Retail employers dismayed by employees publicly airing workplace grievances in disparaging social media posts must think twice before taking disciplinary action. On August 18, 2016, the National Labor Relations Board (“NLRB”) confirmed the finding by Administrative Law Judge Susan A. Flynn that Chipotle’s social media policy forbidding employees from posting “incomplete” or “ inaccurate” information, or from making “disparaging, false, or misleading statements” on Twitter, Facebook and other social media sites violates Section 8(a)(1) of the ...
In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or ...
A new Act Now Advisory will be of interest to many of our readers in the retail industry: "Union Organizing at Retail and Food Service Businesses Gets Boost from New York City 'Labor Peace' Executive Order," by our colleagues Allen B. Roberts, Steven M. Swirsky, Donald S. Krueger, and Kristopher D. Reichardt from Epstein Becker Green.
Following is an excerpt:
New York City retail and food service unions got a boost recently when Mayor Bill de Blasio signed an Executive Order titled “Labor Peace for Retail Establishments at City Development Projects.” Subject to some thresholds ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “Can Your Corporate Social Responsibility Policy Make You a Joint-Employer With Your Suppliers? The NLRB May Find That It Does”
Following is an excerpt:
The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations ...
Retail employers should take note that the U.S. Department of Labor (“DOL”) updated its mandatory posters notifying employees of their rights under the Fair Labor Standards Act (“FLSA”) and Employee Polygraph Protection Act (“EPPA”). The FLSA and EPPA posters no longer identify the civil monetary penalties that may be assessed for violations. The FLSA poster also provides information regarding the rights of nursing mothers under the FLSA. Employers are required to post the revised mandatory posters as of August 1, 2016, and may download the revised posters from the ...
Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.”
Following is an excerpt:
Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of the U.S. District ...
Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test.”
Following is an excerpt:
The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB ...
On June 28, 2016, New York City Mayor Bill de Blasio signed legislation passed earlier this month by The New York City Council to amend the City’s administrative code, plumbing code and building code to require gender-neutral single-occupant restrooms. The new law applies to businesses and other establishments in the City’s five boroughs with existing single-occupancy, publicly-accessible restrooms. The law does not require businesses to build new single-occupant restrooms, nor does it affect larger restrooms with multiple single-stalls.
Instead, the law prohibits the ...
The EEOC has released several new guidance tools, for both employers and employees, focused upon religious and national origin discrimination against people who are (or are perceived to be) Muslim. This focus on religious and national origin discrimination is particularly important for retail employers because retailers often require employees to follow dress codes or work at times that may conflict with religious observance.
In December 2015, EEOC Chair Jenny Yang released a statement highlighting the need for employers to “remain vigilant” in light of the recent ...
Several states have recently passed laws (California, Maryland,[1] and New York) or have bills currently pending in their state legislatures (California,[2] Colorado, Massachusetts, and New Jersey) [3] seeking to eliminate pay differentials on the basis of sex (and, in some cases, other protected categories) (collectively, “Equal Pay Laws”).
Among other provisions, most of the Equal Pay Laws contain four components. They aim to (i) strengthen current equal pay standards, (ii) create pay transparency rules, (iii) expand equal pay protections beyond gender, and (iv ...
On March 23, 2016, the North Carolina Legislature passed House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), that overturned a Charlotte ordinance extending anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and allowing transgender persons to use the bathroom of their choice. Instead, HB2 requires individuals to use public bathrooms that match the gender listed on their birth certificates. A swift public outcry followed, with many celebrities denouncing the law and canceling appearances in ...
On March 23, 2016, the DOL issued its long-awaited final “persuader rule” (“Final Persuader Rule”), which drastically expands the agency’s prior interpretation of the types of legal and consulting activities that will be subject to the extensive reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (“LMRDA”). In particular, the Final Persuader Rule seeks to narrow significantly the scope of the so-called “Advice Exemption” to the statute’s reporting requirements. As a result, a wide range of services provided by ...
