President Obama’s Consumer Privacy Bill of Rights Feb 2012

Posted on by Gordon Leech

President Obama issued his Consumer Privacy Bill of Rights on Feb. 23, 2012, addressing a standard for collection and use of consumer personal information, declaring it “a framework for protecting privacy and promoting innovation in the global digital economy.” You can view the White Paper here: Consumer Data Privacy in a Networked Word, White House Feb. 2012.
This bill of rights does not have the force of law, though the administration has the intent of encouraging it to be passed in future legislation.
President Obama states in the introductory letter that this white paper is a blueprint for privacy in the information age and encourages all companies to abide by it now, voluntarily.

I am pleased to present this new Consumer Privacy Bill of Rights as a blueprint for privacy in the information age. These rights give consumers clear guidance on what they should expect from those who handle their personal information, and set expectations for companies that use personal data. I call on these companies to begin immediately working with privacy advocates, consumer protection enforcement agencies, and others to implement these principles in enforceable codes of conduct. My Administration will work to advance these principles and work with Congress to put them into law. With this Consumer Privacy Bill of Rights, we offer to the world a dynamic model of how to offer strong privacy protection and enable ongoing innovation in new information technologies.

Currently, there is no law in place to regulate the collection or use of our personal information on the internet. The intent of the Consumer Privacy Bill of Rights is to create added protections to the collection and use of our personal data by the various internet companies that are already collecting this information and using it in ways we are not aware. This bill of rights would require disclosures and the ability to opt in or out of certain collection and use of our personal data in a uniform manner.

Posted in Privacy

Wisconsin Court of Appeals Upholds Arbitration Clause Against a Consumer Despite Its Class Action Ban

Posted on by Gordon Leech

In Cottonwood Financial Ltd v. Estes, Wisconsin Court of Appeals, Case No. 2009AP760, decided Dec. 20, 2011, the court enforced an arbitration agreement against a consumer despite the ban on class action proceedings contained within the agreement. The Wisconsin court followed the holding of a recent U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion, 563 U.S. __, 131 S.Ct. 1740 (2011), which it summarized as holding that “a state law that ‘classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable[,]” and thus unenforceable, was preempted by the Federal Arbitration Act (FAA).’” Although the pre-Concepcion decision out of the same court of appeals found the agreement unenforceable, Concepcion caused this court to reverse its earlier decision and now uphold the agreement in its most recent opinion.
The bottom-line of this decision is that forced arbitration agreements that preclude consumers from bringing their claims in court, before a jury, regardless of whether its is brought as a class action or an individual claim, can be forced into privately held, confidential arbitration proceedings without the ability to raise the claims on behalf of all similarly harmed consumers. This will tend to preclude small dollar claims from ever being enforced to the benefit of unscrupulous businesses.

New Employee Protections in Wisconsin for Reporting Suspected Child Abuse

Posted on by Gordon Leech

As of December 9, 2011, new changes in Wisconsin law provide greater protection to employees that report suspected child abuse. 2011 Wisconsin Act 81 enlarged both the scope of employees protected and the nature of adverse employment actions that employers are prohibited to take against an employee in Wisconsin for reporting.

Wisconsin law at Wis. Stat. 48.981 governs the reporting of suspected child abuse. The identity of the reporter is kept confidential.

The law makes reporting mandatory for employees in certain occupations such as physicians, nurses, dentists, social workers, school employees including teachers and administrators, school counselors, child care workers, EMTs, police and other law enforcement officers, among others. Any of these employees that have “reasonable cause to suspect that a child seen by the person in the course of professional duties has been abused or neglected or who has reason to believe that a child seen by the person in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall … report as provided in sub. (3).” There are exceptions noted at sub. (2m). Failing to report when it is mandatory can subject the person to a fine of up to $1,000 or imprisonment for up to 6 months or both.

All other employees may report suspected child abuse, but doing so in not mandatory. Permissive reporting still provides the same protections as mandatory reporters.

An employee reporting suspected abuse who has a good faith belief of abuse is immune from liability for making such a report if the investigation does not find abuse occurred. There are a few exceptions, for example, the perpetrator cannot self report and still be immune.

The protection provided to an employee that reports suspected child abuse is under Section 48.981(2)(e). This section prohibits an employer from discharging an employee from employment for making either a mandatory or permissive report. Act 81 amends this section to now include the additional protections from “discipline or otherwise discriminated against in regard to employment, or threatened with any such treatment for doing so.” It appears to essentially prohibit any adverse employment action in retaliation for making mandatory or permissive reports of suspected child abuse.

Wisconsin Family Medical Leave Includes Domestic Partner

Posted on by Gordon Leech

As of June 29, 2009, the Wisconsin Family and Medical Leave Act (WFMLA) includes protecting employees that need leave for a domestic partner. The WFMLA is at sec. 103.10 of the Wisconsin Statutes. This law provides additional protections not found in the Federal FMLA.

Wisconsin has a provision for domestic partners to register to qualify for other benefits, but this is not required for WFMLA coverage.

The law provides, among other protections, up to two weeks of leave for an employee to care for the domestic partner’s serious health condition, but not for a child of the domestic partner. To be covered, the employee must work for a pubic employer or a private employer that employs 50 or more permanent employees. Also, the employee must have been employed for 52 consecutive weeks or more and have worked at least 1,000 hours in the preceding 52 week period.

