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A sea change in data protection law in the European Union (EU) is about to take place, and your organization doesn’t have to be based in the EU to feel its impact.  The General Data Protection Regulation (GDPR) will take effect on May 25, 2018.  The GDPR applies not just to EU Member States, but also to U.S. organization with EU-based employees.  Any U.S. organization that has a branch, office, affiliate, franchise, or agent based in the EU should check if it must comply with the GDPR.  Failure to comply with the GDPR can lead to fines of up to 20 million euros or 4% of annual global turnover (revenue), whichever is higher.

The GDPR regulates how “personal data” of EU citizens is collected, stored, processed, and destroyed.  The GDPR definition of “personal data” has a broader meaning than how U.S. laws usually define the term.  In addition to typical identifying information (e.g., name, address, driver’s license number, date of birth, phone number, or email address), “personal data” under the GDPR includes more expansive categories of data such as salary information, health records, and online identifiers (dynamic IP addresses, cookie identifiers, mobile device IDs, etc.).  The GDPR also provides heightened levels of protection for special categories of employee data, including racial and ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning an employee’s health, sex life, or sexual orientation, and biometric and genetic data.

The GDPR has wide-ranging effects on data collection, use, and retention.  Some of the data practices regulated by the GDPR include:

  • Data processing – Consent is one legitimate basis for processing personal data of employees, but the GDPR requires that consent be freely-given, specific, informed, and revocable. This means most blanket consent provisions typically found in employment contracts are not valid.  If obtaining consent according to GDPR requirements isn’t practical, an employer might need to rely on other legal bases for processing employee data.  Processing employee data is legal if it is necessary for the performance of the employment contract, required by law, or in the employer’s legitimate interests which outweigh the general privacy rights of employees.
  • Employee monitoring – The GDPR limits what employers may do with data obtained through employee monitoring.
  • Notification – The GDPR specifies what information employers must include in notices informing employees about the kind of personal data that will be collected from them.
  • Right to be forgotten – Under certain circumstances, data subjects have the right to require data controllers to erase their personal data.
  • Data portability – A person is entitled to transfer their personal data from one electronic processing system to another without being prevented from doing so by the data controller.
  • Data breach – The GDPR governs the procedures and substantive requirements for giving notification of a personal data breach.

Now is the time to revisit your employment contracts and policies with privacy counsel to ensure compliance with the GDPR.

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A lawsuit against grocery chain Winn-Dixie became the first case of its kind to produce a decision holding, after a trial, that a public accommodation violated the Americans With Disabilities Act (ADA) because its website was inaccessible to a customer with a disability.  Not only does the case drive home the threat of website accessibility claims, but the court’s order provides valuable guidance on bringing websites into compliance with the ADA.

Accessibility of the Winn-Dixie Website

The plaintiff (Juan Carlos Gil) is legally blind.  He began shopping at Winn-Dixie because of its low prices and convenience to his home.  Gil learned from Winn-Dixie television ads that he could visit the Winn-Dixie website to access coupons and fill prescriptions.  However, he often found the website difficult to navigate with special software designed to assist vision-impaired individuals in using computers.  The Winn-Dixie website did not work well with the software 90% of the time.  As a result, Gil could not access coupons or order his prescriptions online.  Gil sued Winn-Dixie for violating the ADA by denying him goods and services based on his disability.

Winn-Dixie’s vice president of IT (Rodney Cornwell) testified that the company was building an ADA policy for its website but had not completed it.  Part of the challenge appeared to be getting third party vendors that interface with Winn-Dixie’s website (like Google and American Express) to ensure that their websites are accessible.  Cornwell admitted that it was feasible to modify the website for accessibility, and that the company had budgeted $250,000 to make the modifications.  An expert on website accessibility testified that his firm could make Winn-Dixie’s site accessible for $37,000.

The Court’s Decision

After a bench trial, the court determined that Winn-Dixie violated Title III of the ADA because its website was inaccessible, and included a draft injunction in its order that would require the company to make the website accessible and post an accessibility policy on the site.  The court did not consider the $250,000 cost to make the website accessible too high, noting that Winn-Dixie spent $2 million to launch the website initially and another $7 million to adapt it for use in the Plenti rewards program.

The court adopted the Web Content Accessibility Guidelines (WCAG) 2.0 as the standard Winn-Dixie must meet to make its website accessible.  WCAG 2.0 is a set of guidelines developed by a private group of accessibility experts.  Although the standard has been used in consent decrees and settlement agreements, and the Department of Justice has referenced the standard in the Title II rulemaking process, this marks the first time that it is formally adopted as the legal standard for public accommodation websites.

The court also held that Winn-Dixie is responsible for accessibility of its entire site, including parts of it operated by third party vendors.  The court reasoned that Winn-Dixie has a legal obligation to require third party vendors to be accessible if they choose to operate within the Winn-Dixie website.

The injunction was entered on July 6, 2017.  Winn-Dixie is appealing the trial court’s decision.

Takeaways

The Winn-Dixie order is significant in several respects.

