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CAP Talk  |  General Discussion  |  Membership  |  Topic: NHQ to begin rescreening members
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Mitchell 1969
Salty & Seasoned Contributor

Posts: 689
Unit: PCR-CA-051

« Reply #60 on: October 29, 2017, 10:14:13 PM »

Since we're "Volunteers", is CAP considered our "Employer" in the eyes of this law?

As Cicero pointed out, it appears to pertain to volunteers specifically as well as "employees."

And remember, CAPR 39-2, para 1.1.1: "1.1.1. Compensation.  Civil Air Patrol members are not employees of the CAP; they are volunteers who provide their services for the public good without expectation or receipt of salary, pay, remuneration or compensation of any kind."

Yes, as I mentioned a couple of days ago, the FCRA provisions apply to volunteers as well as paid employees. AND, yes, despite the word “credit,” it applies to any third-party background check whether or not a credit report is sought.

I think the CAPF 12 language was written long before the FCRA was enacted. Also, the FCRA itself has been tweaked and refined over the years.

There is no doubt in my mind; the CAPF 12 does not suffice for FCRA purposes. I am absolutely boggled that CAP believes it does.


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Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
Luis R. Ramos
Salty & Seasoned Contributor

Posts: 2,523

« Reply #61 on: October 30, 2017, 01:22:18 PM »

Does not surprise me judging the time it takes to update the regulations and manuals.
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Eclipse
Too Much Free Time Award
***
Posts: 27,987

« Reply #62 on: October 30, 2017, 01:43:03 PM »

Perhaps asserting more current case law in this regard would be more useful.  Everything indicating the
FCRA is applicable is from 2011, however there are more recent federal court cases, for example
Lamson v. EMS Energy Marketing Service, Incc.
http://blog.preemploy.com/fcra-ruling-on-independent-contractorsvolunteers-causes-a-wave-of-new-questions.

http://preemploymentdirectory.com/federal-court-fcra-does-not-apply-to-independent-contractor-relationships/

As CAP members are decidedly >not< employees, their membership most likely fails the Darden test since they
receive no remuneration beyond expense reimbursements.

One would have to imagine that if coffee-house lawyers here on CT could find this case law, actual lawyers at NHQ
are at least peripherally aware of it as well.

I'd say it's a fair point to make an issue of NHQ off-shoring member personal information, if in fact
it is found that this is the case, and the member wants to pretend their data isn't already there
from their health insurance provider, FTE, credit card company, or 12 other vectors, but a challenge
based on FCRA isn't likely to be effective.
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The contents of this post are Copyright © 2017 by eclipse. All rights are reserved. Specific permission is given to quote this post here on CAP-Talk only.

Mitchell 1969
Salty & Seasoned Contributor

Posts: 689
Unit: PCR-CA-051

« Reply #63 on: October 30, 2017, 02:09:18 PM »

Perhaps asserting more current case law in this regard would be more useful.  Everything indicating the
FCRA is applicable is from 2011, however there are more recent federal court cases, for example
Lamson v. EMS Energy Marketing Service, Incc.
http://blog.preemploy.com/fcra-ruling-on-independent-contractorsvolunteers-causes-a-wave-of-new-questions.

http://preemploymentdirectory.com/federal-court-fcra-does-not-apply-to-independent-contractor-relationships/

As CAP members are decidedly >not< employees, their membership most likely fails the Darden test since they
receive no remuneration beyond expense reimbursements.

One would have to imagine that if coffee-house lawyers here on CT could find this case law, actual lawyers at NHQ
are at least peripherally aware of it as well.

I'd say it's a fair point to make an issue of NHQ off-shoring member personal information, if in fact
it is found that this is the case, and the member wants to pretend their data isn't already there
from their health insurance provider, FTE, credit card company, or 12 other vectors, but a challenge
based on FCRA isn't likely to be effective.

The Lamson case appears to cover independent contractors living in the Eastern District of Wisconsin. How that is relevant to volunteers on a nation-wide basis is another issue.

Try this:

“Because the term 'employment purposes' is interpreted liberally to effectuate the broad remedial purpose of the FCRA … it includes … a nonprofit organization staffed in whole or in part by volunteers." See page 32 of the FTC staff report 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations (July, 2011).”

And, this, clipped from the very blog where your Lamson cite was obtained:

“According to Pamela Devata of Seyfarth Shaw LLP, www.seyfarth.com, employers should use caution before abandoning the notion that volunteers and/or independent contractors should not be subject to "employment purposes" under the FCRA. "While the Lamson opinion is helpful to employers, it is still a single District Court opinion on the issue and other Courts may choose not to follow its reasoning.
The Federal Trade Commission and Consumer Financial Protection Bureau may have different interpretations and can bring enforcement actions through the Attorney General or Department of Justice. If nothing else, however, if companies choose to rely on the decision and not comply with the FCRA as it relates to volunteers and independent contractors, they may be able to defend against a claim that their actions are willful."

“Brian Short of the law firm Porter Wright, www.employerlawreport.com was even more forthright in his opinion regarding this ruling and cautions: “The Lamson decision would be the law in the jurisdiction covered by the Eastern District of Wisconsin, but not necessarily anywhere else. Courts outside that jurisdiction might find it persuasive or not. In my opinion, employers are going to be better served erring on the side of the FTC's interpretation, to which most courts likely would defer because there is no strong downside legal risk to doing so.”


