august 2017

Historic ADA Decision

On June 13, 2017, the U.S. District Court for the Southern District of Florida issued a verdict in a first-of-its-kind federal trial involving the alleged inaccessibility of a website under the Americans with Disabilities Act (ADA). Following a three-day bench trial, Judge Robert Scola ruled, in Gil v. Winn-Dixie, that grocery store chain Winn-Dixie violated Title III of the ADA by maintaining a website that was inaccessible to plaintiff Juan Carlos Gil, and other blind or visually impaired individuals, preventing them from being able to avail themselves of certain services related to Winn-Dixie’s stores, including the ability to download coupons, refill prescriptions or find store locations. Civ. Act. No. 16-23020 (S.D. Fla. June 13, 2017). As a result of these violations, Judge Scola imposed a three-year injunction against Winn-Dixie, including mandatory updates to Winn-Dixie’s website, and awarded plaintiff attorneys’ fees and costs.
 
The Court’s decision to apply the ADA to a website because of a “substantial nexus” to a physical store location is not new, even though courts are split on this issue. What is new and significant is that the Winn-Dixie Court held that the World Wide Web Consortium Accessibility Guidelines (“WCAG 2.0”) standard applies when considering a website’s ADA compliance. There are no federal regulations requiring that the WCAG 2.0 standard be met, and at least one federal court has rejected website accessibility claims premised on that standard as an appropriate measure of website accessibility. Unfortunately, the Winn-Dixie Court found exactly the opposite and required not only that the website become compliant with the WCAG 2.0 standard, but that website audits occur every three months to ensure such compliance.

RLG Takeaway
While other website accessibility cases have been brought, all have either settled or been dismissed. The Winn-Dixie case represents the first instance where a case has gone to trial and the first case where a Court has ordered compliance with a particular standard to comply with the ADA. Thus, if you have not done so already, please contact your legal counsel to discuss the requirements of a compliant website.

The NLRB on Confidentiality and Non-Disparagement Policies

Confidentiality: Knowledge is power, especially for businesses. Protecting that knowledge is often a tricky proposition. According to the NLRB, knowing or sharing information about wages, hours and working conditions is important to employees. How do we manage these often conflicting needs?

Employers have the broad right to manage their businesses, as long as they do not interfere with employees’ Section 7 rights. The National Labor Relations Act, Section 7, grants most non-governmental employees the right to discuss wages, hours, and other terms and conditions of employment with fellow employees as well as with non-employees.

For several years, the NLRB has scrutinized employer confidentiality policies using criteria, including a subjective test of whether “employees would reasonably construe” those policies as prohibiting Section 7 activity. As a result, the NLRB has found a variety of confidentiality provisions to be unlawful.

While the new NLRB Chairperson is now questioning the NLRB’s subjective test for analyzing policies, there are still many unfair labor practice charges and lawsuits regarding employer confidentiality policies. Here are a few examples of “unlawful” provisions:

“Unlawful” Confidentiality Provisions

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).
  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • Prohibiting employees from “[d]isclosing . . . details about the [Employer].”
  • “Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited.”
  • “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information. . . . Do not discuss work matters in public places.”
  • “[I]f something is not public information, you must not share it.”

Non-Disparagement: Section 7 of the NLRA protects employees’ rights to discuss the terms and conditions of their employment, to criticize or complain about their employer or their conditions of employment, and to enlist the assistance of others in addressing employment matters.

Employers that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7 commit an unfair labor practice and could incur civil sanctions. Significantly, an employer could incur liability if it has a policy that would reasonably tend to chill employees’ exercise of their Section 7 rights under Section 8(a) of the NLRA. Therefore, a policy that has never actually been utilized to prohibit Section 7 concerted activity but could be reasonably read as “chilling” such activity could violate the NLRA.

For example, a policy that broadly prohibits “speaking negatively” could reasonably be interpreted as prohibiting employees from saying, “my employer underpays me,” which would fall under the protection of Section 7.

Unlawful Non-Disparagement or Handbook Language

  • “Do not speak negatively about your employer.”
  • “Refrain from any action that would cause damage to your employer’s reputation.”
  • “Do not comment on any legal matters.”
  • “Employees are unauthorized to speak to the media and must refer media inquiries to the Media Relations Department.”

RLG Takeaway
Employers should review their confidentiality and non-disparagement policies to ensure compliance with the NLRB’s rulings, and state and federal laws. Employers must also be careful to ensure that their policies would not reasonably be read as a Section 7 violation.

LGBT: How Employers Can Prevent Claims

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of “sex.” However, the statute does not specifically mention sexual orientation or gender identity. What does this mean for your business?

