The Integrated Accessibility Standards Gets a Makeover

On July 1, 2016, the Accessibility Standards for Customer Service officially joins force with the Integrated Accessibility Standards, O. Reg 191/11 (“IASR”)  under the Accessibility for Ontarians Act (“AODA”).

This amendment, encapsulated by O. Reg. 165/16 does bring a few minor changes:

  • The training for accessible customer service has been expanded to all employees and volunteers (even those who do not deal with members of the public or who are not involved in developing policy);
  • More types of health professionals can provide documentation of a need for a service animal,
  • A more specific test has been established to require someone to be accompanied by a support person, and
  • Private sector and non-profit organizations with 20-49 employees no longer need to document policies (though may still be required to comply with reporting requirements)

In effect, this amendment combines the IASR with the previous Customer Service Regulation and revokes minor administrative matters, and provides additional clarity in the administration of the AODA.

While these changes do not create significant new obligations on employers, this amendment should enable employers to have a better overview of their obligations to comply with all accessibility standards.

Written with the assistance of Lucas Rivet-Crothers, summer student.

“Brexit” – Employment Law Implications

On 23 June 2016, voters in the UK referendum chose to leave the European Union. Exit from the EU will require the government to make a formal application under Article 50 of the Treaty on European Union.  This provides for a period of negotiation of up to two years (which can be extended if agreed).  During this period the UK remains a member of the EU but businesses are facing a period of uncertainty and are seeking a view as to what “Brexit” will mean for their business and their employees.  The implications for employers will very much depend on the negotiated exit and the form of the UK’s continuing trading relationship with the EU.  There are unlikely to be any immediate changes.

Key parts of UK employment law are derived from European law, and in theory withdrawal from the EU could result in the repeal of those areas of employment legislation. However, despite the fact that the government may come under pressure to repeal or amend certain laws it is unlikely that there will be wholesale change.  For example, large parts of the Equality Act 2010 are derived from EU law, such as protection from discrimination on grounds of sexual orientation, religion and belief and age, but it is unlikely that the UK government will wish to repeal that legislation and so be seen to be denying equality to these groups. The areas which are most likely to be subject to change will be rules on working time, agency workers and aspects of holiday pay.  However, if the UK wishes to secure access to the single European market there may be pressure to continue to apply EU employment legislation and the ability to amend these areas may be limited.

The ability to employ EU nationals in the UK or to transfer UK nationals within the EU is also not clear. It might be politically difficult for the UK Government to agree to the free movement of workers as part of the withdrawal negotiations; if it doesn’t there will at some point be implications for the permissions required for EU nationals to work in the UK and for UK nationals to work in the EU.  It is to be hoped that those who currently work outside their home jurisdictions will be “grandfathered” into any new regime.

So what steps should an employer currently be taking in relation to its employees? Whilst we are in this period of uncertainty, there is little definitive action to be taken.  However, HR teams could consider the following:

  • Are there any contractual terms which may be affected, including in relation to the way in which staff are remunerated?
  • Which key employees may require a change in their permission to work in the UK?
  • Is there likely to be any structural reorganisation required and, if so, will this require consultation with the work force?

As matters become clearer, so too will the steps that employers should be taking.

New whistleblowing rules for regulated entities in the UK

In October 2015 the UK regulators, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA), released new whistleblowing rules for certain regulated entities in the UK (the New Rules). The New Rules impose obligations on these entities in addition to the requirements of existing whistleblowing legislation found in the Public Interest Disclosure Act 1998 (PIDA) and the Employment Rights Act 1996 (ERA).  Whilst they have until 7 September 2016 to comply with most of the requirements of the New Rules, 7 March 2016 was the deadline for the appointment of a whistleblowers’ champion.

Application

The New Rules will apply to UK regulated banks, building societies and credit unions with total gross assets exceeding £250 million, PRA designated investment firms, and insurance and re-insurance firms regulated by the PRA. In relation to other regulated entities, the New Rules will act as non-binding guidance.

