Retailers throughout the country have been besieged by lawsuits and demand letters alleging that their websites are not accessible to the visually impaired and that this lack of accessibility violates Title III of the Americans with Disabilities Act (ADA). The plaintiffs’ bar, without definitive guidance from the Department of Justice (DOJ) or the courts, has assumed that retail websites are “places of a public accommodation” under the ADA and that the appropriate compliance level should be the Website Content Accessibility Guidelines (WCAG) 2.0 A or AA.
Continue reading “Florida Federal Court Rules That Winn-Dixie’s Website Violated the ADA”
Author: Cheryl D. Orr
The Unanswered Question: Do “Call-In” Schedules Trigger California Reporting Time Pay Obligations?
On June 8, 2017, plaintiffs Mayra Casas and Julio Fernandez (“Plaintiffs”) filed an unopposed motion seeking approval of a $12 million settlement reached against defendant Victoria’s Secret Stores, LLC (“Victoria’s Secret”) in a closely watched case challenging the legality of Victoria’s Secret’s “call-in” scheduling practices. The case, Casas v. Victoria’s Secret Stores, LLC, was pending before the Ninth Circuit Court of Appeals at the time the parties’ settled the case, and was one of many currently pending class action lawsuits challenging similar practices by retailers. As a result of the parties’ settlement, the ultimate question in Casas remains unanswered: Are employees who are required to call their employer to determine if they are required to show up for call-in shifts entitled to reporting time pay?
Bag Check Claims: Not Quite Yet in the Bag for California Employers
California employers that perform bag checks on employees in order to deter theft breathed a sigh of relief in 2015 after a California federal court’s ruling in Frlekin v. Apple Inc., No. C 13-03451, 2015 WL 6851424 (N.D. Cal. Nov. 7, 2015), which provided that state law does not require that Apple compensate hourly employees for time they spend undergoing security checks. The ruling followed another favorable decision in December 2014, when the U.S. Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 518 (2014) that security checks do not constitute compensable work activities under federal law. After years of increased attention having been paid to bag check actions, the decisions slightly cooled the plaintiffs’ bar’s enthusiasm for such actions. But despite the victories, California employers should not let their guard down quite yet. A number of recent high-value settlements continue to make bag check claims attractive.
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Federal Court Permanently Enjoins DOL’s Persuader Rule
A federal district court in Texas has issued a permanent injunction blocking implementation of the U.S. Department of Labor’s (“DOL”) controversial “Persuader Rule,” which was promulgated under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).[1]
The LMRDA imposes public reporting obligations on employers and consultants who enter into agreements to persuade or influence employees’ exercise of their collective bargaining rights. For more than 50 years, the DOL interpreted the LMRDA’s “Advice Exemption” as exempting from the statute’s onerous reporting requirements indirect “persuader activities” by labor relations consultants, including attorneys. The DOL’s Persuader Rule, however, which took effect on April 25, 2016, removed indirect persuader activities from its definition of exempt advice, thus subjecting confidential attorney-client communications and agreements to the LMRDA’s public reporting requirements.
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Mom-Friendly Policies May Be A Nice Perk But Could Constitute Gender Discrimination
The EEOC, and at least some Plaintiffs’ lawyers, are taking the position that employers may not offer more parental leave to a birth mother than to a father, unless justified by medical necessity. Any other outcome, they claim, would constitute discrimination against men on the basis of sex.
This Summer (on June 25, 2015), the Equal Employment Opportunity Commission issued the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues on June 25, 2015. The EEOC’s new guidance states that any parental leave must be provided to similarly situated men and women on the same terms. Further, according to this guidance, companies may offer longer leaves to biological mothers than to fathers, only if the difference in length of leave is justified by a medical necessity. The EEOC gives the example of the following policy that complies with Title VII: offering “pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance” and allowing all new parents six weeks of parental leave. The EEOC states that this policy gives an equal amount of parental leave and allows women who give birth an additional 10 weeks to recover from pregnancy and childbirth. Although one may question whether this adds clarity or confusion to the issue, it appears that the EEOC is attempting to carve out a “medical necessity” exception to a rule that otherwise requires uniform treatment.
At least one high profile employer has had to deal with a claim of discrimination along the lines suggested by the EEOC. Last month, CNN and Turner Broadcasting settled an Equal Employment Opportunity Commission (“EEOC”) charge with a former CNN correspondent, Josh Levs, who claimed that the company’s paid parental leave discriminated against biological fathers. According to Mr. Levs, CNN’s parental leave policy provided biological fathers only two weeks of paid parental leave and allowed ten weeks of paid leave for biological mothers, as well as to all parents (regardless of sex) who adopted. In October 2013, Mr. Levs filed a charge of discrimination alleging that CNN’s policy violated Title VII of the federal Civil Rights Act. The settlement between the parties was not disclosed, but Time Warner voluntarily changed their parental leave policy to allow all parents—biological mothers, biological fathers, and adoptive parents—to receive six weeks of paid leave following childbirth or adoption. In addition, the new policy allows biological mothers to receive an additional six weeks of leave with the possibility of more leave if they have an unforeseen medical need.
What is the bottom line for employers? Employers should review their leave policies to ensure that they are compliant with Title VII, including by looking for unintended negative impact from policies that were designed to be generous to new mothers. As outlined by the EEOC, employers should consider distinguishing in their leave policies parental leave that is related to a physical limitation imposed by pregnancy or childbirth and leave that is provided for the purpose of caring or bonding with a child.
What Are Your Company’s Wage & Hour Risks?
Wage & Hour class actions are being filed at a pace that dwarfs almost all other types of litigation. With a myriad of federal and state laws and regulation, employers not only need to take steps to minimize the risk of a suit, but also must be prepared to defend themselves. Launch the brief video below to hear how Labor and Employment Group partners Cheryl Orr and Stephanie Gournis are helping employers involved in employment class actions, as well as helping companies to minimize the risk of litigation.
