March 2021 | Compliance Update

Federal Developments

Lawmakers Introduce National ‘Ban-The-Box’ Bill
New legislation would encourage states to implement “ban-the-box” policies that prohibit employers from asking job applicants about their criminal history before an offer of employment is made.

Reps. Maxine Waters, D-Calif., and David Trone, D-Md., introduced the Workforce Justice Act on March 3. It would give states three years to remove from private-sector employment applications the question that asks job seekers to disclose criminal history; noncompliant states would stand to lose criminal justice funding.

The aim of the proposal is to provide job applicants with criminal records a better chance at competing in the labor market. Studies show that people with criminal histories face very high unemployment rates and risk for recidivism. Up to 75 percent of people who were incarcerated remain unemployed one year after release, according to the Center for American Progress, a Washington, D.C.-based think tank.

“For previously incarcerated men and women who are doing their part to reintegrate into society, the job application process is often stressful and debilitating, due to the rate at which they are denied consideration for employment because of the fact that they have served time,” Waters said. “By prohibiting private employers from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment, like my state of California has already done, job applicants with a criminal history will be evaluated based on their qualifications alone and have a fair shot at rebuilding and reclaiming their lives.”

Trone added, “Banning the box results in higher retention rates and more dependable employees, and it’s just the right thing to do. Right now, and especially during this economic crisis, we should ensure that all Americans, regardless of their criminal history, have access to good, well-paying jobs.”

Washington, D.C., 36 states and over 150 cities and counties have adopted ban-the-box policies, according to the National Employment Law Project. Fourteen states and 20 cities and counties have extended these policies to private employment. The federal government also enacted a ban-the-box policy for federal agencies and contractors in 2019. The new legislation is aimed at all employers within each state.

COVID-19 Vaccine: What Can Employers Require?   
With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores, among other things:

  • employers’ obligations when implementing mandatory vaccination programs;
  • issues concerning employee data that is provided as proof of vaccination or pre-vaccination screening; and
  • defining ‘reasonable accommodation’ and potential Americans with Disabilities Act (ADA) concerns.(1)

Employers’ obligations when implementing mandatory vaccination programs
Employers that implement mandatory COVID-19 vaccination programs should pay close attention to their responsibilities under the following as many of the traditional applications of these laws apply to this type of program:

  • Title VII of the Civil Rights Act;
  • the ADA;
  • the Genetic Information Non-discrimination Act (GINA);
  • Occupational Safety and Health Administration (OSHA) guidelines; and
  • the Employee Retirement Income Security Act (ERISA).

For example, employees that have specific ADA or Title VII challenges (e.g. a sincerely held religious belief, practice or observance or disabilities) that could prevent them from complying with the policy will need to be provided with reasonable accommodations unless this would pose an undue hardship. With the opportunity for employers to request additional supporting information to verify an employee’s request under the ADA or Title VII, employers should assess these situations on an individual basis and look to understand various factors when evaluating:

  • the severity of the harm;
  • the likelihood of harm to others; and
  • the imminent consequences of the threat.

To track or not to track: the million-dollar compliance question
To maintain the integrity of a mandatory vaccination program and ensure compliance within the company, employers should commit to deploying a comprehensive tracking system. The intention behind a mandatory program is to ensure that the workforce is protected so that companies can resume normal business activities and operations to pre-COVID-19 levels. By having a robust tracking system, employers can stay on top of:

  • the employees who have been vaccinated;
  • the individuals challenging the policy;
  • the professionals who need accommodations; and
  • other unique circumstances.

On the contrary, it is not recommended to implement a tracking system for a voluntary vaccination program as the ambiguous ask for employees to self-report leaves a lot of unknowns and inconsistencies.

Undoubtedly, there is an administrative burden that accompanies any kind of tracking system; however, the benefits outweigh those concerns and should be considered early on as employers look to deploy a mandatory program.