On May 31, 2016, the Fourth Circuit Court of Appeals denied en banc review of an April decision permitting transgender students to use sex-segregated facilities that are consistent with their gender identity. The Fourth Circuit encompasses North Carolina; thus, the case G.G. v. Gloucester County Public School Board (“Gloucester County”), although it arose in Virginia, creates a conflict between federal law and North Carolina’s House Bill 2 (“HB2”), which requires transgender individuals to use public bathrooms that match the gender listed on their birth ...
The EEOC announced a rule change that will more than double the maximum fine for violating Title VII, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) notice posting requirements. Under the new rule, which is projected to become effective the first week of July, employers will face a maximum penalty of $525 per violation -- up from $210.
While most retailers undoubtedly know they must have notices, where the notices are posted matters. The regulations require that they be in a prominent and accessible place where notices to employees ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “Federal Appeals Court Sides with NLRB – Holds Arbitration Agreement and Class Action Waiver Violates Employee Rights and Unenforceable.”
Following is an excerpt:
The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration ...
Imagine that an employee asks to come to your office to address concerns about workplace harassment. Pursuant to the company’s open door and non-harassment policies, you promptly schedule a meeting. When the employee arrives, she sits down, sets her smartphone on the desk facing you, and turns on the video camera before beginning to speak. Can you instruct her to turn off the recording device? Can you stop the meeting if she refuses? Would the answer change if the recording was surreptitious?
The answer to questions like these have become more blurry since the decision last year by the ...
Despite the noble purpose for Title III of the ADA, businesses have long been frustrated by the ease in which Title III and its state and local equivalents can be exploited by serial plaintiffs/attorneys looking to make money instead of enforce the law. Similar feelings arise from the inability of businesses to combat fraud tied to accessibility. In an effort to address these concerns, recent developments at the state law level are ushering in a welcome change in the way certain accessibility issues are addressed. California is strengthening its existing limitations on the ability of ...
Our colleagues Jeffrey Ruzal and Michael Kun at Epstein Becker Green have a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the retail industry: “DOL Final White Collar Exemption Rule to Take Effect on December 1, 2016.”
Following is an excerpt:
Nearly a year after the Department of Labor (“DOL”) issued its Notice of Proposed Rulemaking to address an increase in the minimum salary for white collar exemptions, the DOL has announced its final rule, to take effect on December 1, 2016. …
According to the DOL’s Fact Sheet, the final rule will also ...
On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities. This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both ...
Retailers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).
New FMLA Poster
The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL ...
While many continue to wait with growing impatience for the U.S. Department of Justice to finally issue regulations governing website accessibility for businesses under Title III of the ADA, DOJ has just launched a new online resource for those interested in staying abreast of developments in the overall area of accessible technology.
This new site is meant to provide further guidance and information to employers, state/local governments, businesses and non-profits, and individuals with disabilities by serving as a “one stop” source for DOJ’s technical assistance and ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “NLRB Argues 'Misclassification' as an Independent Contractor Is Unfair Labor Practice.”
Following is an excerpt:
In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the ...
The top story on Employment Law This Week - San Francisco and New York state break new ground on paid parental leave.
Starting in 2017, businesses with more than 50 employees in San Francisco will be required to give new parents six weeks off, fully paid. San Francisco is the first city in the U.S. to require full salary for new mothers and fathers during their time off. Meanwhile, New York state has passed the most comprehensive paid parental leave policy in the country. New York state’s legislation mandates 12 weeks of partially paid leave for all new parents by 2021.
View the ...
On April 5, the San Francisco Board of Supervisors unanimously approved a city ordinance requiring businesses which have employees working in the City to offer those employees six weeks of supplemental paid parental leave. If signed by Mayor Ed Lee, San Francisco will be the first city in the country to require this benefit.
Current and Proposed Law
Currently, California employees are eligible to take six weeks of partially-paid leave under California’s Paid Family Leave (PFL) law to bond with a newborn child or newly placed child for adoption or foster care, among other reasons ...
Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: "New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities."
Following is an excerpt:
In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online ...
