Posts by: Timothy Del Castillo

Will the Whistle Be Silenced? Dismantling Dodd-Frank

Silver school PE sports whistle on white background Will the Whistle be Silenced? Dismantling Dodd-Frank

When Donald Trump was elected President of the United States in November, he vowed to “dismantle” the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). In its place, Trump promised to replace the law “with new policies to encourage economic growth and job creation.”  Now a bill known as the Financial CHOICE Act may initiate the process to do just that. But at least with respect to Dodd-Frank’s whistleblower provisions, the Financial CHOICE Act would leave largely intact the current bounty programs that have already awarded tipsters over $150 million in the U.S. and abroad.

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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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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

Sobering Reflections on OSHA’s New Drug Testing Policy

In May 2016, the Occupational Health and Safety Administration (“OSHA”) announced its final rule to “improve tracking of workplace injuries and illnesses.” Effective December 1, 2016, the rule targets retaliation against employees for reporting workplace accidents, including disciplinary actions that are likely to impair or discourage future reporting efforts. In its recent guidance, the agency suggests that blanket, mandatory post-accident drug testing can itself be a form of unlawful discipline where the employer lacks what OSHA terms a “reasonable basis” for suspecting drug or alcohol impairment. The “reasonable basis” language, which has so far received no further clarification, introduces ample uncertainty as to what conduct may be subject to an agency citation and how citations for drug testing fit within the agency’s existing penalty framework. READ MORE

Pay Raises Across the Nation? Not So Fast Say Several States and Business Groups: 21 States and 55 Business Groups Challenge New Federal Overtime Rule

On Tuesday, September 20, 2016, twenty-one states filed a complaint in federal court in Texas challenging the new overtime rule finalized by the Department of Labor (“DOL”) in May of this year.  The States seek to prevent implementation of the new rule, which is scheduled to become effective on December 1, 2016.  That same day, fifty-five business groups, including several chambers of commerce, filed a similar lawsuit in Texas federal court to block the rule.

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Arbitration in Employment Sea Change?: Ninth Circuit Holds Mandatory Class Action Waivers Unlawful

Can employers still require employees to sign arbitration agreements with class action waivers as a condition of employment?  Last week, the Ninth Circuit became the second appellate court to adopt the National Labor Relations Board’s (“NLRB”) position that class action waivers violate the National Labor Relations Act (“NLRA”) in Morris v. Ernst & Young LLP.

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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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Big Bucks for Baby-Bonding: San Francisco Passes Employer-Paid Parental Leave Ordinance

Staying true to form, earlier this month San Francisco passed the nation’s first fully-paid parental leave law known as the Paid Parental Leave for Bonding with New Child Ordinance (“Paid Parental Leave Ordinance”).  California’s Paid Family Leave (“PFL”) program currently provides six weeks of partially-paid leave at 55 percent of an employee’s pay, up to $1,129 per week.  The Paid Parental Leave Ordinance mandates that employers pay the difference up to a weekly maximum, meaning most employees will receive six weeks of bonding leave at full pay.  Unlike PFL, which is funded through employee contributions to state disability insurance, benefits under the Paid Parental Leave Ordinance are employer-funded.

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What Can Brown Do For PAGA? Budget Proposal Seeks Greater Oversight of PAGA Claims

California Governor Jerry Brown’s administration recently submitted a budget proposal to the California Legislature that would increase State oversight of Private Attorneys General Act (PAGA) claims and amend the PAGA statute accordingly.  The proposal has significant implications for the administration of PAGA claims going forward.

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Not So Final WARNing: Sixth Circuit Finds That Employment Ends with Termination of Wages, Not Notice

In Morton v. Vanderbilt Univ., 2016 WL 52439 (6th Cir. Jan. 5, 2016), the Sixth Circuit recently held that, for purposes of the Worker Adjustment and Retraining Notification Act (“WARN Act”), employment does not end at notice of termination, but rather the employment relationship continues as long as the employee continues to be paid wages and accrue benefits.

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