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EFFECTIVE MAY 13, 2015: UPDATE TO PHILADELPHIA SICK LEAVE REQUIREMENTS

Under the new Philadelphia law, employers with 10 or more employees will be required to provide up to one hour of paid sick leave for every 40 hours worked (including overtime hours) by an employee in the city.  Employees who are salaried exempt employees accrue sick time based on the employee's normal work week or a 40-hour work week, whichever is less.  Employees may accrue up to 40 hours of sick leave in a calendar year (unless the employer allows more).  Employers with fewer than 10 employees will be required to provide unpaid sick leave on the same terms.  Employers must update their employee handbooks and provide notification to employees of these new provisions immediately as this was required to be done by May 13, 2015. At its discretion, an employer may loan sick leave to an employee in advance of accrual.  The date on which actual accrual of paid sick leave begins should be measured from May 13, 2015, but the time period for an employee to use accrued paid sick leave is measured by the actual date of employment – an employee must be employed for at least 90 days by the employer before being able to use any accrued paid sick leave.

Like the California law, employers must allow employees to carry over all accrued paid sick leave to the next year, without limit, if the employer does not provide all 40 hours of paid sick leave at the beginning of each year.  Although the carry-over has no limitations, an employer may limit use of sick leave in any single calendar year to 40 hours.

Employers must allow employees to use the 40 hours of paid sick leave on either an oral or written request for their own or for a family member’s need.  Employers are not required to pay an employee for accrued, but unused, paid sick leave at the end of employment but keep in mind an employer will likely be required to pay out any accrued but unused vacation or PTO time pursuant to Pennsylvania state law.

If the employer’s current policy allows for paid sick leave of at least 40 hours, or 5 days, in a year, you do not need to change the policy, but must follow the record keeping and notification requirements and be used for the same purposes and under the same conditions as paid sick leave under the new law.

Employers must provide notice to employees of their entitlement to paid sick leave, including the amount, the terms under which leave can be used, the guarantee against retaliation, and the right to file a complaint regarding violations of the ordinance. Notice can be (a) by written notice in English or in any other languages spoken by five percent of the employees, or (b) by displaying a poster prepared by the city.

Employers must also maintain records documenting the hours worked, sick leave used, and payments made to employees for sick time. The failure to maintain or retain adequate records creates a rebuttable presumption against the employer, absent clear and convincing evidence otherwise. In addition, an employer must make these records available to the city enforcement agency upon request.

Under the new law, employers cannot:

■ Require that an employee find a replacement worker to cover the hours during which the employee is absent as a condition of utilizing paid sick leave.

■ Deny the right to use accrued sick leave or discharge, or take any negative employment action including threats to discharge, demotions, suspensions, or discrimination against any employee for using accrued sick time, attempting to use accrued sick time, filing a complaint with the agency or alleging a violation, cooperating in an investigation or prosecution of an alleged violation, or opposing any policy or practice that is prohibited.

For more information on the new Philadelphia law, employer vacation/sick/PTO policies or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

NEW YORK ISSUES NEW RULES ON DEBT COLLECTION

On December 3, 2014, New York financial regulators announced the adoption of final rules regulating debt collection practices in the state of New York.  The new regulations are intended to curb abuse by debt collectors, requiring them to, among other things, advise consumers when the statute of limitations has expired on debts and confirm settlements agreements in writing.  Interestingly, both such rules have long been in place in New York City pursuant to City Rules and Regulations.  See New York City, N.Y., Rules, Tit. 6, §§ 2-191, 2-192. The regulations are the result of more than a year of meetings and public comments stemming from two earlier published versions of the regulations.  The new statewide regulations are far from surprising, considering that more than 20,000 complaints about debt collection practices were filed by New Yorkers in 2014 alone.  In announcing the new regulations, New York Governor Andrew M. Cuomo stated that New York “will not tolerate debt collectors who wrongfully take advantage of consumers.”