Key requirements

  • The whistleblowers’ champion

With effect from 7 March 2016 the relevant entities were required to appoint a “whistleblowers’ champion”. This is a non-executive director who is a Senior Manager subject to the Senior Managers’ Regime or the Senior Insurance Managers’ Regime and who takes on the prescribed responsibility for whistleblowing. Where there are no non-executive directors, the whistleblowers’ champion should be an appropriate Senior Manager.

As part of the role, the whistleblowers’ champion must oversee the preparation of an annual report to the entity’s board (which will also be available to the regulator, but not the public at large) addressing the operation and effectiveness of the whistleblowing system.

  • Changes to internal whistleblowing arrangements

The New Rules require relevant entities to have internal procedures in place that reassure staff that they can raise concerns and will be listened to without detriment to themselves in their employment.

  • Extensions of scope

The New Rules extend the types of disclosures which should be covered by internal whistleblowing arrangements beyond those matters identified as “qualifying disclosures” in section 43 ERA. This extended scope will cover a failure to comply with policies and procedures, and the extremely broad concept of any behaviour that harms, or is likely to harm, the entity’s reputation or financial well-being.

The New Rules also require that the internal arrangements cover disclosures by any person, not just persons who would fall within the definition of “worker” in Section 43K ERA (being the category of persons who are protected against detriment by PIDA and the ERA).

  • Settlement agreements

The New Rules require that relevant entities include language in settlement agreements rendering void any provision between a worker and employer which purports to prevent a worker from making a protected disclosure.

  • Informing the regulators

As well as making available to the regulators the annual report referred to above, entities are required to report promptly to the FCA each case the firm contested but lost at tribunal where the claimant successfully based all or part of their claim on the fact that they had suffered a detriment as a result of making a protected disclosure or had been unfairly dismissed under section 103A ERA.

  • FCA and PRA whistleblowing services

All employees of affected entities who are based in the UK, should be informed about the whistleblowing services provided by the PRA and the FCA, including how to contact them, the protections they offer and the kinds of disclosures it would be appropriate to make. Entities should also inform such employees in a policy document that they can make disclosures to the regulators at any stage, regardless of whether they have raised concern internally first.

Practical issues for affected entities

The New Rules are likely to represent a significant change for affected entities and could result in an increase in the number of “whistleblowing” disclosures received. A “whistleblowers’ champion” should have already been appointed who will take on the responsibility for ensuring compliance with the New Rules.

Entities will also need to review and update their whistleblowing policies to accommodate the New Rules and provide training for employees, including those who will be responsible for administering and implementing the New Rules and the whistleblowers’ champion.

 

A warning for a slap : is it reasonable ?

Under French employment law, the definition of a disciplinary sanction is broad as it is defined by law as being “any measure, other than a verbal observation, taken by an employer in response to an act of an employee which the employer considers incorrect, whether or not such measure has an immediate effect upon the continued presence of the employee in the company, his/her duties, career or remuneration”.

In this framework, the disciplinary power of the employer is strictly regulated and French law requires in most cases that a procedure be complied with before disciplining an employee and provides that an employer cannot discipline an employee twice for the same fact. In addition, and most importantly, any disciplinary measure taken against an employee must be proportionate to the facts complained of. This means that, should the employee lodge a claim to challenge the sanction imposed upon him/her, the court can order that the sanction be cancelled (except if the sanction is a dismissal, in which case only unfair dismissal may be triggered) if it finds that the sanction was unjustified or disproportionate. The concerned employee may even be awarded damages if the judge considers that he/she has suffered a loss as a result of the unjustified disciplinary action.

In a recent case (Supreme Court ruling of 6th April 2016), an employee recruited as a specialised educator in a re-education facility received a warning for having slapped a teenager who was a resident of the boarding school where she was performing her duties. Such misconduct was duly evidenced and the employee did not contest the facts reproached to her. However, the employee subsequently lodged a claim so as to have the sanction annulled by the employment judge.

