In most wage and hour cases, each workweek gives rise to a separate claim, at least for statute of limitations purposes. Thus, an employee seeking payment for alleged off-the-clock work or an independent contractor claiming misclassification and entitlement to overtime ordinarily may seek back wages and related recovery only for work performed within a set amount of time—usually two to six years preceding the filing of the complaint, depending on the jurisdiction—preceding the filing of the complaint. …
On June 4, the Supreme Court voted 7-2 in favor of a Christian Colorado baker and owner of Masterpiece Cakeshop, who had refused to create a custom wedding cake for a gay couple due to his religious objections to gay marriage.
Although the case previously had been litigated on free speech grounds, the Court’s opinion largely avoids this constitutional question, and does not address whether Title VII prohibits discrimination based on sexual orientation. Instead, the decision focuses on the Colorado Civil Rights Commission’s decision finding against Masterpiece Cakeshop and, more specifically, what Justice Kennedy described as the Commission’s “impermissible hostility” as to the baker’s religious beliefs.
In the underlying administrative proceeding that preceded the Masterpiece Cakeshop lawsuit, the Commission found that Masterpiece Cakeshop engaged in religious bias in violation of the First Amendment’s free exercise clause. In its impassioned decision, one of the Commission members rejected the breadth of the free exercise clause as a justification for Masterpiece Cakeshop’s actions, noting that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” In dissent, Justice Ginsburg, joined by Justice Sotomayor, wrote that such comments in the Commission’s decision should not be “taken to overcome” Masterpiece Cakeshop’s conduct, given the “several layers of independent decision-making” throughout the various hearings leading up to the Supreme Court decision. Justice Ginsberg added that unlike other cases addressing freedom of religion (for example, where religious customers have requested anti-gay messages from secular bakers), here, the circumstances were fundamentally different because Masterpiece Cakeshop regularly made the kind of cake the couple requested and refused to sell it to them simply because of their sexual orientation.
The Court’s decision is narrowly tailored, however, and leaves open the broader constitutional issues of sexual orientation discrimination and free exercise of religion. In addition, the ruling’s effect on employers may be limited due to the extremely fact-specific nature of the decision. In fact, while the scope of Title VII, has recently been expanded by Circuit Courts to include LGBT workers, has not been considered by the Supreme Court and therefore all lower court precedents still apply. For example, the U.S. Supreme Court has refused to take any action in a pending case involving a Washington florist who refused to provide arrangements for a same-sex wedding, which presented similar constitutional issues as Masterpiece Cakeshop. Stay tuned for any further updates addressing these important issues.
Featured on Employment Law This Week: NJ Senate Advances Ban on Sex Harassment Confidentiality Agreements.
The New Jersey Senate wants no more secrecy around harassment claims. On a 34-to-1 vote, the chamber approved legislation banning
involving sexual harassment claims. The bill is still pending in the House, where a vote is expected in the next few weeks. The legislation would also allow victims to keep their identities confidential and would establish jurisdiction in Superior Court, arguably bypassing arbitration agreements.
Watch the segment below.
After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1. Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website.
WCAG 2.1’s Purpose and Key Features
The WCAG 2.1 is intended to provide a better web experience for three major groups of individuals: users with cognitive or learning disabilities, users with low vision, and users with disabilities using mobile devices. To achieve that goal, WCAG 2.1 builds upon WCAG 2.0, retaining all of WCAG 2.0’s Success Criteria and adding 17 new Success Criteria – 5 at Level A, 7 at Level AA, and 5 at Level AAA. (Please note: (i) the W3C does not recommend Level AAA conformance be required as a general policy for entire sites because it is not possible to satisfy all Level AAA Success Criteria for some content; and (ii) the current legal landscape sets website accessibility compliance at the Level A and AA conformance levels.) Entities covered by Title III of the Americans with Disabilities Act (“ADA”), thus focusing on complying with WCAG 2.0/2.1 conformance levels A and AA to make their websites accessible, should be aware that, of the 12 Level A and AA Success Criteria new to WCAG 2.1, there a few notable guidelines that will specifically apply to desktop websites, such as:
- Requiring the purpose of input fields requesting personal information to be identifiable by assistive technologies;
- Providing a minimum color contrast ratio for non-text content (including all visible focus indicators) of 3:1;
- Ensuring individuals with disabilities who choose to override spacing can read page text;
- Modifying keyboard shortcuts so that individuals with disabilities can turn off or remap the shortcut using a non-printable keyboard character (e.g., Ctrl, Alt, etc.); and
- Providing status messages (such as, shopping cart updates) that can be presented to the user by assistive technologies without receiving focus.
What WCAG 2.1 Means For Those Currently Complying With WCAG 2.0
As noted above, while formal website accessibly regulations governing all sectors of private business have not been adopted by the U. S. Department of Justice (“DOJ”) (and current Trump administration policies suggest that formal regulations will not be adopted in the near-term future), substantial conformance with WCAG 2.0 Levels A and AA has been considered the default standard cited to in the majority of recent litigations and settlement agreements with private plaintiffs, advocacy groups, and government regulators (e.g., DOJ). In its abstract, the W3C notes, “The publication of WCAG 2.1 does not deprecate or supersede WCAG 2.0. While WCAG 2.0 remains a W3C Recommendation, the W3C advises the use of WCAG 2.1 to maximize future applicability of accessibility efforts.” Therefore, as WCAG 2.1 gains more exposure we expect that it will quickly begin to replace WCAG 2.0 as the default standard cited to in future website accessibility litigations and settlement agreements.
