Defining a “Bona Fide Relationship” – the Latest with Trump’s Travel Ban

On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.

In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”

On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.”  The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.

In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place.  Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.

The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.

Last Stop: SCOTUS Reviews the Immigration Ban

US Supreme Court

President Trump’s Second Executive Order acted to limit the entry of foreign nationals and refugees into the United States. Thereafter, the Fourth and Ninth Circuits granted preliminary injunctions barring the enforcement of the Executive Order specifically as related to Section 2(c), 6(a), and 6(b). On June 26, 2017, the United States Supreme Court in Trump v. International Refugee Assistance Project granted cert to the Government regarding the injunctions. The Court issued a unanimous opinion granting in part the Government’s applications to stay the lower courts’ injunctions.

Section 2(c) suspends the entry of nationals from Iran, Libya, Somalia, Sudan and Yemen for 90 days from the effective date of the Order. The Supreme Court stayed the injunctions where foreign nationals lack “any bona fide relationship with a person or entity in the United States.” However, where individuals have a credible claim of such a relationship Section 2(c) may not be enforced against them. A “bona fide relationship” may consist of: (1) close familial relationships; (2) formal and documented entity relationships formed in the ordinary course of business; (3) students admitted to American universities; (4) employment with an American company; or (5) a lecturer invited to address an American audience.

The Court reasoned that individuals from one of the six listed countries who lack a bona fide relationship in the United States may be denied entry based on the Second Executive Order. The Justices found that the Government has a compelling interest in preserving national security, and that the Executive’s authority to enforce the suspension is at its peak when there is no tie between the individual and the United States.

Section 6(a) suspends decisions on applications for refugee status and travel for refugees into the United States under the USRAP for 120 days following its effective date. The Supreme Court left the injunctions in place as to refugees that have credible bona fide relationships with American individuals or entities. On the other hand, due to the Government’s compelling interest in national security, if the refugee does not have such a connection, then Section 6(a) stands.

Section 6(b) suspends any entry of refugees in excess of 50,000 in 2017. The Court ruled where a refugee has a credible relationship with a person or entity in the United States, they may not be excluded even if the 50,000 person refugee cap has already been reached or exceeded.

While the United States Supreme Court provided some clarity through this decision, many unanswered questions remain. Most notably, immigration attorneys now seek to understand the contours of what constitutes a “bona fide relationship” for immigration purposes. The Court provided some examples of a “bona fide relationship,” however, not every relationship, for example, is likely to fall neatly into one of the examples provided. Further, as with the prior immigration Executive Orders, implementation remains a major concern. In the days following the Court’s decision, Department of Homeland Security is likely to issue guidelines which seek implements the changed guidelines.

Looking forward, the Government’s case will be heard on the merits in the Supreme Court’s first session of October 2017. Moreover, the parties have been directed to address whether the challenges to 2(c) have become moot on June 14, 2017 as this was its effective date before President Trump issued a memoranda to the Executive Branch extending the effective date until the “injunctions are lifted or stayed.”

Florida Court Rules Grocery Store Website is Subject to the ADA

Recently, the District Court for the Southern District of Florida held in Gil v. Winn-Dixie Stores, Inc., that Winn Dixie’s website violated Title III of the Americans with Disabilities Act (“ADA”), and awarded the plaintiff attorneys fees and injunctive relief. Many believe this to be the first trial regarding website accessibility to date. While this opinion is not binding on any other district—or even other judges within the Southern District of Florida—it is intriguing for several reasons.

Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” In this particular case the plaintiff, an individual who is legally blind and has cerebral palsy, alleged he could not access online digital coupons, refill his prescriptions, or locate nearby stores.

Reason 1: The court found that Winn-Dixie violated the rights guaranteed to a disabled individual under Title III of the ADA by not providing services it offers through its website in an effective, accessible format for the plaintiff. This opinion comes at a time when other courts have recently provided defendant-friendly language in dismissing website accessibility lawsuits. Winn-Dixie determined that “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations,” a website is a service of a public accommodation and is covered by the ADA.

Reason 2: The court endorsed the Worldwide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as the standard of accessibility; an endorsement not widely seen in case law given the lack of official regulations on website accessibility for public accommodations. The DOJ has expressed its preference for these standards in advance notices of proposed rulemaking dating back to 2010, but has yet to issue any regulations on website accessibility. These standards were required by the injunction included in the opinion, with deadlines for compliance to be agreed upon by the parties.