The Court of Appeal found in favour of the employee and consequently cancelled the warning made against her on the ground that such sanction was not proportionate in light of the specific context. The employer appealed the decision and argued in particular that the warning was all the more justified in that the internal rules of the facility expressly provided that any violent behaviour against the young residents was strictly prohibited. Notwithstanding such arguments, the Supreme Court confirmed the decision of the appellate judges in light of the particular context, i.e. the alleged misconduct remained an isolated event (the employee had around 25 years of seniority) and occurred in the particular case of a conflict situation the handling of which was difficult (altercation between teenagers) and the employee was a well-balanced person whose professional qualities were unanimously appreciated. Therefore, the warning given by the employer was annulled and the Supreme Court even approved the decision of the Court of Appeal to sentence the employer to pay 100 Euros as damages for the moral harm suffered by the employee.

The decision of the Supreme Court is totally in line with the applicable legislation which gives the employment judges wide powers to assess whether or not a disciplinary sanction is proportionate to the facts. Such decision is also a reminder that the employment judges can also cancel even the lowest sanction, i.e. in this case a simple warning.

 

What are the latest developments on whistleblowing in the workplace?

French employment law does not yet provide for a comprehensive and consistent set of rules for the purpose of protecting whistleblowers. Instead, French employment law tackles issues arising out of whistleblowing situations through a relatively meager set of legislative provisions.

Current legislation

Under currently applicable legislation, no employee can be disciplined, dismissed or discriminated against for having reported, in good faith, various sets of facts such as moral and sexual harassment, discrimination, corruption, facts representing a serious risk to public health or environment, facts constituting a crime or an offence, etc.

Aside from such specific regulations, whistleblowers may also benefit from wider protection under case law which tends to consider that whistleblowers are exercising their rights to freedom of speech (to which only very limited restrictions are permitted). Thus, provided that the whistleblower does not act in bad faith or in a culpably thoughtless manner and that his/her denunciation does not contain offensive, defamatory or excessive statements, the employer is not entitled to discipline, dismiss or discriminate him/her.

Under French regulations, any measures taken in disregard of such protection are deemed to be null and void, and if the employee has been dismissed on the basis of his/her whistleblowing, he/she is entitled to be reinstated in his/her previous situation. In addition, an employee victim of such illicit measure is entitled to seek damages in an action brought in the special employment tribunal for the loss suffered and even to lodge a claim for constructive dismissal, amounting to unfair dismissal.

In any case, the protection of whistleblowers, both under specific regulations and case law decisions, is not absolute and entails a certain level of responsibility for the whistleblowers. In particular, the employee can be held liable for penal charges such as slanderous denunciation (punishable by up to 5 years of imprisonment and a fine of up to 45,000 Euros) and be subject to claims for damages should his/her reporting be made with malicious intent, or with the knowledge that the facts reported are inaccurate or incorrect. Obviously, the employee could also face disciplinary sanctions by the employer.

New developments

There is currently a draft law under discussion before the French parliament which aims at providing for a general protection for whistleblowers and replacing the current varied set of rules.

Under the current version of the draft law, a whistleblower would be defined as a person who reports or reveals, in the general interest and in good faith, a crime or an offence, a serious violation of the law or of a regulation, or facts which pose a serious risk to the environment or public health and safety.

It is further specified that the whistleblower should not exercise his/her right with the intention to cause harm or with a view to obtaining any advantage whatsoever. In any case, such right to report or reveal the above types of facts may not violate legal secrecy (national defense, medical secrecy and attorney-client privilege).

The draft law also creates a specific procedure pursuant which the right to report or reveal the aforementioned facts can be exercised. In this regard, an initial report would have to be made to the employer (or a person designated for such purposes or the employee’s manager) and, in the absence of any response or reaction within a reasonable time period, the facts can be reported to the authorities, the employees representatives or other specific bodies such as associations whose purpose is to assist whistleblowers. If such institutions or organizations do not take into account the report, then the whistleblower can make the report public. It would also be provided that appropriate procedures aiming at collecting such reports must be established within companies employing at least 50 employees.

Under such legal framework, the whistleblower would be protected and could not be subject to any disciplinary sanctions, termination of employment or be discriminated in any manner whatsoever on the basis of his/her report or revelation, any such measures taken in violation of this protection being deemed to be null and void. Finally, the current draft law states that any person impeding the whistleblower’s right to report the facts listed above can be punished by a fine of up to 15,000 Euros and an imprisonment of up to one year.

