Florida, and particularly South Florida, has always been on the leading edge of legal trends that involve mandatory attorneys’ fees for plaintiffs.  For many years, the United District Court in and for the Southern District led the pack in the number of Title III cases filed under the Americans with Disabilities Act (“ADA”).  In 2013, one in every five ADA Title III case was filed right here in the Southern District.  In fact, the Southern District has a 435-page list of all the addresses where ADA Title III cases have been filed in an effort to prevent plaintiffs from suing a property location that was previously sued.

Perhaps because that the address list includes just about every physical location in the Southern District of Florida, the plaintiffs’ bar has now gone virtual and the hot new trend in ADA Title III litigation is website access.

The Feds

Starting with the basics, Title III of the ADA prohibits discrimination in public accommodation:

No individual shall be discriminated against 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 by any person who owns, leases or operates a place of public accommodation.

A location is a place of public accommodation if its operations “affect commerce” and it falls within one of the twelve categories described in the statute.  The twelve categories cover just about everyplace one might go during a day except for your own private residence.  The types of places covered include places of lodging, restaurants, bars, movie theaters, stadiums, concert halls, auditoriums, stores, banks, gas-stations, professional offices (i.e. doctor’s and lawyer’s offices), transportation facilities, all types of recreational facilities (i.e. zoos, libraries, galleries), and all types of schools and colleges, etc.

If you review the twelve categories in detail, you will likely notice that “website” and ” internet” and “online” are not listed anywhere.  On the other hand, the Department of Justice (“DOJ”), as evidenced by its enforcement and litigation activity, interprets places of public accommodation to include companies’ online websites.

In fact, the DOJ issued a Notice of Proposed Rulemaking directed to entities governed by Title II of the ADA (i.e. government agencies) which identified the barriers disabled people encounter when using the internet and best practices for removing or reducing those barriers.   The DOJ (and some Courts) propose utilizing Web Content Accessibility Guidelines (“WCAG”) 2.0 as the standard (and the regulations) to judge whether a web site is accessible or not.

It is unclear when the Federal government, under the new administration, will complete its rulemaking under Title II and then move on to Title III (commercial entities).  As such, unlike physical locations, there are presently no governing regulations for website accessibility.

 

23412684 - dog with computer keyboard. top view of funny dog using computer keyboard and mouse while isolated on white

The Courts

Alternatively, maybe the Courts will give us some more definite guidelines.  Back in 2002, the United States Court of Appeals for the Eleventh Circuit Court of Appeals (which has jurisdiction over federal cases originating in the State of Florida) was on the front edge of this topic when it analyzed similar issues regarding the once popular “Who Wants to Be a Millionaire” gameshow in the Rendon v. Vallycrest case.    In Rendon, the issue wasn’t focused on the internet but on an “automated fast finger telephone” selection process.  The Rendon Court determined that the show, since it was held in a theater, was a place of public accommodation.  The Renden Court went on to rule that since the telephone screening process imposed significant barriers to disabled people who wanted to be on the show, ADA Title III applied to the telephonic application process because it restricted access to the place of public accommodation (i.e. the studio).

Since 2002, the case law in the Eleventh Circuit and throughout the Florida Federal district courts has been somewhat muddy.  The most recent case related to this website accessibility is Gomez v. Bank & Olufsen America.  In Gomez, Mr. Gomez alleged that he could not utilize the defendant’s website because it is not compatible with his screen reader software (“SRS”).  While Mr. Gomez’s Complaint linked the defendant’s website with its physical locations the focus of his Complaint, in this instance, was his reliance on using the internet to shop because of his visual impairment (he is legally blind).  Judge Joan Leonard ruled his claim failed because the ADA does not require a place of public accommodation to have a web site at all.  However, she also ruled that if a place of public accommodation does have a web site it cannot impede a disabled person’s full use and enjoyment of the brick and mortar locations.  Mr. Gomez did not replead his claims, as he had the right to do under this recent order, so the case law remains unsettled in the Southern District.

Check back soon for my Part II post on this topic.  

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month, I posted about one Florida House proposal to implement Amendment 2 (which legalized medical marijuana this past November).

Thereafter, several other bills have been put forward and one in the House, HB 1397, has now passed the House Health Quality Subcommittee.  HB 1397, written by House Majority Leader Ray Rodrigues, is quite restrictive and basically the opposite of SB 614 (the topic of my last post).  Specifically it provides the following:

  • A requirement that non-terminal patients must have a doctor at least 90 days before they can get a cannabis recommendation.
  • Bans the smoking of medical marijuana.
  • Also bans edibles like brownies and “vaping.”
  • Slow expansion of the number of licensed growers and dispensaries.  HB 1397 grants licenses to the seven existing growers (previously licensed under Haleigh’s Hope law).  In addition, five applicants denied last year by the Department of Health would obtain licenses after 150,000 patients have registered.  New licenses would be allowed once there are 200,000 patients registered.

