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Legal Report April 2013


BACKGROUND SCREENING. A federal appeals court has ruled that a company did not violate a former employee’s confidentiality when it disclosed medical information to prospective employers. The court ruled that, because the medical information was not obtained in a medical inquiry, it was not protected.

Gary Messier was employed by Omni Resources, Inc., a technology consulting agency, to work as a temporary programmer for Thrivent Financial. Messier worked at Thrivent for four months without incident. However, one day, Messier failed to show up at work. His supervisor at Thrivent (John Schreiner) and the account manager at Omni (Thomas Brey) were both unaware of any planned absence. Brey sent an e-mail to Messier asking where he was.

Messier responded with a lengthy e-mail at 4:53 pm. In the e-mail, Messier told both Schreiner and Brey that he was bed ridden with a severe migraine. Messier said that he had suffered these migraines periodically since suffering a head injury in a car crash decades earlier. Messier made it clear that his supervisors should “not expect any response from me or even a phone call,” on days the migraines hit. Brey told Messier to get better and to get in touch if he needed further assistance.

A month later, Messier quit his job and began looking for employment elsewhere. However, three prospective employers dropped him from consideration after the reference check stage. Messier began to suspect that Schreiner was providing a poor reference.

Messier hired Reference Matters, Inc. (RMI), to find out what Schreiner was saying. An RMI employee called Schreiner while posing as an employer seeking to hire Messier. During the discussion, Schreiner said that Messier “has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.” The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Thrivent for disability discrimination under the Americans with Disabilities Act (ADA). The EEOC claimed that Thrivent had violated the ADA by “revealing to prospective employers Messier’s confidential medical information obtained from a medical inquiry.” Thrivent argued that the medical information it obtained about Messier did not come from a medical inquiry but from a job-related inquiry.

The U.S. District Court for the Eastern District of Wisconsin agreed with Thrivent, finding that Brey’s e mail to Messier did not constitute a medical inquiry. In the written opinion of the case, the court noted that “given the vast number of reasons an employee could miss work without informing his employer, it seems unreasonable to assume that an employer checking in on his absent employee has the intent to request or acquire medical information.”

On appeal, the U.S. Court of Appeals for the Seventh Circuit agreed with the lower court. The appeals court ruled that Brey’s e-mail exchange with Messier cannot be considered a medical inquiry under the ADA. The court noted: “There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent and Omni knew, Messier’s absence was just as likely due to a nonmedical condition as it was due to a medical condition.” (EEOC v. Thrivent Financial for Lutherans, U.S. Court of Appeals for the Seventh Circuit, No. 11-2848, 2012)

RETALIATION. The U.S. Supreme Court has agreed to hear a case that will clarify what burden of proof a plaintiff must meet to prevail in a retaliation claim. Attorneys in the case have asked the Court to determine whether employees must prove that the retaliation was the sole factor in an adverse employment action or whether it was one of several factors.

In the case, Naiel Nassar was an assistant professor at the University of Texas Southwestern Medical Center’s medical school. Nassar believed that his supervisor, Beth Levine, treated him differently because of his Middle Eastern heritage. Nassar asked to be transferred so that he worked at the hospital not the medical school. He wanted exactly the same job, but a different supervisor.

Nassar was told that to transfer employment would violate the operating agreement between the hospital and the school. However, Nassar had a friend working behind the scenes to obtain a place at the hospital. Soon, Nassar received an unsigned offer letter from the hospital.

Believing he had procured employment at the hospital, Nassar resigned from the school and accused Levine of discrimination based on national origin. The school then learned of Nassar’s planned employment at the hospital and terminated the agreement. Nassar claimed that his offer was rescinded in retaliation for a claim of discrimination. The school argued that the offer was withdrawn because it violated the operating agreement. Nassar filed a lawsuit, claiming that the school retaliated against him.

Defending the case before the U.S. District Court for the Northern District of Texas, the school asked the court to instruct the jury that they could only find the school liable if retaliation was the only reason for the decision. It would require that the jury find that the school would not have taken the actions it did “in the absence of retaliatory animus.” The court refused the request and instructed the jury that Nassar need only prove that discrimination was one of many motives for the school’s actions.

The jury found the school liable and awarded Nassar $3.5 million in damages. The damages were later reduced to $735,000.

The defendant filed an appeal with the U.S. Court of Appeals for the Fifth Circuit, arguing that the jury should not have been given the instruction. The appellate court found disagreement among other circuits as to which burden of proof should prevail, so the appeals court petitioned the U.S. Supreme Court to hear the case.

