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Posts by: Joe Liburt

Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

Web accessibility online internet website computer for people with disabilities symbol blue keyboard Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

On Tuesday, a federal district court in Florida issued an order in the first known trial involving accessibility to a public accommodation’s website.  Ultimately, the court found that grocery giant Winn-Dixie violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer.  As we have written about previously here and here, currently there are no binding regulations that specify the accessibility standards for websites under Title III of the ADA.

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Withdrawn: DOL Nixes Guidance on Independent Contractors and Joint Employment

Effective June 7, 2017, the Department of Labor (“DOL”) has withdrawn informal guidance on independent contractors and joint employment. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015 and was the result of the DOL’s renewed focus on worker misclassification. In it, the DOL seized upon a broad definition of “employ” under the Fair Labor Standards Act (“FLSA”)—“to suffer or permit to work”—to conclude that “most workers are employees under the FLSA.”  The DOL’s guidance on joint employment was released in 2016 and also came from an Administrator’s Interpretation.  The guidance provided a broad interpretation of joint employment in the wake of the NLRB’s Browning-Ferris decision. It also distinguished between “horizontal” joint employment, which occurs when the employee has an employment relationship with two or more sufficiently related employers, and “vertical” joint employment, which occurs when the employee has an employment relationship with one employer (such a staffing agency or subcontractor), but economic realities show that he or she is economically dependent upon another entity.

In a press release announcing the withdrawn guidance, the DOL noted, “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.”

Sick of It Yet? The DLSE Issued New Paid Sick Leave FAQs

Paid sick leave remains an epidemic that won’t quit.  Since California enacted the Healthy Workplaces, Healthy Families Act of 2014 (Cal. Lab. Code § 245, et seq.) (“California Paid Sick Leave”), paid sick leave laws have spread to both state and local levels, requiring employers to maneuver a patchwork of laws.  These laws left several unanswered questions in their wake.  Indeed, the unanswered questions were so numerous that the California Legislature passed a fix-it bill of amendments revising and clarifying California Paid Sick Leave only a few months after it took effect.  Despite the fix-it bill, several questions remained.

On March 29, 2017, the California Labor Commissioner, through the Division of Labor Standards Enforcement (the “DLSE”), attempted to provide further guidance by issuing an update to its California Paid Sick Leave: Frequently Asked Questions (“FAQs”).  The updated FAQs address questions regarding the use of “grandfathered” paid time off (“PTO”) policies and the intersection of California Paid Sick Leave and employer attendance policies.  Here are the takeaways: READ MORE

Time for a Check-Up: 5 More Sick Leave Laws Await Employers on July 1, 2017

There’s been no shortage of paid sick leave laws at the state and local level over the last few years. We have covered this growing patchwork of laws and the challenges they present for employers since this trend emerged a couple years back.

The latest round of sick leave laws to take effect did not go unchallenged. In fact, the new laws discussed in this post have already faced opposition in three forms: (1) a legal challenge in court; (2) a spate of defecting municipalities opting out of a county ordinance; and (3) a state-level preemption bill aimed at blocking local sick leave laws.

For now, it appears that each of these efforts has failed, and on July 1, 2017, five paid sick leave laws take effect. Out West, Arizona will become the sixth state to enact a paid sick leave law.  And in the Midwest, Chicago and Cook County, IL (where Chicago is located) and Minneapolis and Saint Paul, MN will each see their paid sick leave laws take effect.  Below is an overview of these soon-to-be laws.

While these five laws will certainly provide plenty for employers to think about between now and July, the wave of sick leave laws shows no signs of receding; currently, there’s talk of legislation in Michigan, Maine, Nevada, Rhode Island, and Maryland. READ MORE

Third Circuit Court of Appeals Rejects Broadening USERRA’S Evidentiary Burden For Discrimination Claims

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace. 

 USERRA differs from other employment laws (e.g., Title VII, ADEA) in multiple respects.  For example, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 may be timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.  Also, USERRA applies to all public and private employers, irrespective of size.  Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).  READ MORE

BREAKING DEVELOPMENT: Supreme Court to Rule on Enforceability of Class Action Waivers in Arbitration Agreements

In August of 2016, we reported that the Ninth Circuit created a deeper circuit-split on whether class action waivers in arbitration agreements violate the National Labor Relations Act (“NLRA”) with its decision in Morris v. Ernst & Young LLP.

As expected, the Supreme Court granted review today of three of the conflicting Court of Appeals decisions. It granted review of the Fifth Circuit’s decision in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). The Fifth Circuit rejected the National Labor Relations Board’s (“NLRB”) position that class action waivers unlawfully interfere with employees’ NLRA rights to engage in concerted activity, agreeing with the Second and Eighth Circuits. The Ninth and Seventh Circuits, on the other hand, adopted the NLRB’s position that class action waivers violate the NLRA.

The Supreme Court also granted review in Morris v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016) and Epic Systems Corp. v. Lewis, 823 F.3d 1147 (7th Cir. 2016). The Seventh Circuit held that an arbitration agreement precluding collective arbitration or collective action violates section 7 of the NLRA and is unenforceable under the FAA. The Ninth Circuit agreed and concluded that compulsory class action waivers violate sections 7 and 8 of the NLRA by limiting workers’ rights to act collectively, noting in footnote 4 that agreements containing an “opt-out” clause for pursuing class claims do not violate the NLRA.

All three cases have been consolidated and will be argued together.

 

EEOC Issues First Update on National Origin Discrimination Since 2002

In its first update in 14 years, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on National Origin Discrimination (“Enforcement Guidance”) on November 21, 2016, replacing its 2002 Compliance Manual on National Origin Discrimination. With input from approximately 20 organizations and individuals, the Enforcement Guidance addresses important legal developments over the past 14 years on national origin issues ranging from employment decisions and workplace harassment to human trafficking. READ MORE

To Free or Not to Free: The DOL’s New Overtime Regulations May Give Employees the Ability to “Unplug”—But at What Cost?

Today, mobile technology allows many exempt employees to work remotely and perform work outside traditional working hours.  Some commentators assert that the smartphone has stretched the traditional 9-to-5 workday into a 24/7 on-call period, where employees are expected to respond to work-related communications long after they leave the office and late into the night.  The expectation that employees will be available to respond on evenings and weekends, however, has sparked pushback, causing some employees to call for more work-life separation and the ability to “unplug.”  In France, this push to unplug recently resulted in a new law that gives employees a “right to disconnect.”  Under that law, many French employers soon will be required to implement rules governing work-life balance and reasonable use of digital tools.

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Decades Later, Questions Linger Over Disability Access Online, But ADA Litigation Continues

When the Americans with Disabilities Act (ADA) was enacted in 1990, computers used floppy disks and the “World Wide Web” was still being tested by scientists at CERN.  So while the law’s drafters had a good sense of what access would look like in the physical world, they had no idea what sort of economic and social changes were in store with the birth of the Internet.

Fast forward to 2016, and the law is still murky as to disability access issues online.  But that uncertainty has not stopped the plaintiffs’ bar from filing lawsuits claiming that websites are inaccessible to users with disabilities and thus violate the ADA.

Many disabled individuals access the Internet using assistive technologies.  For example, blind individuals or those with low vision can use screen readers that read website content aloud for them.  Websites that are incompatible with assistive technology can create barriers for users with disabilities and give rise to costly and uncertain litigation.

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Managers Beware: Individual Liability Confirmed Under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military.

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