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Archive for September, 2017

Eleventh Circuit Holds That Voicemail Message Is “Communication” Under FDCPA, But Does Not Need To Include Name Of Individual Leaving Message

Posted on: September 29th, 2017

By: William H. Buechner, Jr.

The Eleventh Circuit has ruled that a voicemail message left by a debt collector constitutes a “communication” under the Fair Debt Collection Practices Act.  However, the Eleventh Circuit also ruled that a debt collector is not required to disclose the identity of the individual leaving the voicemail message.

In Hart v. Credit Control, LLC, 2017 U.S. App. LEXIS 18375 (11th Cir. 9/22/17), the debt collector left the following voicemail message:

This is Credit Control calling with a message.  This call is from a debt collector.  Please call us at 866-784-1160.  Thank you.

The Eleventh Circuit held, as an issue of first impression, that this voicemail message constituted a “communication” under the FDCPA because the FDCPA broadly defines a “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2).   The Court explained that the voicemail, although short, satisfied this broad definition because it was regarding the plaintiff’s debt.  The Court then held that, because the voicemail message was the debt collector’s initial communication with the plaintiff, the debt collector was required to provide what is known as the “mini Miranda” warning — that the debt collector is “attempting to collect a debt and that any information obtained will be used for that purpose.” 15 U.S.C. § 1692e(11).

However, the Eleventh Circuit held (also as an issue of first impression) that the debt collector did not violate the FDCPA by failing to disclose the name of the individual leaving the voicemail message.  Although the FDCPA prohibits “the placement of telephone calls without meaningful disclosure of the caller’s identity,” 15 U.S.C. § 1692d(6), the Eleventh Circuit held that the debt collector did not violate this provision because the voicemail message disclosed the name of the debt collection company and the nature of its business.  The Court concluded that identifying the individual leaving the message was unimportant because identifying the name of the debt collection company and the nature of its business is sufficient to enable the consumer to vindicate his or her rights under the FDCPA.

In light of the Eleventh Circuit’s ruling in Hart, debt collectors should be mindful that voicemail messages left with debtors likely will be considered a “communication” and thus subject to the disclosure requirements set forth in the FDCPA.   Also, debt collectors should identify the name of their company and the nature of their business when leaving a voicemail message with a debtor.

If you have any questions or would like more information, please contact William H. Buechner at [email protected].

 

Presidential Proclamation on Expanded Travel Ban

Posted on: September 29th, 2017

By: Layli Eskandari Deal

The President announced a revised travel ban on September 24, 2017. The new travel ban removes Sudan from the list but adds 3 additional countries to the list. Each designated Country has specific restrictions and they are as follows:

1. Chad – Entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2) and business/tourist (b-1/B-2) visas is suspended.
2. Iran – Entry into the United States of nationals of Iran as immigrants and nonimmigrants is suspended, except that entry of nationals of Iran under valid student (F and M) and exchange visitors (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.
3. Libya – Entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B- 2) visas, is suspended.
4. North Korea – Entry into the United States of nationals of North Korea as immigrants and nonimmigrants is suspended.
5. Somalia – Entry into the United States of nationals of Somalia as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.
6. Syria – Entry into the United States of nationals of Syria as immigrants and nonimmigrants is suspended.
7. Venezuela – entry into the United States of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B- 2) visas is suspended.
8. Yemen – entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B- 2) visas, is suspended.

Also, Secretary of Homeland Security recommended that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.

The suspension of entry does not apply to:

1. Any individual who already is a lawful permanent resident of the United States (green card holder).
2. Any foreign national who was admitted or paroled into the United States on or after the effective date of this new Order.
3. Any foreign national who has a document other than a visa that allows travel to the United States and seek admission, valid on effective date or after the date of this Order, such as an Advance Parole Document.
4. Any dual national of a country designated when the individual is traveling on a passport issued by a non-designated country.
5. Any foreign national traveling on diplomatic or diplomatic-type visa, North Atlantic Treaty Organization Visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, G-4 visas.
6. Any foreign national been granted asylum, any refugee who has already been admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection on the Convention Against torture.

The indefinite bans immediately impact nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

EEOC Lawsuit for Disability and Genetic Information Discrimination is Cautionary Tale for Employers

Posted on: September 28th, 2017

By: Paul H. Derrick

The Equal Employment Opportunity Commission is seeking back pay, compensatory damages, punitive damages, and injunctive relief against one of the nation’s largest retailers for withdrawing job offers to applicants whose post-offer medical examinations revealed they had disabilities. The lawsuit also alleges that the post-offer medical examinations unlawfully solicited family medical history from those job applicants.

In the lawsuit, the EEOC alleges that an applicant received a job offer contingent on successfully completing the company’s post-offer medical examination. When the employee revealed during the examination that he suffered from monocular vision, medical personnel informed him that the company required applicants have corrected 20/50 vision or better in both eyes. Despite successfully having performed similar work in the past, the employee’s job offer was rescinded.

The EEOC also claims that the company screened out people with high blood pressure and a variety of other conditions, even though the impairments would not prevent the individuals from performing the jobs they had already been offered. During the post-offer medical examinations, applicants were asked to provide detailed information about their family medical history, including answering questions about cancer, heart disease, and diabetes.

Regardless of the outcome of this lawsuit, employers should see it as a reminder that the Americans with Disabilities Act prohibits the use of selection criteria or qualification standards that screen out individuals with disabilities unless those standards are job-related or consistent with business necessity. Post-offer medical examinations are not automatically unlawful, but they cannot be used to weed out individuals with disabilities.