To address the perceived abuses in the debt collection industry, the new regulations of third-party debt collectors and debt buyers include the following key reforms:

  •    Improved Disclosures and Debt Information: Enhanced initial disclosures will be required when a debt collector first contacts an alleged debtor. These disclosures go beyond current federal requirements, by requiring that collectors disclose key information about the charged-off debts they collect, including: the amount owed at charge-off, and the total post-charge-off interest, charges, and fees.

  •    Protection Against “Zombie Debts”: If a collector attempts to collect on a debt for which the statute of limitations has expired, prior to accepting payment, the collector must provide notice that the statute of limitations may be expired and that, if the consumer is sued on such debt, the consumer may be able to prevent a judgment by informing the court that the statute of limitations has expired.

  •    Substantiation of the Debt Allegedly Owed: These regulations establish groundbreaking protections that require a collector to “substantiate” a debt upon a consumer’s request for same, which may be made at any time during the collection process.  This will assist consumers who fail to exercise their right to verification under the 30-day window established by the federal Fair Debt Collection Practices Act.

  •    Written Confirmation of Settlement Agreements: Collectors must provide consumers with written confirmation of any debt settlement agreement, and must also provide written confirmation upon satisfaction of the debt.

  •    Email Communications: Consumers may opt to communicate with collectors via their personal email.  This is intended to reduce harassing phone calls and allow consumers to maintain better records of their communications with the collector.

The new regulations will take effect on March 3, 2015, with the exception of Sections 1.2(b) (disclosure requirements) and 1.4 (substantiation requirements), which take effect on August 30, 2015.  The final regulations are available at: http://www.dfs.ny.gov/legal/regulations/adoptions/dfsf23t.pdf.  Debt collectors who collect in the state of New York should examine the new regulations and prepare compliance plans to meet the new requirements.

For more information on the new regulations and/or compliance recommendations, contact Katherine Olson at (312) 334-3444 or kolson@messerstrickler.com

Federal Court Determines Voicemail Message and Return Phone Call with an Unintended Recipient Not in Violation of FDCPA

A federal court in New York recently decided that a voicemail message stating that the call was from a debt collector where the voicemail message’s intended recipient was disclosed to a third party who returned the call was not a violation of the Fair Debt Collection Practices Act (“FDCPA”).  In Abraham Zweigenhaft v. Receivables Performance Management, LLC, RPM left the following voicemail message:  “We have an important message from RPM.  This is a call from a debt collector.  Please call 1(866) 212-7408.”  Mr. Zweigenhaft’s son heard the message and returned the call.  He then had the following conversation with the RPM representative: RPM: Thank you for calling Receivables Performance Management on a recorded line. This is Michelle how can I help you?

Caller: Hi how are you? I received a message to call you, and I am just trying to figure out who you are trying to reach.

RPM: Okay and your phone number please, area code first.

Caller: (718) 258-9010

RPM: And is this Abra?

Caller: Is this who?

RPM: Abra Zweigenhaft?

Caller: Nope. It's not.

RPM: Okay let me go ahead and take your phone number off the list. The last four digits again please. 9010 or 7032?

Caller: 9010

RPM: Okay I'll take it off the list. You have a nice day.

Caller: Thank you.

RPM: Uh huh, bye bye.

Zweigenhaft filed suit against RPM alleging that the content of the voicemail message and the phone call together conveyed information regarding the consumer’s debt to a third party, Zweigenhaft’s son, in violation of FDCPA § 1692c(b).  The United States Court for the Eastern District of New York disagreed that this was a violation.  The court recognized the statute’s conflicting provisions.  Debt collectors are required by the FDCPA to meaningfully identify themselves when calling a consumer, but doing so may inevitably convey information about a consumer’s debt, which if overheard by a third party gives rise to consumer arguments that the debt collector violated the FDCPA.  In finding that the communications did not violate the FDCPA, the court stated that if it were to find that the contact was a violation of the FDCPA “would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology.”

For more information on this topic, contact Joseph Messer at 312-334-3440 or at jmesser@messerstrickler.com or Stephanie Strickler at 312-334-3465 or at sstrickler@messerstrickler.com.