Be cautious about employee data provided as proof of vaccination or pre-vaccination screening
Employers will have to carefully manage the information that employees provide to verify their vaccination or as part of a pre-screening vaccination process. Due to strict parameters set by the GINA, the ADA and the Health Insurance Portability and Accountability Act (HIPAA), employers will need to be clear with the information that the company is requesting through targeted forms and other means to ensure that employees are providing only the necessary details that demonstrate compliance with the overall policy. With the ADA, employers must show that pre-screen questions are job-related and consistent with business necessity. Under the GINA, employers cannot enquire about an individual’s or family member’s genetic information, including:

  • genetic tests;
  • family medical history;
  • requests for, receipts of or participation in clinical research, including genetic services; and
  • genetic information about a fetus carried or an embryo legally held using assisted reproductive technology.

Employers must also be aware of instances where employees inadvertently provide medical information. Depending on the circumstances, such instances may require employers to maintain a separate set of protocols to comply with the HIPAA.

Mandatory versus voluntary COVID-19 vaccination programs
There are many factors that employers should consider before deciding whether a mandatory vaccination program is the right path for them to take. The upside of having a vaccination program is that it can bring a lot of benefits to companies as they look to return to ‘normal’, including:

  • motivating the workforce;
  • expediting the return of employees to a traditional work setting;
  • relaxing COVID-19-specific policies; and
  • eliminating the health concerns in high-risk environments.

However, there are drawbacks that employers should evaluate before fully committing to this kind of program, including:

  • required compliance tracking and data management of information provided by employees, including the challenges presented by outsourcing the management of this information;
  • the limited impact on social distancing protocols, as companies will still need to have employees comply with those policies;
  • the increased need to provide special accommodations to address the challenges raised by the ADA, Title VII and OSHA, including the risk of providing an uneven application of accommodations that may lead to discrimination claims; and
  • the potential for workers’ compensation claims relating to adverse reactions to the vaccination.

Employers must also be aware of instances where employees inadvertently provide medical information that would be constituted as health data as this will require employers to follow a separate set of protocols to comply with the HIPAA.

For voluntary programs, there are expected benefits from a self-reporting system, but also drawbacks. Employees will be less likely to raise retaliation claims or other adverse actions, while employers have more flexibility with the types of information that they can solicit through pre-screen questions as a result of ADA and GINA-compliant voluntary wellness programs. In addition, ADA and Title VII accommodations do not apply as the program is completely voluntary. Keeping that in mind, a voluntary program offers far less benefits in terms of the control that employers have to ensure that:

  • their workforce is fully vaccinated;
  • they can open operations where safety concerns exist; and
  • they can pull back on COVID-19 policies such as social distancing.
  • Consider application of ERISA
    • The application of ERISA will be determined by how involved the employer is in the vaccine program. Employers opting for an incentive program which are not offering to pay or provide the vaccine need not create an ERISA plan. However, employers considering sponsoring on-site or near-site vaccine programs (or using a third party to administer vaccines to employees) will have to be mindful of their ERISA plan. While this should not be difficult for employers, they must ensure that everything is order, including adding the necessary information to the summary plan description and updating the participant count. In addition, while there might be compliance obligations to bear in mind, ERISA pre-emption allows employers to not have to worry about some of the state and local laws.
  • Other benefits considerations involved in vaccination programs
    • If offering an incentive program, employers must be careful of what is taxable and what is not. Time off is taxable, while gifts such as a water bottle are considered de minimis and are not taxed.
    • Employers should consider whether this benefit will be offered to all employees or just those under the company health coverage, and whether they will extend the program to dependents.
    • The cost of an on-site or near-site program can become steep. Under the Affordable Care Act, vaccines are considered preventive medicine and group health plans will be responsible for the entire cost of vaccine administration.
    • Employers should also consider the HIPAA privacy implications involved in vaccine programs. If providing an on-site vaccination clinic, the HIPAA and state privacy should be top of mind.
    • Using a third party which will store participants’ data will help to insulate employers from the HIPAA.

State Developments

New York City Expands Protections For Applicants And Employees With Criminal Histories
In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories. The amendments take effect July 29, 2021, adding additional protections for workers in the state. Prior to the amendment, NYC’s Fair Chance Act prohibited employers from making an inquiry about an applicants’ criminal conviction records until after a conditional offer of employment is extended. Then, an employer was required to balance a variety of factors to determine job-relatedness of the conviction.