Likewise, the Genetic Information Nondiscrimination Act protects employees or job applicants from discrimination based on genetic information. GINA includes a strict prohibition against soliciting a job applicant or employee’s family medical history.

If you have any questions or would like more information, please contact Paul Derrick at [email protected].

Pa. County Didn’t Willfully Violate FLSA

Posted on: September 28th, 2017

By: Barry S. Brownstein

The Third Circuit has ruled that Pennsylvania’s Lackawanna County didn’t willfully violate the Fair Labor Standards Act when it failed to pay overtime to workers who performed multiple part-time jobs.

Souryavong and Rolon were among a group of employees who worked in two separate part-time capacities for Lackawanna County. The county purportedly tracked and paid these employees for each of their individual jobs. However, in 2011, it became aware that it had failed to aggregate the hours in both jobs, which resulted in a failure to pay the overtime rate for hours they worked beyond the 40 hour pay period.

Complaints were filed by Souryavong, Rolon and Velez in Pennsylvania federal court, alleging in part that the county violated FLSA’s overtime provisions. After about two years of litigation, it was undisputed that the county had violated the FLSA’s overtime provisions at various times, but the parties still disputed whether that violation was willful.

During the trial, the plaintiffs presented evidence that included documents showing the county’s failure to pay proper overtime. In addition, testimony from Lackawanna County’s chief financial officer indicated that the county was generally “aware” of its obligations under the FLSA “from 2007 onward.” Plaintiffs also proffered an email from Nancy Pearson, the county’s human resources director, to two other county officials that discussed certain county employees who were working “second jobs.”

At the close of trial, however, the county asked the court to enter judgment as a matter of law, arguing the employees’ evidence was insufficient to create a jury question on willfulness. U.S. District Judge A. Richard Caputo entered judgment in the county’s favor on the willfulness question, holding that the workers’ evidence did not “measure up.”

A three-judge panel found that the evidence didn’t suggest that the county was specifically aware of the two-job FLSA overtime problem, particularly as it related to Souryavong and Rolon, prior to the dates of the violations. In addition, the panel found that evidence, including testimony from both the county’s human resources director and chief financial officer that the county was generally aware of its FLSA obligations, wasn’t enough to show that the county willfully didn’t pay overtime to Souryavong and Rolon. Accordingly, the panel upheld the decision by Judge Caputo, holding that the county didn’t willfully commit the alleged violations.

If you have any questions or would like further information, please contact Barry S. Brownstein at [email protected].

Department of Education Withdraws “Dear Colleague” Letter And Issues Interim Q&A Addressing How Schools Should Respond To Allegations Of Sexual Violence On Campus

Posted on: September 27th, 2017

By: William H. Buechner, Jr.

Last week, the Department of Education formally withdrew the controversial “Dear Colleague” Letter on Sexual Violence issued in 2011 and the 2014 Questions and Answers on Title IX Sexual Violence. As discussed in our recent blog here, the withdrawal of this guidance was expected in light of Education Secretary Betsy Devos’s statements earlier this month indicating that the Department of Education would be making substantial changes to the Obama-era guidance concerning how schools should respond to allegations of sexual violence on campus.

Secretary DeVos also announced last week the issuance of an interim Q&A on Campus Sexual Misconduct addressing how schools should investigate and adjudicate allegations of sexual violence on campus. This interim Q&A guidance can be reviewed here. The interim Q&A also indicates that the DOE’s Office of Civil Rights will look to pre-Obama era guidance, such as the Revised Sexual Harassment Guidance (66 Fed.Reg. 5512) issued in 2001 and the Dear Colleague Letter on Sexual Harassment issued in 2006, as well as the Clery Act and its accompanying regulations.

As one might expect, there are several significant differences between the 2011 “Dear Colleague” Letter and the interim Q&A. For example, whereas the “Dear Colleague” letter stated that schools should apply a preponderance of the evidence standard of proof to allegations of sexual violence on campus, the interim Q&A states that schools may apply either a preponderance of the evidence standard or a clear and convincing evidence standard. There is one important caveat, however. The interim Q&A states that a school must apply the same standard of proof applied in other types of student misconduct cases. In other words, a school may not apply a clear and convincing evidence standard to other types of alleged student misconduct and then apply a preponderance of the evidence standard to allegations of sexual violence.

Also, whereas the “Dear Colleague” Letter stated that schools should not allow allegations of sexual violence to be resolved informally, the interim Q&A states that schools may facilitate an informal resolution, including mediation, between the reporting party and the responding party. In addition, the interim Q&A provides that schools should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy that provides sufficient detail and sufficient time to prepare for an initial interview. This includes providing the identities of the parties involved, the specific section of the code of conduct allegedly violated, the exact conduct the responding party is being accused of engaging in, and the date and location of the alleged incident(s).

Secretary DeVos also announced last week that the DOE intends to engage in formal rulemaking regarding schools’ Title IX responsibilities in responding to allegations of sexual violence on campus, but she did not provide any timetable for the promulgation of proposed regulations. In the meantime, the interim Q&A will provide guidance as to how the OCR will assess a school’s compliance with Title IX.

We will continue to monitor the DOE’s progress in drafting proposed regulations, as well as how the OCR applies the guidelines set forth in the interim Q&A.

If you have any questions or would like more information, please contact William Buechner at [email protected].