Our colleagues  .

Following is an excerpt:

The original charges alleged that the Employer unlawfully assisted the Union in numerous ways during the Union’s 2018 organizing campaign.  The charges alleged that one such way the Employer unlawfully assisted the Union was by entering into a “neutrality agreement” with the Union.  Under the neutrality agreement the Employer agreed to provide the Union with employees’ contact information to assist it in organizing, something it was not obligated to do under the National Labor Relations Act (the “Act”) and to recognize the Union, without an election if the Union presented cards signed by a majority of the employees in the proposed bargaining unit indicating the employees wished to be represented by the Union. The Fund arty alleged that the neutrality agreement, and various other actions on the part of the Employer constituted unlawful assistance and support to the Union and constituted things of value.  The Fund further alleged that these actions Union being granted and subsequently accepting recognition by the Employer even though the Union lacked uncoerced majority support, in violation of the Act and that the actions of the Employer and the Union unlawfully interfered with the right of the Employer’s employees to decide whether or not they wished to be represented by the Union.

Following an investigation of the ULP charges, the Board’s Regional Director in Seattle found that the allegations lacked legal merit, explaining that current Board law finds that such neutrality agreements are lawful and enforceable and do not interfere with employees’ rights under the Act.  Following the Regional Director’s dismissal of the ULP charges, the Fund requested review of the Regional Director’s decision by the General Counsel in Washington. …

Read the full article here.

Our colleagues  .

Following is an excerpt:

In Castillo, plaintiff, a King’s County resident, who asserted that she has diabetes, alleged that she was denied access to defendant’s Boston theater because of her disability.  Specifically, she asserted that “in or around December 2018,” she visited the defendant’s website, allegedly to purchase a ticket to a performance; however, after she saw the theater’s general policy prohibiting patrons from bringing outside food into the theater, she did not do so.  Plaintiff contended that because she required specific snacks with her at all times, defendant’s policy “deterred” her from visiting the theater.  Notably, she did not allege that she ever contacted the theater to ask whether it would modify its policy.  Tellingly, this was notwithstanding the fact that the home page of the theater’s website contained an express invitation for visitors to contact the theater with any accessibility questions.  If the general nature of these allegations sounds familiar to you it is because over the past eighteen months similar claims were filed by the plaintiff and/or her counsel in New York state and federal courts against a significant number of theaters, arenas, and stadiums.

The court dismissed the complaint in full on subject matter jurisdiction grounds, holding that plaintiff lacked standing to pursue her federal, state, and city claims because she failed to plead that she suffered any injury, or that she would suffer any future harm.  The court reinforced that the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case.”

Read the full article here.

Our colleagues  As the Holidays Approach, the Latest Wave of ADA Cases Challenge the Absence of Braille Gift Cards.

Following is an excerpt:

On Thursday, October 24, we learned the answer when a new wave of lawsuits began to flood the dockets of the New York federal courts.  These lawsuits are styled as putative class actions on behalf of individuals who are blind or have low vision, and allege that the defendant companies (spanning industries including retail and hospitality) violate the ADA, the New York State Human Rights Law, the New York City Human Rights Law and the New York State Civil Rights Law by failing to provide braille gift cards for purchase.  In the complaints, the plaintiffs uniformly allege that they are blind, that they contacted the defendant company to inquire as to whether they provide gift cards in braille, and when the companies responded that they did not offer such a product, they commenced the lawsuit.

Since October 24, over a hundred nearly identical lawsuits have been filed, and continue to be filed daily, by a combination of the same named plaintiffs and law firms in both the Southern and Eastern Districts of New York.  It should come as little surprise that these are the same players who have been blitzing the courts with website accessibility lawsuits over the last several years.  Indeed, in many instances these plaintiffs or their counsel had previously targeted the same companies for their websites, and filed lawsuits asserting that the companies’ websites were inaccessible to individuals who are blind, or have visual impairments.  In some instances, the companies were sued by the exact same plaintiff who had previously sued them for their allegedly inaccessible websites.

Read the full article here.

Rules relating to tip credit and pooling have resulted in significant debate among legislators, regulators, and the courts, leading to confusion, further litigation, and, in many cases, substantial liability or settlements involving employers that operate in the hospitality industry.  Today, the U.S. Department of Labor (“DOL”) published proposed rulemaking that aims to bring greater clarity to the morass of tip-related legislation, as well as previous agency rules and interpretations.  I describe below some of the notable elements of these proposed rules.