  • Plaintiffs in ADA website accessibility lawsuits now have legal precedent that websites are places of public accommodation and therefore must be accessible to individuals with disabilities. The decision, which is not binding, does not mean that all consumer facing websites are places of public accommodation.  The Ninth Circuit, of which Hawai‘i is a part, requires a “nexus” between a website and the physical place of public accommodation for an ADA violation to occur.
  • Although this case involved a public accommodation, it can have implications on website accessibility claims against employers.  Title I of the ADA applies to private employers with 15+ employees.  Covered employers may not discriminate against employees with disabilities and must make reasonable accommodations for them.  In addition, accessibility may be an issue for business websites that allow job applicants to apply online.
  • The court adopted WCAG 2.0 as the legal standard for accessibility. Still uncertain is what level of compliance is required, as WCAG 2.0 has multiple levels of conformance (A, AA, AAA).   Also unclear is whether substantial compliance with the standard is enough or 100% compliance—which may be impossible—is required.
  • Website owners should develop a website accessibility policy and link to it on their website.
  • One factor in determining the burden of the cost of compliance is its proportionality to the overall cost of developing the website, including past modifications.
  • Website owners are responsible for the accessibility of third party vendors that interface with their site. This requirement can be challenging to satisfy, especially if a website uses smaller third party vendors who might lack resources to ensure accessibility of their applications and websites.

Consult a lawyer with website accessibility experience to help you evaluate and mitigate the risk of ADA liability.

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Social media seems to be a favorite forum for employees to complain about their workplace.  Firing employees for posting work-related social media messages can land an employer in trouble.  But is management absolutely forbidden from firing employees for making offensive comments on social media?  Is there a line employees may not cross?  The Second Circuit Court of Appeals took up this question recently in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).

The Facebook Firing

In early 2011, New York catering company Pier Sixty was in the middle of a tense organizing campaign that included management threatening employees who might participate in union activities.  Two days before the unionization vote, Hernan Perez was working as a server at a Pier Sixty Venue.  His supervisor, Robert McSweeney, gave him directions in a harsh tone.  On his next work break, Perez posted this message on his Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people! ! ! ! ! ! Fuck his mother and his entire fucking family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Perez knew that his Facebook friends, including ten coworkers, could see the post, although he allegedly thought his Facebook page was private.  Perez removed the post three days later, but not before it came to management’s attention.  Perez was fired after an investigation.

The National Labor Relations Board (NLRB) decided that Pier Sixty unlawfully terminated Perez in retaliation for “protected, concerted activities.”  Pier Sixty appealed to the Second Circuit and the NLRB filed an application for enforcement of its decision.

Evolving Standards of Whether Obscene Comments Lose Protection

Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).  But if an employee’s actions lose NLRA protection if they are “so opprobrious and egregious as to render him or her ‘unfit for further service.’”  See Atlantic Steel Co., 245 NLRB 814 (1979).  Pier Sixty argued that Perez engaged in “opprobrious” conduct by posting obscenities on Facebook.

The Second Circuit noted that the test for opprobrious conduct was unsettled.  The NLRB traditionally used the Atlantic Steel four-factor test that considers the location and subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was provoked by an employer’s unfair labor practice.  But in 2012, the NLRB began using a “totality of the circumstances” test in social media cases to address the unique context of social media and allay concerns that the Atlantic Steel test did not adequately consider employers’ interests.

Second Circuit Sidesteps Review of NLRB’s New Test

Without addressing the validity of the “totality of the circumstances” test, the Second Circuit found “substantial evidence” that Perez’s comments were not so egregious as to lose NLRA protection.  Perez’s message, though vulgar, included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before the representation election.”  Pier Sixty also did not previously discipline employees for widespread profanity in the workplace.  Finally, Perez’s comments were not made in the immediate presence of customers and did not disrupt the catering event.  Despite deciding that Perez’s conduct was not “opprobrious,” the court noted that the case sat “at the outer-bounds of protected, union-related comments” and reminded the NLRB to develop a test giving weight to employers’ legitimate disciplinary interests in preventing employee outbursts in the presence of customers.

Takeaways

Pier Sixty teaches that an employee may not be fired simply for making profanity-laced comments on social media if the comments are related to the workplace.  The fact that the comments are accessible to members of the public, including customers, is not determinative.  So at what point do an employees’ obscene comments lose protection?  That remains an open question after Pier Sixty, but the court’s comments inspire hope that the NLRB will craft a more employer-friendly standard in the future.

 

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“Why did you fire my wife?”  Bradley Reid Byrd posted this question on the Facebook page of Cracker Barrel.  Byrd wanted to know why his wife was let go after working for the restaurant chain for 11 years.  The post remained largely unnoticed for about a month until a comedian uploaded a screenshot of it to his Facebook page and his 2.1 million followers.  The internet outrage machine then kicked into high gear.  Multiple hashtags were created (#JusticeForBradsWife, #BradsWifeMatters, #NotMyCountryStore).  Someone started a “Brad’s Wife” Facebook page.  A Change.org petition demanding answers from Cracker Barrel was launched.

Social media makes it easy to channel the furor of the masses against an organization.  The instigator could be anyone with some connection to the organization – a former or current employee, their relatives, or a customer.  What should an organization do if it finds itself at the center of an internet controversy?

Responding to negative online comments is a delicate exercise, and missteps early on can  damage an organization’s reputation tremendously.  From a human resources perspective, the first step is to control who, if anyone, should respond.  Employees should be prohibited from making “rogue” responses on behalf of the organization.  Employers should state this restriction clearly in their social media policy and train employees on the importance of compliance.

After deciding who will handle the response, the next step is figuring out what to say.  The knee-jerk reaction to inflammatory or untrue online comments might be to threaten a defamation suit against the posters, but that can backfire and damage the organization’s reputation even more.  Sometimes the best response is to say nothing and let the controversy pass.

If a response is warranted, consider who the audience will be and how they might respond to it.  Pointing out flaws in the negative comments could be perceived as overly defensive.  On the other hand, respectfully acknowledging the negative comments or posting positive content about to organization could defuse the controversy.

Whatever the response, it should be the product of careful consideration.  On the internet, it takes just a few clicks to set off a firestorm.

 

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