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FMLA: Your Rights May Have Been Expanded by the 6th Circuit

Just a few days back, the 6th Circuit Appeals Court made a ruling in the case of Marshall v. Rawling Co. which has the potential to substantially expand your rights under the Family and Medical Leave Act (FMLA).  They did this by expanding the situations in which a company can be liable for taking adverse action against you after you assert your FMLA rights.

The 6th Circuit did this by accepting cat’s paw liability in FMLA claims. Cat’s paw liability refers to a situation where one party uses another to accomplish their purpose. This has the potential to give you a case against an employer for FMLA violations where one previously didn’t exist. I’ve discussed the FMLA, and how to protect your rights under it, in a previous article. So, with that in mind, we’ll focus here on what the FMLA is and how this ruling changes your rights under this act.

What is the FMLA?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness. In fact, it only applies to employers with more than 50 employees at a single location. If it applies, then the employer must extend the protections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

FMLAEven if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

The Facts of the Marshall Case

Gloria Marshall, an employee of Rawling, suffers from depression, anxiety, and post-traumatic stress disorder.  But to find the time to receive treatment for these mental-health problems, Ms. Marshall took time off from work using FMLA leave.  When Ms. Marshall returned, she had a backlog of work due to her unexpected leave leaving her with unfinished projects when she left.  These combined with the new work assigned to her to leave her overwhelmed.  She requested help with this work and, while Rawling says she received that help, she says they refused.  Other employees in similar positions also testified that basically every employee had a backlog to some extent due to the amount of work assigned to each employee.  While Ms. Marshall eventually cleared this backlog, the Vice President of the company-Jeff Bradshaw-made it clear in emails that he was worried about another backlog arising.

Ms. Marshall was subsequently demoted after Mr. Bradshaw recommended a demotion to her division head Laura Plumley.  This demotion was apparently unrelated to the FMLA leave.  Ms. Marshall continued to take occasional FMLA leave, but apparently excelled in her new position.  Despite this, Bradshaw apparently severely criticized her performance and singled her out at work in embarrassing ways.  At a meeting, Bradshaw made it clear he was disappointed in how often she had taken FMLA leave.  Ms. Marshall eventually reported Mr. Bradshaw’s treatment of her, although she delayed out of fear of being fired. The allegations were reported to the company’s owner George Rawlings, who decided that she was making false reports to cover poor performance and fired her.  Ms. Marshall sued, saying that her firing was retaliation for her FMLA leave.

What Does the Marshall Ruling Mean For Your Rights?

This is where the cat’s paw theory of liability comes into play, and where the 6th Circuit Appeals Court’s decision comes into play. For instance, there have been cases where a company is liable for discriminatory firing where a biased subordinate uses an official decision maker as a sort of a dupe in enacting their own scheme of by asserting their own influence on that decision maker.

The idea behind cat’s paw liability is that the organizational chart of a company doesn’t necessarily reflect the true decision making process.  As in the example above, a decision maker will often rely on the recommendations of others lower on the totem pole or unrelated to the decision-as Ms. Plumley did with Jeff Bradshaw’s recommendation when she demoted Ms. Marshall.  Basically, this decision means that if somebody who doesn’t make the final decision as to your employment status mistreats you based on your FMLA rights you may still have a lawsuit despite the fact that they aren’t the ones taking adverse employment action against you.

The 6th Circuit Appeals Court is not the law over the entirety of the U.S.  However, the decision has the potential to very persuasive in other Circuits and is the law in the states of Michigan, Ohio, Tennessee, and Kentucky.  The case is even more persuasive as many other Circuits have consistently applied cat’s paw liability in other employment contexts such as Title VII discrimination cases.  The exact impact of the case is yet to be seen.  However, there is no question that your FMLA rights just got stronger.

Echo Look Revives Debate on Privacy Concerns

If you were told you could purchase a device which listens to everything you say throughout the day, and occasionally records what you say, you’d understandably be less than excited to buy now.  However, when that device comes with enormous potential for convenience–like the Amazon Echo or the Google Home–many have decided that the privacy concerns are not so bad as to put them off the device.

