Employer Law Report

Florida federal judge holds that supermarket chain’s website must be accessible to disabled

In the first trial on the merits involving website accessibility, a federal judge in Florida ruled on June 13, 2017, after a two-day bench trial, that supermarket chain Winn-Dixie violated the Americans with Disabilities Act (ADA) by failing to make its website accessible. Juan Carlos Gil, a blind Florida man who attempted to use Winn-Dixie’s website to locate Winn-Dixie store locations, fill and refill prescriptions, and obtain store coupons, sued Winn-Dixie alleging that he was unable to access these services because the website was not integrated with his screen reader technology. Screen reader technologies such as JAWS read the content of websites to blind users and assist them through voice prompts in navigating websites.

ADA Title III background

 ADA Title III requires that places of public accommodation provide “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Twelve categories of public accommodations are established in the ADA, 42 USC § 12181(7), and include retail stores, restaurants, grocery stores, hotels, among other categories of businesses open to and serving the public. Continue Reading

Sixth Circuit decision in EEOC v. AutoZone provides road map to sexual harassment defense

In a decision issued on June 9, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed the dismissal of sexual harassment claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of three female AutoZone employees. In its decision, the Court reaffirmed some important principles.

The case involved a store manager who was transferred into an AutoZone store in Cordova, Tennessee. Shortly after arriving, he began to make lewd and obscene sexual comments and propositions to one female employee in particular and also made sexual comments to two other female employees as well. Under AutoZone’s system, the store manager did not have the authority to fire, promote, reassign and take tangible employment actions with respect to store employees (even though he could make some hires). Those responsibilities were reserved for the district manager (who visited the store at least once a week). Continue Reading

Trump administration’s 2018 budget proposes a merger of the EEOC and the OFCCP, prompting concerns over whether the two agencies can effectively operate as one

The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.

Background of the two agencies

The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the basis of sex, race, national origin, color, religion, sexual orientation, gender identity, disability and covered veteran status for covered federal contractors and subcontractors. Affirmative action is required on the basis of sex, race, national origin, disability, and covered veteran status in all employment decisions. The OFCCP takes a more proactive approach when enforcing nondiscrimination, requiring federal contractors to draft affirmative action plans that provide equal employment opportunities. The OFCCP audits federal contractors and subcontractors and can impose penalties and citations through the administrative process. Once OFCCP finds areas of noncompliance, it engages in conciliation with the contractor.

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Department of Labor rescinds recent joint employer guidance

On June 7, 2017 the Secretary of Labor, Alexander Acosta, announced that the US Department of Labor (DOL) was withdrawing its 2015 and 2016 guidance on joint employment and independent contractors. The Obama-era guidance expanded how joint employment was defined to include employers that have indirect or potential control over the terms and conditions of employment, as we previously reported. By moving away from this guidance, the DOL returns to the previous direct control standard. The move also rescinds an Interpretation Letter stating the DOL would broadly define “employee” under the Fair Labor Standards Act (FLSA) and that most workers would be considered “employees” for purposes of that Act, previously reported in 2015. The press release issued by the DOL made clear that the withdrawal of the 2015 and 2016 guidance does not change legal obligations for employers under the FLSA and that the agency would continue to “fully and fairly enforce all laws within its jurisdiction.”

While employers may have more breathing room under the FLSA, the National Labor Relations Board (NLRB) still applies the expanded joint employer definition. The NLRB’s new joint employer standard is currently being appealed in the District of Columbia Circuit Court of Appeals. Regardless of the outcome at this level, the decision will likely be appealed to the U.S. Supreme Court. Until there is a final decision as to the expanded joint employer definition, employers should be aware that the NLRB will continue to enforce the broadened standard.

 

Some clarity: The Supreme Court of Ohio definitively decides procedure for abatement of substantial aggravation conditions

In its recent decision, Clendenin v. Girl Scouts of W. Ohio, the Supreme Court of Ohio definitively decided that an Industrial Commission order determining that a pre-existing condition that was substantially aggravated by a work-related incident has returned to the pre-injury level is an issue that may not be appealed to a court of common pleas.

While working for the Girl Scouts of Western Ohio, Audrey Clendenin (Clendenin) was injured on Oct. 21, 2008. Her claim was recognized for multiple right shoulder conditions as well as substantial aggravation of pre-existing dermatomyositis, a rare inflammatory disease. In March 2013, the Ohio Bureau of Workers’ Compensation (BWC) filed a motion to abate the claim for the substantial aggravation condition. The Industrial Commission granted the motion, finding that compensation and medical benefits were no longer to be paid in the claim for the allowed substantial aggravation condition.

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“Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.

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FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.

Background

Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as an officer in the Navy Reserve. Throughout his employment, FedEx allowed Savage leave for military duties and permitted him to complete military computer training while at work. In 2012, Savage began complaining about the calculation of his pension benefits as it related to breaks in service for military leave.

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OSHA delays electronic reporting requirement start date

The Occupational Safety and Health Administration (OSHA) announced recently that it intends to delay the initial deadline for compliance with its rule requiring employers to report accident and illness records to OSHA electronically. Under the original deadline, employers with over 250 workers and smaller employers in high hazard industries would have been required to begin electronic filing of certain OSHA-required forms on July 1, 2017. For a more detailed discussion of the electronic recordkeeping rule, go here. That deadline is now off and OSHA has promised a formal notification in the future with more information about revised deadlines.

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Don’t wannacry? Help your IT staff prevent ransomware

I have frequently blogged about human resources departments’ role in preventing data breaches in their organizations and to date have largely focused on training employees to recognize and respond phishing exploits designed to encourage employees to click on email links or attachments that contain malware. See for example here, here and here. But, in what some have been calling the biggest cyberattack ever, the recent “Wannacry” ransomware apparently seeks out computers containing a vulnerability in the Microsoft Windows operating system, which permitted the ransomware to  infect approximately 200,000 computers in 150 countries across the globe. No clicking required.

The tools to create the attack reportedly were developed by and then later stolen from the National Security Agency. Although Microsoft has issued a patch to address the vulnerability and reports indicate that the spread of this version of Wannacry has been stemmed for the time being, this certainly won’t be the last ransomware attack we see.

While any technological steps that organizations can take to reduce their own vulnerabilities in the future go far beyond my understanding, human resources departments can help protect their organizations by creating a cyber-aware culture. In addition to training employees to be suspicious of any external email links and attachments, here are two additional steps that can be taken immediately:

  1. Require and then train the workforce on good cyber hygiene. For instance, require strong passwords that must be changed periodically and constantly remind employees to assist the IT department to apply software patches on all employee workstations by shutting down nightly.
  2. Work with the IT department to eliminate or at least reduce employees’ need to work on personal devices other than through a virtual private network (VPN). Encourage employees who do work from home to use only secure wifi networks and to keep their antivirus and anti-malware software up-to-date.

NLRB panel majority upholds employer right to justify “no recording” policy; denies general counsel summary judgment motion

In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing that the employer’s policy which prohibited the use of cameras and video recording devices in the plant without prior authorization, was facially overbroad and did not provide any exceptions for protected concerted activity. As such, according to Member Pearce, the policy tends to impermissibly chill employee expression and therefore was unlawful regardless of the employer’s intent in adopting and implementing the policy and regardless of whether employees actually interpreted the policy as restricting their Section 7 rights.

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