46348049 - medical marijuana in jar lying on prescription form near stethoscope. cannabis recipe for personal use. legal drugs concept

Heading back to the Florida Senate, Rob Bradley, has proposed SB 406 which has also made it past a key committee (the Senate Health Policy Commitee).  SB 406 is a more “in the middle” bill and proposes the following:

  • The proposal does not include any language that would restrict doctors’ ability to decide for themselves if patients qualify for marijuana treatment.
  • Nonresidents would be allowed to apply to receive medical marijuana in Florida as long as they are able to get medical marijuana in their home state and qualify in Florida.
  •  The Department of Health would be required to have computer software system to track marijuana from “seed to sale”.
  • Patients would also be allowed to increase their supply from 45 to 90 days or even more than 90 days with a doctor’s approval.
  • The Bill would increase the number of marijuana dispensaries, expanding the number of businesses by five more when the state has 250,000 patients, 350,000 patients, 400,000 patients and then every 100,000 thereafter.
  • At least one of the five dispensaries would have to be a black-owned company.
  • The Bill also proposes a new medical marijuana research group at the Moffitt Cancer Center in Tampa.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

How do you respond when someone tells you they practice voodoo?  How about Santeria or Rastafari?   Do you laugh or scoff in response, do you start singing Sublime??  Here in South Florida, a multicultural and multi-ethnic area, there are a plethora of minor religions being practiced by thousands of people.  As a result, laughing or kidding about someone’s religion, even if seems like a joke to you, is the wrong move in an employment setting.

As an example, news of a recent employment lawsuit filed by a follower of the Yoruba religion, the African ancestor to voodoo and Santeria, who claims discrimination because her employer was making fun of her religion and allegedly restricting her ability to wear her religious garb.  Specifically, Jenessys Gomez, alleges that her bosses and co-workers made fun of her after she started wearing Yoruba-mandated white from head to toe, including a white cover over her shaved head.

42101574 - religious symbols

This latest lawsuit is a good reminder to employers that Title VII covers all kinds of religions and even non-theistic beliefs.  The EEOC guidance on religious observance provides the following:

Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers.  For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.  An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.  Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

When it comes to religious garb or grooming, employers should tread carefully and only limit an employee’s right to wear their religions garb or abide by their religions grooming requirements if, and only if, it creates a real workplace safety, security, or health concerns.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

In November 2016, Florida voters overwhelmingly approved, with more than 70% voting yes, expanded medical marijuana by passing Amendment 2.

Now comes the tough work of implementing Amendment 2.  One bill, SB 614, proposes to throw out the current medical marijuana system in Florida (which was set up in 2015 to grow, process and distribute low-THC cannabis oil) which strictly capped the number of businesses allowed to participate in medical marijuana.

37140040 - florida state flag on cannabis background. drug policy. legalization of marijuana

St. Petersburg Republican Jeff Brandes, the proponent of SB 614, calls the current system “state sanctioned cartel” that limits competition and results in higher prices.  At present, the Florida medical marijuana system is limited to only seven vertical license holders.  A “vertical license” means that the license holder must do it all and grow, process and distribute the product.  And, by maintaining the current system it will obviously severely restrict businesses who want to be involved in what will be big business under Amendment 2.

Senator Brandes’ plan would get rid of the vertical license system and instead create four types of licenses:  one to grow marijuana, one to process marijuana, one to transport marijuana, and one for retail centers.  Each county, and Florida is a large state with 67 counties, could have one retail center per 25,000 residents, or nearly 800 statewide.  But, the bill still permits local governments to outright ban retail dispensaries.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Who could have ever guessed that post same-sex marriage legalization, litigation would focus on the issues of wedding cakes and wedding florists.  But, now comes recent news that the case pending in Washington State involving the florist who declined to provide flowers for her friend’s gay wedding has lost her case at the state level.

As Barronelle Stutzman explained, in her own words to The Seattle Times, because she is a Christian weddings have a particular significance to her and despite her long friendship with this particular gay customer, even knowing that he was gay for many years, she simply could not provide a special arrangement of flowers for his wedding due to her religious beliefs.

I just couldn’t see a way clear in my heart to honor God with the talents He has given me by going against the word He has given us.

The Washington Supreme Court held, in unanimous decision, that her floral arrangement talents did not constitute protected free speech, and that providing flowers to a same-sex wedding would not serve as an endorsement of same-sex marriage.

As Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.

Ms. Stutzman indicates that she will appeal the decision to the Supreme Court of the United States.

46809589 - wedding-gay couple-red hair

As I explained back in 2015, Palm Beach County’s public accommodation law was amended to greatly broaden the types of businesses covered as public accommodations.  As a result, cake bakers and florists are covered by the law which means that turning away customers based on a religious basis is asking for trouble and litigation.  To avoid litigation, businesses including small businesses, should serve all customers unless there is a safety or security reason not to.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Florida, dating back to its early years, has always been a hot bed of scams and fraud.  These days, Florida leads the nation in IRS tax return fraud.  And, that is because Florida has a large transient population, no state income tax (so no state review of tax returns which provide a second layer of scrutiny), elderly population with low income but valid Social Security number, etc.