As I have discussed in many of my prior blog posts, over the past few years there has been a significant expansion in accessibility cases brought under Title III of the ADA (and related state and local accessibility statutes) with the focus of the litigations transitioning from brick and mortar issues to accessible technology. As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences. However, in adopting and increasingly relying on new ...
Our colleague Michael Kun, attorney at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the retail industry: “Clarification of California’s Obscure 'Suitable Seating' Wage Rule Likely to Lead to More Employers Providing Seats – and to More Class Actions Against Those Who Don’t."
Following is an excerpt:
The Court explained, “There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while ...
The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:
race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.
If this list wasn’t long enough, on May 4 ...
On March 28, 2016, New York City Mayor Bill de Blasio signed three pieces of legislation passed earlier this month by The New York City Council to amend the City’s Human Rights Law (“NYCHRL”).
The new laws:
- require that the NYCHRL be interpreted expansively to maximize civil rights protections, regardless of how courts have interpreted similar provisions under federal and state anti-discrimination laws;
- permit the City’s Commission on Human Rights the authority to award attorney’s fees and costs to complainants in cases brought before the Commission; and
- repeal ...
Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “Department of Labor Releases New Persuader Rule Intended to Aid Union Organizing.”
The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”). The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed ...
The top story on Employment Law This Week is the EEOC's filing of its first sexual orientation bias suits.
Last year, the Equal Employment Opportunity Commission interpreted Title VII of the Civil Rights Act to prohibit discrimination against an individual for sexual orientation. The EEOC concluded that sexual orientation discrimination is a form of unlawful gender discrimination. This month, the agency filed two landmark federal lawsuits seeking to enforce its interpretation of the statute for the first time. The agency is suing on behalf of workers at a company in Baltimore and ...
[caption id="attachment_2487" align="alignright" width="113"] Nancy L. Gunzenhauser[/caption]
One of the requirements of the amended Philadelphia ban-the-box law has gone into effect. As of March 14, 2016, Philadelphia employers are required to post a new poster provided by the Philadelphia Commission on Human Relations in a conspicuous place on both the employer’s website and on premises, where applicants and employees will be most likely to notice and read it.
The amended law strengthens the prohibition on requesting criminal conviction information prior to a ...
The top story on Employment Law This Week is the EEOC's announcement of new nationwide disclosure rules for position statements.
Retroactive to January 1, 2016, employers should expect the disclosure of their position statements to the charging party, even if the statement contains confidential information. Under the new policy, complainants have the right to request access to the statement and respond to it, but any response from the charging party will not be disclosed to the employer in turn. Lauri Rasnick, a Member of the Firm at Epstein Becker Green, has more on what this ...
[caption id="attachment_2472" align="alignright" width="113"] Laura C. Monaco[/caption]
This week, the EEOC filed its first two federal lawsuits that frame allegations of sexual orientation-based harassment and discrimination as claims of unlawful "sex discrimination" under Title VII of the Civil Rights Act of 1964.
In EEOC v. Pallet Companies the EEOC alleges that an employee's night-shift manager harassed her because of her sexual orientation by making repeated offensive comments (sometimes accompanied by sexually suggestive gestures), such as "I want to turn you back ...
[caption id="" align="alignright" width="120"] Joshua A. Stein[/caption]
For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock.
In National Association of the Deaf ...
Our colleague Nancy L. Gunzenhauser has a Technology Employment Law blog post that will be of interest to many of our retail industry readers: “Three States Seek to Bolster Fair Pay Laws.”
Following is an excerpt:
Following on the tails of recent updates in New York and California’s equal pay laws, New Jersey, Massachusetts, and California all have bills pending in their state legislatures that would seek to eliminate pay differentials on the basis of sex and other protected categories. …
While states are leading the charge with updates to equal pay laws, the EEOC is also ...
The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.
Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be ...
The top story on Employment Law This Week is the EEOC's release of fiscal year 2015 enforcement data.
Retaliation claims were once again the number one type of charge filed, up 5% from last year for a total of 44.5% of all charges. Race claims were second, making up 34.7% of claims. 30.2% of charges alleged disability discrimination, up 6% from last year. Ronald M. Green from Epstein Becker Green (EBG) gives more detail on what’s behind the numbers.