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« Last Edit: October 30, 2017, 02:13:55 PM by Mitchell 1969 » Logged
_________________
Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
Eclipse
Too Much Free Time Award
***
Posts: 27,987

« Reply #64 on: October 30, 2017, 03:47:06 PM »

Lamson is a Federal case, and would certainly be cited by NHQ lawyers on the first court challenge of member screening.

Your quotes support my point.

“According to Pamela Devata of Seyfarth Shaw LLP, www.seyfarth.com, employers should use caution before abandoning the notion that volunteers and/or independent contractors should not be subject to "employment purposes" under the FCRA. "While the Lamson opinion is helpful to employers, it is still a single District Court opinion on the issue and other Courts may choose not to follow its reasoning.
The Federal Trade Commission and Consumer Financial Protection Bureau may have different interpretations and can bring enforcement actions through the Attorney General or Department of Justice. If nothing else, however, if companies choose to rely on the decision and not comply with the FCRA as it relates to volunteers and independent contractors, they may be able to defend against a claim that their actions are willful."

“Brian Short of the law firm Porter Wright, www.employerlawreport.com was even more forthright in his opinion regarding this ruling and cautions: “The Lamson decision would be the law in the jurisdiction covered by the Eastern District of Wisconsin, but not necessarily anywhere else. Courts outside that jurisdiction might find it persuasive or not. In my opinion, employers are going to be better served erring on the side of the FTC's interpretation, to which most courts likely would defer because there is no strong downside legal risk to doing so.”

There is no question that this is a complicated issue, but considering the far-reaching implications of Lamson not becoming national precedent, there will be deep pockets involved in any challenge to the ruling that might strike it down.

Pretty much the whole issue is "maybe".
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"Effort" does not equal "results".
The contents of this post are Copyright © 2017 by eclipse. All rights are reserved. Specific permission is given to quote this post here on CAP-Talk only.

Mitchell 1969
Salty & Seasoned Contributor

Posts: 689
Unit: PCR-CA-051

« Reply #65 on: October 30, 2017, 05:01:47 PM »

Lamson is a Federal case, and would certainly be cited by NHQ lawyers on the first court challenge of member screening.

Your quotes support my point.

“According to Pamela Devata of Seyfarth Shaw LLP, www.seyfarth.com, employers should use caution before abandoning the notion that volunteers and/or independent contractors should not be subject to "employment purposes" under the FCRA. "While the Lamson opinion is helpful to employers, it is still a single District Court opinion on the issue and other Courts may choose not to follow its reasoning.
The Federal Trade Commission and Consumer Financial Protection Bureau may have different interpretations and can bring enforcement actions through the Attorney General or Department of Justice. If nothing else, however, if companies choose to rely on the decision and not comply with the FCRA as it relates to volunteers and independent contractors, they may be able to defend against a claim that their actions are willful."

“Brian Short of the law firm Porter Wright, www.employerlawreport.com was even more forthright in his opinion regarding this ruling and cautions: “The Lamson decision would be the law in the jurisdiction covered by the Eastern District of Wisconsin, but not necessarily anywhere else. Courts outside that jurisdiction might find it persuasive or not. In my opinion, employers are going to be better served erring on the side of the FTC's interpretation, to which most courts likely would defer because there is no strong downside legal risk to doing so.”

There is no question that this is a complicated issue, but considering the far-reaching implications of Lamson not becoming national precedent, there will be deep pockets involved in any challenge to the ruling that might strike it down.

Pretty much the whole issue is "maybe".

And...my point is that if CAP simply started out by following the extremely simple procedures mentioned in the FCRA, there won’t be any need to defend a bootstrapped self-written “CAP exemption” in any court.


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_________________
Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
Cicero
Forum Regular

Posts: 105

« Reply #66 on: October 30, 2017, 06:10:51 PM »

Pretty much the whole issue is "maybe".
Really? It is not. The FCRA applies. Period.

A simple eSignature form that complies is the correct fix.
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Cicero
Forum Regular

Posts: 105

« Reply #67 on: October 30, 2017, 06:11:40 PM »

And...my point is that if CAP simply started out by following the extremely simple procedures mentioned in the FCRA, there won’t be any need to defend a bootstrapped self-written “CAP exemption” in any court.

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You are correct. With clarity and precision.
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Mordecai
Salty & Seasoned Contributor

Posts: 1,077
Unit: SI

« Reply #68 on: October 30, 2017, 09:31:50 PM »

Perhaps asserting more current case law in this regard would be more useful.  Everything indicating the
FCRA is applicable is from 2011, however there are more recent federal court cases, for example
Lamson v. EMS Energy Marketing Service, Incc.
http://blog.preemploy.com/fcra-ruling-on-independent-contractorsvolunteers-causes-a-wave-of-new-questions.

http://preemploymentdirectory.com/federal-court-fcra-does-not-apply-to-independent-contractor-relationships/

As CAP members are decidedly >not< employees, their membership most likely fails the Darden test since they
receive no remuneration beyond expense reimbursements.

FECA and FTCA coverage was considered enough of a remuneration to give us silly rules about not using ham radios thanks to the pecuniary interest rule.
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CAP Talk  |  General Discussion  |  Membership  |  Topic: NHQ to begin rescreening members
 


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