The proposed rulemaking will codify the DOL’s recent guidance that an employer may take a tip credit for any amount of time an employee in a tip-earning occupation performs related non-tipped duties that are performed contemporaneously with, or within a reasonable time immediately before or after, the tipped duties.  The proposed regulations specifically identify a server’s tasks of cleaning and setting tables, toasting bread, making coffee, and occasionally washing dishes or glasses as related non-tipped duties that qualify as time for which a tip credit may be taken.  In addition to these examples, the proposed rulemaking provides that a non-tipped duty is related to a tip-related occupation if the duty is identified as a task of a tip-producing occupation in the Occupational Information Network (O*Net).  This is distinguishable, however, from work unrelated to the tipped occupation, which would then be considered a “dual job” for which a tip credit cannot be taken.

The proposed new rulemaking also reiterates the provision in the Consolidated Appropriations Act of 2018 that prohibits employers, managers, and supervisors from keeping any tips received by employees.

In addition, the DOL will amend its regulations to remove language imposing restrictions on an employer’s use of tips when the employer does not take a tip credit, meaning that traditional back-of-the-house employees, such as cooks and dishwashers, could participate in a tip pool.  The proposed new rulemaking does not, however, affect current regulations providing that employers who take a tip credit against tipped employees’ wages may maintain a tip pool among only tipped employees and not employees who do not customarily and regularly receive tips.

The comment period for this proposed rulemaking will remain open until December 9, 2019, after which time the DOL will publish and implement a final rule.

I will be sure to update you on the state of this rulemaking as further developments unfold.

This week, a one-year “revival” period of statute of limitations began for individuals who assert civil claims of child abuse to file claims against institutions and individuals pursuant to New York’s Child Victims Act, even if those claims had already expired and/or were dismissed because they were filed late. The premise behind the Child Victims Act is that children are often prevented from disclosing abuse due to the social, psychological and emotional trauma they experience.

Additionally, the Child Victims Act, also expands the statute of limitations for bringing criminal claims against alleged perpetrators of child sexual abuse, and  permits alleged victims of these crimes to file civil lawsuits up until they reach age 55. This aspect of the legislation will have a significant impact on the volume of criminal cases, and even more so civil lawsuits, 385 of which were filed in the first hours of the revival periodwith hundreds more geared up for filing in the upcoming weeks and months. Indeed, the New York State court system has set aside 45 judges specifically to handle the expected crush of cases.

Institutional Changes Following the New Child Victim’s Act

Religious and educational institutions, as well as hotels or clubs that run children’s programs on their premises, that are committed to providing a safe environment for children should be thinking about how they can implement safeguards against child abuse within their institutions. An important step is keeping internal lines of communication with staff and families open, as well as educating staff and leadership as to their reporting obligations under New York law and on how to provide appropriate support if child abuse is suspected.

The Child Victims Act joins the Sex Harassment Bill also signed into law by Gov. Cuomo as significant changes by New York Legislators involving sexual abuse and harassment in New York State.

Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

In our newest installmentTzvia Feiertag, Member of the Firm in the Employee Benefits and Executive Compensation practice, in the Newark office, presents “HIPAA Privacy and Security Rule Compliance.”

While employers themselves are not directly regulated by the Privacy and Security Rules of the Health Insurance Portability and Accountability Act (“HIPAA”), most employers that sponsor group health plans have ongoing compliance obligations. This crash course offers a brief overview of who and what is covered by these rules, why employers should care about HIPAA compliance, and five tips to maintain compliance.

Click here to request complimentary access to the webinar recording and presentation slides.

Earlier this summer, we reported on ground-breaking legislation in New Jersey that requires hotels with more than 100 guest rooms to supply hotel employees assigned to work in a guest room alone with a free panic button device and to adhere to a specific protocol upon activation of a panic button device by a hotel employee.  In what may signal the start of a national trend, Illinois just became the second state to pass similar legislation targeting not only hotels but also casinos located within its jurisdiction.

Under the newly created Hotel and Casino Employee Safety Act (Article 5 of Illinois Senate Bill 75), each hotel and casino must equip employees assigned to work in a guest room, restroom or casino floor on their own with a portable emergency contact device or panic button that can be used to summon help if an employee reasonably believes there is an ongoing crime, sexual harassment or assault, or other emergency.  Unlike its New Jersey analogue, the Illinois law applies to all casinos and hotels located in Illinois, regardless of their size, number of guest rooms, etc.  Significantly, the term “employee” includes both full- and part-time employees, as well as employees of subcontractors.

Similar to the New Jersey law, Illinois hotels and casinos must also develop and adhere to a written anti-sexual harassment policy to protect their employees from sexual assault and harassment by guests.  To comply with this requirement, the anti-sexual harassment policy must:

  • Encourage employees to immediately report any instance of alleged sexual assault or harassment by a guest; and
  • Establish a procedure whereby employees fearful of sexual assault, harassment, or other violence by a guest (i) cease work and leave the immediate area until assistance is provided by the employer and/or the police; (ii) receive a temporary work assignment for the duration of the offending guest’s stay at the hotel/casino; (iii) receive paid time off to file a police report or criminal complaint and, if required, testify as a witness at a resulting legal proceeding; and (iv) are informed of their state law rights against sexual harassment and retaliation (including retaliation for reasonably using a panic device and availing themselves of the protections afforded by the anti-sexual harassment policy).

