U.S. Supreme Court Declines to Rule on Website Accessibility Issue

In a blog post from February of this year, we discussed the case of Robles v. Domino’s Pizzain which a blind man sued Domino’s in 2016 for violating the Americans with Disabilities Act (“ADA”) shutterstock_pizzaafter 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

[Webinar] Marijuana and Drug Testing Update

On Thursday, October 24, 2019 at 1:00 PM Eastern, Aaron R. Gelb and Daniel C. Deacon of Conn Maciel Carey will present a complimentary webinar regarding “Marijuana and Drug Testing Update.”

Recent state regulatory developments regarding medical and recreational marijuana have created a host of compliance concerns for employers. shutterstock_375677665.jpgWhile marijuana is still illegal under federal law, 33 states and the District of Columbia have passed legislation giving medical marijuana usage the green light. Eleven states and the District of Columbia have legalized recreational marijuana. And, several states have enacted laws making the possession of small amounts of the drug a civil, not criminal, offense.

The web of varying state laws regarding when and how an employer can drug test an employee and what drugs an employer may test for further compounds these challenges, requiring that employers maintain a delicate balance between business objectives, employee rights, and compliance with state and federal laws.  Continue reading

California’s Expansion of Dynamex’s ABC Test Severely Restricts When Employers May Properly Classify Workers as Independent Contractors

Last month, California Governor Gavin Newsom signed Assembly Bill 5 into law.  This lengthy bill generally codifies and expands the applicability of the three-part ABC test from the Dynamex decision in determining whether a worker is an employee or independent contractor for purposes of California Labor Code, Unemployment Insurance Code, and the Wage Orders.

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Third Circuit Rebuffs Pension Fund’s Attempt to Assess Partial Withdrawal Liability

Under the Multiemployer Pension Plan Amendments Act (“MPPAA”), an employer can be liable to a multiemployer pension fund if it partially withdraws from that fund either by reducing its contributions by 70 percent over a three-year period, or where “there is a partial cessation of the employer’s contribution obligation.” 29 U.S.C. § 1385(a).

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A “partial cessation” can occur in two different ways. The first is through a so-called “CBA take-out,” where the employer ceases to have an obligation to contribute under one or more, but fewer than all, of its collective bargaining agreements (“CBA”)s. The second is a “facility take-out,” where the employer ceases its obligation to contribute with respect to work performed at one or more, but fewer than all, of its facilities. In either case, the employer must continue to perform the work for which contributions were previously required. See 29 U.S.C. § 1385(b)(2)(A).

In a recent case, the Third Circuit Court of Appeals rebuffed a multiemployer plan’s attempt to broaden the application of the CBA take-out provision. Instead, in Caesar’s Entertainment Corp. v. International Union of Operating Engineers Local 68 Pension Fund, Case No. 18-2465 (3d Cir. Aug. 1, 2019), the Court Continue reading

[Webinar] Strategies for Success in Collective Bargaining

On Wednesday, September 18, 2019 at 1:00 PM Eastern, Kara M. Maciel and Mark M. Trapp of Conn Maciel Carey will present a complimentary webinar regarding “Strategies for Success in Collective Bargaining.”

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This webinar will focus on strategies for success in your company’s next contract negotiations. Specifically, we will discuss how to effectively prepare for collective bargaining, as well as successful execution of the company’s strategy at the table, with particular emphasis on “big ticket” items such as withdrawal liability and ongoing participation in a multiemployer fund, maximizing savings on wages and benefits and regaining flexibility in the workforce.

Participants will learn about the following: Continue reading

Seventh Circuit Hits the Brakes on Pension Fund’s “Deceleration” Attempt

In a rare win for employers, the Seventh Circuit recently held that ERISA’s six-year statute of limitations barred a multiemployer pension fund’s claim for withdrawal liability against the withdrawn employer.

The case, Bauwens v. Revcon Tech. Group, Inc., No. 18-3306 (7th Cir. 2019), involved an increasingly common scenario, namely, where a pension fund holds a withdrawn employer in “default” for missing an installment payment of its withdrawal liability and failing to cure for sixty days after notice.

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In such an instance, the Multiemployer Pension Plan Amendment Act (“MPPAA”) allows the fund to “require immediate payment of the outstanding amount” of the employer’s withdrawal liability. See 29 U.S.C. § 1399(c)(5).

In Bauwens, the company fell into default five separate times over the course of twelve years; but each time entered into a settlement agreement with the fund to resume installment payments in exchange for the fund dropping its collection suit seeking the entire accelerated amount. Finally, on the sixth such default, the fund again brought a collection suit, to which the employer asserted ERISA’s six-year statute of limitations. The court held Continue reading

EEO-1 Component 2 Data Submission Deadline Fast Approaching

As we reported back in March, Judge Chutkan of the U.S. District Court for the District of Columbia lifted the stay on the Equal Employment Opportunity Commission’s (“EEOC’s”) 2016 final rule mandating that employers who are required to submit an annual Employer Information Report (“EEO-1”) also submit pay data by sex, ethnicity, and race.  This additional piece of the EEO-1 Report has come to be known as “Component 2.”  After EEO-1the Judge lifted the stay, the EEOC responded that it would not be in a position to accept the EEO-1 Component 2 by May 31, 2019 – the deadline to submit the standard data set collected through the EEO-1 Report (“Component 1”) – and adjusted the deadline to submit Component 2 data to September 30, 2019.  Judge Chutkan reluctantly accepted this timeline and mandated that two years of data be collected by this date.  Accordingly, the EEOC provided notice that it would be requiring employers to submit pay data for calendar years 2017 and 2018 by or before September 30, 2019.

Despite the fact that collecting this data could be very burdensome for employers, the EEOC’s deadline provided only a matter of months in which to gather and submit it.  Now, with just over a month to spare, covered employers must ensure they understand what data needs to be submitted, how to tabulate the data for submission, and how to ultimately submit the data to the EEOC. Continue reading