For those unfamiliar, the Amazon Echo (commonly referred to by the name it answers to-Alexa) and the Google Home are very similar to the Cortana or Siri devices on your phone-they take verbal commands and quickly send your request to a server which attempts to find an answer which is as responsive to your query as possible.  The main difference between the products is that while Siri is a tool you activate on your phone, the Echo and the Home are devices you place in your home and essentially leave on to respond to you whenever needed.

While on, these devices are always listening to what you say in order to listen for a “wake word” or command to start paying attention to whatever you say next.  Always listening does not mean always recording, both the Home and Alexa begin recording whatever you say as soon as you say a wake word-this recorded audio is sent to a server, associated with your personal account, and stored.

This obviously created enormous privacy concerns when these devices were initially released.  However, some but not all of the concerns were abated by the fact that you can mute the microphone when the devices are not in use-rendering the device useless until unmuted but keeping it from listening in general.  You can also disable audio recording and data sharing altogether for the Home but not the Echo.  However, doing so makes the Home completely inoperable.  Finally, you can delete your history of recorded requests online for both products-although both Google and Amazon recommend against it and neither are clear as to what data is stored after deletion.

These provisions, along with the privacy policies of both companies, have helped alleviate some-but not all of the privacy concerns since the products were released.  However, just recently, Amazon has announced the Echo Look-a product which adds a whole new layer of privacy concerns to the mix.

echo lookThe Echo Look

The Echo Look is essentially the Echo but with a camera which records and takes pictures of your outfits at your request.  At the moment, Amazon has said that the Echo Look is limited to pictures of fashion and the room you’re in.  However, they have made no assurances that this will continue to be the case.

As you might imagine, an enormous amount of information can be gleaned from any given picture and a company with as developed a machine learning algorithm for identifying what’s what in a picture as Amazon could parse the information in any given picture with great ease-then likely use that information to employ more targeted advertising for you.

Amazon Echo Look seems to be fairly secure, with numerous encryptions and security measures protecting the pictures you take and the camera itself.  This is good, cameras of this sort have a bit of history of poor security.  It was not so long ago that a search engine called Shodan was launched which allowed users to search and browse unsecured webcams.

You can see the privacy concerns raised by the Echo, Home, and Echo Look.  However, what does this mean from a legal standpoint?  The truth is, privacy law-beyond a few federal statutes-is primarily a matter of state by state legislation.  This is especially true in California where the state constitution explicitly includes a right to privacy.  However, no matter where you are, there are a few issues which could always come up as part of or as cause for a legal action.  Where your private data is breached by an outside party, an increasingly common occurrence, that can give rise to a lawsuit.  What’s more, companies are generally bound to their own privacy policies.  Where they ignore their own policy or mislead a consumer as to their privacy policies this can lead to legal hot water.    Finally, you have to ask how the data collected by these companies may be used by law enforcement.

Privacy Policies of the Echo and the Home

Both the Home and the Echo follow the privacy policies of the companies that made them-Google and Amazon respectively.  These are two companies with that gather and employ an enormous amount of data on their users.  Thus, they both have fairly robust privacy policies.  However, this does not mean that they will not and do not use or sell the data they collect about you.

Google’s privacy policy for the Home specifically states: “Google will share your information with companies, organizations, and individuals outside of Google if Google has a good-faith belief that access, use, preservation, or disclosure of the information is reasonably necessary to meet applicable law, regulation, legal process, or enforceable government request.” In short, it appears that Google doesn’t ask for your permission to share your voice recordings.”  They do promise not to share your personal information with anyone.  However, in a legal context this likely applies to personally identifiable information-information that can be used to identify you.  Other data, such as commonly sold aggregate data (information stripped of identifiers and sold to advertisers) is still fair game.  What’s more, they also do not limit their own uses of your data and likely use the information for targeted advertising purposes.

The Amazon Echo privacy policies are similar-allowing them the same leeway as Google’s policy.   However, both the Echo and the Echo Look policies promise explicitly not to use the data they collect to provide targeting advertising opportunities to  third-party companies.  They even give you the option to opt out of Amazon targeted advertising at this link.