View the episode below or read recent comments about the EEOC's release, from David W. Garland of EBG.
Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith. The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.
Following is an excerpt:
ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is ...
On January 7, 2016, New York launched the Medical Marijuana Program established under the State’s Compassionate Care Act (“Program”). The Program
is intended to deliver approved forms of marijuana to seriously ill individuals “in desperate need of treatment.” Medicinal use of marijuana in New York requires a registered physician’s certification and State-issued registry identification card.
The Program establishes that State-certified medicinal pot users “shall be deemed” disabled within the meaning of the State’s Human Rights Law (“NYSHRL”). ...
Retail employers and other businesses that serve the public in New York City should take particular notice of the New York City Commission on Human Rights’ detailed written guidance issued on December 21, 2015, reinforcing its desire that the protections afforded to transgender individuals by the New York City Human Rights Law (“NYCHRL”) be broadly interpreted to ensure that transgender individuals receive the full protection of the NYCHRL. The guidance includes specific examples of what the Commission believes constitutes unlawful discrimination based on an ...
In a decision that will affect New Jersey employers seeking to arbitrate employees’ claims, the Appellate Division, earlier this month, in Morgan v. Ramours Furniture Company, Inc., held that arbitration clauses contained in employee handbooks are unenforceable where the handbook also includes a disclaimer that it does not create a contract.[1] Accordingly, New Jersey employers whose handbooks currently include arbitration clauses should consider carefully, replacing them with either arbitration clauses in an employment application, and/or with a stand-alone ...
Employment Law This Week – Epstein Becker Green’s new video program – has a story about an effort to unite retailers against a restrictive scheduling law in Washington, D.C.
The National Retail Federation issued a letter urging the city council in D.C. to abandon new scheduling legislation for retailers and restaurants. The proposed law would require businesses to post schedules three weeks in advance, with heavy penalties if they make any changes to the posted schedule. The NRF argues that this legislation removes the benefit of flexibility for employees, and that it ...
One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is Dollar Tree's $825,000 fine for OSHA violations.
Retail store Dollar Tree has agreed to a hefty fine as well as continual monitoring of its stores across the US. A third-party monitor will conduct audits on 50 stores over the next two years. This settles a wide range of complaints arising from 13 different OSHA inspections. The agency is increasingly using this tactic of issuing repeat citations for the same violations at different company worksites. This could have a much bigger ...
OSHA has employed many creative strategies to maximize its enforcement efforts during the Obama administration. One such tactic involves scrutinizing employers with multiple worksites (retailers are a particularly easy target), sending compliance officers to inspect one of the worksites, issuing citations, and then visiting the employer’s other worksites, identifying the same problems found in the first worksite inspected, and issuing repeat citations to the employer based on the citation issued at the original worksite. This approach gives OSHA significant bang for ...
In a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor. The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes ...
Frustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018. DOJ now intends to issue a NPRM governing ...
Employment Law This Week - a new video program from Epstein Becker Green - has a story this week about on-call shifts and the challenges they’re facing in court.
Both BCBG and Forever 21 have been hit with class-action wage theft suits over on-call scheduling. Many retailers are ending this practice, including Urban Outfitters, which was cited for possible violations of New York's requirement to pay hourly staff for at least four hours when they report for work.
When: Thursday, October 15, 2015 8:00 a.m. – 3:00 p.m.
Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019
This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.
In addition, we are excited to welcome our keynote speaker ...
We'd like to share some news with retail employers: Epstein Becker Green has released a new version of its Wage & Hour Guide for Employers app, available without charge for Apple, Android, and BlackBerry devices.
Following is from our colleague Michael Kun, co-creator of the app and leader of our Wage and Hour group:
We have just updated the app, and the update is a significant one.
While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C ...
My colleague Steven M. Swirsky at Epstein Becker Green published a Management Memo blog post concerning U.S. District Judge Amy Berman Jackson granting summary judgment in favor of the NLRB - “Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules.”