The policy must be available in English, Spanish, and any other language spoken by a majority of its staff, and posted in conspicuous workplace locations.

The Hotel and Casino Employee Safety Act creates a private cause of action for employees and their representatives, provided that prior to filing suit, a representative of the employee notifies the hotel/casino employer in writing of the alleged violation and affords the employer 15 calendar days to remedy the violation.  Damages under the act include, but are not limited to, reinstatement, compensatory damages, and attorney’s fees and costs.  Economic damages are capped at $350 per violation but each day a violation continues constitutes a separate violation.

The Hotel and Casino Employee Safety Act becomes effective on July 1, 2020.  Illinois hotel and casino operators should use this time to order panic buttons appropriate for the size and physical layout of their building, develop a compliant anti-sexual harassment policy, and train staff on panic button procedures.

Earlier this year, we reported legislative efforts in Illinois to curb sexual harassment in the hospitality industry via Illinois House Bill 3551, which would require restaurants to adopt a sexual harassment policy and provide training to all employees.  While that bill appears to have stalled in the House, similar requirements appear in Illinois Senate Bill 75 (titled the “Workplace Transparency Act”), which, after sitting on the Governor Pritzker’s desk for several months, was finally signed by Governor Pritzker on August 9, 2019.

Section 2-110 of the Workplace Transparency Act requires every restaurant and bar operating in Illinois, regardless of its size or number of employees, to adopt and provide to all employees, within one week of hire, a sexual harassment policy (in English and Spanish) containing the following:

  • A prohibition on sexual harassment and retaliation for reporting sexual harassment allegations;
  • A description of how to report an allegation of sexual harassment internally;
  • An explanation of the internal complaint process available to employees;
  • Instructions on how to contact and file a charge with relevant state and federal agencies; and
  • A requirement that all employees participate in sexual harassment prevention training.

Notably, the definition of “restaurant” is very broad.  It includes “restaurants, coffee shops, cafeterias, and sandwich stands that give or offer for sale food to the public, guests, or employees,” as well as “kitchen or catering facilities in which food is prepared on the premises for serving elsewhere.”

While the Act requires all Illinois employers to provide annual anti-sexual harassment training to all employees, bars and restaurants must also provide annual “supplemental” anti-sexual harassment training to all employees, addressing issues endemic to the hospitality industry, as well as manager liability and responsibility under the law (i.e., training equal to or exceeding the free supplemental model training to be issued by the Illinois Department of Human Rights).

Violations of the Act not cured within 30 days could result in civil penalties up to $1,000 for the first offense.

The Act takes effect January 1, 2020.  Between now and then, we advise covered employers to work with counsel to draft and implement a sexual harassment policy and training program for employees (or alternatively, to at least plan on utilizing the forthcoming, state-issued training materials).

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in August 2019.

This episode includes:

  • Increased Employee Protections for Cannabis Users
  • First Opinion Letters Released Under New Wage and Hour Leadership
  • New Jersey and Illinois Enact Salary History Inquiry Bans
  • Deadline for New York State Anti-Harassment Training Approaches
  • Tip of the Week

See below to watch the full episode – click here for story details and video.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Follow us on LinkedInFacebookYouTubeInstagram, and Twitter and subscribe for email notifications.

Our colleagues Maxine NeuhauserNathaniel M. GlasserDenise Dadika, & Anastasia A. Regne

Following is an excerpt:

In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage Funeral”) failed to reasonably accommodate his disability (cancer) and unlawfully discharged him in violation of the LAD because he used medical marijuana, as legally permitted by CUMMA. Carriage Funeral terminated Wild’s employment after he tested positive for cannabis following an on-duty motor vehicle accident.

The trial court dismissed the lawsuit holding that the fact Wild tested positive for cannabis  constituted a legitimate business reason for his discharge because cannabis use (medical or otherwise) remains prohibited under federal law. In rendering its decision the trial court relied on a provision in the law stating that CUMMA did not require employers to reasonably accommodate licensed use of medical marijuana in the workplace. The Appellate Division reversed, holding that the fact that CUMMA did not “require” employers to accommodate an employee’s use of  medical marijuana in the workplace, did not affect an employer’s requirement under the LAD to reasonably accommodate an employee’s disability, which could include an employee’s off-duty and off-site use of medical cannabis. …

Read the full article here.