Failure to provide the requested leave is a violation of the WFMLA, as is failure to restore an employee to his or her position or an equivalent one following WFMLA leave.

Violations of the WFMLA are enforced by the Wisconsin Equal Rights Division by filing a complaint within 30 days of the violation or when the employee reasonably learns of the violation, whichever is later.

Disclaimer. The information in this and all other posts on this website are not meant as legal advice, but as informative, educational material of a general nature. Legal advice depends on the particular facts and circumstances, and can only be given upon a discussion of the facts and circumstances between an attorney and client. Do note rely on this information when making legal decisions, and you should consider seeking the advice of a competent attorney licensed to practice law in your jurisdiction.

Posted in Medical Leave | Tagged domestic partner

Consumer Mobile Fairness Act Proposed in U.S. Senate

Posted on by Gordon Leech

Senators Blumenthal (D-Ct) and Al Franken (D-MN), who are sponsors of the Arbitration Fairness Act, have introduced a bill to the U.S. Senate to prohibit mandatory arbitration clauses in cell phone contracts.

Mandatory arbitration clauses force you to bring claims in arbitration, rather than in court. These clauses are generally anti-consumer because it keeps information about claims hidden from the public as well as the outcome of claims. The clauses also take away your right to have your dispute decided by a jury of your peers in open court. Many arbitration panels are viewed as biased, in favor of industry, as industry is in arbitration with these panels repeatedly while the consumer is before them maybe once in a lifetime, among other reasons.

More information on this bill is at:

http://blumenthal.senate.gov/newsroom/press/release/blumenthal-franken-introduce-legislation-to-provide-justice-to-wireless-customers_

http://www.washingtonpost.com/blogs/post-tech/post/franken-blumenthal-bill-would-allow-cell-phone-users-to-sue-carriers/2011/10/04/gIQANrueLL_blog.html

U.S. Senate Banking Committee Approves Cordray to Lead Consumer Financial Protection Bureau

Posted on by Gordon Leech

On October 6, 2011, the U.S. Senate Banking Committee approved Richard Cordray to lead the Consumer Financial Protection Bureau, the new agency created to watch out for consumer protections in the financial industry. The vote was straight party line, with Republican senators opposing his nomination and Democrats supporting it.

The nomination now moves to a vote on the Senate floor.

ABA GP Solo Magazine Article on Credit Reporting by Expert Evan Hendricks

Posted on by Gordon Leech

The American Bar Association published in its GP Solo Magazine an article authored by Evan Hendricks on credit reports, credit checks and credit scores. Mr. Hendricks is  an expert on credit reporting and the credit reporting industry as recognized in federal and state courts around the country. The article is available online at www.americanbar.org/publications/gp_solo/2011/july_august/credit_reports_checks_scores.html.

In the article, Mr. Hendricks discusses what a credit score is “a number that reflects your credit worthiness at a given point in time.” Higher credit scores is meant to reflect a better risk for the lender, so people with higher scores get loans at more favorable rates. Mr. Hendricks further explains the scoring models used by several agencies and ranges assigned to consumers that put them in certain risk categories.

Posted in Credit Score

Verbal Complaint About Unpaid Overtime & Minimum Wages Are Protected by the Fair Labor Standards Act

Posted on by Gordon Leech

The U.S. Supreme Court decided that both verbal and written complaints by an employee about violations of the Fair Labor Standards Act (“FLSA”) are considered protected conduct under the anti-retaliation provisions of the law. These complaints typically relate to an employee not getting paid overtime or not getting paid anything for hours worked. The decision is Kasten v. Saint-Gobain Plastics Corporation, March 22, 2011.

The decision was based on the following language from the FLSA, Sec. 215(a)(3):

[An employer may not] discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.

Lower-level Supervisor’s Discriminatory Motive Can Violate Civil Rights

Posted on by Gordon Leech

On March 1st, 2011, the U.S. Supreme Court decided that a lower-level supervisor’s discriminatory motive in proposing disciplinary measures against an employee can form the basis for liability under the anti-discrimination laws in employment like Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Act of 1994 ( USERRA ). This is known as a Cat’s Paw theory of liability for employment discrimination, as the lower-level supervisor proposes disciplinary action against an employee for an improper motive but the decision-maker may not have a discriminatory motive but relies upon the lower-level supervisor’s recommendation. While the actual decision-maker lacks a discriminatory motive, the decision is still tainted by the lower-level supervisor’s discriminatory motive. As long as the lower-level supervisor’s act, which was motivated by an unlawful discriminatory motive, is the proximate cause of the adverse action, like termination or a suspension, then the employer may be held liable for a violation.

This analysis can also apply to make discriminatory performance reviews that result in adverse action like termination, suspension, failing to promote, actionable where the reviewing supervisor gives negative remarks out of an unlawful discriminatory motive.

In Staub, the issue was related to an employee’s military leave, and the decision was made under the USERRA law, but the Supreme Court also discussed how the law would be applied in other areas of employment discrimination claims.

Renting and Your Credit Reports

Posted on by Gordon Leech

Rejected for renting a house or apartment? Did the landlord use a credit report or background report? If so, you have certain rights under the Fair Credit Reporting Act. Tenant screening companies are now using your credit reports and background checks to decide whether to rent to you.