ACI-NA's Weekly Legal Briefing

               ACI-NA’s Weekly Legal Briefing                  

Volume 2012, Issue 1

Week of January 9 - 13, 2012

Legal Affairs Committee Members:

Happy New Year to each of you !  The following matters are highlighted for your review and information.

Litigation Matters of Interest:

  • ACI-NA Supports Seattle before Washington State Supreme Court

This afternoon, ACI-NA filed a “friend of the court” brief in the Washington State Supreme Court in a case involving Seattle-Tacoma International Airport (“Port of Seattle” or “Port”) and the injury accident claims of a tug operator. Because of the potential that an adverse ruling would expand the liability exposure of airport owners, ACI-NA is participating in Afoa v. Port of Seattle to assure that the court understands how the case would harm airport operators.

The case arises from a tragic incident when the plaintiff lost control of the aircraft tug he was driving and crashed into some equipment near the apron.  His spine was crushed in the accident, leaving him a paraplegic. He was employed by a contractor, Eagle, which provided tug services to a number of airlines.  Eagle was licensed to operate on the airport, subject to the Port’s generally applicable rules and regulations.

Applying long-standing state law, the trial court granted the Port’s motion for summary judgment because property owners like the Port do not owe a general duty to provide a safe workplace to licensees or their employees, only to their own employees and to independent contractors when the property owner “retains control” over the manner in which they perform their work.

Following an appeal by Eagle, the State Court of Appeals reversed, ruling that the license could give the Port sufficient control over Eagle’s work to fall within the “retained control” exception to the general rule of non-liability. The Court of Appeals remanded the case for a trial on the merits.

 At the request of the Port, ACI-NA joined a coalition of Washington property owners urging the Washington State Supreme Court to accept the case for review and to reverse the Court of Appeals decision. The high court accepted the case.

ACI-NA filed its own amicus curiae brief on the merits to make sure that the court understands that airport operators do not control the work of licensees such as Eagle. ACI-NA’s brief explained the operational and regulatory context of ground operations to make clear that airport operators act as “hosts” of aviation activity, but cannot control that activity, and thus should not be held liable as if they were an employer of everyone on an airport. The brief also explained the significant costs and burdens the Court of Appeals’ decision would impose on airport operators.

Oral arguments will be heard on Feb. 16, and a decision is expected later this year.

Eric Pilsk and Peter Kirsch of ACI-NA ACI-NA Associate law firm Kaplan Kirsch and Rockwell are assisting ACI-NA in this case.

Contact ACI-NA’s Monica Hargrove for more information.

Regulatory Matters:

  • Last week, DOT denied petitions filed by a number of aviation trade associations and airlines challenging recent tarmac delay consumer rules implemented by the DOT.

Additional information on DOT’s ruling and a copy of the DOT order are available at: http://airconsumer.dot.gov/rules/Denial%20of%20Baggage%20Extension%20Final.pdf

  • ACI-NA, A4A, and IATA File Joint Comments to DOT’s Proposed Airline Kiosk and Website Rule

On January 9th, Airports Council International-North America (ACI-NA), Airlines For America (A4A), and the International Air Transport Association (IATA) filed extensive joint comments to DOT’s proposed rule requiring airport and airline automated kiosks and airline websites to be accessible to passengers with disabilities.  Many airlines use automated kiosks at airports to perform customer service functions such as automated flight check-in and printing of boarding passes and, increasingly, carriers are using kiosks for bag tag printing, rebooking passengers from cancelled flights, and reporting lost luggage.  DOT believes that these kiosks remain largely inaccessible to passengers with vision and mobility impairments.

While supporting a balanced approach to improve and encourage kiosk and website accessibility, the Comment points out numerous flaws in the analyses, costs, benefits, and timelines DOT set forth in the proposed rule.  The Comment proposes numerous and more flexible alternatives, less burdensome than the DOT prescriptive proposal, for providing passengers with disabilities with access to air carrier services.  The flexible approach proposed by the Comment would allow continued innovations to improve the experience of all passengers, including the use of the latest technologies for passengers with disabilities.

As for automated ticketing kiosks at U.S. airports having 10,000 or more yearly enplanements, DOT is proposing that all kiosk orders initiated 60 days after the effective date of the rule must meet given standards for providing accessibility to individuals with visual, mobility, tactile, and hearing disabilities.  These proposed standards would apply to both proprietary and shared-use kiosks.  For passengers who are unable to use the kiosks, DOT will continue to require carriers to provide equivalent service (e.g., permitting the passenger to go to the front of the line at the ticket counter or to provide airline personnel to assist with the kiosk).

The Comment incorporates valuable and extensive information provided by the IATA Common Use Working Group on the research, redesign, and reprogramming needed to develop accessible kiosks.  It is worthy of note that the IATA Group, which is composed of carrier, airport, and vendor representatives, reports that no kiosks currently exist that meet the proposed DOT kiosk standard for accessibility.  The Comment provides that the DOT proposal that all kiosks ordered only after 60 days of the final rule effective date is unrealistic.  Instead, a minimum of two years after DOT establishes any accessibility standard is required for the industry to develop, test, and begin procurement of accessible kiosks.  In addition, installation of accessible kiosks should be phased after this two-year period rather than requiring all procured kiosks to be accessible.  The Comment also opposes any retrofitting of existing kiosks as being cost prohibitive and impractical.

