Federal Court in Florida Rules that a Grocery Store Must Make its Website Accessible

Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities.  Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:  Website Accessiblity

  • While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
  • These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
  • No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
  • The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
  • Very few cases have reached a resolution on the merits.

As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years.  However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.

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Labor Unions Attempt to Use DOL and OSHA Enforcement as Organizing Tactic

By:  Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  labor-unionTraditionally, when a labor union begins an organizing campaign at a workplace, the federal agency that is the typical focal point is the National Labor Relations Board (“NLRB”), whose purpose is to protect the right of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.  However, unions have also engaged with or depended on the regulations of other federal agencies as a tactic to gain leverage in organizing campaigns.  There are a number of ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees or put pressure on employers to concede to union representation.

Taking OSHA as an example, an inspection or the threat of an inspection can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or of an OSHA inspection could put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with about 75% of OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading

DOL Takes Significant Step Forward in Rescinding Persuader Rule

4This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

As we discussed in a prior post, the Persuader Rule imposed stricter reporting requirements on employers under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).  Specifically, the rule aimed to close a loophole in the reporting requirements, known as the “advice exemption,” which permitted employers to hire a consultant solely for advice without making a related report.  Thus, in the past, the LMRDA required an employer to file a report if it hired a consultant to directly persuade employees on organizing or bargaining issues, but did not mandate an employer file a report if the consultant hired only used “indirect” persuasion, such as advising employers on what to say to employees.  With the Persuader Rule, however, the DOL has essentially eliminated the advice exemption as it now requires employers and their labor relations consultants, including outside attorneys, to report any activities by the consultants that could be construed as an attempt to “persuade” employees regarding their rights to organize and bargain.  Continue reading

Join Us for our May Webinar on Key Marijuana Issues in the Workplace

On Wednesday May 24, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Andrew J. Sommer will be presenting a free webinar discussing recurring marijuana issues in the workplace in light of new state legislation.

medical marijuanaThe rise in medical and recreational marijuana legislation poses many interesting questions for employers.  State legislation of the lawful use of cannabis likely will require employers to change their perceptions of longstanding drug policies and practices.  Legalized medical and recreational cannabis is a reality in many states, dispensaries are open for business, and state legislation on this topic has become a hot topic throughout the country.

Challenges by medical marijuana patients and recreational marijuana users concerning their employers’ practices are sure to arise, and there are several state and federal laws that may be implicated in those lawsuits.  Employers with national operations must take into account potentially divergent laws of the states in which they operate. This webinar will provide guidance to employers so they can tread carefully and refrain from making hasty decisions that can lead to the time, expense, distraction, and potentially unflattering publicity resulting from litigation.

 

The webinar begins at 1:00 pm ET.  You can register for the webinar HERE.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series

House Passes Amendment to Fair Labor Standards Act Permitting Private Sector Comp Time

WFFA Pic

On May 2, 2017, the U.S. House of Representatives passed the Working Family Flexibility Act of 2017 – a bill that would amend the Fair Labor Standards Act (FLSA) to permit private employees to take paid time off instead of receiving monetary overtime compensation when working more than 40 hours per week.  While uncertainty looms over the fate of the bill as it moves to the Senate, if the bill is passed and becomes law, it would be a major amendment to the FLSA.

Private sector employers must be vigilant of this bill as it progresses through Congress and be prepared to implement procedures to offer comp time instead of overtime wages, and establish a system to keep track of the amount of comp time employees accrue. Continue reading

A New Trend — States Banning Questions Regarding Salary

In light of the current political climate and the corresponding lack of legislation being enacted at the federal level, some of the more liberal states and localities have begun to take matters into their own hands and enact their own legislation.   One trend that is starting to gain significant momentum is in the field of equal pay legislation. Several states and cities have already enacted legislation banning inquiries into job applicants’ salary history as part of an effort to ensure pay equity for women.   The prohibition against asking candidates for their prior salaries is akin to the passage of “ban the box” laws in nearly half the states in the country, which bar employers from requiring job applicants to disclose whether they have a criminal record on job applications.  These new laws will have a significant effect on employers operating in the applicable states and municipalities.

Last year, Massachusetts passed the nation’s first law prohibiting employers from asking job applicants for their current salaries or salary history.  mind the pay gap (002)Pro employee groups praised this law as a way to counter the pay discrimination that can follow a woman throughout her career when the salary bump she gets with each job move is based on pay that is already less than her male peers.  Many advocates for women believe that by basing future salaries on previous wages, employers are perpetuating the long-standing gender based pay gap. Indeed, some argue that the widening of the gender pay gap as women age supports the theory that employers are relying too heavily on previous salaries.  Companies and business groups, on the other hand, have expressed their views that this new law is misguided and represents yet another government-mandated intrusion into the way they conduct their businesses.  Employers further argue that these laws could have a negative impact on job growth and, in addition, there is nothing unlawful or unfair about using salary history to set pay and manage their costs.

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Acosta Confirmed as Secretary of Labor

Department of LaborOn Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the Secretary of Labor in the Trump Administration.  In this role, Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws.  The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

During the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately 8 months.  In 2003, President Bush appointed him to the head of the United States Department of Justice’s Civil Rights Division, a position which he maintained for about 2 years.  Thereafter, Acosta served as the United States Attorney for the Southern District of Florida.  Most recently, Acosta filled the role of Dean for Florida International University School of Law, a role from which Acosta has said he would resign if he was confirmed as Secretary of Labor.  Continue reading