One thing you’ll note in the Google policy, which is shared by the Amazon policy, is that it leaves the door open to share your data with law enforcement where required by law.  This makes sense, neither Amazon nor Google are looking to defy a valid court order.  However, the idea that the police might make use of all the data recorded on your device might be a bit concerning to some-and it’s a concern that has already come up in court.

Will Your Data Be Shared?

Just a few months back, Arkansas police sought a warrant demanding that Amazon turn over all the information recorded from the Amazon Echo of a murder suspect out of Bentonville by the name of James Andrew Bates.  After one Victor Collins was found dead in Mr. Bates’ hot tub, the police noted his Amazon Echo and sought the data from it.

Amazon initially resisted the demand for the evidence, arguing that the First Amendment protected the information recorded from the Echo and, because of this, the police needed to show a compelling need to access the information and no other way to get it.

At a minimum, a valid warrant requires probable cause (a fairly low standard requiring only a reasonable basis for believing evidence could be contained in the thing or place to be searched) and it must describe with particularity what the search would seek to find.

Searching through data to find evidence of a crime is nothing new, police have searched everything from cell phones to World of Warcraft chat logs.  These often require subpoenas or warrants to gather this information from a third party such as Amazon.  Here, there were a few potential issues with receiving a warrant-even beyond Amazon’s First Amendment arguments.  First, probable cause is a low bar-but it isn’t nothing.  The theory that an always-on recording device might have recorded information related to the crime is likely enough to meet the standard where it recorded near the crime.  However, the basis is a bit thin when you consider the device only records when a “wake word” is spoken.  Second, the warrant just asked for everything Amazon had ever recorded.  This in no way describes with particularity what is to be produced.  The police are very unlikely to need the times Mr. Bates asked Alexa how many feet are in a mile or for a good recipe for pork shoulder.

However, despite these issues, Amazon did end up producing the requested searches.  This was not because a court ruled against them, but rather because Mr. Bates ultimately consented to release the recordings of his own volition.  This left the issue without a satisfying conclusion as to legal precedent.  However, in the right circumstances, law enforcement could almost certainly obtain the data recorded from a Home, Echo, or Echo Look.

Is It Worth It?

As it is, trading privacy for convenience is so common in today’s online world as to be nearly unavoidable.  When it comes to the Echo or the Home, you have to ask yourself whether that trade off is worth it to use these devices.  Ultimately, all you can do is know your rights and make that decision for yourself.

ISPs Swears They Won’t Sell Your Browser History

Congress voted to take away your privacy rights when it comes to how internet service providers (ISPs) may use your data, and President Trump signed it into law. Just recently they officially repealed Obama era privacy regulations out of the FCC which required ISTs to get permission before selling a customer’s data–their browsing history, how long you spend on a given site, how often you visit a given site, app usage, email addresses, etc.

As you can imagine, removing these protections has resulted in a bit of a panic over how ISPs will proceed under these new rules. In an attempt to alleviate some of those fears, several of the largest ISPs have made statements promising not to sell the browsing history of individual clients. However, it’s hard to avoid that they have worded their promises very specifically in every case-so specifically that their promises almost amount to nothing. Let’s a take a look at the words of the biggest ISPs and what exactly they have (and haven’t) promised as well as what that means after the repeal of these privacy protections.

From The Horse’s Mouth

As mentioned, the rule changes had big ISPs quick to release statements to reassure their customers. Comcast released a statement saying “We do not sell our broadband customers’ individual web browsing history. We did not do it before the FCC’s rules were adopted, and we have no plans to do so.” Verizon’s Chief Privacy Officer told their users  “Verizon does not sell the personal web browsing history of our customers. We don’t do it and that’s the bottom line.”  An AT&T Vice President said “AT&T’s privacy protections are the same today as they were five months ago when the FCC rules were adopted. [We] will not sell your personal information to anyone, for any purpose. Period.”