The Equal Employment Opportunity Commission (EEOC) has long taken the position that “sex,” as it is used in Title VII, includes sexual orientation and gender identity. Since 2013, the agency has identified the protection of lesbian, gay, bisexual, and transgender employees under Title VII as one of its top strategic enforcement priorities, and has filed a number of lawsuits in this pursuit. In fact, in a July 2015 administrative proceeding involving a federal employee (Baldwin v. Foxx), the agency specifically ruled that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

Until just recently, federal courts addressing the issue have not found that sexual orientation discrimination is prohibited by Title VII. Instead, the courts often concluded that, while an employee could bring a claim of sex discrimination based on their “failure to comport with gender stereotypes,” they could not do so based solely on sexual orientation, as the 10th Circuit Court of Appeals did in 2005 (Medina v. Income Support Div., New Mexico). For obvious reasons, that distinction has caused a great deal of uncertainty for the lower courts and employers.

Last month, however, the 7th Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII (Hively v. Ivy Tech Community College). In a full-panel, en banc decision, the court opened the door for lesbian, gay, and bisexual applicants and employees to use Title VII to seek relief for allegations of employment discrimination, harassment, or retaliation.

In the opinion, the court concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII. In addition, the court noted that efforts to do so had led to confusing and contradictory results, as noted above. In the end, the court concluded that practical realities necessitated it rule as it did. 

RLG Takeaway
This ruling is most significant for employers in Illinois, Indiana, and Wisconsin because it broadens the class of potential plaintiffs able to bring discrimination, harassment, and retaliation claims. However, other states have similar protections (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin).

Among other things, you should immediately review your written policies, handbooks, training materials, hiring methods, discipline and discharge procedures, and all other aspects of your human resources practices to make sure lesbian, gay, transgender, and bisexual individuals are treated the same as all other applicants and employees. Moreover, you should consider training managers to heighten awareness of the issue.

EEOC Issues Guidance on Mental Health Conditions

The EEOC recently issued a Guidance concerning the rights of workers diagnosed with mental health conditions. The Guidance came in the form of a question and answer sheet aimed at informing employers and workers of their rights under the Americans with Disabilities Act (“ADA”). The Guidance provides significant lessons for employers faced with the task of complying with the law and meeting the needs of employees with mental health conditions. [https://www.eeoc.gov/eeoc/publications/mental_health.cfm]

The ADA does not include an express definition of the term “mental health condition.” However, the EEOC provides that major depression, post-traumatic stress disorder (“PTSD”), bipolar disorder, schizophrenia, and obsessive-compulsive disorder (“OCD”) should easily qualify as “disabilities” covered under the ADA. This is significant because if an employee has an ADA-covered medical condition, then the employer may be legally required to provide some reasonable accommodation to assist the employee in carrying out his or her job duties.

The new EEOC Guidance also addressed the legal mandate that employers keep the mental health conditions of employees confidential. This is nothing new, as the ADA has always mandated that employers respect employee confidentiality. There are only four circumstances under which an employer may inquire as to an employee’s mental health or other disability status:

1. If the employee requests a reasonable accommodation;

2. Prior to employment but after a conditional job offer has been made. In this case, any questions regarding mental health status that are asked of one applicant must be asked of everyone entering the same job category;

3. Affirmative action questionnaires may include questions about an employee’s medical history or disability status, but only if answering the question is voluntary and optional;

4. If the employer has objective evidence that the employee may be unable to do his/her job or poses a safety risk to the organization.

Unless one of these four limited circumstances apply, employers are barred from directly asking employees about whether they have any mental or physical health condition. In short, whether an employee has a disability is usually a private personal matter.

RLG Takeaway
Employers must tread carefully in this area. As societal understandings of mental health conditions progress, companies will be expected to be more conscious of how these conditions impact employees. Given the trickiness of these requests, it’s best to obtain counsel to ensure compliance with this federal, anti-discrimination law.

"Micro-Unions" are the New Thing

We used to say that you didn’t need to worry about a union if you were a small employer —based on the notion that a union will not aggressively go after only a few votes. Well, here’s some bad news (as if I’ve not given you enough in the last few months): that’s no longer true.

In 2016, the median size of bargaining units sought in union representation petitions was just 22 people. For those of you who have forgotten your high school statistics class, that means that half of all union elections sought to represent fewer than 22 people. Too small is no longer applicable.

And, here’s the scary part—the NLRB is now looking at “micro-unions.” For example, a department of 10 would only need 3 people interested in the union to file an election petition, meaning a bargaining unit of employees can now just be a department within a company.

RLG Takeaway
The best way to avoid a union is to ensure you have open dialog between management and your employees. It is especially critical to engage first line supervisors and to train them on what you can and cannot say to employees when you believe union activity is occurring in the work place. We will keep you posted on this legislation.

This newsletter is provided for informational purposes only, not as legal advice.  The reader of these materials should seek legal advice before using this or any other materials from this author.

Copyright © 2018 Roe Law Group, PLLC, All rights reserved.

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