Executive Order Travel Ban – SCOTUS Takes Further Action (While on Summer Recess, No Less)

The Executive Order Travel Ban saga continues into the dog days of Summer. On June 19, 2017, the US Supreme Court issued an order (See Trump v. Hawaii) partially upholding a lower court’s modification of the preliminary injunction exempting from the travel ban impacted grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  Once again, splitting the difference, the Court also stayed the district court’s order modifying the preliminary injunction with respect to refugees covered by a formal assurance pending resolution of the appeal in the Ninth Circuit. In addition, the Court denied the Government’s motion for clarification of its June 26, 2017 order.

By way of background, please see our prior blog post detailing the travel ban EO’s history and SCOTUS’ decision of June 26th. Thereafter, on July 13, 2017 the district court modified its preliminary injunction to prevent the government from applying EO 13780 to exclude:

  • Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and
  • Refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

The government then filed a notice of appeal to the Ninth Circuit of the district court’s 7/13/17 order modifying the preliminary injunction. The government also filed a motion for clarification of the 6/26/17 stay ruling in the Supreme Court.

The State Department and the Department of Homeland Security have issued notices implementing the above. The US Supreme Court is expected to rule on the merits on this case when it returns to session in October.

USCIS Releases Update Of Form I-9: What Employers Need To Know

On July 17, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) announced the release of a revised version of Form I-9, Employment Eligibility Verification. This is the second version of the “smart” I-9 initially released in November 2016. (For details regarding the “smart” functions please see our previous blog post). Employers can use the revised version or continue using Form I-9 with a revision date of 11/14/16 through September 17, 2017.  On Sept 18, 2017, employers must use the revised form with a revision date of 07/17/17 N. Continue Reading

Are Employers Going to be Required to Accommodate Medical Marijuana Use?

State-registered medical cannabis patients may now sue a private employer for discrimination under Massachusetts’ law if they are fired for their off-the-job marijuana use, according to landmark ruling issued July 17, 2017, by the Massachusetts Supreme Judicial Court. Citing the Massachusetts Medical Marijuana Act, the court states that patients shall not be denied “any right or privilege” due to marijuana use. The Massachusetts Medical Marijuana Act, passed in 2012, states that “qualifying patients” should not be punished under state law for medical use of marijuana. Continue Reading

National Labor Relations Board Moves A Step Further Away From Its Current Pro-Union Composition

On July 13, the National Labor Relations Board took another step to shift away from the staunchly pro-union agency that has existed over the last eight years. This occurred when the Senate labor committee considered the nominations of Marvin Kaplan and William Emanuel, whom the Trump Administration had put forward for the two vacant Board seats. Continue Reading

Staying in tune with whistleblowing law – just what is “the public interest”?

Back in 2015 we reported on the Employment Appeal Tribunal’s decision in Chestertons, a ruling which struck fear into the hearts of employers everywhere by the ease with which it suggested that employees could bring their personal complaints into the whistleblowing arena just by referring to other people who might be similarly affected http://www.employmentlawworldview.com/who-is-the-public-in-public-interest-asks-the-tribunal/.

In brief, the employee Mr Nurmohamed had alleged that he and about 100 other Chestertons managers had been cheated out of part of their bonuses by deliberate manipulation of Branch profits by his employer. It was his view also that this manipulation gave an artificial value to Chestertons shares and so prejudiced the interests of actual or potential shareholders. However, that was to some extent a side-show to the main question – could referring to other employees in one’s disclosure turn what was otherwise a personal contract dispute into something which could reasonably be believed (as the law requires) to be in the public interest?

You can find in any tabloid gossip column ample evidence that what the public is interested in is by no means the same as what is in its interests. Where does that line lie? Last month a veritable armada of QCs and other counsel sailed into battle on the point in the Court of Appeal. At one end of the argument was the view that anything which affected anyone besides the employee doing the complaining was enough to tick the “public” box. At the other was the proposition that regardless of how many other employees of the same company were concerned, the wrongdoing disclosed had to relate to something beyond what was essentially a gripe about an alleged breach of an individual contract of employment, but just multiplied many times.