The amendment to the NYC Fair Chance Act creates more stringent requirements on the evaluation process an employer must undertake before taking an adverse job action against an applicant or employee. An employer may only take an adverse action if there is either a direct relationship between the criminal history and the job, or if the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. To determine whether there is such a direct relationship or unreasonable risk, an employer must consider the following factors:

  • New York City’s policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in employment;
  • The specific duties and responsibilities necessarily related to the employment;
  • The bearing, if any, of the criminal offense or offenses on the individual’s fitness or ability to perform one or more job duty or responsibility;
  • The age of the applicant when the events that led to the conviction occurred;
  • The seriousness of the offense or offenses;
  • Any additional information produced by the individual, or on their behalf, in regard to their good conduct, including history of positive performance and conduct on the job and in the community , or any other evidence of good conduct;
  • The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public; and
  • If the individual has a certificate of relief from disabilities or a certificate of good conduct, employers must presume that they are rehabilitated.

These factors are nearly identical to those in place before the Amendments, but now employers are affirmatively required to ask applicants to provide information relevant to each factor. Additionally, employers must provide a written copy of this analysis to the applicant or employee and permit them a reasonable time to respond. Nothing in the NYC law precludes employers from taking adverse action against an applicant or employee who is found to have made misrepresentations about their conviction history, provided that the adverse action is not based on a failure to divulge information that a person is not required to.

New York City leads the trend of cities across the country limiting employers’ reliance on criminal histories when making employment decisions. Employers should review their hiring policies for employees located in New York City to ensure that the necessary multi-factor inquiry is undertaken to evaluate applicant and employees’ criminal histories.

New York Becomes 15th State To Legalize Recreational Marijuana
New York has become the 15th state to legalize possession of marijuana for recreational use, allowing anyone over the age of 21 to possess up to three ounces of the drug.

New York Gov. Andrew Cuomo signed the Marijuana Taxation and Regulation Act into law in March.

Effective immediately, it is no longer a crime or violation to possess up to three ounces of marijuana in New York. The state anticipates legal marijuana sales for those age 21 and older will begin a year from now, as it embarks on the complex task of issuing cannabis business licenses while preparing to enforce a lengthy list of new marijuana statutes.

New Jersey Legalizes Recreational Marijuana Use: What This Means For Employers
On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21. With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use). These requirements are effective immediately.

Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use. NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.

There are several vital limitations to this general anti-discrimination requirement:

  • Employers may continue to maintain drug- and alcohol-free workplaces, including prohibiting and disciplining employees for using, possessing, or being under the influence of marijuana at the workplace or during work hours.
  • Employers are not required to comply with the anti-discrimination provisions to the extent doing so would violate a federal contract.

Critically, NJCREAMMA does not have any exception for employees who are in safety-sensitive positions.

In addition, NJCREAMMA mandates certain requirements for drug testing procedures that must be used when determining whether an employer may take an adverse employment action against an employee for being under the influence of marijuana at work or during work hours. Specially, the employees must both: (1) test positive for cannabinoid metabolites as a result of a scientifically reliable drug test (e.g., saliva, urine, or blood tests); and (2) an individual who is certified as a Workplace Impairment Recognition Expert must conduct a physical evaluation of the employee and determine that they are under the influence of marijuana. If both of these requirements are not met, an employer may not take any adverse action against an employee based on suspicions that the employee is under the influence of marijuana at work or during work hours. The New Jersey Cannabis Regulatory Commission is developing a training program for employees to be certified as a Workplace Impairment Recognition Expert but has not advised when this will be available.

Further, NJCREAMMA continues to permit employers to conduct drug tests for marijuana under the following scenarios:

  • Pre-employment screenings, random drug testing, and other routine testing conducted by the employer;
  • If the employer has reasonable suspicion to believe the employee is under the influence of marijuana at work or during work hours; and
  • Following a work-related accident.

While employers are still permitted to test for marijuana, they must still comply with the anti-discrimination requirements above when determining whether or not take any adverse action against an employee as a result of a positive drug test.