Following is an excerpt:
U.S. District Court Judge Amy Berman Jackson on Wednesday issued a 72 page opinion (PDF) rejecting each of the arguments raised by the U.S. Chamber of Commerce, the National Retail Federation and other business groups and found that the Amended Election Rules adopted by the National Labor ...
The U.S. Equal Employment Opportunity Commission (“EEOC”) created the Action Council for Transformation to a Digital Charge System (“ACT Digital”) to enable the electronic submission of documents between the parties to a Charge of Discrimination and the EEOC. Phase I of the system allows an employer against whom a Charge of employment discrimination has been filed to electronically interact with the EEOC through its online service for respondents, the EEOC Respondent Portal. The pilot program for Phase I began in May 2015 in the Commission’s Charlotte and San ...
The United States Department of Justice recently released technical guidelines aimed at cur”tail”ing proliferating efforts purporting to expand the meaning of “service animal” under the Americans With Disabilities Act (“ADA”). Under the ADA, public accommodations (e.g. restaurants, hotels, retail establishments, theaters, and concert halls) must permit the use of service animals by disabled individuals. These technical guidelines take aim at increasing claims that a variety of animals (e.g. a pigs) are service animals because they provide emotional ...
In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list. On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.
The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” ...
The San Francisco Board of Supervisors passed two ordinances, known colloquially as the Retail Workers Bill of Rights, to regulate: (1) employee hours, scheduling, and retention; and (2) treatment of part-time employees at certain standardized retail establishments in San Francisco. The ordinances, codified as: Hours and Retention Protections for Formula Retail Employees Ordinance, San Francisco Police Code Article 33F, and Fair Scheduling and Treatment of Formula Retail Employees, San Francisco Police Code Article 33G, went into effect earlier this year. Enforcement ...
My colleagues Nathaniel M. Glasser and Kristie-Ann M. Yamane (a Summer Associate) at Epstein Becker Green have published a Financial Services Employment Law blog post concerning recent modifications to pregnancy discrimination that will be of interest to many of our readers: “EEOC Updates Pregnancy Discrimination Guidance.”
Following is an excerpt:
In the wake of the U.S. Supreme Court’s decision in Young v. UPS, [1] the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with ...
My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter. In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.
New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program. The program is designed to determine if employers are using illegal bias during the employment application process.
Under this program, which is to begin by October 1, 2015, the Commission is to use a technique known as “matched pair testing” to conduct at ...
My colleagues Michael S. Kun and Jeffrey H. Ruzal at Epstein Becker Green has a Wage and Hour Defense blog post that will be of interest to all retailers: “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”
Following is an excerpt:
More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for ...
On June 1, 2015 the U.S. Supreme Court revived a religious discrimination claim against Abercrombie & Fitch (“Abercrombie”) after the fashion retailer denied employment to a Muslim woman because the headscarf, or hijab, worn as part of her religious observance violated the company’s dress code. EEOC v, Abercrombie & Fitch Stores, Inc., 2015 U.S. LEXIS 3718 (June 1, 2015). In overturning summary judgment granted in favor of Abercrombie, the Court held that Title VII does not require proof that the employer had actual knowledge of the individual’s need for religious ...
On May 1, 2015, we reported on proposed regulations to the Massachusetts paid sick leave law, which becomes effective on July 1, 2015. The regulations have not yet been adopted, and in light of the uncertainty about many provisions of the law, the Massachusetts Attorney General’s Office has issued a “Safe Harbor for Employers with Existing Paid Time Off Policies.” Under the safe harbor, any employer with a paid time off policy in existence as of May 1, 2015, which provides employees with the right to use at least 30 hours of paid time off per year, will be deemed in compliance with the ...
My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”
Following is an excerpt:
For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public accommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even ...
Our colleagues Steven M. Swirsky; Adam C. Solander; Brandon C. Ge; Nancy L. Gunzenhauser; and August Emil Huelle contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues confronting retailers:
Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees. In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity. Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender ...