 

Federal Judge Rules One Voicemail Message Is Not Enough to Sustain FDCPA Violation

In Hagler v. Credit World Services, Inc., a federal judge in Kansas decided that a debt collection agency was not in violation of the FDCPA by failing to identify itself as a debt collector in one voicemail message.  The judge explained that multiple calls must be made in order for “harassment” to occur.

Plaintiff was initially contacted by a Credit World Services employee to discuss the outstanding debt.  Plaintiff informed the employee that he would need to call him back.  After waiting about a month with no contact with Plaintiff, Defendant called Plaintiff and left the following voicemail:

“Hi, this message is for Charles.  Please call Bill Jackson at 913-362-3950 when you get a chance. 

 My extension is like 281.  Thank you.”

Plaintiff sued, arguing that Defendant’s voicemail violated several provisions of the FDCPA.  Specifically, Plaintiff alleges Defendant:

•Failed to disclose meaningfully the caller’s identity, in violation of 15 U.S.C. § 1692d(6);

•Failed to disclose that a debt collector had left the voicemail, in violation of 15 U.S.C. § 1692e(11); and

•Used misleading and deceptive language, in violation of 15 U.S.C. § 1692e.

Plaintiff also claimed that the voicemail message was otherwise deceptive and failed to comply with the provisions of the FDCPA.  Plaintiff and Defendant filed cross-motions for summary judgment on all four claims.

The judge agreed with the collection agency on all four counts.  The judge decided that the voicemail message did not provide a “meaningful” disclosure of the employee’s identity as a debt collector under § 1692d(6) as the employee only provided his name, which has no real meaning to the debtor.  The judge explained further that the employee must provide more about himself than his name to be a “meaningful” disclosure.  However, the judge ruled that a violation requires more than just one call.

Because the clear language of § 1692d(6) prohibits the placement of telephone “calls” without meaningful disclosure, the judge did not agree that this single voicemail message violated the FDCPA.  He supported this finding by citing other district courts who also focused on the plural usage of “calls” in the statute.  See Thorne v. Accounts Receivables Mgmt, Inc., 2012 U.S. Dist. LEXIS 109165 (S.D. Fla. July 23, 2012); Jordan v. ER Solutions, Inc., 900 F. Supp. 2d 1323 (S.D. Fla. 2012); Sanford v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS 103214 (E.D. Mich. May 30, 2013).

The judge also determined that the debt collector was not in violation of the FDCPA for failing to provide the “mini-Miranda” disclosure.  The judge noted that “in order to ‘convey information regarding a debt,’ a message must ‘expressly reference debt’ or the recipient must be able to infer that the message involved a debt.”  Since the employee did not mention the debt in the voicemail message, the judge did not consider it a debt collection communication under the FDCPA.

Finally, the judge disagreed that the message was misleading.  The employee merely left his name, phone number, and requested Plaintiff call him back.  The judge decided that nothing in the message was intended to mislead the Plaintiff.

For more information on this topic, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com.

Individual Employer Liability under the FMLA

The Family and Medical Leave Act (FMLA) creates a right of action for employees against “any employer” who is in violation of the Act.  The FMLA defines an “employer” as “any person who acts, directly or indirectly, in the interest of any employer to any of the employees of such employer.” Courts around the country are split on whether an individual supervisor can be deemed an “employer” and held individually liable for FMLA violations.  Courts in the 3rd, 5th, 8th and 10th  Circuits have held that individuals can be held individually liable under the FMLA.  The 6th and 11th Circuits on the other hand have held that individuals cannot be held liable.  The other Circuits, specifically the 1st, 2nd 4th, 7th and 9th, as well as the U.S. Supreme Court, remain silent on the issue.  