The Comment also notes serious flaws in DOT’s benefit-cost analysis.  For example, DOT cites a 13-minute time savings for passengers with disabilities using an accessible kiosk over use of a carrier’s ticket-counter agent.  Instead, using a carrier’s agent is at least three times faster than using an accessible kiosk.  In addition, DOT’s analysis seriously understates the substantial software and hardware development costs.  The carriers estimate that the incremental costs to develop a new accessible kiosk would be as much as $11,000 per kiosk, and not the $750 stated by DOT.  As a result, the costs of DOT’s rule as proposed far outweigh the benefits.

Regarding air carrier and ticket seller websites, DOT is proposing that all U.S. air carriers and foreign air carriers servicing the U.S. must ensure that these websites meet certain accessibility standards in a three-phase approach over a two-year period.  While this proposed rule concerns carrier websites, airports should keep the proposed DOT accessibility standards in mind while making the airport websites accessible.  DOT is proposing as the standard the “Website Content Accessibility Guidelines 2.0 Success Criteria” and all Conformance Requirements at Level A and Level AA developed by the World Wide Web Consortium Web Accessibility Initiative (http://www.w3.org).  DOT considers the marketing of air transportation by air carriers and ticket agents on Web sites that are inaccessible to individuals with disabilities to be discriminatory and an unfair trade practice. 

DOT is proposing this rule pursuant to the Air Carrier Access Act for the air carriers and pursuant to Section 504 of the Rehabilitation Act of 1973 for the airport operators.  Information regarding this rulemaking is available at www.regulations.gov under docket number DOT–OST–2011–0177.  ACI-NA wishes to acknowledge the invaluable assistance of the IATA Common Use Working Group and the ACI-NA Information Technology Committee in the development of this Comment to the DOT’s proposed rule.

For further information, contact ACI-NA’s James Briggs.

  • DOL Proposes Seven Percent Workforce Goal for People with Disabilities

The U.S. Department of Labor has issued a Notice of Proposed Rulemaking (“NPRM”) that includes requiring federal contractors and subcontractors to set a hiring goal of seven percent for people with disabilities.  Imposed under Section 503 of the Rehabilitation Act, the proposed regulations also would increase a contractor’s data collection and analysis obligations and mandate prescribed outreach efforts.  In releasing the proposed regulations, Secretary of Labor Hilda L. Solis stated, “This proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act.”

Some of the requirements proposed in the NPRM include the following:

      --Imposition of a nationwide seven percent goal (not a hiring quota or ceiling) for individuals with disabilities.  The goal would apply, not to the contractor’s workforce as a whole, but to each job group.

      --Annual evaluations for compliance with the goal.  If the goal is not met, the contractor must implement “action-oriented programs” to attain the goal.

      --Contemplation of a sub-goal of 2% for individuals with severe disabilities, such as total deafness, blindness, missing extremities, partial/complete paralysis, epilepsy, severe intellectual disability, psychiatric disability, and dwarfism.

      --Substantive changes to the mandated Equal Opportunity Clause in 41 CFR 60-741.5 that is included in all covered contracts.

      --Additions to the types of prohibited conduct to include a prohibition on reducing a person’s compensation for the costs of a reasonable accommodation and a prohibition on claims of discrimination because of a lack of a disability.

      --Requirement that contractors, using language provided by DOL, invite job applicants and employees to voluntarily self-identity as individuals with disabilities.  Although employers are generally prohibited from inquiring about disability prior to an offer of employment, employers may collect this information in furtherance of its affirmative action obligation.  The self-identification would ask only for the existence of a disability and not the nature of type of disability.

      --Requirement that contractors annually survey all of its employees to self-identify anonymously as an individual with a disability.

      --Prescribes elements required in an affirmative action program to include a review of physical and metal job qualifications, outreach and recruitment efforts, auditing and reporting, and training in recruitment, screening, selection, and discipline of employees.  Affirmative action program for individuals with disabilities must have measurable objectives, quantitative analyses, and internal auditing and reporting.

      --Requirements for developing and implementing written procedures for processing requests for reasonable accommodation.

      --Encourages priority consideration to individuals with disabilities in recruitment and hiring.

      --Maintenance of records of the affirmative action program and outreach efforts must for five years.

      --Detailed procedures for compliance evaluations of the contractor’s affirmative action programs and for filing complaints of alleged violations.

Section 503 of the Rehabilitation Act of 1973 prohibits discrimination against individuals on the basis of disability and requires affirmative action on behalf of individuals with disabilities by contractors with federal contracts or subcontracts in excess of $10,000 for the purchase, sale, or use of personal property or non-personal services, including construction.  Comments to the NPRM are due February 7, 2012.

Link to NPRM in the Federal Register:  http://www.gpo.gov/fdsys/pkg/FR-2011-12-09/pdf/2011-31371.pdf

Link to Website of the Office of Federal Contract Compliance Programs, Department of Labor:  http://www.dol.gov/ofccp/index.htm

For further information, contact James Briggs, ACI-NA’s Vice President for Legal Affairs at jbriggs@aci-na.org.

 

If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:  mhargrove@aci-na.org

Have a great weekend!

Monica

Monica R. Hargrove
General Counsel

Direct: (202) 861-8088       
E-mail:
mhargrove@aci-na.org