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.

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

By Daniel Pasternak on July 9, 2017 Posted in Collective Bargaining, Litigation, Misconduct, NLRB, Recent Cases, Unions

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

By David Whincup on July 7, 2017 Posted in Bullying, Disciplinary, Guidance

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.

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

By David Whincup on July 7, 2017 Posted in Compensation, Discrimination, Guidance, Recent Cases

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.

Technological advances in the workplace – enabling communication or undermining it?

By David Whincup on July 7, 2017 Posted in Guidance

Many thanks to summer vacation student Hannah Meahan for this great review of the potential human cost of new technology in the workplace.

Technology has permeated our everyday lives and workplaces. HR professionals will be aware of the numerous benefits of technology in the workplace – it often ensures that processes are more efficient, increases productivity and maintains a dynamic workforce. However, the enhancement of the workforce using technology or ‘digitalisation of the workforce’, as it is often coined, has led many to fear that it is at the expense of communication.

Hearing Set Before Senate Committee on NLRB Nominations

By Daniel Pasternak on July 6, 2017 Posted in Collective Bargaining, News, NLRB, Unions

Updating our June 19 post, as expected, President Trump nominated Marvin Kaplan and William Emanuel to fill the two currently-vacant seats on the National Labor Relations Board. A hearing on their nominations is now scheduled for July 13 before the Senate Health, Education, Labor & Pensions (HELP) Committee. If recommended by the HELP committee, the nominees would be put to confirmation votes before the full Senate. Given that the nominees are both Republicans and that they are well-regarded and respected labor practitioners, confirmation from the Republican-majority Senate is anticipated. If confirmed, Mr. Kaplan and Mr. Emanuel would join current NLRB Chairman Phillip Miscimarra to give the NLRB its first Republican majority in nearly nine years. Once that happens, most expect that the decisions coming out of the NLRB will significantly shift from, if not abandon or overrule, many decisions issued by the Obama-appointed NLRB which have vexed employers, including those relating to workplace rules and policies, joint employer liability, and appropriate bargaining unit determinations, to highlight just a few. It is also possible if not likely that the highly-unpopular revisions to the representation case election rules (often described as the “ambush” election rules) that were implemented by the NLRB in 2015 could see further revision by the new Trump NLRB in the form of rolling back some of the more controversial aspects of those rules, including the shortened deadlines, increased disclosure of employee information, and limitation on pre-election litigation of election issues.

US Department of Labor Resumes Issuing Opinion Letters To Assist Employers Navigate Federal Wage & Hour and Leave Laws

By Daniel Pasternak on July 5, 2017 Posted in Administration, Department of Labor, Fair Labor Standards Act, FMLA, Legislation, Wage and Hour

Newly appointed Secretary of Labor Alexander Acosta announced on June 27 that the U.S. Department of Labor (“DOL”) would resume issuing opinion letters in response to employers and employees who submit inquiries seeking fact-specific interpretations of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”). Opinion letters are official, interpretative correspondence from the Wage and Hour Division of the DOL. Historically, these letters have been a tool for employers to obtain practical guidance on nuances of the FLSA and FMLA – laws that have many gray areas. After almost 70 years, the DOL stopped its practice of issuing opinion letters in 2010, and offered only Administrator Interpretations, which were more generalized statements on the FLSA and FMLA, and how those laws might affect employers in a broad range of situations. Continue Reading

Intentional Segregation By Race Is Not Enough to Trigger Title VII Liability, Says Seventh Circuit

By Daniel Pasternak on July 3, 2017 Posted in Discrimination, EEOC, Litigation, Race discrimination, Recent Cases

In EEOC v. AutoZone, Inc., the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that AutoZone did not violate the anti-segregation provision of Title VII of the Civil Rights Act of 1964 (“Title VII”), when it transferred Kevin Stuckey, an African American employee, from a store with a predominately Hispanic clientele to a store with a predominantly African American clientele. The Equal Employment Opportunity Commission (“EEOC”), which brought suit on behalf of Mr. Stuckey, argued that AutoZone transferred him from its Kedzie Avenue store in Chicago, Illinois (“Kedzie store”) because the Company was trying to create a predominately Hispanic workforce to match the clientele in the Kedzie store. AutoZone management asserted that Mr. Stuckey voluntarily transferred out of the Kedzie store because he had “communication issues” with the Hispanic clientele, and also did not get along with the store’s supervisor. Continue Reading

SCOTUS Decision on Executive Order Travel Ban: What Does It Mean?

By Gregory A. Wald and Samuel Mudrick on June 30, 2017 Posted in Business Immigration

On June 26, 2017, the US Supreme Court granted certiorari and consolidated two cases, Trump v. IRAP and Trump v. Hawaii, recently litigated in the US Court of Appeals enjoining the President’s second Executive Order entitled Protecting the Nation from Foreign Terrorist Entry Into the United States (EO2). While this grant of certiorari is a procedural decision to take up the case in the next session, beginning in October 2017, the order also permits partial implementation of the EO2 travel ban. Implementation by US government agencies, as explained below, commenced at 8 p.m. on June 29, 2017. Continue Reading

Context or causation – the role of race in unfavourable treatment

By David Whincup on June 28, 2017 Posted in Discrimination, Grievance, Litigation, Race discrimination, Recent Cases

Statutory construction can be a bit like nuclear fusion – you take an atom of something relatively ordinary and then subject it to such pressure that it explodes into a million flaming pieces and lays waste to your entire afternoon. Employment Tribunals and Courts do the same to words, taking perfectly mundane sentences and phrases and squeezing and prodding and poking them until they go bang and suddenly mean something altogether different. [Note – I suspect that this is not how nuclear fusion works, exactly, but you get the point].

Let us take the simple word “because” as it appears in the discrimination legislation, and specifically Sections 13 and 27 Equality Act 2010. Under those provisions less favourable treatment is discrimination if it is “because of” a protected characteristic and subjecting someone to a detriment is unlawful victimisation if it is “because” that person complained about alleged discrimination. Then apply those words to the facts in Chief Constable of Greater Manchester Police -v- Bailey and stand well back.