Although the 7th Circuit has not officially taken a position on this issue, it is possible that will soon change.  In Shockley v. Stericycle, Inc. No. 13-cv-01711 (N.D. Ill., Sept. 19, 2013), the U.S. District Court for the Northern District of Illinois, on Defendants’ Motion to Dismiss, determined that the FMLA’s definition of “employer” is similar to the definition found in the Fair Labor Standards Act (FLSA) so the analysis applied in FLSA claims should be applied to that matter.  Under the FLSA, a person is considered an ‘employer’ and subject to individual liability if two conditions are met: (1) the individual had supervisory authority over the plaintiff; and (2) the individual was at least partly responsible for the alleged violation.” Austin v. Cook County, No. 07-C-3184, 2009 WL 799488, at *3, (N.D. Ill. March 25, 2009).  The Shockley court found that the individual supervisors involved had sufficient “supervisory authority over the complaining employee and [were] responsible in whole or in part for the alleged violation” and therefore Defendants Motion to Dismiss was denied.  See, Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987).   The Shockley court held that “at the pleading stage, it is sufficient for Plaintiff to allege that the Individual Defendants, in their administrative roles, controlled, at least in part, Plaintiff’s access to FMLA leave. ‘[S]o long as he or she possesses control over the aspect of employment alleged to have been violated,’ the individual can be liable under the FMLA.”

Although this case is merely in its initial stages, it draws attention to two large concerns for employers.  One, employees who are responsible for making or even influencing decisions regarding an employee’s FMLA leave and entitlement may be held personally liable for those decisions even if they do not directly supervise that employee.  Two, while employers may outsource certain FMLA functions to third party administrators, employers cannot outsource the legal responsibility for the acts and/or omissions of those third parties. For more information or questions on the FMLA, FLSA or any further employment related matters, please contact Dana Perminas, at 312-334-3474 or dperminas@messerstrickler.com.

FDCPA: Fourth Circuit Holds Consumers May Orally Dispute Debts

On January 31st, 2014, the Fourth Circuit Court of Appeals held in Clark v. Absolute Collection Service, Inc. that the FDCPA does not require a consumer to dispute a debt in writing.  The Plaintiff in Clark brought a putative class action against Absolute Collection Service, Inc. (“ACS”), claiming that ACS violated Section 1692g(a)(3) of the FDCPA by stating in its collection letter that debtors could only dispute the validity of their debt in writing.  Relying on ACS’s argument that Section 1692g(a)(3) contains an inherent writing requirement, the district court dismissed Plaintiff’s claim.

Upon appeal, the Fourth Circuit Court was asked to decide whether Section 1692g(a)(3) permits an oral dispute, or whether it imposes a writing requirement.  The Third Circuit had previously held that Section 1692g(a)(3) imposes a writing requirement, while the Second and Ninth Circuits found that it did not.  The Fourth Circuit ultimately agreed with the Second and the Ninth Circuits, thus finding that Section 1692g(a)(3) permits consumers to orally dispute the validity of a debt.  Based on this decision, the Court remanded the case back to the district court for further proceedings.

To learn more about this case and the FDCPA requirements, contact Joe Messer at (312) 334-3440, or at jmesser@messerstrickler.com.

CALIFORNIA COURTS HIT THE BRAKES ON PUTATIVE TCPA CLASS ACTIONS WITH THEIR ENFORCEMENT OF ARBITRATION PROVISIONS

Two federal district courts in California recently granted defendants’ motions to compel arbitration, sending two putative TCPA class actions to arbitration.  In Mendoza v. Ad Astra Recovery Services, Inc., No. 2:13-cv-06922 (Jan. 6, 2014 C.D. Cal.), plaintiff brought a TCPA class action against an agent of a payday lending firm who had left pre-recorded voicemail messages on his cell phone regarding a debt he had failed to repay.  Plaintiff, however, had signed a contract with the payday lending firm at the time he received the loan, by which he waived the right to pursue a class action and agreed to arbitrate any potential claims.  The arbitration clause covered “any claim, dispute or controversy between you and us (or related parties) that arises from or relates in any way to this Agreement . . . ; any of our marketing, advertising, solicitations and conduct relating to your request for Services; our collection of any amounts you owe; or our disclosure of or failure to protect any information about you.”