As we reported, last November, voters in Massachusetts approved a law granting Massachusetts employees the right to sick leave, starting on July 1, 2015. The law provides paid sick leave for employers with 11 or more employees and unpaid sick leave for employees with 10 or fewer employees. While the law set forth the basics, many of the details, which have differentiated the various sick leave laws across the country, were not previously specified (e.g., minimum increments of use, frontloading, documentation). The Massachusetts Attorney General’s Office (“AGO”) has set ...
To register for this complimentary webinar, please click here.
I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.
Below is a description of the webinar:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with ...
My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.
Following is an excerpt:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the ...
One day before the U.S. Department of Labor’s Family & Medical Leave Act (“FMLA”) same-sex spouse final rule took effect on March 27, 2015, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction in Texas v. U.S., staying the application of the Final Rule for the states of Texas, Arkansas, Louisiana, and Nebraska. This ruling directly impacts employers within the retail industry who are located or have employees living in these four states.
Background
In United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of ...
On March 5, 2015, the United States Court of Appeals for the Ninth Circuit issued an opinion in Chapman v. Pier 1 Imports (U.S.) Inc., 2015 WL 925586 (9th Cir. Mar. 5, 2015) that provides retailers with useful insight into how to manage the issue of “temporary obstructions” to accessible routes under Title III of the Americans with Disabilities Act (“Title III”).
Title III’s overarching obligations that retailers provide individuals with disabilities with full and equal enjoyment of their goods and services and engage in ongoing barrier removal include the requirement to ...
Scheduling around employees taking frequent or extended leaves of absences can be complicated for retail companies looking to staff the floor during peak shopping periods. But retail employers considering requests for leave under the Family and Medical Leave Act should be aware of a recent decision from the District of Columbia Circuit Court of Appeals finding that an employee can pursue an FMLA interference claim even though she received the leave requested. In Gordon v. United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who ...
In a case emphasizing the importance of acting in good faith in the interactive process and how an employer can do it right, on February 13, 2015, the First Circuit denied the EEOC’s petition for a rehearing en banc of the court’s decision to dismiss a lawsuit brought against Kohl’s Department Stores, Inc. by a diabetic former employee who claimed that her erratic working hours were exacerbating her condition. EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127 (1st Cir. 2014), reh’g en banc denied (Feb. 13, 2015).
Pamela Manning, a former sales associate at Kohl’s, had type I ...
- H-1B Nonimmigrant Season Opens on April 1, 2015, for Fiscal Year 2016
- President Obama Issues Executive Order on Immigration
- States Sue to Enjoin the Executive Order
- Federal Court in the District of Columbia Allows Worker Challenge to OPT Program
- DOS Issues New J-1 Rules for 2015
- DOS Issues January 2015 Visa Bulletin
Yesterday, the California Court of Appeal ruled against The Wet Seal Retail, Inc. in its appeal of the denial of its motion to compel arbitration. The trial court determined that the arbitration agreement at issue impermissibly waived representative actions under the Private Attorney General Act (PAGA). Because the agreement also stated that it was not to be enforced if the waiver provision was found unconscionable, the court denied the motion to compel arbitration. On appeal, the decision was affirmed. This case highlights the current divide between state and ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United ...
Retailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.
As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.
See the advisory for more information – below is an excerpt of my tips for retail ...
Our colleagues Adam Abrahms, Steven Swirsky, and Martin Stanberry at Epstein Becker Green have a Management Memo blog post that will be of interest to many of our readers: "NLRB Issues 13 Complaints Alleging McDonald’s and Franchisees Are Joint-Employers."
Following is an excerpt:
While the General Counsel’s actions are alarming, particularly for businesses that rely upon a franchise model, the issuance of these complaints comes as little surprise because, as we reported in July of this year, the General Counsel had previously announced the decision to take this ...
Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: "NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing - Union and Non-Union Employers Are All Affected." Following is an excerpt:
In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to ...