The Court of Appeal rejected both options. Although they would bring certainty where currently there is little, they could also bring injustice and perversity when applied to real-world facts. Instead the Court went back to a blank sheet of paper and the basic question of when it would be reasonable for an employee to believe a particular disclosure to be made in the public interest. If not numbers or subject matter alone, what factors would go into that assessment? Beginning with a little expectation management (“The statutory criterion of what is in the public interest does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be”), the Judge included in that list:

  • The numbers in the group whose interests the disclosure served. Even a dispute about alleged breach of one’s contract of employment could make the grade if enough others were similarly involved. The Court referred to the theoretical example of pay irregularities affecting the one million employees of the NHS, or similarly significant numbers at the Royal Mail or John Lewis. That does raise the question of whether this decision will help the Claimant in Wincanton (see link above), whose little issue with overtime allocation affected just him and three of his colleagues.
  • The nature of the interests affected and how seriously they are or might be affected – “a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest [or rather, more easily and reasonably believed to be so] than a disclosure of trivial wrongdoing affecting the same number of people”.
  • The nature of the wrongdoing disclosed and in particular whether it is said to be deliberate or inadvertent.
  • The identity of the alleged wrongdoer, so that the larger or more prominent the wrongdoer in terms of the size of its “relevant community”, (i.e. staff, supplier and client numbers), the more obviously a disclosure about its activities should engage the public interest. That does tend to suggest that disclosure of corporate wrongdoing may less reasonably be believed to be in the public interest where the company is small and/or has little public profile, but I think that would be at best a last-ditch assertion for an employer all out of other defences.

Applying these principles to the facts of the case, the Judge noted that Mr Nurmohamed believed:

  • the sums mis-recorded in Chestertons’ accounts to be some £2.3m, even though “it is not wholly clear what the figure …..represents”;
  • about 100 others to be also affected; and
  • the alleged manipulation to be deliberate.
  • It was also relevant that Chestertons was a well-known national estate agent and that although the profit manipulation was in internal rather than statutory accounts, the one fed into the other.

Lessons for employers

  • The problem with an employer taking a view of what its employee can reasonably believe is that it only finds out in the Employment Tribunal later on whether it made the right call.
  • In addition, absent clear evidence of falsehood in the disclosure, the ET will generally side with the employee in what he might reasonably believe, particularly bearing in mind that most laws are there to protect the public from something, even if it is only each other.
  • Therefore it is much better as always that your defence against a whistleblowing claim is that you can show the reason for your action complained of is not retaliation but something quite unrelated to the disclosure.
  • And for your Finance team, “If the account in question were the statutory accounts, even of a private company, the disclosure of such a mis-statement would unquestionably be in the public interest”.

California Supreme Court Marshalls out More Plaintiffs’ PAGA Rights

On July 13, the California Supreme Court issued its long awaited decision in Williams v. Superior Court. The Court greatly expanded a plaintiff’s discovery rights in the early stages of litigation. For context, Marshalls of CA, LLC, a retailer with approximately 130 stores and more than 16,000 nonexempt employees, was sued by Williams under PAGA. Williams propounded an interrogatory seeking the contact information for all of Marshalls’ 16,000-plus nonexempt employees in the state of California from March 2012 through February 2014. Marshalls refused to produce this mountain of information, arguing that it was overbroad, unduly burdensome, and invaded employees’ privacy. Williams, who had provided exactly zero evidence of statewide labor code violations, let alone evidence that he himself was an aggrieved employee, filed a motion to compel production of the employee information.

Below, the trial court and the court of appeals largely agreed with Marshalls, and held that Williams was entitled to limited production. The trial court granted William’s motion for the Costa Mesa location, allowing discovery contingent on the parties sending Belaire-West notices to allow employees to opt to keep their information private. For the remaining California locations, the lower courts denied the motion to compel and required the plaintiff to either sit for six hours of deposition or show “a compelling need for discovery” before it would grant the discovery request.

The California Supreme Court wasn’t so persuaded. The Court first dealt with Marshalls’ argument that the discovery was overbroad, and that for PAGA claimants to obtain discovery on behalf of other current and former employees, “an aggrieved employee…must have some modicum of substantial proof before proceeding.” In no uncertain terms, the Court declared that the standard a PAGA claimant must meet before requesting such broad discovery is nothing higher than the generally applicable requirement of nonfrivolousness. Because the plain text of PAGA grants standing to any person employed by the “alleged violator” and against whom an “alleged violation” was committed, the Court found that nothing more than a mere allegation was necessary.