Plaintiff raised three arguments against enforcement of the arbitration provision.  First, he argued that defendant lacked standing to enforce the agreement.  The court rejected this argument, finding that defendant had standing as an agent of the payday lending firm.  Plaintiff next argued that his claim was not covered by the arbitration clause.  The court disagreed, noting that the clause was extremely broad.  Under the clause, “‘[c]laim’ [was] to be given the broadest possible meaning and include[d] . . . claims based on any . . . statute[.]”  Importantly, the clause also expressly included claims arising out of debt-collection activities.  Lastly, plaintiff argued that the arbitration provision was unconscionable.  The court found that the clause was not procedurally unconscionable because it “gave plaintiff the unilateral right to reject arbitration at any time within 30 days of signing the contract.”  The court also found that the clause was not substantively unconscionable because the clause was set out conspicuously on a separate page of the contract and the contract contained the following warning:

VERY IMPORTANT. READ THIS ARBITRATION PROVISION CAREFULLY. IT SETS FORTH WHEN AND HOW CLAIMS . . . WILL BE ARBITRATED INSTEAD OF LITIGATED IN COURT. IF YOU DON’T REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH SECTION 1 BELOW, UNLESS PROHIBITED BY APPLICABLE LAW, IT WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY IN WHICH YOU OR WE RESOLVE ANY CLAIM.

In Sherman v. RMH, LLC, et al., No. 13-cv-1986 (Jan. 2, 2014 S.D. Cal.), plaintiff brought a TCPA class action against a dealership who had left a pre-recorded voicemail message on his cell phone reminding him that it was the anniversary of his auto purchase and that it was time for “another status review of [his] ownership experience.”  When plaintiff purchased his car, however, he signed a Retail Installment Sales contract which included an arbitration clause.  Like the clause in Mendoza, the arbitration clause contained in the Retail Installment Sales contract was broad enough to encompass plaintiff’s claim: “Any claim or dispute, whether in contract, tort, statute or otherwise . . ., between you and us or our employees, agents, successors or assigns, which arise out of or relate to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship . . . shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.”  The court like its counterpart in the Central District, rejected the plaintiff’s arguments that the clause did not cover the claim at issue and that the clause was unconscionable. 

By signing contracts containing arbitration clauses, the plaintiffs in the aforementioned cases relinquished any right to pursue TCPA claims through a class action. These recent decisions stress the importance of ensuring that arbitration clauses contain class action waivers and are broad enough to encompass potential TCPA claims.  For more information on this topic or assistance in reviewing or drafting arbitration clauses, please contact Katherine Olson at 312-334-3444 or kolson@messerstrickler.com.  

ADA Coverage: Drug v. Alcohol Users, Part 2. Alcohol Users

In our previous blog we discussed the Americans with Disabilities Act (ADA) Coverage for Drug Users. In this entry, we will cover how and when Alcohol Users are covered under the ADA. According to the ADA, individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. See, e.g., Adamczyk v. Baltimore County, No. 97-1240, 1998 U.S. App. LEXIS 1331 (4th Cir. 1998). Courts throughout the country have held that alcoholism is a disability covered by the ADA. See, Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997), cert. denied, 118 S. Ct. 441 (1997); Office of the Senate Sergeant-at-Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed. Cir. 1996); Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996).

Some courts have questioned whether this ailment is something that should be automatically covered or whether further analysis need be done to determine whether the individuals alcoholism “substantially limits” a major life activity. For instance, the court in Sutton v. United Airlines, Inc., 119 S. Ct. 2139, 527 U.S. 471 (1999) explained that “a ‘disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might’, ‘could’ or ‘would’ be substantially limiting if corrective measures were not taken.” Id. Subsection (A) of 42 U.S.C. §12102(2) mandates that disabilities be evaluated “with respect to an individual” and be determined according to whether the impairment substantially limited the person’s “major life activities”, therefore, the question of whether an individual’s impairment due to alcoholism is covered by the ADA is an individualized inquiry. Id.

Although alcoholism may be a covered disability, employers can still enforce rules concerning alcohol in the workplace. According to the ADA, employers can prohibit the use of alcohol at work, require that employees not be under the influence of alcohol at work, and hold an employee with alcoholism to the same employment standards as other employees, even if the poor performance or conduct is related to the employee’s alcoholism. 42 U.S.C. §12114 (1994).