A watershed case on the frontiers of union turf

Earlier this month, a unanimous Full Bench of the Fair Work Commission (FWC) handed down a decision that is set to lay the landscape for the interpretation of union eligibility rules into the future.[1] In its reasons, the Full Bench provided critical guidance on how union eligibility rules should be interpreted. In particular, the Full Bench considered that the position adopted by the appellant, the Australian Rail, Tram and Bus Industry Union (RTBU), during the award modernisation process was instructive.

The decision is significant, upholding long-standing industrial arrangements for the representation of locomotive drivers and rail workers in Australia’s strategically important Pilbara region and the mining industry more generally.

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“Drilling” Down Ontario’s New Mining Health and Safety Regulations

Ontario mines will soon be facing a new regulatory environment. As of July 1st, 2016, Regulation 854 (Mines and Mining Plants) of the Occupational Health and Safety Act will contain new requirements that are aimed at improving workplace safety within Ontario mines. The amendments cover a wide variety of areas, including:

  • Updated training requirements for surface diamond drill operator
  • New rules for water management, such as mandatory water management programs for underground mines
  • Strengthened requirements for emergency stopping and guarding devices
  • New risk assessment procedures
  • Mandatory traffic management programs

In addition to these amendments, Ministry of Labour health and safety inspectors will now have the ability to give “tickets” to employers that break the new rules.

Mines subject to the new regulations will have until January 1st, 2017 to comply with some of the larger changes.

Written with the assistance of Samuel Keen, summer student.

Testing the limits of reasonableness: Alberta Court quashes arbitration decision on random drug testing.

In the recent decision of Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 [Suncor] the Court of Queen’s Bench found that an arbitration board’s decision was unreasonable and sent it back for rehearing by a fresh panel.

The decision stems from the implementation of a random drug and alcohol testing policy in 2012. Following implementation, the Union grieved and the issue went to arbitration. At arbitration, the Majority of the Board concluded that the safety benefit of the policy was outweighed by the harm to employee privacy rights and rejected the policy. The Company applied to the Court to have the Board’s decision judicially reviewed.

The Court in Suncor identified three main problems with the Board’s decision:

  1. The Board wrongly reasoned that the degree of evidence necessary to establish a workplace problem is that of a “significant problem” rather than a “general problem”;
  2. The Board failed to consider evidence of workplace safety related to non-union members. A dangerous environment must be considered in the context of the safety of all employees, including both union and non-union members; and
  3. The Board’s decision was unreasonable because the Board made a material error by ignoring certain critical evidence. A material error exists where a decision maker ignores or misunderstands evidence in a manner that affects its decision.

At the crux of the issue is the inherent tension between privacy and safety. The Supreme Court of Canada (SCC) has been clear that random drug testing is difficult to justify (see the Communications, Energy and Paperworkers, Local 30 v Irving Pulp and Paper Ltd, 2013 SCC 34 [Irving] decision here). However, this case is evidence of the SCC’s competing proposition that such a policy may well be justified in a dangerous workplace “if it represents a proportionate response in light of both legitimate safety concerns and privacy interest” (Irving  at paragraph 52).

The Union has announced its intention to appeal the Court’s decision.

For a more fulsome discussion of the Suncor decision, please see here.

Written with the assistance of Hannah Buckley, summer student.

Minnesota addresses architectural barriers to public places: 2016 amendments to its Human Rights Act

Introduction

Minnesota businesses may soon see differences in disability access claims.

wheelchair

On May 22, 2016, Minnesota’s Governor Mark Dayton signed into law a new amendment to the Minnesota Human Rights Act (“MHRA”). The amendment governs what must occur before attorneys can bring suit under the MHRA challenging architectural barriers that limit accessibility to public spaces. The new law is set forth in Minn. Stat. § 363A.331 (“Section 331”) and is entitled “Actions Involving Architectural Barriers that Limit Accessibility.” Human Rights Act, Ch. 363A, § 28, § 331, 159 H.F.No. 2955 (2016) (amending § 28 and creating new § 331, the latter of which will be the primary discussion of this article).

