Update – Legal-mail no. 2018-12

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NEW FCRA SUMMARY OF RIGHTS FORM RELEASED. The federal Consumer Financial Protection Bureau (CFPB) has released a new Fair Credit Reporting Act (FCRA) Summary of Rights form. The new form became effective on September 21, 2018, and includes a notice that consumers may place a “security freeze” on their credit report to prohibit reporting agencies from releasing their information, without the consumer’s express consent. Employers who conduct applicant background checks should immediately incorporate the new “Summary of Rights” form and cease providing the prior version. Additional information about this form, and a link to download it, is available on the CFPB website at https://www.consumerfinance.gov/policy-compliance/rulemaking/final-rules/summaries-rights-under-fair-credit-reporting-act-regulation-v/.

NINTH CIRCUIT EXPANDS THE DEFINITION OF DISABILITY UNDER THE ADA? In 2008, the Americans with Disabilities Act (ADA) was amended to expand the scope of its protections. Congress issued this statement in connection with the 2008 amendment: “the definition of disability … shall be construed in favor of broad coverage … to the maximum extent permitted” under the ADA, adding that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Last month, the federal Ninth Circuit Court of Appeals (the federal appeals court for west coast, including Arizona, California, Idaho, Nevada, Oregon, Montana, and Washington) seemed to take this a step further. The court held that the 2008 ADA Amendments Act “broadened the definition of a ‘disability’ by relieving plaintiffs of the requirement to show an impairment ‘substantially limit[s]’ a major life activity.” Taylor v. Burlington Northern Railroad Holdings, Inc., 2018 WL 4517268, Case No. 16-35205 (September 17, 2018) (emphasis added). If you have employees who work within the Ninth Circuit, be very careful before concluding that an employee’s physical or mental impairment is not a covered-disability under the ADA. Instead, your focus should be on whether a reasonable accommodation is possible (which is a good rule of thumb even when the employee does not work in the Ninth Circuit).

U.S. SUPREME COURT’S FALL TERM STARTED YESTERDAY. The United States Supreme Court’s 2018 fall term started yesterday, October 1, 2018. Most of the news about the Supreme Court these days has been on what Judge Kavanagh was doing in the summer of 1982. For those interested in a more forward-looking view of the Supreme Court, consider that the Supreme Court may decide this term if the Age Discrimination in Employment Act (ADEA) applies to small public employers with less than 20 employees (Mt. Lemmon Fire District v. Guido). The case arises from the Ninth Circuit, where that court held that the ADEA’s 20-employee threshold only applies to private employers, and that the ADEA broadly applies to all public employers, regardless of size. The Ninth Circuit’s decision conflicts with decisions from other circuits (including the Tenth Circuit) that have held that the ADEA only covers employers—public or private—if they have 20 or more employees. Small public employers should definitely watch for the outcome of this decision. The Supreme Court is also set to consider a number of employment arbitration cases this term. Stay tuned to these updates for summaries of these decisions as they are announced by the Supreme Court.

APPLICANT SUES OVER SEVEN-YEARS-OR-LESS EXPERIENCE CAP. On September 28, 2018, the Chicago Tribune published an article highlighting an interesting age bias lawsuit. The article, entitled Overqualified? Or too old? Age discrimination case takes aim at biased recruiting practices, summarizes a lawsuit filed by Dale Kleber against medical technology company CareFusion. Kleber, who was 58 years old when he commenced his lawsuit, is an attorney with many years of in-house general counsel work experience. Kleber saw a job posting for a “senior counsel” position at CareFusion that included this experience cap: “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber applied for the position, but was not called in for an interview. Kleber sued, alleging that that seven-year experience cap discriminated against older applicants. Laurie MCann, senior attorney for AARP, shared her thoughts about experience caps with the Chicago Tribune. McCann observed that while specifying a minimum number of years of experience is legitimate, “specifying a maximum number of years of experience has a clear disparate impact on older applicants.” Nevertheless, a federal trial court dismissed Kleber’s suit on the ground that the ADEA only protects current and former employees and does not extend protections to external job applicants. That decision has been revised by a 2-1 panel of the Seventh Circuit Court of Appeals, which held that it “could not imagine” why Congress would want to protect employees and internal applicants from age discrimination, but not external applicants. A rehearing by the full Seventh Circuit followed, and a decision by the full Seventh Circuit panel could be issued any day now. You can read the Chicago Tribune article at this link: http://www.chicagotribune.com/business/ct-biz-age-discrimination-lawsuit-dale-kleber-0930-story.html.

While we wait for the Seventh Circuit’s decision (watch for these updates), you should know that the EEOC has already taken the position that the ADEA protects external job applicants. But in 2016, the Eleventh Circuit Court of Appeals took the opposite view and held that the ADEA does not apply to external job applicants. If the Seventh Circuit panel affirms its prior 2-1 panel decision, and holds that the ADEA extends protections to external job applicants, the circuit-split between the Seventh and Eleventh Circuits could be resolved by the U.S. Supreme Court. You should seek legal counsel if you have experience caps (as opposed to minimum experience thresholds) in your job postings.

Written by: Employment Attorneys-

Michael Patrick O’Brien (mobrien@joneswaldo.com)

Mark D. Tolman (mtolman@joneswaldo.com)

Jesse M. Oakeson (joakeson@joneswaldo.com)

Marci B. Rechtenbach (mrechtenbach@joneswaldo.com)

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