Companies that are currently required to conform with WCAG 2.0 (e.g., due to a settlement agreement, internal policy, etc.) should continue their efforts to achieve that required level of accessibility, however, where possible, they should also consider incorporating the new elements added to WCAG 2.1 to the extent feasible (and going forward as new content is added) as a best practice. (The W3C joins in this recommendation.) As WCAG 2.1 inherited WCAG 2.0’s requirements and overall structure and frame work, companies will be able to update web content to meet the WCAG 2.1 without losing conformance with WCAG 2.0 (as the backward compatibility built into WCAG 2.1 means content that conforms to WCAG 2.1 also conforms to WCAG 2.0). That said, given that WCAG 2.0/2.1 remain privately authored guidelines as opposed government-mandated regulations (and, as such, a handful of courts have refused to specifically impose WCAG 2.0 as the required means of complying with website accessibility obligations), we would be surprised to see courts require companies already complying with WCAG 2.0 to immediately require compliance with WCAG 2.1.
WCAG 2.1 Is Not Quite the Update Places of Public Accommodation Have Been Looking For
While the publication of WCAG 2.1 will likely receive a reasonable amount of fanfare, once the dust settles and everyone has had time to fully appreciate its content, WCAG 2.1 will likely be considered a let down by both businesses and individuals with disabilities. As WCAG 2.1 was being drafted over the past four years, the W3C would regularly offer open comment periods to the public. In the comments received, a large number of respondents requested, even moreso than adding new Success Criteria, that WCAG 2.1 provide updates to the original WCAG 2.0 requirements to help developers apply these guidelines to the newest types of technologies (e.g., touch screen, mobile devices, apps, responsive technology, etc.). Unfortunately, due to time limitations, such updates are not included in WCAG 2.1 and the original WCAG 2.0 Success Criteria text remains largely unchanged. The W3C has publically acknowledged this shortcoming noting the WCAG 2.1 advancements are “incremental” and stating, “[m]any people hoped WCAG 2.1 would provide more new guidance than it does. The requirement of compatibility with WCAG 2.0 along with the aggressive timeline limited what could confidently be added to it. WCAG 2.1 provides important and timely guidance but is still only a step—the Working Group expects to develop another dot-release, WCAG 2.2, to expand the new coverage even further. WCAG 2.2 may be developed under a similar timeline and requirements set than WCAG 2.1 was, though we plan to refine the process to address process challenges experienced during the development of WCAG 2.1.” Therefore, at this time, companies looking for additional guidance regarding how to apply the WCAG 2.0 requirements using modern programming and design techniques and/or to mobile devices/apps should continue to refer to other sources of guidance such as:
While an additional dot release of WCAG 2 (WCAG 2.2) may be published in the future, the next major version update to WCAG will be WCAG 3.0 (also known as project “Silver”). Currently, WCAG 3.0 is scheduled for release in 2021 and is intended to be a much more inclusive set of guidelines that are easier to understand and implement. We will provide additional information on WCAG 3.0 developments as they become available.
Additional Information and Resources
In anticipation of the WCAG 2.1 release, the W3C has completely updated its website to create a helpful, easy to use, interface intended to assist website developers with meeting the WCAG 2.0/2.1 guidelines. This new information provided on the updated W3C website includes: a list of transcription services (for creating videos with audio descriptions), WCAG 2.0/2.1 tutorials, and information for applying WCAG 2.0/2.1 to mobile apps. Please see https://www.w3.org/WAI/ for more information.
Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Yesterday, Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for violations of Massachusetts’s ban the box law, marking the first enforcement efforts by the Massachusetts Attorney General’s Office.
According to the AG’s press release, it conducted an investigation into employer compliance with the state’s ban the box law by sampling an undisclosed number of Boston and Cambridge employers. The initial employment applications of 21 of those businesses were found to contain one or more impermissible questions about the applicant’s criminal record, such as whether the applicant had been convicted of violating the law, whether he or she been convicted of a crime or offense other than a minor traffic violation, and whether he or she had ever been convicted of a felony. The four employers that reached agreements with the AG’s Office are Edible Arrangements, Five Guys, L’Occitane, and The Walking Company. The first three were fined $5,000 each (The Walking Company appears to have been given a pass due to its bankruptcy status) and each was required to take steps to comply with the law. The 17 business which received a warning to immediately comply with the law are: Brattle Book Shop, Kingston Grille and Bar, Salvatore’s, Sidebar, Stoddard’s Food & Ale, The Chicken and Rice Guys (two locations), The Oceanaire Seafood Room, Tous Les Jours, Viga Italian Eatery and Catering, Love Culture, and Frette, all in Boston, as well The Middle East Restaurant, Mainely Burgers, Mexicali Burrito Co., Café ArtScience, Meadhall, and Grafton Street Pub & Grill in Cambridge.