The new law went into effect on May 23, 2016, the day following final enactment. Minn. Stat. § 363A.331, subdivision 5 (2016). Section 331 sets forth the process and requirements with which private parties must comply before they sue for alleged architectural accessibility violations.  Id.

The new law follows a string of lawsuits brought by a lawyer, pain management physician, and wheelchair user who has filed almost 100 lawsuits in Minneapolis and the surrounding metropolitan area for alleged violations of the MHRA. John Reinan, Doctor, lawyer, wheelchair user: It’s the same person. And he’s filing disability lawsuits by the bundle, The Star Tribune, May 31, 2016.

These lawsuits are purportedly being brought to address long-standing accessibility laws believed by the person suing to be widely ignored. This trend is not limited to Minnesota. In recent years, public accessibility lawsuits have significantly risen across the nation. Angus Loten, Disability Lawsuits Against Small Businesses Soar, The Wall Street Journal, Oct. 15, 2014, (citing a nearly 55% rise in disability access lawsuits between 2013 and 2014).

But the new MHRA amendment might slow this trend in Minnesota, by placing pre-suit requirements on certain people seeking to sue over accessibility. HF 2955 & SF 2584, WEEKLY LEGISLATIVE UPDATE (Minn. State Council on Disability), Apr.15, 2016.

If Section 331 proves successful, other states may consider it as a model to revise their own disability access laws.

How it will generally work

Generally, this new Section 331 in the MHRA codifies the process by which attorneys may bring public accessibility lawsuits. It requires specific events to occur before suit is brought, and it also provides specific affirmative defenses for businesses to use when defending these suits:

  • subdivision 1 contains various definitions. It defines “[a]ccessibility requirements under law” as requirements applying to the removal of architectural barriers that may limit access to business establishments or public accommodations by persons with disabilities under both the MHRA and the public accommodation provisions of the Americans with Disabilities Act. Stat. § 363A.331, subdivision 1 (2016).
  • subdivision 2 states that, before an attorney may file a lawsuit alleging accessibility violations, a notice must be sent that cites the law that is at issue, identifies each alleged architectural barrier with specificity, and provides at least 30-days for the business or place of public accommodation to respond. Id., at subdivision 2.
  • subdivision 2 also prohibits the pre-suit notice from including a request or demand for money. However, an offer to engage in pre-litigation settlement negotiation is allowable. Id.
  • subdivision 3 provides a statutory short form for the demand letter. Id. at subdivision 3.
  • subdivision 4 lists affirmative defenses available to the business, including that: (1) the architectural violation has been brought into compliance, (2) compliance is “not readily achievable or cannot be accomplished by alternative means”, or (3) the alleged architectural barrier at issue is not actually a violation. Id. at subdivision 4.

A plaintiff bringing such a suit will generally allege that a particular architectural barrier makes a place of accommodation inaccessible and that removal of the barrier is readily achievable. The amendments do not change the analysis of what is “readily achievable,” which a Minnesota federal district court examined as recently as this February. Disability Support Alliance v. Heartwood Enters., 2016 U.S. Dist. LEXIS 23072, *16 (D. Minn. Feb. 24, 2016).

The party suing over an alleged inaccessible public space will still be required to present evidence showing that an accommodation is readily achievable, taking into consideration “the cost, nature of needed alteration, available resources, and other analogous factors . . . .” See e.g., id. Should the party suing be able to present evidence showing that the removal of the architectural barrier is readily achievable, then the burden will shift to the business to prove that it is not. Id. In addition to availing itself of other defenses, a business can point to expense, aesthetics, historical significance, and economic and operational impact to demonstrate that the change is “not readily achievable”. Id.

Going forward

The new law has been largely perceived as a business-friendly amendment that will limit and formalize the way represented parties may sue over public accessibility issues. Reinan, supra note 3.

The notice requirements of subdivision 2 obligate a lawyer bringing suit to first notify the business of the substance of the alleged violation. This should give any business receiving such a notice the opportunity to address any problems, including to make corrections, before being sued. It should also help discourage potentially meritless suits, not only because of the pre-suit requirements, but also because the affirmative defenses available to the defendant business are now clear and formalized. That said, the litigation process is expensive. Thus, settlement may remain an attractive alternative.