Regarding the Supreme Court’s Integrity Staffing Solutions v. Busk opinion, issued today, our colleague Michael Kun at Epstein Becker Green has posted “Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time” on one of our sister blogs, Wage & Hour Defense.
Following is an excerpt:
In order to prevent employee theft, some employers require their employees to undergo security screenings before leaving the employers’ facilities. That is particularly so with employers involved in manufacturing and retail sales, who must be concerned with ...
My colleague Lee T. Polk authored Epstein Becker Green’s recent issue of its Take 5 newsletter. This Take 5 features five considerations suggesting the advantages of employee benefit plans as programs that are beneficial to both employers and employees.
- Tax Aspects of Qualified Retirement Plans Can Save Money For Both Employers and Employees
- The Benefits of a Contractual Claims Limitation Period
- The Benefits of a Contractual Venue Selection Clause
- The Standard of Judicial Review in the Context of Top Hat Plan Benefit Disputes
- Fiduciary Exception to the Attorney-Client ...
Retailers doing business in New York City should take note of a new ordinance Mayor Bill de Blasio signed into law on October 20, 2014 – The Affordable Transit Act.
The Affordable Transit Act (the “Act”) requires employers in New York City with 20 or more full-time employees to offer pre-tax transit benefits to employees. The Act allows employees to use up to $130 in tax free money towards their transit costs, which is the current IRS limit. Full-time employees are defined as employees working an average of 30 hours or more per week.
Penalties for violating the Act are $100-$250 for ...
With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.
Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather. ...
Election Day 2014 proved to be a big win for employees who earn minimum wage. Several states and cites approved measures to increase the minimum wage. The city of Oakland, CA established its first ever minimum wage at $12.25/hour, which will go into effect on March 2, 2015. Over the past few years, many states and cities have passed legislation that will increase minimum wage based on inflation rates, as tied to the Consumer Price Index. While some states have not yet announced the new minimum wage, they may still see increases in the new year (e.g ...
On Epstein Becker Green’s Management Memo blog, our colleague Jill Barbarino reviews the National Labor Relations Board’s ruling in Murphy Oil that revisited and reaffirmed its position that employers violate the National Labor Relations Act by requiring employees covered by the Act (virtually all non-supervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions despite rejection by federal courts.
Click here to read the Management memo blog ...
While by most accounts the current term of the Supreme Court is generally uninteresting, lacking anything that the popular media deem to be a blockbuster (the media’s choice being same-sex marriage or Affordable Care Act cases), the docket is heavily weighted towards labor and employment cases and a few that potentially affect retail employers in particular. They are as follows.
The Court already has heard argument in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, which concerns whether the Portal-to-Portal Act, which amends the Fair Labor Standards Act, requires ...
The Ebola virus disease (“Ebola”) has become a worldwide threat, which, among many other effects, has forced employers to think about how to protect their employees. Employers also must consider how Ebola might impact employment policies and procedures, including, but not limited to, those addressing attendance, leaves of absence, discipline, and medical testing.
My colleagues and I have written a detailed Act Now advisory providing legal framework of best practices and legal risks pertaining to Ebola.
Click here to read the advisory in its entirety
David W. Garland, Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a member of the firm's Board of Directors, will moderate “It’s In The Bag – Summary of Bag Check Litigation And Strategies For Minimizing Risk” at the National Retail Federation Human Resources Executive Summit at the Hard Rock Hotel in Chicago, Illinois on October 15, 2014.
During this general session, retailers who are grappling with employee bag check litigation discuss what the industry can expect in litigation over employee compensation for time spent in bag checks to deter ...
On Thursday, October 30, 2014, our colleague Stuart M. Gerson of Epstein Becker Green’s Litigation and Health Care and Life Sciences practices in the firm’s Washington, DC and New York offices will discuss the Hobby Lobby decision and its impact on the workplace. The briefing will be held at the Cornell ILR School of Labor and Employment. Other panelists include Marci A. Hamilton, Esq., Paul R. Verkuil, Esq., Arthur S. Leonard, Esq., and Paul W. Mollica, Esq.