Reason 3: The court confirmed that “where a website is wholly unconnected to a physical location, . . . the website is not covered by the ADA.” This is in line with the majority of circuits, which require that a place of public accommodation must be a physical place. In jurisdictions requiring that a public accommodation be a physical place, courts employ a “nexus analysis,” which allows courts to determine that a website is subject to the ADA without having to determine that a website is in and of itself a public accommodation. The takeaway here is that in those jurisdictions that require a public accommodation be a physical place (Third, Sixth and Ninth Circuits), a website that is not connected to a business with a physical location, but whose services exist solely online is likely not going to be subject to the ADA.

Reason 4: The opinion is also significant for what it did not discuss—the auxiliary aid requirement.  In website accessibility suits in the past, defendants have argued that having a live, in-person representative, who could field phone calls from disabled individuals experiencing accessibility problems, was an appropriate auxiliary aid under the flexible regulations currently in place. A California court recently noted, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired . . . does not fall within the range of permissible options afforded under the ADA.” In Winn-Dixie, this issue was not squarely before the court. The court noted Winn-Dixie spent $2 million in 2015 to open its current website, and spent $7 million in 2016 to remake the website for its online rewards program, “Plenti.” Moreover, Winn-Dixie’s vice president of IT, Application and Delivery testified that it was feasible for the website to be modified to be accessible to the disabled. Winn-Dixie submitted that it would cost $250,000 to integrate the WCAG 2.0 standards. A third party website accessibility testing company estimated the cost at $37,000. Either way, given the recent, large expenditures on its website, Winn-Dixie could not claim it would be an undue burden to bring its website into compliance.

Reason 5: The court did not require its website to be compatible will all varieties of screen reader software on the market, but only the main screen reader software programs, such as NVDA or JAWS. It is the responsibility of those less widely used screen reader programs to make themselves compatible. The court came to the same opinion with internet browsers, and noted that the main stream browsers such as Google Chrome, Internet Explorer, and Safari, already comply with WCAG 2.0 standards.

Winn-Dixie is likely the first of what could be many trial orders on Web Accessibility in the coming year. While most of these cases settle after the motion to dismiss or summary judgment stage, the ever increasing number of filings and the lack of DOJ guidelines on web accessibility ensure that these issues will continue to be relevant.

Today’s post is authored by Drew Rawl, a commercial litigator in our Greenville, SC office. Read Drew’s past blogs on this subject.

Failure to Accommodate Sincere Religious Beliefs Can Be a Costly Mistake for Employers

Last week, in the case of EEOC v. Consul Energy, Inc., the Fourth Circuit affirmed a $586,860 judgment for a coal miner who claimed that his employer (Consul Energy) failed to accommodate his religious beliefs and constructively discharged him when it forced him to use a biometric hand scanner to monitor work hours. The employee alleged that the use of the hand-scanning system would cause him to be marked with the Mark of the Beast, which, according to his understanding of the Bible’s Book of Revelation, would associate him with the Antichrist and allow the Antichrist to manipulate him. The biometric hand scanner required employees to scan their hand, and the shape of the hand was linked to the employee’s unique employee number. It did not detect or place a mark on the hand. The employer was unwilling to allow the employee to check in and out by other means, even though two other employees were allowed to check in by entering their employee numbers on a keypad because they had hand injuries. The employee retired under protest. At trial, the jury returned a verdict of $150,000 in compensatory damages, and the court subsequently awarded $436,860 in front and back pay and lost benefits.

On appeal, the employer primarily argued that it did not violate Title VII’s reasonable accommodation requirement because there was no conflict between the employee’s bona fide religious beliefs and the requirement that the employee use the hand scanner system. In essence, the employer’s argument was that the employee misunderstood the Book of Revelation. It argued that the Mark of the Beast is a physical mark that would be placed upon the right hand. According to the employer, there could be no conflict because the scanner system did not give a physical mark on his hand, and, moreover, it was allowing the employee to scan his left hand rather than his right hand. The employer even presented evidence that the employee’s pastor disagreed the employee’s view of a connection between the scanner and the Mark of the Beast.

The Fourth Circuit held that the employee’s argument “is beside the point” because it is not the employer’s place “to question the correctness or even the plausibility of [the employee’s] religious understandings.” All that matters is that the employee sincerely holds the beliefs, and that such beliefs conflict with an employment requirement.