The Court went on to overturn the lower courts’ conclusions that discovery seeking statewide contact information was unduly burdensome. Integral to this determination was the Supreme Court’s finding that the plaintiff was not required to make a showing of “good cause” before seeking employees’ contact information. The Court was also unconvinced that the discovery posed any serious threat to the employees’ privacy rights, assuming employees were provided the opportunity to opt out of having their information shared, using a Belaire-West notice.

In an effort to balance the scales, the William’s Court did leave a few guideposts for employers trying to protect themselves and their employees. First, the court recognized that there may be a “special reason to limit or postpone” the plaintiff’s access to contact information, although deciphering those reasons was left to employers. Second, the Court suggested that an employer may seek a protective order that conditions discovery on, for example, a confidentiality requirement or a prohibition against using it outside a given case. These orders would theoretically bar plaintiffs from using the contact information they receive to communicate with employees about any other suit or for any other reason.  Third, the Court laid the foundation for the idea that an employer may subvert the discovery request by filing a motion to “establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice” pursuant to California Civil Code section 2019.020.

In the end, in a post-Williams California, employers must be more cautious than ever in monitoring compliance with the Labor Code to avoid the same result the Court issued here.

Federal Court Holds a Full Trial on Issue of Website Accessibility to Visually Impaired Users

A U.S. District Court for the Southern District of Florida has held that Title III of the ADA, applicable to “Public Accommodations” applies to the Winn-Dixie Companies’ website, finding that the company has an obligation to make their website accessible by individuals with disabilities who use computers, laptops, tablets and smart phones. The policy must ensure that persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility statements and problems.

Juan Carlos Gil, who brought the suit (Juan Carlos Gil v. Winn-Dixie Stores, Inc., U.S. District Court of the Southern District of Florida, Case No. 16-23020), is a visually impaired individual who is a customer of Winn-Dixie Stores, Inc., a regional chain of grocery stores. The question before the court was whether the website is subject to the ADA as a service of public accommodation, or in the alternative, whether the website is a public accommodation in and of itself, 2) whether Gil was denied the full and equal enjoyment of Winn-Dixie’s goods, services, facilities, privileges, advantages, or accommodations because of his disability, and 3) whether the requested modifications to Winn-Dixie’s website are reasonable and readily achievable.

The plaintiff uses JAWS (screen reader software) 95% of the time. He shopped at Winn-Dixie because of their low prices. He was uncomfortable going to the pharmacy in person as others would overhear. In addition, the only way to access coupons was to have a friend read them to him from a newspaper. 90% of the tabs on Winn-Dixie’s website did not work with his software. While Winn Dixie had been building an ADA policy for its website, they did not yet have one. The court noted that “The Web Content Accessibility Guidelines” addresses all the issues raised by Gil related to the challenges of the Winn-Dixie website.

The court stated that where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, other courts have found the website is a service of public accommodation and is covered by the ADA. The ADA does not merely require physical access to a place of public accommodation, rather the ADA requires that disabled individuals be provided “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). Here, because the website offered the ability to find store locations, links to a rewards card, and online pharmacy management, Gil was not provided full and equal enjoyment.

Under the ADA, the plaintiff is not entitled to damages, but to reasonable attorney fees and injunctive relief. While there is conflicting federal court decisions regarding this issue, clients are advised to review the WCAG2.0 guidelines and their web compliance, in light of the potential risk.

Federal Court Overturns NLRB, Says Jimmy John’s Employees’ Disloyal Conduct Not Protected 