These certainly sound promising, but they are very carefully worded. They promise not to sell “individual browsing history” or “personal information.”  However these promises, especially individual browsing history–perhaps intentionally–hit only the tip of the iceberg when it comes to how ISPs could and almost certainly will collect your data and metadata. The ISPs notably did not promise not to sell aggregate data (the most commonly way of selling metadata) or promise not to review and use the history for their own marketing-both potentially invasions of your privacy. Aggregate data is where they collect your browsing information, strip identifying information, then sell it along with the data of many other users–this is used for targeted advertising among other things. What’s more, once data is sold, those who buy it have no compunctions about how they must make use of that data.

This is far from a new concept, and at least one ISP has commented in the past that your browsing habits are already being collected and sold “by virtually every site you visit on the internet.”  This is true, the biggest websites-the Facebooks, Googles, and Amazons of the world-gather and sell staggering amounts of data from their users.

However, as true as it is, the situation with ISPs is fundamentally different. ISPs have the ability to monitor you literally the entire time you use the internet–something no website can boast. The difference in the level of intrusion between an ISP and any website is a matter of degrees. No website could hope to have the sheer level of access to your internet activity that an ISP has–which is literally all of it. What’s more, you can choose to go to a website–even sites as ubiquitous as Google have alternatives which do not track your internet use such as DuckDuckGo. Over half of people in the U.S. have only one choice of internet provider–a large part of the argument behind treating the internet as a utility like electricity or water. This means that your options would be to either have every action you take on the internet potentially monitored and monetized or have no internet whatsoever.

ISPs Seem to Be Forgetting Their Own History

The promises of the ISPs are also a bit hollow in light of their own past behavior regarding your data. Not so long ago, AT&T was in hot water for misleading customers by describing an opt-in agreement providing consent to track and sell its users browsing history as a “discount.” Comcast was in the news less than a year ago saying that it should be able to sell its users’ browsing information.

Back in 2014, Verizon got in trouble for including an HTTP header for its mobile customers which allowed third-party advertising companies to gather information on your browsing habits-even if you used a private browsing mode or cleared your cookies. Even after her own recent statements reassuring customers, Verizon’s Chief Privacy Officer acknowledged that Verizon intends to use your browsing habits in ways other than outright sharing your personal browsing history–specifically targeted advertising and selling data in aggregate as mentioned above.

The States May Come to Your Rescue

In this day and age, the internet is basically a necessity. While Verizon’s transparency is at least to be applauded, the very idea that your every internet action could be tracked and sold–with the alternative of never using the internet–is unlikely an attractive prospect to many. However, there has already been a move towards bridging the gap created by the recently repealed privacy protections through state law. Just a few days back Minnesota passed a law requiring ISPs to receive express written consent from a user before harvesting any of your data.

Whether this trend will spread remains to be seen, the changes to your privacy protections all still fresh. Keep an eye on state legislature, it seems likely that protecting your browser history will quickly become a hot button issue.

Facebook Faces Backlash for Livestream Murder

Random acts of violence are truly devastating, but they are even worse when they’re livestream on Facebook and shared thousands of times for the world to see. Robert Godwin Sr., a 74-year-old male from Cleveland, Ohio, was murdered in cold blood on Easter Sunday by Steve Stephens, a 37-year-old Facebook user. Stephens reportedly walked up to Godwin and shot him while videotaping the murder. Stephens later posted the video, captioned “Easter day slaughter,” to his Facebook page. The video was shared several thousand times.

Godwin’s family is still trying to process the death, but his family feels the weight of his murder with each new “share” of the video.

FacebookFacebook’s Response

After being alerted to the gruesome video, Facebook removed it, but only after it had been on their social media platform for two hours. Facebook also removed Stephens’ personal page.

Facebook received harsh criticism for not removing the violent content quicker. Facebook’s Vice President of Global Operations conceded their response was much too slow. According to Facebook, they didn’t receive the first report about the video until an hour and 50 minutes after the incident. Less than 20 minutes after the video of the murder was uploaded, someone reported a separate five-minute Facebook Live video of Stephens confessing to the murder.

Facebook said it would be “reviewing [their] reporting flows to be sure people can report videos and other material that violates [their] standards as easily and quickly as possible.” Currently, Facebook doesn’t actively search for inappropriate content. Instead, it waits for someone to flag it as inappropriate before they act.