As alcoholism is covered as described above, the ADA requires reasonable accommodation that may involve a modified work schedule so the employee can attend Alcoholics Anonymous meetings, or possibly a leave of absence so that employee can seek treatment. See, e.g. Schmidt v. Safeway, Inc., 864 F. Supp. 991 (D. Ore. 1994). An employer need not provide any alcohol rehab programs or to offer means for a rehab program in lieu of disciplining that employee for any alcohol related issues that arise at work. See, 135 CONG. REC. S10777 (daily ed. Sept. 7, 1989). Also, an employer is not under any obligation to provide time for leave for an employee if the treatment would be futile, if the employer determines so based upon the employee’s track record of failing to complete or succeed with treatment in the past. See, Schmidt, 864 F. Supp. 991; Evans v. Fed. Express Corp., 133 F.3d 137 (1st Cir. 1998).

Check back next month to see our next blog post regarding the FMLA Coverage of Alcohol and Drug Users.

To learn more about ADA protection of Alcohol Users and Drug Users and what that means for employers, please contact Dana Perminas at dperminas@messerstrickler.com or by calling Dana at (312) 334-3474.

The FTC’s First Text Messaging Case- $1 Million Settlement!

On September 25th, the Federal Trade Commission (“FTC”) advised that a debt collector agreed to pay a $1 million civil penalty to settle FTC allegations that collectors communicated improperly through the use of text messages. This is the first action that the FTC has brought against a debt collector who attempted to collect debts in an unlawful manner by using text messages among other means. The FTC alleged that Archie Donovan, as well as National Attorney Collection Services, Inc., and National Attorney Services LLC- the towing companies Donovan controls- committed various violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq (“FDCPA”). Specifically, the FTC argued that the collectors illegally contacted consumers using text messages and phone calls by failing to disclose that their status as debt collectors in violation of §1692(e)(11). Another interesting allegation by the FTC was the use of a certain stamp by Donovan and his companies. They purportedly used mailing envelopes that picture a large arm holding a consumer upside down by his legs and shaking money from him.  The FTC asserted that this violated §1692(f)(a), which prohibits the use of “any language or symbol, other than the debt collector’s address, on [an] envelope” communicated to a consumer as it disclosed the senders status as a debt collector to the public.

In addition to the $1 million in civil penalties, the settlement terms provide that the collectors are barred from communicating with consumers without disclosing their identity as debt collectors, falsely claiming to be law firms, and threatening to seize consumer’s property or garnish their wages.  Further, Donovan and his companies agreed to obtain consumers’ consent before sending text messages in the future.

The FTC has addressed how debt collectors can use text messages to collect debts in a lawful manner while maintaining consumers’ privacy.  You can find this information in FTC’s workshop and report.

To see the complaint:

http://www.ftc.gov/os/caselist/1223032/130925naccmpt.pdf

EEOC Ordered to Pay $4.7 M in Attorney Fees and Costs

In connection to our recent blog on the dismissal of EEOC’s claim against Freeman Co., we would like to bring to your attention another recent case where the EEOC’s claims were dismissed.  In EEOC v. CRST Van Expedited, Inc. (Case No. 07-cv-95), the Northern District of Iowa dismissed 65 of the EEOC’s 67 claims finding that the EEOC failed to investigate or attempt to conciliate the individual claims. Based on the EEOA which allows a prevailing defendant (employer) to recover attorneys’ fees for frivolous, unreasonable, or groundless claims, the Northern District of Iowa also awarded CRST Van Expedited, Inc. attorneys’ fees, costs, and expenses of $4,694.442.14. Importantly, the Northern District of Iowa rejected the EEOC’s argument that a defendant (employer) must prevail on every claim to be entitled to attorneys’ fees.  To read the decision, please follow this link: http://www.workplaceclassaction.com/files/2013/08/EEOC-v.-CRST.pdf