U.S. Supreme Court Will Decide Whether an ADA Plaintiff Must Allege an Intent to Visit a Property to Establish Standing

This past Monday, the U.S. Supreme Court agreed to hear a case challenging a disabled woman’s claim that she has legal standing to bring a lawsuit against a Maine hotel company for violating Title III of the Americans with Disabilities Act (“ADA”) even though she does not plan to visit its hotel in the future.  Black,Disability,Wheelchair,,With,Ancient,Pillars,As,Background,,3d,RenderingThe outcome of this case will be crucial for all places of public accommodations, even those outside the hotel context, such as restaurants, stores, and other retail establishments.  Indeed, this case has the potential to determine whether it becomes significantly easier or more difficult for plaintiffs to bring viable ADA lawsuits against any type of company whose business is open to the public, regardless as to whether the allegations relate to websites or more traditional “brick and mortar” barriers to access.

This case began in 2020 when Deborah Laufer, an individual who uses a wheelchair, brought a lawsuit against Acheson Hotels, a hotel company that operates the Coast Village Inn and Cottages in Maine, alleging that Acheson’s website failed to identify accessible rooms, failed to provide an option for booking an accessible room, and failed to provide sufficient information to determine whether any of the guest rooms were accessible, in violation of Title III of the ADA.  As you may recall from our prior blog post, Ms. Laufer is a prolific ADA tester/serial plaintiff who has filed more than 600 lawsuits against hotels and other places of lodging.  Aside from the name of the property she is suing, Ms. Laufer’s lawsuits are virtually identical; they allege that a hotel or other place of lodging has violated the ADA because its website and/or third-party online reservation website (such as Expedia) purportedly fails to sufficiently identify the accessible features of the hotel, as required by the ADA regulations. Continue reading

Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

On Tuesday, March 21, 2023, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned: Continue reading

[Webinar] Strategies for Responding to Whistleblower / Retaliation Complaints

On Tuesday, March 21, 2023 at 1 p.m. EST, join Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight for a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn: Continue reading

CMC Spotlight Series: Meet Mark Trapp!

As a Partner in Conn Maciel Carey’s Chicago office, Mark Trapp specializes in labor and employment law with our Employment Practice Group.  He arbitrates, litigates, and advises clients on multiemployer pension funds and withdrawal liability issues, as well as labor relations, union elections, and collective bargaining. He also handles various types of employment litigation and grievance arbitrations. Between 2014 and 2017, Mark was recommended in the Labor-Management Relations category by The Legal 500 United States and has been selected to Super Lawyers from 2020 to 2023.

Get to Know Mark!

Mark FamilyWhere is your favorite vacation spot?

My family doesn’t have one specific favorite. My wife is from Mexico, so we celebrate each daughter’s quinceañera—a traditional celebration of a girl’s fifteenth birthday. But instead of having the usual party, we decided to let them choose anywhere they wanted to go and make it a special trip just for them. So far, we’ve had three daughters reach that milestone. We’ve traveled to London and Hawaii, and we enjoyed a Disney cruise. Our youngest daughter is approaching 15, and we can’t wait to see what she chooses. She’s leaning toward Alaska, but she’s not sure.

We’ve also been camping in Gettysburg many times, including during the 150th anniversary of the Battle of Gettysburg. It’s a great place for hiking and history.

What was your first job? Continue reading

NLRB Issues Ruling Prohibiting Non-Disparagement and Confidentiality Provisions in Severance Agreements

By Megan S. Shaked

Over the last few years, we have seen states enact various restrictions on confidentiality and nondisparagement clauses in employment agreements. These changes were made in the wake of the #MeToo movement and in an effort to reduce perceived barriers to workers’ ability to raise claims for unlawful conduct in the workplace.

Last week, the National Labor Relations Board (NLRB) ruled that a severance agreement containing nondisparagement and confidentiality provisions is unlawful under the National Labor Relations Act (NLRA).

The main issue was whether the employer violated the NLRA by offering a severance agreement to 11 bargaining unit employees it permanently furloughed. The agreement broadly prohibited the employees from making statements that could disparage the employer. The agreement also prohibited the employees from disclosing the terms of the agreement.

In examining the language of the severance agreement at issue, the Board ultimately concluded that the nondisparagement and confidentiality provisions “interfere with, restrain, or coerce employees’ exercise of Section 7 rights.” The Board reasoned that because the agreement conditioned the receipt of severance benefits on the employee’s acceptance of the unlawful provisions, the respondent’s proffer of the agreement violated the NLRA.

Continue reading

Navigating the New Normal: Remote Work Challenges [Webinar Recording]

On Wednesday, February 22, 2023, Jordan B. Schwartz and Darius Rohani-Shukla presented a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar learned: Continue reading

Tipping the Balance: Why Sexual Harassment Prevention Training is Essential for Employers under the Tipped Wage Workers Fairness Amendment Act

The Tipped Wage Workers Fairness Amendment Act (TWWFAA) is a law that was passed in Washington, D.C. in 2018 to increase the minimum wage for tipped workers. One important aspect of the TWWFAA is its focus on addressing sexual harassment in the workplace through mandatory training for employees and employers.

As an employer of tipped workers, it’s important to understand your responsibilities under the TWWFAA in regards to sexual harassment prevention training. Sexual harassment is a serious issue that is crucial for employers to take steps to prevent it in the workplace.