The employer also argued there was no adverse employment action because the employee voluntarily quit. The Fourth Circuit, following recent Supreme Court cases, made it clear that an employee asserting a constructive discharge claim does not need to show “deliberateness” or “intent”- i.e., that the employer denied the accommodation to provoke the employee’s retirement. Rather, the question is whether the employer’s discriminatory conduct subjected the employee to circumstances that were so intolerable that a reasonable person would quit. The Fourth Circuit found substantial evidence that the employee was in an intolerable position by the employer’s refusal to accommodate the employee by requiring him to use a scanner system that he believed would render him a follower of the Antichrist.

This case is an excellent reminder that sincere religious beliefs do not have to identify with the beliefs of a particular sect, even where the employee appears to be a member of the sect. This case is also a reminder that the failure to appreciate the distinction between sincere religious beliefs and what are often viewed as legitimate religious beliefs can be a costly misunderstanding.

Next Stop: The United States Supreme Court

US Supreme Court

In an earlier post, we discussed President Trump’s second Executive Order (E.O.) aimed at restricting entry into the United States of certain foreign nationals. In a 10-3 decision, the Fourth Circuit Court of Appeals blocked President Trump’s E.O. stating that it “drips with intolerance, animus, and discrimination.” Similarly, the Hawaii decision, which ruled against the E.O., was appealed to the Ninth Circuit; that court has not yet made a ruling.

Next stop, the United States Supreme Court (SCOTUS). Although SCOTUS has not granted review of the E.O., the Justice Department has requested the Court for an urgent review. However, before SCOTUS rules on the substantive issues surrounding the E.O., the Court must first grant cert, i.e., at least four of the nine Justices must agree to review the matter. SCOTUS will review the merits of the case only if cert is granted.

Notwithstanding the passionate debate surrounding the E.O., the key legal issue here is the scope of the President’s authority, specifically in the arena of immigration and national security. Stemming from this are a plethora of other issues for the Justices to evaluate, including (1) whether President Trump’s campaign statements may be used as evidence; (2) whether the E.O. violates the Establishment Clause of the First Amendment; and (3) determining what is the appropriate precedential standard for this case.

SCOTUS review of an executive order is not unprecedented. The first of two notable examples: the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, SCOTUS reviewed President Truman’s executive order, and held that the President lacked the authority to seize private steel mills during the Korean War. Second, in the 1981 case Dames & Moore v. Regan, the court ruled in favor of President Reagan’s executive orders, providing deferential review given the national security context of the Iran Hostage Crisis.

Given the confusion surrounding the E.O., litigation in multiple jurisdictions, and the political importance of the matter, SCOTUS is likely to grant review, establishing the appropriate standard and providing clarity nationwide. Haynsworth Sinkler Boyd, P.A.’s immigration team will provide further updates.

Breaking: Department of Labor Withdraws Guidance on Joint Employment, Independent Contractors

US Department of Labor

As this blog previously covered here and here, the United States Department of Labor under President Obama cracked down on misclassification of workers as independent contractors and broadly interpreted who was considered a “joint employer.” Today, new U.S. Secretary of Labor Alexander Acosta announced that the DOL would withdraw its previously-issued guidance from 2015 and 2016 on these topics. You can find the announcement here.

This should be welcome news for most companies as the previous guidance took an expansive view of when a worker is considered an “employee” (as opposed to an independent contractor) and when a company is considered an “employer” of a particular worker (particularly in the context of temporary hires and workers employed through staffing agencies). Interestingly, as you can see here, the DOL has removed the previous guidance from its website altogether.

However, it is important to note that the actual significance of this announcement is difficult to predict and remains to be seen. First, as the announcement makes clear, this is not really a change in the law per se because the guidance was only the DOL’s interpretation of the law. But, this announcement does signal that the DOL under Secretary Acosta will be taking a different approach to the concepts of joint employment and independent contractor classification. Second, it is unclear how this announcement affects the fact sheets and other DOL “guidance” on its website.

As to the issue of classifying a worker as an employee or an independent contractor, the FLSA (and the DOL’s interpretation of it) is only one of many things to consider. For instance, the Internal Revenue Service and the South Carolina courts have their own interpretation of what constitutes an “independent contractor,” and employers would be wise to tread carefully when making classification decisions as the penalties for misclassification can be steep.