CEO Mark Zuckerberg announced in February that the company was working on artificial intelligence to help detect video content, but it was very early in development.

How Can Facebook Regulate Violent Content?

Facebook has become the social media powerhouse of the 21st Century. What was once created just for college students to connect with their friends is now used by the masses. It continues to take risks to pave the way among its competitors (Instagram, Twitter, Snapchat). Facebook Live is its newest feature that allows users to post live videos.

As discussed, Facebook does not have the ability or manpower to actively search for inappropriate or violent content. This is not surprising considering at last count in March Facebook had over 2 billion users worldwide. Once they are notified of violent or inappropriate content, they act quickly to remove the content and deactivate the offending person’s personal page.

Can Facebook Be Liable?

In a word, no. Facebook has no ability to control other people’s actions or read the minds of their users. It could not have anticipated that Stephens would murder someone on Easter Sunday and post the video on Facebook.

But what if Stephens posted a Facebook Live video 24 hours before the murder, declaring, “I’m going to murder someone on Easter Sunday.” What then?

The answer is still “no,” but liability is a little more murky. Let’s say someone noticed the video two hours after it was posted and reported it to Facebook. If Facebook did nothing – did not suspend the account, remove the video, or contact authorities as to the possibility of a murder – then wouldn’t Facebook have a responsibility to act? No, there is no law requiring Facebook to report a potential crime. But they’d probably be have some fallout with the public.

Facebook Videos and The Future

Critics of Facebook suggest there should be laws to limit one’s ability to post videos. This is especially true since people have started to post all sorts of things, including videos moments before committing suicide. A recent teenage couple committed suicide days apart. The boyfriend posted his parting thoughts, clearly riddled with pain and anguish, before he said, “I’m trying to get out all the words before I go.”

Any limitation on Facebook users’ ability to post could be an infringement of free speech under the U.S. Constitution.

The problem is that technology is ever changing. Companies like Facebook and Instagram are paving the way in social media, but the laws have not quite caught up to their advancements.

Survivor Contestant Publicly “Outed” Highlights the Mistreatment of Transgender Community

The reality competition show Survivor has been running strong for seventeen years and is on its thirty-fourth season. But in all their seasons, never had they had a transgender contestant. And never has someone been “outed” on their show. Both happened recently.

Background

Survivor contestant Zeke Smith was outed by a fellow contestant as being transgender in an attempt to show that Zeke had the capability of being “deceptive”. Zeke’s tribemates/fellow contestants quickly came to his aid, arguing his transgender status had nothing to do with the game and was a personal aspect of his life. Although Survivor is just a reality TV show, it highlighted a genuine issue in today’s society – the misconception of transgender people and the discrimination they face.

Survivor ContestantWhat is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

Transgender Laws in the U.S.

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

Despite the laws in place to protect the transgender community, they still are bullied, fired from their jobs, passed up for raises, and discriminated against simply for being transgender.

Transgender Rights and the Bathroom

During his last term in office, President Obama issued a directive to all public schools in the country allowing transgender students to use bathrooms matching their gender identity. The declaration was signed by the Justice and Education department officials and described what schools can do if any of their transgender students were discriminated against. While it did not carry the force of law, it did impose a threat for any school that did not abide by the law as they may face lawsuits or loss in federal aid.

Consistent with his hateful propaganda and lack of support for the LGBT community, President Trump rescinded the protections for these students that President Obama created.

Continued Discrimination

The transgender community is still sadly misunderstood. During March Madness, North Carolina (the eventual winners of the tournament) was scheduled to host championship games. They were stripped of the honor by the National Collegiate Athletic Association (NCAA) because the state of North Carolina bans individuals from using public bathrooms that do not correspond with their biological sex. In other words, in North Carolina, transgender individuals cannot use the restroom of the gender they identify as, but as the gender they were born as. Eventually, the NCAA reversed course and scheduled championship games in North Carolina, but received harsh criticism for doing so.

The significance of Survivor highlighting a transgender player and the type of discrimination he faced shows that we are nowhere near inclusive civil rights for the transgender community. But at least it brought about discussion, which can hopefully lead to change.