Under the TWWFAA, all employers of tipped workers in D.C. are required to provide sexual harassment prevention training to their employees. This training must be provided at least once every two years and must be interactive, meaning that employees must be able to ask questions and receive answers during the training.

Employers have a timeline of one year from the effective date of the law to provide sexual harassment prevention training to their employees. This means that employers must ensure that all of their tipped workers receive the required training within one year of the law’s effective date.

In addition to requiring employers to provide training, the TWWFAA also mandates that managers and supervisors of tipped workers receive additional sexual harassment prevention training.

Training Requirements
Covered IndividualsTraining PlatformFrequency
ManagerMust complete live in-person training.Every 2 years
Owner or operatorMust complete training either live in- person or online.Every 2 years
EmployeeMust complete training either live in- person or online.Every 2 years
New EmployeeMust complete training either live in- person or online.No later than 90 days after hire, unless the employee received the training within the past 2 years.

These provisions of the TWWFAA are important for several reasons. First and foremost, they help to create a safer and more respectful workplace for tipped workers. Sexual harassment is a serious issue that can have devastating consequences for those who experience it, including emotional distress, lost income, and career setbacks.

By requiring employers to provide sexual harassment prevention training and to ensure that managers and supervisors receive additional training, the TWWFAA helps to ensure that all levels of the workplace are equipped to prevent and respond to sexual harassment. This can help to reduce the incidence of sexual harassment in the workplace and create a more respectful and inclusive work environment.

Employers should also note that failure to comply with the sexual harassment prevention training requirements of the TWWFAA can result in penalties and fines. Therefore, it is important for employers to ensure that they are in compliance with the law and that they provide the required training to their employees and managers within the specified timelines.

Overall, the TWWFA is an important piece of legislation that addresses several issues related to the treatment of tipped workers. By including provisions related to sexual harassment prevention training, the TWWFAA helps to create safer and more respectful workplaces for tipped workers in Washington, D.C. and beyond.

Emerging Trend in Compensation Equity: Pay Transparency Laws

The federal government and individual states have prohibited inequity in compensation based on protected categories such as sex, race, ethnicity, and many others for decades under general anti-discrimination laws. For instance, at the federal level, it is impermissible to pay someone less because of their sex under the Equal Pay Act, which requires that men and women in the same workplace be paid equally for equal work. More broadly, Title VII of the Civil Rights Act prohibits discriminating against someone in the terms and conditions of employment, including pay, based on sex, race, color, national origin, and religion. And many states have similar laws with more extensive applicability and additional protected categories. However, it is only more recently that the discussion regarding pay inequity has moved to the foreground propelled by national social movements such as the MeToo and BlackLivesMatter movements, among others. With this more recent discourse around pay equity, there have also been some accompanying changes in the law, including a number of cities and states adopting pay transparency laws that give broader, more public access to pay information.

What are Pay Transparency Laws

Pay transparency laws generally require that employers disclose specific pay information to applicants, such as the wage, salary range, or pay scale for the position. The timing of such disclosures, the context in which such disclosures are required to be made, and the content of such disclosures varies depending on the state or local law. The goal of these laws is to more effectively address existing wage gaps and prevent against future wage gaps by providing greater openness and standardization of the salary range for a specific position no matter the applicant. Indeed, per recent earnings data at the end of 2022, White women earned about 83% percent as much as their White male counterparts while Black men earned about 79.6% of the median income of White men, among several other gaps identified based on sex, race, ethnicity, and age, per data collected by the United States Bureau of Labor Statistics.

Traditionally, specific employee salaries have been a subject treated as private information, not broadly shared or discussed. However, pay transparency laws require that this information be proactively provided, often through the actual job posting or at least some time during the application process upon an offer being made or by request of the applicant. Pay transparency laws also frequently go hand in hand with limitations on the information an employer can obtain about an applicant’s own pay history to avoid the potential of perpetuating a pay gap by using that information to determine current compensation.

Most Recent States that Have Adopted Pay Transparency Laws

Continue reading

[Webinar] Navigating the New Normal: Remote Work Challenges

On Wednesday, February 22, 2023 at 1 p.m. EST, join Dan Deacon and Darius Rohani-Shukla for a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar will learn: Continue reading

New State Privacy Laws in California and Virginia Are Now Effective

By Darius Rohani-Shukla

There have been important developments in data privacy laws as both the Virginia Consumer Data Protection Act (“VCDPA”) and California Privacy Rights Act (“CPRA”) are now in effect. Both laws are remarkably expansive and require careful attention to achieve compliance.

The Virginia Consumer Data Protection Act (VCDPA)

The Virginia Consumer Data Protection Act (VCDPA) applies to any person or business that conducts business in Virginia and processes personal data of Virginia residents.

Who does the VCDPA apply to?

Under the VCDPA, obligations are imposed on entities that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that either:

  • Control or process the personal data of at least 100,000 consumers during a calendar year.
  • Control or process the personal data of at least 25,000 consumers and derive at least 50% of its gross revenue from the sale of personal data.

Personal data is linked or reasonably linkable to an identified or identifiable natural person. This includes, but is not limited to, names, addresses, email addresses, IP addresses, and other unique identifiers.

What does the VCDPA require employers to do? Continue reading