On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”) to provide some relief to employees as a result of the Coronavirus (“COVID-19”). This law will go into effect on April 1, 2020 and will expire on December 31, 2020.
The Act includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. Indeed, there are two provisions providing leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. The Act is the first federal law requiring private employers to provide paid sick leave to employees. Importantly, not all private employers are covered, as the Act applies only to private employers with fewer than 500 employees. A summary of the most relevant provisions of the emergency expansion of the FMLA and the paid sick law are as follows:
There are significant developments happening every day (and virtually every hour) relating to the Coronavirus (COVID-19). While we cannot predict all the effects of this virus, we can say that first and foremost, employers across all industries need to focus on the safety of their employees, customers, and guests. Thus, whether your employees are working at your company’s office or from home, employers must monitor guidance from federal, state, and local public health experts and implement recommendations or orders designed to maintain a safe work environment. To that end, please see our blog post from last week providing advice and FAQ’s regarding how employers can respond to COVID-19.
In addition to so many other issues, COVID-19 poses unique wage and hour and human resource challenges. Indeed, Since our last post, we have received dozens of wage and hour related questions from clients resulting from this virus. Although no employer could have full been prepared for the scope of this pandemic, it is important to be aware of both federal and state laws that apply to situations such as this. The best protection is to have a policies and procedures in place in advance (or if that ship has already sailed, to quickly create some policies and procedures) to ensure your employees are paid and well taken care of during this unprecedented time. Our guidance can be used by employers in navigating through the legal and business implications created by this pandemic. In addition, the information may be applicable to other future crises or disasters.
Therefore, please filed below answers to the most frequently asked questions we have received:
In 2018 and 2019, there were approximately 5,000 federal lawsuits filed against hotels, restaurants, stores, and other places of public accommodation alleging that their websites violated Title III of the Americans with Disabilities Act (“ADA”). In all likelihood this number of lawsuits will increase in 2020 now that the U.S. Supreme Court has declined to review a Ninth Circuit Court of Appeals decision against Domino’s Pizza that essentially gave the green light for individuals with visual impairments to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible. You can read more about the Supreme Court’s decision here.
Despite the Supreme Court’s recent denial of Domino’s petition for Writ of Certiorari, business owners and operators have at least some room for optimism. Indeed, as we explained in a prior blog post, there were two rulings from the Southern District of New York in the Spring of 2019 that ruled in favor of businesses when: (1) the business had already fixed the website which mooted the case; and (2) the plaintiff had failed to identify any concrete or particularized injuries she suffered, including which sections of the website she tried to access, the date on which she visited the website, and what goods or services she was unable to purchase. Thus, it is comforting to know that at least some defenses are available and can succeed on a motion to dismiss.
Then, in November 2019, another business prevailed on a website accessibility case, this time in a case arising out of the Eastern District of New York. See Castillo v. The John Gore Organization, Inc., Case No. 1:19-cv-00388-ARR-PK (E.D.N.Y. Nov. 14, 2019). This case arose out of a theater’s stated policy on its website Continue reading
In a blog post from February of this year, we discussed the case of Robles v. Domino’s Pizza, in which a blind man sued Domino’s in 2016 for violating the Americans with Disabilities Act (“ADA”) after he was unable to order food from the pizza chain’s website using screen reading technology because the website lacked sufficient software compatibility capabilities. Because the ADA guarantees people with a disability “full and equal enjoyment of the goods and services … of any place of public accommodations,” the plaintiff claimed that he had been the victim of unlawful disability discrimination. Domino’s, on the other hand, argued that while the ADA applies to its brick-and-mortar locations, it does not apply to its website because a website is not defined in the ADA as a place of public accommodation.
In its decision, the U.S. Court of Appeals for the Ninth Circuit agreed with the plaintiff, finding that the ADA protects not just restaurants, hotels, stores, and other physical “brick and mortar” locations, but also the “services of a public accommodation,” notably websites and apps. The Court then found that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impeded access to the goods and services of its physical pizza franchises. Notably, this decision was the first by any U.S. Court of Appeals Continue reading
As we have written about on multiple occasions, public access lawsuits relating to website accessibility under Title III of the Americans with Disabilities Act (“ADA”) have been increasing at a rapid pace. In fact, 2019 is on pace to have more than 2,000 website accessibility lawsuits, which will be by far the highest number on record (and this number does not include the hundreds of “brick and mortar” lawsuits filed against places of public accommodations). Thus, regardless of whether you own or manage a retail store, a large hotel chain, a small bed & breakfast, or any other place of public accommodation, you are at serious risk of getting hit with an ADA lawsuit relating to your company’s website, especially if your website does not comply with the Web Content Accessibility Guidelines (“WCAG”), a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.