In light of the expansion of employees’ rights under NJCREAMMA, all New Jersey employers must reevaluate their drug and alcohol use and testing policies, practices, and procedures to ensure they are in compliance.

California Considers Legislation Regulating Employer Consideration Of Marijuana Use
Marijuana remains a Schedule I drug under the federal Controlled Substances Act. However, more and more states and localities are either enacting marijuana laws with express employment protections or resolving court cases in favor of marijuana users. Yet, more than a decade ago, the California Supreme Court held in Ross v. RagingWire Telecomm., Inc., that employers have the right to reject an applicant who tests positive for medical marijuana. Since that time, while California employers have enjoyed some comfort in the ability to enforce their workplace substance abuse policies, lawmakers have been making efforts to amend state law to provide more protections to marijuana users.

To start, in February 2018, a California assembly member introduced AB 2069 (“Medical Cannabis Worker Protections Act”), a bill that would have amended the Fair Employment and Housing Act (FEHA) to require most employers to engage in an interactive process with and consider reasonable accommodations for medical marijuana users. Two years later, AB 2355 was introduced, which would have amended the FEHA to provide express employment protections to medical marijuana users. Both bills failed to advance past committees. However, we never expected this to be the end of the saga in California.

On February 19, 2021, Assembly Member Quirk (D) introduced AB 1256. If passed, the law would prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment because a urine drug test revealed the presence of tetrahydrocannabinol (THC) in their system. The bill would exempt employers required to conduct testing for THC in accordance with federal laws or regulations or employers that would lose a monetary or licensing-related benefit for failing to conduct testing for THC. The bill also would exempt employment in the building and construction trades.

If enacted, employers with workers in other types of safety sensitive roles, including those working in healthcare or in non-regulated driving positions, might have to consider modifications to their drug testing programs, including relying on other specimens in lieu of urine. Indeed, Dale Gieringer, director of California NORML, has reportedly said that “the proposal is not intended to prevent employers from using something like a blood test to see if an employee has THC in their system, a sign of recent use of cannabis.” Gieringer also predicts the text of the bill will change as other groups weigh in

Amendments To Illinois Human Rights Act Regulate Use Of Criminal Records In Employment Decisions
Illinois has enacted new limitations and procedural obligations on the use of criminal conviction records in employment decisions. Governor J.B. Pritzker signed the bill amending the Illinois Human Rights Act (IHRA) on March 23, 2021, and the restrictions took effect immediately thereafter.

Latest Effort to Reduce Reliance on Criminal Records
In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated Criminal Background Guidance out of concern that African Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population. The EEOC’s guidance stated that the over-reliance on criminal backgrounds have a disparate impact against African Americans and Hispanics. A central issue for the guidance was measuring how African Americans and Hispanics fared compared to other racial groups. Plaintiffs pursuing these disparate impact claims had some successes, but also notable failures.

While the federal government has sought to regulate the use of criminal backgrounds under a racial viewpoint, Illinois has pursued an across-the-board strategy. In 2015, the state “Banned the Box.” In this legislation, the IHRA amendments substantively restricted the ability of employers to make employment decisions based on criminal records and added procedural requirements. The new amendments contain provisions that are similar to those under a New York City ordinance and likely will significantly impact hiring practices and policies regarding employing individuals with criminal backgrounds, as the Illinois Department of Human Rights has spelled out in its applicable FAQs.

New Substantive Limitations on Use of Conviction Records
The new requirement that there be a “substantial relationship” between the criminal conviction being considered and the employment sought or held may prove challenging for employers given the restrictive definition of “substantial relationship.” It is defined as “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” Alternatively, an employer may meet a different standard: “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

When assessing if either standard has been met, employers must consider several other factors related to the convictions and the surrounding circumstances (such as how long ago they occurred and the nature and gravity of the convictions), as under the EEOC’s individualized assessment standard.

Combining these standards, it appears that employers will not be able to base employment decisions on conviction records without, at the very least, considering whether there is an unreasonable risk that the employee or applicant will exhibit the same or similar behavior during the employment relationship. Moreover, employers will have less flexibility to make such decisions where nothing specific to the employment position itself adds to the likelihood of the employee or applicant repeating the conduct.