While the press release does not indicate whether the AG’s Office intends to expand its probe, continued enforcement seems likely in light of AG Healey’s remarks that “Jobs are the pathway to economic security and building a better life. But unfortunately, many of our residents with criminal records face barriers to securing employment. These actions are an effort to give all job applicants a fair chance.”
Enforcement of ban the box legislation is not limited to regulators in Massachusetts. Well over a year ago, the New York State Attorney General announced settlements with two major national retailers – Big Lots Stores and Marshalls – for violation of New York’s ban the box law by inquiring about the criminal history of job applications on initial employment applications at their Buffalo stores. The New York AG imposed fines that were substantially greater than those set by the Massachusetts AG: Big Lots agreed to pay a monetary penalty of $100,000, and Marshalls a penalty of $95,000. Both were required to adopt new policies and training, and report their remediation to the New York AG.
These actions highlight that businesses operating in jurisdictions with ban the box laws must ensure that their pre-hiring practices comply with such laws or risk regulatory fines, not to mention public disrepute and potential civil liability.
So far, 2018 has brought an increasing number of labor and employment rules and regulations. To help you stay up to date, we are pleased to introduce the Employment, Labor & Workforce Management Webinar Series.
Epstein Becker Green’s Hospitality service team took a deeper dive into our recently released Take 5 during the first webinar. Topics discussed include:
- Additional measures to protect lesbian, gay, bisexual, and transgender employees in the hospitality workplace
- Compliance training in the hospitality workplace
- Transactional due diligence, including labor relations issues
- The risk of self-reporting overtime and minimum wage violations under the Payroll Audit Independent Determination (PAID) program
Last week, the EEOC released its latest edition of its federal sector Digest of Equal Opportunity Law, a quarterly publication featuring recent Commission decisions and federal court cases selected by EEOC’s Office of Federal Operations. This edition features an article titled, “Promising Practices for Preventing Harassment,” which is the fruition of an EEOC task force on workplace harassment. The article, which is particularly timely given the #MeToo movement, advances five core principles to deter and remedy harassment: (1) committed and engaged leadership; (2) consistent and demonstrated accountability; (3) strong and comprehensive harassment policies; (4) trusted and accessible complaint procedures; and (5) regular, interactive training tailored to the audience and the organization.
The utility of this article is not the simple identification of these principles, which are familiar and uncontroversial, but rather its identification of practices/strategies an employer can implement to achieve these aims. These recommendations include:
- Regularly and effectively train supervisors and managers about how to prevent, recognize and objectionable conduct that, if left unchecked, may rise to the level of prohibited harassment.
- Direct staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately.
- Create a harassment complaint system with multiple avenues of complaint.
- Conduct live, interactive harassment training on a regular basis.
Helpfully, the articles also enumerates specific statements that should be included in a harassment policy, including but not limited to, that:
- The policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
- Harassment based on, at a minimum, any legally protected characteristic is prohibited;
- Employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
- The employer will provide a prompt, impartial, and thorough investigation;
- The identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
- The organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
- Retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.
As the article acknowledges, these practices are not legal requirements under federal employment discrimination laws. However, employers should take note of these recommendations as they may enhance employers’ compliance efforts in both the short- and long-term.
Following is an excerpt:
In November 2017, four convenience store franchisees brought suit in federal court against 7-Eleven, Inc., alleging that they and all other franchisees were employees of 7-Eleven. The case was filed in the United States District Court for the Central District of California, entitled Haitayan, et al. v. 7-Eleven, Inc., case no. CV 17-7454-JFW (JPRx).
In alleging that they were 7-Eleven’s employees, the franchisees brought claims for violation of the federal Fair Labor Standards Act (“FLSA”) and the California Labor Code, alleging overtime and expense reimbursement violations. The trial court granted judgment in 7-Eleven’s favor, concluding that 7-Eleven was not the four franchisees’ employer under California law or federal law. …
Featured on Employment Law This Week: Under the recently signed Consolidated Appropriations Act, Congress has amended the FLSA to address tip pools. The amendment prohibits employers from keeping employees’ tips or distributing any portion of the tips to managers or supervisors. Non-tipped, back-of-the-house employees, like cooks and dishwashers, may participate in tip pools when the employer pays at least the minimum wage and does not take a tip credit. The amendment also provides for enhanced damages and penalties when employees are deprived of tips.
Watch the segment below:
Following is an excerpt:
Depending on the jurisdictions within which they operate, certain employers and their counsel will soon see a significant change in early mandatory discovery requirements in individual wage-hour cases brought under the Fair Labor Standards Act (“FLSA”).
A new set of initial discovery protocols recently published by the Federal Judicial Center (“FJC”), entitled Initial Discovery Protocols For Fair Labor Standards Act Cases Not Pleaded As Collective Actions (“FLSA Protocols”), available here, expands a party’s initial disclosure requirements to include additional documents and information relevant to FLSA cases. These Protocols apply, however, only to FLSA lawsuits that have been filed in participating courts that have implemented the Protocols by local rule or by standing, general, or individual case order. …