In a closely-watched case, on July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit refused to enforce a National Labor Relations Board (“NLRB” or “Board”) decision in which the Board found MikLin Enterprises, Inc. (“MikLin”), owner of 10 Jimmy John’s franchises in the Minneapolis, Minnesota area, violated the National Labor Relations Act (“NLRA” or “the Act”) when it disciplined employees for engaging in a public protest against MikLin’s sick leave policy during a labor organizing campaign.  (See our prior post on the NLRB’s decision here.)  In doing so, the Eighth Circuit found that the employees’ public attacks – which included distributing flyers implying that Jimmy John’s sandwiches could be tainted by sick employees – were so disloyal, materially false, and misleading that they lost the protection provided by Section 7 of the NLRA, which shields employees who engage in concerted activities for mutual aid or protection from adverse employment actions.  For this reason, the Eighth Circuit held that MikLin’s discipline of these employees for their public sick leave crusade did not violate the Act.  The decision is noteworthy due in part to the Eighth Circuit’s less-than deferential treatment of the Board’s decision, and its recognition that employees’ rights under the NLRA to protest the terms and conditions of their employment are not entirely unfettered. Continue Reading

New Acas guidance on cyber bullying

Acas has been busy with its new guidance recently and so have the Employment team’s vacation students. Here is a cautionary piece on cyber bullying in the workplace by Simon Watts-Morgan.

The unstoppable rise of social media and online networking has led perhaps inevitably to the emergence of a new type of workplace bullying – cyber bullying. If you are not familiar with the term, cyber bullying is defined by Acas as “any form of bullying, harassment or victimisation online.” Acas has recently released guidance on cyber bullying and how it can be appropriately dealt with at work, which addresses several key issues.

The Acas guide highlights cyber bullying as an important issue for employers to understand and deal with. Cyber bullying ranges from the leaking of sensitive information, use of threatening or offensive comments online to the posting of inappropriate photographs. This can have a number of potentially negative consequences for organisations, for example:

  • affecting morale and employee relations;
  • leading directly to absence and/or resignations;
  • affecting productivity and overall performance; and
  • creating a loss of respect for Managers and/or Supervisors.

Although it is not possible to make a claim to an Employment Tribunal about bullying in isolation, it is possible to bolt it onto something else, such as victimisation and harassment, discrimination (if, for example racially or religiously motivated etc.), constructive dismissal or, depending on the severity, personal injury.

Cyber bullying can be accidental in the sense that as the person responsible may not be aware that their behaviour was unwelcome or offensive. For example, just because something is labelled as a joke does not necessarily mean it was taken as such, and lack of intention to upset will not be a defence. The same is true of efforts to keep your photos or remarks private or limited to a small circle of “friends” – if they reach the workplace nonetheless, that is your look-out. We also know nothing is lost forever in the online works except your privacy, dignity and job prospects.

If the offence was accidental was it genuinely an instance of cyber bullying? The answer is unclear. To me, bullying implies an element of malice, as otherwise it is just poor management or chronic lack of social skills. The main difference is the way in which employers rectify both situations. For example, if the “bullying” was accidental it may be possible to remedy matters in a more informal sense, such as drawing the behaviour to the offending employee’s attention and explaining its effect. This may be enough to prevent repeat occurrences. On the other hand, if the bullying is intentional then the matter may have to be dealt with more formally and could be subject to disciplinary procedures.

Social media and social networking sites are used outside both the workplace and working hours, so this poses another issue. The Acas guide suggests that in order to tackle this, employers should consider broadening their bullying policies to prohibit expressly bullying both on and off site and the work email system in and out of working hours.

Lessons for Employers:

  • Review current bullying and harassment policies to ensure cyber bullying is incorporated.
  • Have set procedures for reporting instances of cyber bullying and have processes in place to consider the severity and correct disciplinary approach to take. These need to be very different from ordinary bullying or harassment pro cesses but they do need to make it clear that the employee has no less responsibility for what he says online than what he says in personal in more traditional forms of bullying.
  • Inform employees of what is expected form them online and provide training and affirm policies already in place.
  • If you are unsure about what may constitute cyber bullying or the correct approach to take, speak to your legal advisors.

Putting your money where your mouth is – are injured feelings index-linked?

Through a long and not very relevant series of arguments, the Court of Appeal in De Souza – v – Vinci Construction (UK) Limited has just decided that in effect they are. This is not a surprising conclusion, since otherwise inflation would erode the value of such awards as either proper compensation for the employee or meaningful deterrent for the employer. However, this might be an opportune moment to look at some factors which can militate for or against material injured feelings awards.