Employers will need to comply with new procedural obligations that may present challenges as well:

  • Employers must engage in an interactive assessment before taking an adverse job action and may take an adverse action only if they conclude that the substantial relationship test or alternative test is passed, and after they have considered the requisite series of factors regarding the convictions and surrounding circumstances.
  • Employers contemplating taking an adverse job action based on a criminal record must comply with the following notice procedure with requirements beyond those of the Fair Credit Reporting Act:
    • After making a preliminary decision, provide a written notice with the substantive basis for any disqualification decision, among other information.
    • Wait at least five business days to allow the individual to respond.
    • If an adverse action is taken, provide an additional written notice of the final decision containing: the disqualifying conviction(s), any procedure for the challenge or reconsideration of the decision, and, importantly, the individual’s right to file a charge with the Illinois Department of Human Rights.

Also on the same topic:

Illinois Imposes New Criminal History Check Requirements On Employers
On March 23, 2021, Governor J.B. Pritzker signed a bill (SB1480) that—effective immediately—amends the Illinois Human Rights Act (IHRA) to, among other things, impose new requirements on employers that perform criminal history checks on their employees. For employers that currently have a multistate-compliant background check system in place, the new Illinois requirements do not pose significant additional compliance obligations, for two reasons: (1) the new Illinois requirements mirror those that currently exist in a plethora of jurisdictions, including California and New York; (2) the new Illinois requirements incorporate steps that employers are already required to take to comply with the Fair Credit Reporting Act (FCRA). Multistate employers will, however, need to review their adverse action notices to ensure that they include language required under the amended IHRA.

New Requirements
Under the newly amended IHRA, employers that perform criminal history checks are required to satisfy the following requirements before basing an employment decision on an individual’s “conviction record”1:

1. Perform an “Interactive” (individualized) Assessment
The employer can base an adverse employment action on an individual’s criminal conviction only if: (1) there is a “substantial relationship”2 between the individual’s criminal offense(s) and the job sought or held; or (2) the employer believes that the individual poses an “unreasonable risk” to the property or safety of the employer’s workforce, customers, or members of the public. If one of these factors can be met, the employer must next perform “interactive assessment”—commonly known as an “individualized assessment”—and consider the following mitigating factors:

  • the length of time since the conviction;
  • the number of convictions that appear on the conviction record;
  • the nature and severity of the conviction and its relationship to the safety and security of others;
  • the facts or circumstances surrounding the conviction;
  • the age of the employee at the time of the conviction; and
  • evidence of rehabilitation efforts.

These mitigating factors mirror those outlined in the EEOC’s 2012 Enforcement Guidance3—which courts have rejected the EEOC’s ability to enforce4—that have been adopted in a number of “ban the box” laws around the country.5

If, after considering these mitigating factors, the employer chooses to move forward with the adverse action, the employer must comply with the IHRA’s new notice requirements.

2. Follow the Adverse Action Notification Process
The employer must notify the individual that their criminal conviction will be the basis for an adverse employment decision, provide the individual with a copy of the criminal history report obtained by the employer, and provide the individual with at least five days to respond with information impugning the accuracy of the conviction record, or some other mitigating evidence. If the individual is unable to challenge the accuracy of the conviction, or provide sufficient evidence of mitigation, the employer can then send the individual a notification informing them of the adverse action being taken and proceed with the disqualification. Employers that perform criminal history checks using a third-party “consumer reporting agency” will be very familiar with this process.

3. Inform Individuals of Their Right to File a Charge
While the requirements for the pre-adverse action and adverse action notices under the amended IHRA do not materially deviate from the FCRA’s, the IHRA adds two requirements that may require multistate employers to amend their adverse action notices:

  • The IHRA requires employers to include within both their pre-adverse action notice and adverse action notice “the employer’s reasoning for the disqualification.”
  • The IHRA requires employers to state in their adverse action notice that the individual has the right to file a charge with the Illinois Department of Human Rights.

Employers that use multistate adverse action notices should ensure that their notices subsume these requirements.

