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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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

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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Join Us for a Webinar on Key Employment Law Issues for Small Businesses

On Wednesday April 19, 2017, Conn Maciel Carey Labor & Employment attorneys Kara M. Maciel, Jordan B. Schwartz and Andrew Sommer will be presenting a free webinar discussing key employment law issues for start-ups and other small businesses.

While large compEmployment Lawanies typically have human resources departments or in-house counsel to advise on the myriad of complex employment laws, start-ups and small businesses are often operating in the dark regarding these key issues.  However, as such companies grow and begin to hire more employees, compliance with local, state, and federal employment laws are paramount for survival.

This webinar will provide an overview of the most important employment laws, policies and practices that are of particular concern for small businesses and start-ups so that they can comply with proper pay practices and wage and hour law, become aware of applicable anti-discrimination laws, and learn proper procedures for hiring and firing, including offer letters, employment agreements and separation agreements.  Additionally, this webinar will cover the myriad of California specific laws that small businesses must be aware of prior to establishing a presence in that state.

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

Join Us for a Webinar on the DOL’s Major Regulatory Initiatives in 2016 and 2017

On Wednesday March 22, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Daniel Deacon will be presenting a free webinar reviewing the major regulatory initiatives promulgated by the US Department of Labor (“DOL”) in 2016 and discussing what employers can expect from the DOL and other federal agencies in 2017.

As employers are undoubtedly aware, the DOL was extremely active in 2016 as President Obama’s second term came to a close.  From its attempt to more than double the threshold salary level to be classified as an exempt employee to requiring that employers provide paid sick leave for contractors, the DOL hit the employer community hard.  However, President Trump and Alexander Acosta, the nominee to be the new Secretary of Labor, will likely attempt to reign in the DOL’s significant activity as well as the activity of other Federal agencies.

This webinar will review the major regulations promulgated in 2016 and provide guidance and recommendations to ensure compliance in 2017.

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

Trump Taps Alex Acosta for New Department of Labor Secretary

Department of LaborAs readers of this blog are aware, President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his Secretary of Labor.  However, on February 15, 2017, one day prior to his confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation based in part on allegations that he failed to pay workers overtime pay, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.  As Labor Secretary, Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.

If confirmed, Acosta would be the first Hispanic member of President Trump’s cabinet.  Mr. Acosta has a strong background in public service.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Acosta served as Dean of the Florida International University School of Law.  Should he be confirmed, Acosta’s public and private experiences (he also practiced law at Kirkland & Ellis) should enable him to take into account numerous perspectives in his new role.

At this stage, Acosta’s views on various pressing issues at the Department of Labor — such as Continue reading

Exploring FLSA Section 7(i) — Can You Use it to Exempt Commissioned Employees from Overtime?

A common question we often get asked by our health and country club clients is whether their trainers, tennis and golf professionals, and other similar employees may be considered commissioned employees of “retail or service establishment,” and thus exempt from overtime pay pursuant tgolf-pro-shopo Section 7(i) of the Fair Labor Standards Act (“FLSA”).  The short answer is “probably yes,” but there are certain criteria that must be met to ensure compliance with the FLSA.

By way of background, the FLSA generally requires an employer to pay overtime to any non-exempt employee who works over 40 hours during a workweek.  However, as readers of this blog are likely already aware, certain “white collar” employees, such as executive, administrative, and professional employees, may be exempt from the FLSA’s overtime provisions.  The FLSA also exempts from overtime certain employees who are paid mostly on commissions rather than a salary basis.  Specifically, Section 7(i) of the FLSA creates an overtime exemption that applies when all three of the following conditions are met:

  1. The employee is employed by a retail or service establishment;
  2. The employee’s regular rate of pay exceeds one and one half times the minimum wage for every hour worked in a workweek in which any overtime hours are worked; and
  3. More than half of the employee’s total earnings in a “representative period” (of not less than one month) consists of commissions on goods or services.

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