On April 19, 2023, Conn Maciel Carey LLP’s Labor & Employment partners, Kara Maciel and Jordan Schwartz, submitted public comments on behalf of a diverse coalition of employers urging the Federal Trade Commission (“FTC”) to revise its Proposed Rule banning non-competition clauses.  While we believe that the FTC does not have legal authority to promulgate the Proposed Rule in its current form, the coalition’s comments focused on three problematic portions of the Proposed Rule and proposed the FTC revise it in three primary respects: Continue reading →

By Samuel S. Rose

The California Court of Appeal has once again weighed in on employer liability for a supervisor’s sexual harassment under the California Fair Employment and Housing Act through its decision in Atalla v. Rite Aid Corporation (2023) 89 Cal.App.5^th 294.

In Atalla, Plaintiff and a district manager for Rite Aid had developed a years-long friendship prior to Plaintiff joining Rite Aid as a staff pharmacist. The friendship began in 2017 and Plaintiff began employment at Rite Aid in 2018. The district manager supervised staff pharmacists. Plaintiff and the district manager had frequently and consistently engaged in conversation over text message regarding a variety of topics, including vacations, family, personal matters, and work.

In 2019, during a late-night text message conversation, the district manager sent an inappropriate photo to Plaintiff. The district manager sent a text message about being drunk and that he meant to send the photo to his wife. Plaintiff deleted the photo and the text. The district manager then sent another inappropriate photo and Plaintiff sent a text asking him to stop.

The trial court granted Rite Aid’s summary judgment motion. In affirming the trial court’s ruling, the Court noted that Plaintiff did not raise a triable issue of fact that the district manager was acting as a supervisor during the text exchange. The Court noted that Plaintiff and the district manager had a prior texting relationship, and the photos were sent as a result of that personal relationship. It also pointed out that the texts occurred outside of the workplace and well after working hours.

The Court notes that its decision is consistent with the current landscape of the law on point. It points to the following four cases, which we have listed with a brief discussion of their facts and holdings. Continue reading →

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.  The 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 →

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 Individuals	Training Platform	Frequency
Manager	Must complete live in-person training.	Every 2 years
Owner or operator	Must complete training either live in- person or online.	Every 2 years
Employee	Must complete training either live in- person or online.	Every 2 years
New Employee	Must 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.