Late last month, we previewed our upcoming series of blog posts discussing Employee Handbooks – What’s New and Why Does it Matter? If you happened to read that post, then you know we introduced the topics for parts one through six of our handbook series. We will now embark on part one of our journey to the land of employee handbooks. This journey will have several other stops along the way, but for now our topic is anti-harassment policies and training in the #MeToo era.
In this article I discuss a lesser known judicially created doctrine that is equal parts confusing in application and sweeping in scope for litigants involved in restrictive covenant disputes – the Economic Loss Doctrine (ELD).
Employee handbooks. Say those words around any seasoned HR professional and watch them cringe. Yes, handbooks are often relegated to the “I’ll get to that when I have time” list, which is understandable in today’s busy corporate environment where tasks critical to the business receive priority status. But handbooks are important and deserve inclusion on the list of asset protection initiatives for the new year. Why, you ask? Because a poorly drafted handbook exposes a business to unnecessary risk of liability. Liability can range from the more obvious—failure to make appropriate at-will employment and no contract disclaimers may bind the company to statements in the handbook where flexibility is needed—to the less obvious—failure to address relevant state and local laws and the affirmative obligations placed on employers in those laws can foster a culture of noncompliance and possible class actions. And putting aside the liability issues for a moment, a properly drafted employee handbook can be used as a guidebook for managers, a go-to resource for a company’s workforce, and an effective tool for communicating performance and conduct expectations.
Many employers have opted to use technology to their advantage by adopting biometric timekeeping systems or similar systems for workplace access. But adopting such technology is not without risk. Indeed, with data breaches on the rise, employees and consumers have become more vigilant about protecting their personal data and using state privacy laws and the like to do so. The Illinois Biometric Information Privacy Law is one such law that places restrictions on businesses that collect biometric information of individuals. That law defines biometric information as “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier [i.e. ‘a retina, iris scan, fingerprint, voiceprint, or scan of hand or face geometry’] used to identify an individual.” 740 ILCS 14/10.
Federal law requires most employers to provide reasonable break time to employees who need to express breast milk during the workday and to provide a place free from intrusion (not a bathroom) where an employee can express milk, unless doing so presents an undue hardship. Many states and localities have adopted similar lactation laws, in some cases providing rights beyond those afforded under federal law. New York City law currently requires that employers with four or more employees provide reasonable break time to employees who need to express breast milk during the work day and to make reasonable efforts to provide a private room to do so.
Effective March 18, 2019, New York City employers will have to ensure that the room provided for expressing milk is in reasonable proximity to the employee’s work area, has a refrigerator for storing break milk, an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. The lactation room must also have nearby access to running water. And if the lactation room is not solely used for expressing milk, then when the room is being used by an employee to express milk the employer must provide notice to other employees that the room is given preference for use as a lactation room.
In Robles v. Domino’s Pizza LLC, No. 17-55504 (9th Cir. Jan. 15, 2019), the 9th U.S. Circuit Court of Appeals reversed a district court’s dismissal of the plaintiff’s ADA claim pursuant to the primary jurisdiction doctrine due to the lack of website accessibility regulations from the Department of Justice. In doing so, the Court issued three important rulings.
First, to the extent there was any doubt, the Court held that the ADA applies to websites of places of public accommodations if there is a sufficient nexus between the website and a physical brick and mortar location. Second, the Court held that applying the ADA to websites does not violate the Fourteenth Amendment right to due process merely because DOJ has not implemented specific regulations setting forth a technical standard for website accessibility. Third, the Court held that the district court erred in dismissing the case under the primary jurisdiction doctrine because DOJ has expressed no interest in promulgating regulations governing website accessibility and, therefore, deferring to the DOJ would delay the resolution of the plaintiff’s claims.