Retail Labor and Employment Law

Retail Labor and Employment Law

News, Updates, and Insights for Retail Employers

Category Archives: ADA

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You Snooze, You Don’t Necessarily Lose

You Snooze, You Don’t Necessarily LoseDo retail employers really need to tolerate employees who sleep on the job??  The plaintiff in Beaton v. Metropolitan Transportation Authority New York City Transit, (S.D.N.Y. June 15, 2016), was an overnight Station Agent at a New York subway station who was terminated after he was found sleeping at his work station.  While he admitted that it appeared that he was sleeping, plaintiff denied that he was actually sleeping.  Rather, he informed his supervisor that he was drowsy due to the high dosage of anti-psychotic prescription medication that he took after he experienced severe schizophrenia symptoms at work that … Continue Reading

New State Legislation Seeks to Curb “Drive By” Lawsuits and Service Animal Fraud

Service DogDespite 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 a plaintiff to file a … Continue Reading

DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?

Internet Connectivity and Web Browser - AbstractOn 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 with respect to web design and assistive technology for individuals with … Continue Reading

DOJ Launches New Online Resource Regarding Accessible Technology Issues

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 guidance about accessible technology (e.g., website accessibility, e-readers, point-of-sale devices), as well … Continue Reading

New Online Resource Can Help Employers Make Their eRecruiting Technologies Accessible to All Job Seekers

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 technologies for seeking positions can prove problematic. For example, … Continue Reading

Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away

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 technologies such as websites, mobile applications, and touchscreen technology … Continue Reading

Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet

Joshua A. Stein

Joshua A. Stein

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, et al., v. Harvard University, et al. (Case No. 3:15-cv-30023-MGM, Dist. Mass.) and National Association of the Deaf, et al., v. Massachusetts Institute of Technology (Case No. 3:15-cv-30024-MGM, Dist. … Continue Reading

Retaliation, ADA Charges Rise – Frank C. Morris, Jr. Quoted in SHRM

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 covered by the … Continue Reading

The U.S. Department of Justice Does Business No Favors By Significantly Delaying Website Accessibility Regulations Until 2018

Joshua A. SteinFrustrating 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 website accessibility for state and local governments under Title II of the ADA in early 2016 and then Continue Reading

Working Like a Dog – Qualifying As A Service Animal For ADA Purposes

Service DogThe 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 support or comfort to the disabled individual. As this technical guideline makes clear, a service animal must not only be … Continue Reading

EEOC Updates Pregnancy Discrimination Guidance

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 disparate treatment and light duty.

Under the prior guidance, issued in 2014, … Continue Reading

Five EEOC Initiatives to Monitor on the Agency’s Golden Anniversary

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.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5Continue Reading

DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations

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 keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory ActionsContinue Reading

April 22 Complimentary Webinar Concerning EEOC Wellness Regulations

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 Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed … Continue Reading

EEOC Issues Proposed Wellness Program Amendments to ADA Regulations

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 disability-related inquiries and medical examination provisions of the … Continue Reading

Keeping Clear of ADA Accessible Route Claims – the Ninth Circuit Discusses What Constitutes Temporary Obstructions

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 provide and maintain accessible routes (generally, … Continue Reading

First Circuit Reiterates Importance of Good Faith in ADA Interactive Process

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 … Continue Reading

Retail Industry Labor and Employment Cases in the Supreme Court’s Current Term

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 employers to pay warehouse employees for the time they spend, … Continue Reading

Penalties Rise for ADA Noncompliance

By Andrea R. Calem

Noncompliance with the Americans with Disabilities Act just became costlier. Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).

Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires public accommodations to make reasonable accommodations so that disabled individuals may equally access these goods and opportunities. Accommodations may … Continue Reading

California’s Leave Laws May Create the Perfect Storm for Employers

In this month’s Take 5 newsletter, I discuss how California is unique for making numerous types of protected leaves of absence available to employees.  All of these options can add up to a lot of protected leave.

Following is from the introduction:

National employers often find it challenging to navigate the employment laws of the various states in which they do business. In most cases, the easiest solution may be to adopt national policies that follow federal law. This process will not work, however, for employers that do business in California, where state protections are often more expansive and … Continue Reading

April 2013 Take 5 Newsletter: Five Recent Actions Employers Should Consider

The April 2013 issue of Take 5 was written by David W. Garland,  Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

  1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
  2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
  3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
  4. New York City Human Rights Law Expanded to Prohibit “Unemployment” Discrimination
  5. New Jersey
Continue Reading

Court Finds Continuing Duty Exists to Engage in Interactive Process with Employees Who Exhaust Medical Leave

By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff … Continue Reading

New Regulations Make ADA Claims More Accessible

by Teiko Shigezumi and Carrie Corcoran

The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009.  The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage.  The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. … Continue Reading

Be Prepared for New EEOC Enforcement Efforts

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The … Continue Reading

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