In appealing to the Supreme Court, the lower court argued that the question at hand is “exceptionally important.” Allowing liability in cases where retaliation is one of many motives would create a “proemployee framework” that puts companies at a disadvantage because “mixed motives are easy to allege and difficult to prove,” according to the Fifth Circuit’s appeal. “As in this case, employers could be held liable for even routine decisions that individual supervisors took pursuant to straightforward and nondiscriminatory policies.”

The Court will hear the case this spring and make a ruling before the end of June. (University of Texas Southwestern Medical Center v. Nassar, U.S. Court of Appeals for the Fifth Circuit, No. 11-10338, 2012)


The Federal Trade Commission (FTC) has launched a study on privacy practices in the data broker industry. The FTC has ordered nine data brokers to provide information on how the companies gather and use personal information.

Data brokers collect information about individuals from a variety of sources and then offer that information to other companies or to individuals. The data is then used in marketing, advertising, and in investigations.

Under the order, the nine data brokers will provide the FTC with details about the “nature and sources of the consumer information” collected, how the companies “use, maintain, and disseminate” information, and the “extent to which the data brokers allow consumers to access and correct their information.”

After reviewing the material, the FTC will prepare a study and make recommendations as to how data brokers could improve their privacy practices.


FIREARMS. In the opening days of the 113th Congress, lawmakers introduced several bills designed to address gun violence. While most of the measures aim to reduce this violence by controlling ammunition or access to automatic weapons, two bills would allow concealed weapons on school grounds.

Four bills were introduced by Rep. Carolyn McCarthy (D-NY). H.R. 137 would require a background check for every new gun sale. The bill would also penalize states that failed to update the National Instant Criminal Background Check System and would mandate that those “adjudicated as a mental defective” be added to the system.

Another McCarthy bill (H.R. 138) would prohibit the possession or transfer of large capacity ammunition feeding devices. The bill provides exceptions for law enforcement, protection of nuclear facilities, or for government testing. Similarly, H.R. 142 would require licensing of ammunition dealers and would require those dealers to report bulk sales of ammunition. The measure would also require purchasers to buy ammunition in person with a valid ID.

McCarthy’s fourth bill (H.R. 141) would close the so-called gun show loophole. Currently, those purchasing guns at gun shows do not have to submit to a background check. H.R. 141 makes such checks mandatory at gun shows. Rep. James P. Moran (D-VA) introduced a similar bill (H.R. 21). The measure closes the gun show loophole and would also require gun owners to report the theft of firearms to police.

Sen. Dianne Feinstein (D-CA) introduced a bill (S. 150) that would reinstate the assault weapons ban that expired in 2004. The bill would also ban ammunition magazines that hold more than 10 rounds.

A bill (H.R. 117) introduced by Rep. Rush Holt (D-NY) would require that handguns be registered in each state. For states that do not currently have a handgun registration system, the federal system would apply. The system would be required to have a way to easily retrieve information and would apply penalties to those handgun owners who fail to complete firearms training. A similar bill (H.R. 34) was introduced by Rep. Bobby L. Rush (D-IL). H.R. 34 would create a consistent registry system for handguns and semi-automatic weapons. The measure would also require that gun owners undergo safety training.

Rep. Sheila Jackson Lee (D-TX) introduced a bill (H.R. 65) that would raise the legal age of gun ownership from 18 to 21. The bill would also prohibit sales or transfers of guns unless the new owner is provided with secure gun storage or a gun safety device. H.R. 65 would also prohibit the storage of firearms or ammunition where a child could gain access.

Two bills, H.R. 35 and H.R. 133, introduced by Rep. Steve Stockman (R-TX) and Rep. Thomas Massie (R-KY) respectively, would repeal the Gun-Free School Zone Act of 1990. The lawmakers argue that the lack of guns in schools make them attractive targets for shooters.


SOCIAL MEDIA. A new law (formerly H.B. 5523) signed by Governor Rick Snyder prohibits employers from requesting social media passwords from employees or prospective employees. The law also applies to any personal Internet-based account and prohibits an employer from gaining information by watching an employee access an account, a practice known as “shoulder surfing.”

The law provides exceptions for cases in which the employee has stolen intellectual property and transferred it to a personal account. Exceptions are also made for workplace investigations and for social media accounts that are owned by the company.

Michigan is the fifth state to enact such legislation. However, unlike other measures, Michigan’s law builds in protections for employers. Under the law, companies have no duty to monitor the personal Internet activity of employees. This means that, should an employee commit a crime, the company is protected from a negligence claim asserting that the company should have foreseen the act based on social media postings.

This column should not be construed as legal or legislative advice.