Although the amendments to the IHRA may present familiar obligations to multistate employers, employers should not lose sight of the fact that a failure to fully comply with these new requirements could give rise to a charge of discrimination, and the employer’s being forced to deal with the scrutiny of the Illinois Department of Human Rights. This could, in turn, lead to employers facing broader exposure in the form of suits filed under Title VII of the Civil Rights Act of 1964. Illinois employers that have criminal history screening policies in place should perform a privileged review of their policies and form notices to ensure they satisfy Illinois’ requirements. Employers that do not have policies to guide their criminal history screening process in Illinois should look to implement a policy that will effectuate compliance with the IHRA.

New Mexico Bills Legalizing Recreational Marijuana And Erasing Some Criminal Records Head To Governor’s Desk
Two related pieces of legislation—one which legalizes recreational cannabis for adults 21 and older in New Mexico and the second which expunges arrest and conviction records for some cannabis offenses—are heading to the governor’s desk after gaining lawmakers’ approval. Gov. Michelle Lujan Grisham praised the bills, saying they would bolster the economy and help those who have been harmed by the “country’s failed war on drugs.”

The second bill expunges the criminal records of people arrested or convicted for cannabis acts that would no longer be illegal under the new legislation.

“This important legislation accompanies the legalization of cannabis and will ensure that New Mexico ends the harmful long-term impacts of cannabis conviction records, enabling New Mexicans to build better futures,” the governor said.

The impending legalization in New Mexico follows on New York, where Gov. Andrew Cuomo signed a bill Wednesday allowing recreational marijuana use by adults 21 and older after the state Senate and Assembly voted to approve the legislation.

Court Cases

Eastern District Of Texas Rules CDC’s Eviction Moratorium Is Unconstitutional
An Eastern District of Texas ruling in Terkel v. Centers for Disease Control and Prevention, et al., determined the Centers for Disease Control and Prevention (CDC) lacked the authority to impose a national moratorium against evictions because of the novel coronavirus (COVID-19).

In deciding the issue presented to the court—“[w]hether the federal government has authority to order property owners not to evict specified tenants.” Id. at 1. Judge J. Campbell Barker concluded “[t]he CDC order exceeds the power granted to the federal government to ‘regulate Commerce…among the several States’ and to ‘make all Laws which shall be necessary and proper for carrying into Execution’ that power.” Id at 20. The court therefore held the CDC’s order is unlawful as “contrary to constitutional…power.” Id. at 20. This ruling limits federal authority and Congress’ use of the commerce clause to regulate matters the court deemed solely intrastate that have no impact or causal connection to interstate commerce.

To slow the spread of COVID-19, the CDC determined certain “covered persons” could not be evicted from their homes for failure to pay rent. Per the order, “[a] ‘covered person’ is any resident who provides the landlord or property owner with a declaration that makes five certifications, namely:

(1) the resident has used best efforts to obtain available government assistance for rent or housing;
(2) the resident falls below certain income thresholds, generally $99,000 annually or $198,000 annually if filing a joint tax return;
(3) the resident is unable to pay the full rent due to ‘substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the resident is using best efforts to make timely partial payments that are close to the full payment as circumstances permit; and
(5) the resident has no other available space for occupancy at the same or less housing cost and, if evicted, would either need to live without housing or move into a congregate or shared-living setting.” Id. at 4-5.

The court acknowledged the public health concern and the transmission of COVID-19 but was not persuaded by the government’s argument. The government argued, “[t]he CDC order may be rationally viewed as substantially affecting interstate commerce because 15% of changes in residences each year are between the States.” Id. at 18. Judge Barker was not convinced by the census data proffered by the government. He concluded that “[t]he same census data cited by the government here show that changes in marital status result in almost ten times more residential moves than evictions and foreclosures.” Id. at 19.

The National Housing Law Project (NHLP) contends the practical impact of Terkel will be far worse than its limited legal effect suggests. Given the opinion, the NHLP believes some courts may adopt the rationale in Terkel as persuasive authority to improperly evict a “covered person.”

On February 27, the Justice Department announced its decision to appeal and further staked out its position that the Terkel decision does not extend beyond the plaintiffs in that matter, and it does not prohibit the application of the CDC’s eviction moratorium to other parties.