Click here to learn more and to register
When:
Thursday, October 30, 2014
8:30am – Registration & Breakfast
by Michael Kun
We’re very pleased to announce that a brand-new version of our free, first-of-its-kind app, the Wage & Hour Guide for Employers, is now available for Apple, Android, and BlackBerry devices. The new app takes advantage of a software-as-a-service programming platform developed by Panvista Mobile.
Our newest version of the app is not only available to users of a variety of devices, but it offers simpler, faster, and more useful ways for employers to locate wage and hour information at the touch of a fingertip. As new issues are constantly emerging in this area, we’re ...
California has created additional protections for unpaid interns and created additional requirements for sexual harassment prevention training. In addition, California has mandated a new requirement for most employers to provide their employees with paid sick leave. This new sick-leave requirement will go into effect next summer on July 1, 2015. For a more detailed description of these changes, click here to review the Act Now Advisory written by our colleagues Jennifer L. Nutter and Marisa Ratinoff.
On Epstein Becker Green’s Management Memo blog, I review New Jersey U.S. District Court’s ruling in Naik v. 7-Eleven that four franchise owner-operators may pursue overtime and minimum wage claims against franchisor 7-Eleven under both the federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”).
Following is an excerpt from the blog post:
On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers 43 McDonald’s franchised ...
The issue of joint-employer status has become a prominent issue of concern for retailers, many of which are comprised of franchises or include independent boutiques and counters in their stores. As the NLRB moves towards a broader definition of joint employer status, the NLRB’s General Counsel’s position in a series of cases involving McDonald’s and numerous franchisees across the country appears to foreshadow the NLRB’s new, more aggressive position on what factors establish the joint employer relationship.
On Epstein Becker Green’s Management Memo blog, Steven ...
On Epstein Becker Green’s Management Memo blog, Steven M. Swirsky reviews the National Labor Relations Board’s (“NLRB”) recent decision regarding Bergdorf Goodman’s New York Store’s women’s shoe sales employees.
Following is an excerpt from the blog post:
The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on ...
By: Amy B. Messigian
In a major blow to California employers who utilize a monthly commission scheme but pay biweekly or semimonthly salary to their commission sales employees, the California Supreme Court ruled earlier this week in Peabody v. Time Warner Cable, Inc. that a commission payment may be applied only to the pay period in which it is paid for the purposes of determining whether an employee is exempt from overtime. Employers may not divide the commission payment across multiple pay periods in order to satisfy the minimum compensation threshold for meeting the exemption in any ...
Epstein Becker Green and The ERISA Industry Committee (ERIC) have released a new issue of the Benefits Litigation Update.
Featured articles include:
Recent Supreme Court Decisions Revise Rules for Stock Drop Cases
By: Debra Davis, The ERISA Industry Committee
Hobby Lobby and the Questions Left Unanswered
By: John Houston Pope
Post-Amara Landscape Continues to Evolve
By: Scott J. Macey, The ERISA Industry Committee
Supreme Court to Decide Whether A Failed Class Action May Extend
Deadline to Bring Follow-on Claims By Individual Plaintiffs
By: John Houston Pope and Debra Davis
As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.
In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care ...
By Marisa S. Ratinoff and Amy B. Messigian
One of the main battlegrounds between employers and employees relates to the ability of employers to preclude class actions by way of arbitration agreements containing class action waivers. In California, the seminal case of Gentry v. Superior Court (“Gentry”) has had the practical effect of invalidating class action waivers in employment arbitration agreements since 2007. Gentry held that an employment class action waiver was unenforceable as a matter of California public policy if the class action waiver would “undermine the ...
As we’ve previously advised, make sure you are prepared for interns this summer! This summer there’s a new legal trend about interns. While wage and hour lawsuits are still hot, the new “it” trend seems to be laws that extend protection against discrimination and harassment for interns. Recently, states and cities have been adding interns to the protected individuals under their human rights laws.
Retailers have long used interns, both to provide training opportunities for the interns and to supplement their workforce over the summer months ...
In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of "spouse" in light of the United States Supreme Court's decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013). In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected ...
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