Doctor’s offices and hospitals have been ripe for the collection of Social Security numbers, so have schools.  Accordingly, most data experts advise against providing Social Security numbers at hospitals, doctor’s offices and schools.  Remember, just because they ask for your Social Security number does not mean you need to fill in that information since most providers really have no reason to collect this information.  I, personally, long ago stopped giving that information out on behalf of myself and I’ve never provided it for my daughter.  If you are a senior or you are caring for a senior, unfortunately the  Medicare system, for many years, utilized seniors’ Social Security numbers on their Medicare cards so that information has been collected for thousands of seniors.  Thankfully, in 2015, President Obama signed legislation requiring the Department of Health and Human Services to send out new Medicare cards without seniors’ Social Security numbers.

36429720 - irs scam warning sign, a yellow sign with the words irs scam on a keyboard

Now, comes news on the latest scam.  The scammers have decided to go directly to Human Resources and payroll departments to collect this data in bulk.  Large companies, mid-size companies and small companies are all being targeted with phishing scams designed to get employees to send W-2s and W-2 data directly to these scam artists.  Please see this important blog post from Fox’s Privacy and Data Security blog for more information.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Back in 2015 Houston, Texas attempted to and failed to pass an expanded human equal rights ordinance (“HERO”) which would have made it illegal to discriminate against someone based on 15 different “protected characteristics,” including sex, race, religion, sexual orientation and gender identity.

Now, the State of Texas has thought it prudent to follow the lead of North Carolina and pass a state wide law restricting bathroom access.

Texas Senate Bill 6 would require transgender people to use bathrooms in public schools, government buildings and public universities based on “biological sex.”  The measure would also preempt local nondiscrimination ordinances (these are the HERO or HROs that more liberal or progressive cities pass to provide protection within city limits) that allow transgender Texans to use the bathroom that corresponds with their gender identity.

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Not surprisingly, like North Carolina’s HB-2 there may be a large negative economic impact if Texas passes Senate Bill 6.   Texas politicians have already invited the ire of the NFL, large companies and celebrities/entertainers by proposing to limit bathroom access by “biological sex”.

“Biological sex” is defined in the bill as “the physical condition of being male or female, which is stated on a person’s birth certificate”.   What’s so complicated about that, you ask.

  • First, as many as 1 in 1,500 babies are born with ambiguous genitalia that qualify them as “intersex”.
  • Second, thousands of the 1.4 million transgender Americans have had sex-reassignment surgery, which means that many people who were designated as male or female at birth now have “the physical condition” of being another gender.
  • Third, for transgender people who retain the biological markers of their original gender identification (because they choose not to undergo surgery or cannot afford it), many transgender women and men feel not only uncomfortable but endangered when being forced to use a bathroom that does not mesh with their identity.

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Baffled by bathroom litigation and how to handle bathroom access, I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), and here (litigation involving Hobby Lobby that included restroom access claims).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

After previous efforts that failed in 2012 and 2016, the City of Jacksonville, Florida has now passed an expanded human rights ordinance (“HRO”) that provides employment and housing protections based on sexual orientation and gender identity.

This time around the City Council addressed several issues that created hurdles during the prior efforts to expand the HRO.

  • First, sexual orientation and gender identity are defined in the HRO;
  • Second, gender identity must be demonstrated in a “consistent and uniform” manner and be sincerely held, not asserted for “improper, illegal or criminal purpose”.

These two provisions are designed to address the scenario, much discussed in the news, where a man dresses up as a woman solely to invade the women’s restroom for nefarious purposes.

35571133 - jacksonville, florida, usa city skyline on st. johns river.

  • Third, addressing the locker room issue, the HRO states that businesses can still provide single sex facilities for anything that is, by its nature, a private facility, like a single-sex bathroom.  Businesses will not be required to change any existing signage or retrofit any existing facility.
  • Fourth, dress codes are also allowed under this bill, but cannot be based on “sex stereotype”- meaning a business cannot tell a secretary to wear a skirt if she’s female (if your dress code requires women to wear skirts or high heels or makeup, you are already asking for trouble).  Rather, the dress code would require the secretary to be dressed professionally.

Additionally, the City of Jacksonville provided carve outs for religious institutions and small businesses.

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Befuddled by bathroom litigation, I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), here (addressing Houston’s bathroom access ordinance) and here (litigation involving Hobby Lobby that included restroom access claims).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Well, its a few days until kickoff at Superbowl LI.  If your office is like many, someone is collecting money for Super Bowl squares.  Most employees and employers view a friendly office pool as all in good fun and most of the time it is.

68091334 - game day football party table.
68091334 – game day football party table.

But, don’t forget, under Florida law workplace gambling is technically illegal and could form the basis for a Florida whistleblower action.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Happy New Year!  Also, its time for Florida employers to pay attention to the new 2017 Florida minimum wage.  As of January 1, 2017, Florida’s minimum wage will rise from the current rate of $8.05 per hour to $8.10 per hour.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region.  Based upon this year’s calculation, Florida’s new minimum wage for 2017 is $8.10 per hour.

63255315 - happy new year 2017 gold champagne bottle celebration in mosaic style. ideal for holiday card or elegant party invitation. vector.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage.  However, the employer must pay tipped employees a direct wage.  The direct wage is calculated as equal to the minimum wage, $8.10, minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.08.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.