Despite the intention and perception of Section 331, it is unclear what the actual impact of Section 331 will be for businesses. Time will tell whether this new statutory provision will have a substantial effect on making a more “fully accessible Minnesota” or on reducing “the occurrence of [public accessibility access] lawsuits.” HF 2955 & SF 2584, Weekly Legislative Update (Minn. State Council on Disability), Apr. 15, 2016.

In the interim, businesses are wise to heed the “notice letters” received from people claiming accessibility violations and to respond as promptly as possible with real fixes, if appropriate.


We are grateful to the contributions that summer intern Neda Raeker made to this article.

“What are the latest developments on whistleblowing in the workplace in Germany?”

Apart from the well-known Wiki-leaks, recent prominent cases of whistleblowing such as Lux-leaks, the Panama Papers or the case of the German geriatric nurse Brigitte Heinisch, who was dismissed after revealing the ill-treatment of elderly people in a Berlin retirement home, continue to highlight the continued relevance of the topic “whistleblowing”. While this has resulted in an increased public awareness and consequent expectation of global corporate accountability, the subject remains a complex matter of opposing interests: on the one hand, the public interest in ensuring that companies, authorities and organisations comply with the law, and on the other hand, the importance of an employee’s duty of fidelity owed to his employer and the employer’s interest in protecting its reputation and desire to remedy any possible misconduct internally before having to go public. In the midst of this stands the uncertainty for the employee who “blows the whistle” as to what legal consequences he risks when reporting misconduct or irregularities.

In Germany, there is no specific legislation dealing with whistleblowing procedures and protection. Some laws such as the German Data Protection Act (Bundesdatenschutzgesetz), the German Labour Protection Act (Arbeitsschutzgesetz), the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) and the German Works Council Constitution Act (Betriebsverfassungsgesetz) stipulate disclosing rights and duties in specific situations, but general principles on whistleblowing are only provided for by case law (for more details regarding the general legal situation in Germany see our previous blog).

At a recent conference, the ministers of justice of the German federal states criticised this fragmentary protection provided for whistleblowers under German law and called for more effective protection. In this context, the ministers explicitly pointed out the social significance of employees reporting internal misconduct or breaches of law in companies, authorities and organisations at an early stage, and requested that the German Federal Government assess to what extent a legal framework is required in order to protect whistleblowers. Whether, and if so to what extent, a legal framework for all employees will be introduced remains to be seen.

With effect from 2 July 2016, and irrespective of the demands of the ministers, such a legal framework will be provided, at least, for employees of all companies subject to the supervision of the German Federal Financial Supervisory Authority (BaFin): The amendment of the German Act on Financial Services Supervision (Finanzdienstleistungsaufsichtsgesetz) then comes into effect following requirements of European law. It stipulates that employees working for, for example, banks, financial services institutions, insurance-companies, capital management companies, stock-listed companies subject to the German Securities Trading Act (WpHG) and pension funds, who report potential or actual breaches of law may not be held liable for this either by their employer under employment law or by the state under criminal law, unless the notification was false and issued intentionally or by gross negligence. Furthermore, the Federal Financial Supervisory Authority must implement the organisational means for enabling employees falling under the scope of the law to report such breaches of law anonymously and centrally (e.g. by means of a whistleblower-hotline/homepage).

Currently, a duty to implement such reporting structures (directed towards employers) is provided by the German Banking Act (Kreditwesengesetz). However the Act extends only to credit institutions (most banks) and financial services institutions (investment brokerage/advice, financial portfolio management etc.) and in particular does not extend to insurance companies. These institutions must provide for an effective whistleblowing procedure which includes a process which allows employees to report any violation to an appropriate body within the company. The aforementioned amendment of the German Act on Financial Services Supervision now provides for a centralised rather than a decentralised reporting system as stipulated by the German Banking Act. Although the amendment is widely criticised, in particular for providing protection limited only to a certain sector (most likely excluding auditing companies), and not giving detailed specifications as to how such protection is to be ensured, it is a step in the right direction and at least shows that the matter is acknowledged both socially and politically.

For further information and an extensive guide to whistleblowing laws worldwide see our A global guide to Whistleblowing laws”.

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