As to the joint employment issue, the Fourth Circuit (which includes South Carolina) has developed its own test to determine when an entity is a joint employer for purposes of Title VII liability. The Fourth Circuit’s test is outlined in detail in this blog post and the announcement from the DOL will not impact this decision.

OSHA Provides Update on Electronic Recordkeeping

The Occupational Safety and Health Administration (“OSHA”) just announced that it is not accepting electronic submissions of injury and illness logs at this time. Further, OSHA intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. See the announcement here.

As a reminder, OSHA in 2016 amended its recordkeeping regulation to require certain companies to submit workplace injury date electronically to the agency each year. OSHA plans to publish the data received from each company on its website (redacting employee identification information). OSHA’s summary of the new regulations can be found online.

This announcement came as no surprise because OSHA had not even created the online portal for employers to use to make the submissions. OSHA promised to provide more updates soon and we will keep South Carolina employers updated through this blog.

 

Redesigned Green Card and Employment Authorization Documents Announced

The U.S. Citizenship and Immigration Services recently announced that it redesigned the Permanent Resident Card (“Green Card”) and the Employment Authorization Document (“EAD”) as part of its Next Generation Secure Identification Document Program. The redesigned credentials utilize enhanced graphics and contain fraud-resistant security features to enhance document security and deter counterfeiting.

The new Green Card and EAD will now display the individual’s photo on both sides of the credential; contain unique graphics and color palates; include embedded holographic images, and no longer reflect the individual’s signature. The new Green Card will contain an image of the Statute of Liberty and will be predominately green, while the EAD will contain an image of a bald eagle and be predominately red.

The U.S. Citizenship and Immigration Services began issuing the new Green Card and EAD on May 1, 2107, but will continue to use existing card stock until current supplies are depleted. Note that both existing and new credentials remain valid until the expiration of the date stated on the individual Green Card or EAD and both are acceptable for Form I-9, Employment Eligibility Verification and Systematic Alien Verification for Entitlement purposes.

 

Will the Revised EEO-1 Form Be Stopped?

Last week, Senators Lamar Alexander (R-Tennessee) and Pat Roberts (R-Kansas) urged President Trump to rescind the new requirements of the revised EEO-1 form. I originally wrote about the proposed EEO-1 form last fall – you can find my blog post here. The revised form requires, for the first time, that covered employers submit pay data to the government. The purpose is to assist the EEOC in identifying and eradicating pay discrimination based on gender, race, and other protected categories.

According to the Senators, “[t]hese revisions will place significant paperwork, reporting burdens, and new costs on American businesses, and will result in few jobs created and higher prices for American consumers.” The EEOC projected it would take the approximately 61,000 covered employers a total of about 1.9 million hours and cost $53.5 million to complete the new forms.[1] However, the United States Chamber of Commerce claims the figures are closer to 8 million hours and $400 million to comply.[2]

The EEOC had initially set a September 2017 deadline for companies to file the new report. After much pushback from the business community, the first reports under the new rules are due by March 31, 2018. This gives elected officials plenty of time to try and convince the Trump Administration to reverse course. The reversal must come from the Office of Management and Budget, which is led by former South Carolina Representative Mick Mulvaney.

This update serves as a reminder to employers to be proactive regarding pay discrepancies. Employers should consider conducting an internal audit to determine whether there is a legitimate business reason for differences in pay among similar categories of employees.

[1] https://www.bna.com/scrap-eeoc-pay-n57982086684/

[2] Id.

Register for HSB’s Spring HR Law Seminars

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming HR Law Updates.

HR professionals are invited to join us for a program that will cover the basics of HR law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit. HSB is an approved SHRM provider and HRCI credit will be available.

Our attorneys will discuss hot topics HR Managers are facing today: recent developments in immigration law, HR compliance, LGBT and the Fourth Circuit, Non-compete and non-disclosure agreements in SC, and more! We’ll also have an open Q&A session to answer your questions.

Join us for our spring seminars:

May 23 – The Bleckley Inn, Anderson
8:00 am – 12:00 pm
Click here for details and to register.

May 24 – Greenville Marriott
8:00 am – 12:00 pm
Click here for details and to register.

We will host additional seminars this fall – stay tuned!

Please contact Keely Yates for additional information.

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