Of course, the principal determinant is the nature of the act of discrimination itself. The first real scientific attempt to bring some order to injured feelings compensation was Vento – v – Chief Constable of West Yorkshire Police in 2003. This set out three “Vento” bands of seriousness running from about £500 to around £25,000 for the most serious and prolonged discrimination. In the interim, those parameters have nudged up to around £750-£30,000, and De Souza makes it clear that they are still on the move.

Respondent lawyers are well used to arguments that the impact of even minor acts of discrimination is so earth-shattering for the claimant that nothing less than £30,000 will properly assuage his hurt, but that is very rarely true. Relevant factors will include persistency (especially in the face of requests to stop), evident intention, any dishonesty in the employer’s conduct, any actual or threatened or physical assault, the relative hierarchical position of victim and perpetrator and the consequences for the employee’s future confidence and employability.

However, once the discriminatory event has happened, there is still an opportunity for HR to make the matter better or worse, since the Employment Tribunal will consider not just the act itself but also the employer’s response to it. Put at its most basic, for example, an act of discriminatory harassment which is then apologised for will probably attract a lesser injured feelings award than one which is not. So assuming that there has been an act of what looks like unlawful discrimination in your business, what might you be able to do, even afterwards, to reduce the company’s exposure?

  • As a statement of general principle, do not defend the indefensible – it just adds insult to injury and only makes matters worse. An early admission that the employee’s feelings of hurt and unfairness are justified will itself go a long way towards resolving them.
  • Apologise, but do it properly and not grudgingly. “I am sorry if I upset you” sounds sceptical that there was any genuine offence caused [subtext for ET – not only has this company discriminated but now it is accusing the complainant of lying]. On the other hand, “I am sorry that I upset you” sounds very different, especially if said promptly, at least outwardly voluntarily and accompanied by either explanation or retraction. This is why train operator apologies for disrupted services reduce you to such boiling fury – “We apologise for any inconvenience caused” implies that there are times when you really honestly don’t mind (in fact, quite enjoy) being stuck indefinitely at Farringdon with no idea of when you might get home.
  • Be seen to investigate discrimination grievances scrupulously fairly, approaching the question with an open mind and not on the basis that it is for you to disprove or discredit what the employee says.
  • Maintain appropriate confidentiality around the complaint, involving only those people who need to know by reason of their seniority or actual or alleged involvement in the discrimination. If the employee wishes you not to make any formal enquiry, perhaps for fear of retaliation, make a clear note of this.
  • Resist the temptation to assume (and still more so to suggest) that someone who has potentially been discriminated against will necessarily want to leave with a heap of cash – remember that the protected conversations regime does not apply to discrimination cases. Instead, ask early what the employee would ideally want by way of resolution for his treatment. You are not bound by the answer, but it shows that you are taking his concerns and his wellbeing seriously, not merely as the trigger for a process aimed at defending the employer. Initially at least it may only be an apology or a commitment that the conduct will not recur, but by the time you have lawyers on both sides it could well become money and management heads on spikes which would be much harder to give.
  • Think carefully before reacting to the discrimination complaint. Should someone be moved or suspended? How do you describe any resulting absence to the party’s colleagues without prejudicing either’s position? What does the complainant want in this respect (not that you are bound by this either)?
  • Keep the employee informed of what is going on and why. Nothing fosters suspicion and fear and upset likes weeks or months of silence from your employer on your complaint.
  • An employee who is acknowledged to have been discriminated against has no right to require the dismissal of the perpetrator or to know the specifics of what lesser action is taken against him. However, his injury to feelings will certainly be increased if there is no sign that anything at all happened as a result of his complaint. If remedial steps are taken, make sure that the employee knows this promptly.
  • In writing, tell those accused of discrimination (whether justifiably or not) that any form of retaliation will be unlawful victimisation, will compound the injury to feelings, perhaps expose them personally to a claim and is potentially also serious misconduct on their part.

Think ahead to possible solutions. Has the employee suffered any financial loss from the discrimination? If so, it ill-behoves a discriminating employer to nickel-and-dime the amount of any financial offer, and that could be reflected in an increased award for non-financial loss. Is this a case where the discrimination is alleged to be deliberate or not? The more positive approach to the latter may be mediation to clear up misunderstandings or communications failures between the parties, so showing a commitment to the employee’s future happiness at work without risking all the reciprocal ill-will which could be generated by formal disciplinary action.

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