Employment Litigation - Page 14 of 16

Supreme Court Gives Employers Another Tool to Fend Off Class Actions

Earlier this week, the U.S. Supreme Court held that an arbitration agreement cannot be read as permitting class arbitration unless the agreement clearly and explicitly so provides; it is not enough that the agreement is susceptible to the interpretation that it permits class arbitration. This holding gives employers another tool to fend off class actions and compel alleged class claims to individual arbitration.

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Ninth Circuit Rejects Due Process and Primary Jurisdiction Arguments in ADA Website Accessibility Case

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.

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The 11th Circuit Holds Prior Settlement in Website Access Case Does Not Moot Identical Second Lawsuit Seeking the Same Injunctive Relief

Retailers and other companies have been besieged by lawsuits alleging that their websites are not accessible to visually impaired users in violation of the Americans with Disabilities Act (“ADA”) and similar state laws. Some companies have been sued multiple times by different plaintiffs represented by different lawyers, even though the companies had previously agreed in earlier settlements to ensure that their websites are accessible to the visually impaired.

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Big Law Hit Again With a California Gender Discrimination Lawsuit

Earlier this week, Wendy Moore, a former partner at Jones Day, filed a representative action against the law firm in San Francisco Superior Court, alleging a single cause of action pursuant to the California Private Attorneys General Act (“PAGA”) for alleged violations of the California Equal Pay Act, as amended by the Fair Pay Act of 2015, and related violations of the California Labor Code. The PAGA permits employees to bring civil suits to recover penalties on behalf of themselves and other aggrieved employees for Labor Code violations. Unlike class actions, PAGA claims can proceed regardless of whether the plaintiff can meet the requirements to certify a class.

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Justice Gorsuch Casts Deciding Vote Rejecting NLRB’s Prohibition on Class Action Waivers

In a long-awaited decision, the United States Supreme Court, by a 5-to-4 vote, overturned the National Labor Relations Board’s (the “Board”) ruling that class action waivers violate the National Labor Relations Act (NLRA) because they interfere with the right to engage in “protected activity,” which, according to the Board, includes the ability to bring class or collective actions. Epic Sys. Corp. v. Lewis, No. 16-0285, 2018 WL 2292444, at *23 (U.S. May 21, 2018).

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Philadelphia Salary History Ban: Judge Rules that Employers Can Ask About – But Not Use – Prior Salary History

On April 30, 2018, a federal district court issued a long-anticipated ruling on Philadelphia’s salary history ban. The ban, scheduled to take effect May 23, 2017, has two parts: (1) the “Inquiry Provision,” precluding employers from inquiring about a prospective hire’s wage history; and (2) the “Reliance Provision,” prohibiting employers from relying on the wage history of a new employee in determining the employee’s pay, unless the employee “knowingly and willingly disclosed his or her wage history to the employer.”

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