Nonetheless, there are two recent rulings that at least provide a sliver of hope for business owners, although both cases arise out of the Southern District of New York and therefore are limited to that jurisdiction. Most recently, on June 4, 2019, a judge in the Southern District of New York ruled that a website accessibility case could be mooted by a defendant fixing their website. (See Diaz v. The Kroger Company, 1:18-cv-07953). In that case, Diaz, a legally blind individual, brought a lawsuit against Kroger, a large supermarket chain, alleging that Kroger’s website was not compatible with screen reader software and thus failed to comply with Title III of the Americans with Disabilities Act because it denied equal access to visually impaired customers. In response, Kroger filed a motion to dismiss, claiming that among other things: (i) it had undertaken to make its website comply with WCAG 2.0 before the lawsuit was even filed; (ii) its website was now fully compliant with WCAG 2.0; (iii) that each barrier to access identified by the plaintiff had been fixed and/or no longer existed; and (iv) it was committed to keeping the website in compliance with WCAG 2.0 in the future. By taking those actions, the court found that the plaintiff’s ADA claim was moot and thus granted Kroger’s motion to dismiss. Continue reading
Over the past several years, we have written extensively about employers’ obligations to make their websites accessible for individuals with visual, hearing and physical impairments. In the past, we have counseled employers who are considered a “place of public accommodation” (such as a hotel, restaurant, place of recreation, doctor’s office, etc.) to at the very least do some due diligence to determine whether their websites are accessible for disabled users, so that those individuals can use and navigate those websites and/or purchase goods sold on the websites. (For more information about the developing law on this issue, check out our prior posts here and here.) Now, for the first time, a U.S. Court of Appeals has ruled on this issue and has confirmed that so long as there is a “nexus” between a company’s website and a physical location (which is typically the case), a company must make its website accessible or risk significant legal exposure for violating the Americans with Disabilities Act (“ADA”).
(As a reminder, although not the subject of this blog post, we have also written about a second consideration here regarding website accessibility that applies only to hotels and other places of lodging and currently is the subject of a tremendous amount of litigation. Specifically, the implementing regulations of Title III of the ADA require a hotel’s website to provide information regarding various accessibility features at its property, so that a mobility impaired individual can determine whether he or she can navigate the public areas and guestrooms at the property.).
Hospitality employers nationwide continue to be hit with class action lawsuits alleging failure to properly pay/distribute tips, as well as failure to correctly characterize service charges and automatic gratuities. These lawsuits have the potential to result in verdicts or settlement amounts more costly than virtually any other employment-related matter. As a result, it is important to periodically review what is or is not permissible under the law is it relates to tips, service charges, and automatic gratuities.
Most employers are familiar with the basic premise that a tip is a voluntary amount a guest leaves for an employee over the amount due for the goods sold or services rendered, while a service charge is an amount agreed-upon in advance by a venue for services provided, often in connection with large pre-planned events. However, service charges are treated differently than tips for tax and other purposes, and automatic gratuities add an extra complicated layer in this analysis. A brief synopsis of the differences of these terms from a legal perspective is set forth below:
As most of our blog readers are aware, the Fair Labor Standards Act (“FLSA”) requires employers to keep records on wages, hours and other items, as specified in Department of Labor regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.
In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, typically need not be compensated. Until now, the courts have held that such periods of time are “de minimis” and thus need not be compensated. The FLSA’s de minimis rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.
Under current law, D.C. employers are able to pay their tipped workers a base (sub-minimum) wage of $3.33 per hour, so long as the workers make enough in tips to push their earnings to at least the District’s minimum wage, which is currently $12.50 per hour. If the tipped worker does not earn at least the minimum wage for all hours worked, the employer is required to make up the difference.
However, on June 19, 2018, Washington D.C. voters approved Initiative 77, a contentious ballot initiative that would change this law. Specifically, this Initiative would raise the city’s minimum wage to $15 per hour and phase out the sub-minimum wage for tipped workers; it will gradually hike the tipped minimum wage by $1.50 each year until it reaches $15 in 2025, and by 2026, the minimum wage will be the same for all workers. Through this Initiative, the District of Columbia would become the first major city to outlaw the practice of allowing employers to pay a lower hourly wage to workers who earn tips, although that practice is unlawful in California, Oregon, Washington, Alaska, Nevada, Montana, and Minnesota. And officials in New York and Michigan are also considering ending their tipped-wage system this year.