CURRENT MONTH (October 2019)

Business Litigation

Robocalls Are Fair Game in Montana

By Peter W. Mueller, Greensfelder, Hemker & Gale, P.C.

The Ninth Circuit evaluated the constitutionality of Montana’s regulation of political speech this past September and struck down the state’s robocall statute as unconstitutional. The case, Victory Processing, LLC v. Fox, 937 F.3d 1218 (9th Cir. 2019), involved a political consulting company’s desire to call Montana residents with robotic political messages and polls. The problem for the company, Victory Processing, LLC, was that a 1991 statute made it a punishable offense to robocall Montana residents for political purposes (and others, including commercial purposes). Victory Processing argued that Montana’s law violated its right to free speech and won.

Restrictions on the content of speech are subject to strict scrutiny analysis (unlike restrictions on the time, place, and manner of speech, which are held to a lower standard). Montana’s law restricted content because it explicitly targeted speech involving politics. This made the degree of difficulty significantly higher for Montana. Under strict scrutiny, the law could only survive if Montana proved that it was narrowly tailored to further a compelling state interest.

Montana was able to identify a compelling state interest (protecting residents’ right to privacy) but failed to prove that its law was narrowly tailored to that goal. The narrow tailoring requirement puts the onus on lawmakers to draft restrictions on speech content with precision, a standard Montana did not meet. The state argued that its law targeted political robocalls, in particular, because residents see them as unwanted intrusions to their privacy. This argument failed, however, because Montana could not explain why political robocalls are more intrusive than other types. A robocall from a charity is equally intrusive, depending on who you ask, the challenger argued. And while you may not personally agree, the court did and correctly concluded that Montana legislators must rewrite this law with greater precision to pass constitutional muster. For Victory Processing and others, this means that the robotic campaign is on in Montana. While for residents, it may be time to set ringtone to silent. 

Eighth Circuit Finds Employers May Have Obligation to Provide Reasonable ADA Accommodation for Employees – No “Magic Words” Necessary

By Ronnie L. White II, Greensfelder, Hemker & Gale, P.C.

In Garrison v. Dolgencorp, LLC, No. 18-1066, 2019 WL 4864972 (8th Cir. Oct. 3, 2019), the Eighth Circuit’s opinion provides a useful tool for attorneys advising corporate clients on best practices for complying with the Americans with Disabilities Act (“ADA”).  This decision underscores the importance of having policies and procedures in place for identifying, reporting, and responding to employee requests for medical accommodation.  The court’s holding stands for the proposition that an employer may be liable for failure to accommodate, under the ADA, even if an employee does not use the word “accommodation” or mention the “ADA.”  In this case, Rochelle Garrison (“Ms. Garrison”) quit her job and sued her former employer, Dollar General, for disability discrimination and retaliation after Dollar General denied her request for a leave of absence.  Ms. Garrison suffers from a variety of medical conditions including anxiety, migraines, and depression.  When her medical conditions worsened, she brought them to the attention of her immediate supervisor through in-person conversations and text messages.  Ms. Garrison even told her supervisor about the medications her doctors prescribed to treat those conditions.  She also told her supervisor when she needed to miss work for doctor’s appointments.  Although Ms. Garrison repeatedly requested a leave of absence due to her medical issues, her supervisor denied her request for leave.  Under the circumstances, the court found that a reasonable jury could conclude that Ms. Garrison’s repeated requests for leave and discussions with her supervisor regarding her medical conditions were sufficient to put Dollar General on notice that she needed a medical accommodation.  The court also explained that once Dollar General received notice of Ms. Garrison’s need for a medical accommodation, it had an affirmative obligation to engage in an interactive process with Ms. Garrison to identify a reasonable accommodation.  Lawyers can use this case as cautionary tale for advising businesses on ADA compliance in a wide variety of industries.


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