In Rare En Banc Ruling, Second Circuit Holds That Manslaughter Is A Categorically Violent Felony, Including Cases Of Omission, Potentially Triggering Mandatory Minimums
On March 2, 2021, in a rare en banc decision, United States v. Scott, 18-163-cr, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—subjecting qualifying defendants to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, despite the fact that manslaughter can be carried out by omission. For more information click on:

Justices Appear Inclined To Curb Standing In Credit-Reporting Class Action
The Supreme Court on Tuesday seemed to favor a middle-ground approach in a dispute over the rules that limit when consumers can bring class-action lawsuits against corporations. Some justices suggested that an 8,000-member class action against TransUnion, one of the country’s three major credit-reporting companies, should be significantly narrowed—but not tossed out entirely.

The case, TransUnion v. Ramirez, was filed by a California man who went to buy a car at a Nissan dealership, only to be wrongly told that his name matched two names on a list of suspected terrorists and criminals with whom U.S. companies are barred from doing business. The man, Sergio Ramirez, then contacted TransUnion, which provided both the credit report to the Nissan dealership and the notification that Ramirez’ name matched names on the list maintained by the Treasury Department’s Office of Foreign Assets Control. TransUnion sent Ramirez two separate mailings—which, he says, did not comply with federal consumer protection laws—again indicating that his name was considered a “potential match” to two in the OFAC database. He sued the company on behalf of more than 8,000 people who were identified as potential matches and received a similar pair of mailings over a six-month period in 2011.

The question in the case is whether the lower courts should never have allowed it to proceed as a class action. Does the case boil down to a matter of “no harm, no foul,” as some justices put it during Tuesday’s oral argument, because there is no evidence that every member of the class suffered the kind of real harm that gives them a legal right to sue, known as standing, even if a federal law was technically violated? After over 90 minutes of debate, it appeared that some justices might be ready to split the difference. To read more, please click on the following link:

Appeals Court Upholds Constitutionality Of Terror Watchlist
A federal appeals court on Tuesday overturned a challenge to the constitutionality of the government’s terrorist watchlist, ruling that the government deserves wide latitude in establishing programs designed to protect national security.

A group of two dozen Muslim plaintiffs sued in 2016, saying their placement on the list had caused all kinds of difficulties in traveling and in other aspects of life. And they said the government’s administration of the list gave them no meaningful way to clear their name when they were wrongly placed on the list.

A federal judge in Alexandria, Virginia, ruled in favor of the plaintiffs in 2019, but the government appealed.

On Tuesday a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled unanimously in favor of the government. The panel reversed the district court’s decision, sent the case back to the judge and ordered him to rule in favor of the government.

“(T)his is no program of marginal consequence,” wrote Judge J. Harvie Wilkinson. “It lies at the very heart of our country’s effort to identify those who would inflict upon the public irretrievable loss.”

More than 1 million names are on the watchlist, also known as the Terrorist Screening Database, and are considered by the government to be “known or suspected terrorists.” Of those, only a handful—about 4,600—are U.S. citizens.

Various government agencies use and have access to the list. The much smaller No Fly List is compiled from the watchlist. A broader subset of the watchlist, known as the Selectee List, includes people who are allowed to board flights but are subjected to additional scrutiny. Government officials said the Selectee List can be used to determine which flights will include air marshals, for example.

The plaintiffs alleged a wide variety of harms because of their apparent inclusion on the list. Some said they were subjected to humiliating questions and disparate treatment at airport security. Some allegations were more severe—one plaintiff said he was detained at a border crossing by agents with guns drawn in front of his family, then left handcuffed and freezing in a cold cell for hours until he passed out.

The plaintiffs said they were wrongly placed on the list simply because they are Muslim.

While the appeals court ruled in favor of the government, Wilkinson said the plaintiffs are not totally without recourse if their rights are violated. He said, for instance, that individuals can file lawsuits claiming they were subjected to unreasonable search and seizures under the 4th Amendment.

But he said a broad attack on the program as a whole could do more harm than good.

“Courts lack the expertise and competence to second-guess decisions made about national security needs,” he wrote.