Our colleague  .

Following is an excerpt:

On December 17, 2019, the National Labor Relations Board (“Board”) ruled that an employer’s rule prohibiting use of its email system for nonbusiness purposes did not violate employees’ rights under the National Labor Relations Act. The 3-1 decision in Caesars Entertainment Corp d/b/a Rio All-Suites Hotel and Casino, NLRB Case No. 28-CA-060841, overturns the Board’s 2014 decision in Purple Communications, which held that work rules prohibiting employees from using employer-provided email systems for union activity were presumptively invalid.

According to the Caesars Entertainment majority, employees “do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications.”  “Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate” against activities protected by Section 7 of the National Labor Relations Act, such as discussing wages, hours, and terms and conditions of employment. …

Read the full article here.

Our colleague Steven M. Swirsky .

Following is an excerpt:

The National Labor Relations Board, in its December 17th decision in Apogee Retail LLC d/b/a Unique Thrift Store, has reversed its prior rule and held that employer requirements that employees treat workplace investigations as confidential are “presumptively lawful.”  The Apogee decision overturns the Board’s 2015 Banner Estrella decision, which had required that an employer seeking to impose confidentiality in connection with a workplace investigation was required to prove, on a case by case basis, that the integrity of an investigation would be compromised without confidentiality.

The Board concluded that the framework set forth in Banner Estrella improperly placed the burden of proving that confidentiality was necessary on the employer and was inconsistent with the Board’s test developed in The Boeing Company for determining whether a facially neutral rule unlawfully interfered with employees’ rights under Section 7 of the National Labor Relations Act. …

Read the full article here.

Our colleague Steven M. Swirsky 

Following is an excerpt:

The National Labor Relations Board (“Board” or “NLRB”) has announced that it is publishing proposed changes to its Rules and Regulations that will begin to reverse the Board’s 2014 changes, which took effect in 2015, to its representation election rules and procedures commonly referred to as the “ambush election rules.”  The proposed final rule is expected to be published in the Federal Register on December 18, 2019 and to become effective 120 days after publication.

Board Chairman John F.  Ring described the rule changes as “common sense changes to ensure expeditious elections that are fair and efficient. The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” In December 2017, the Board had announced that it was seeking comments concerning parties’ experiences under the 2015 rule changes, to determine what, if any changes, would be beneficial.

The new final rule, which is over 300 pages in length, will, when it takes effect, change many of the most troublesome aspects of the 2014 rules. …

Read the full article here.

Our colleagues Adam C. AbrahmsBrock Olson, and Steven M. Swirsky 

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.

For businesses growing weary of the seemingly perpetual wave of serial ADA claims (e.g., website accessibility; gift card accessibility), thanks to recent a decision issued by a federal judge in the U.S. District Court of the Eastern District of New York (“EDNY”), some may believe that “Christmas came early.”  Last week, EBG achieved an impressive victory, obtaining a complete dismissal of a serial plaintiff’s class action complaint in the case Castillo v. The John Gore Organization.

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.”

The court held that plaintiff failed to allege that she had ever visited, or tried to visit the theater, and accordingly, she lacked “actual knowledge” of the alleged barrier, rendering her unable to demonstrate that she suffered any injury.  The court rejected plaintiff’s attempt to lower the pleading standard by relying on the ADA’s futility doctrine – which provides that an individual with a disability does not have to engage in a futile gesture where that person has notice that the company does not intend to comply with the ADA.  The court also held that plaintiff failed to show that she would suffer any future harm, finding her “broad allegation” that she intends to patronize the theater once the alleged access barriers are remedied, insufficient to demonstrate an intent to return.

While the holding in Castillo is, of course, fact-specific, it is yet the latest indication that – perhaps growing as tired of serial ADA claims as businesses are – New York federal courts are increasingly strictly enforcing the standing requirements that plaintiffs must meet to maintain Title III actions. This trend may prove very telling as we expect early 2020 to be ripe with businesses mounting challenges to the newest mass filing of lawsuits asserting that business failed to provide Braille gift cards.

While the seemingly endless wave of website accessibility cases filed by serial plaintiffs shows no signs of abating (a situation not helped by the United States’ Supreme Court’s denial of Domino’s Petition for Certiorari last month), those who follow accessibility law and the businesses who have been deeply affected by the relentless barrage of serial plaintiffs’ claims, have been waiting for the inevitable “next big thing” that the plaintiff’s bar would pursue en masse under Title III of the ADA.

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.

In our view, these cases stretch well beyond the clearly established reach of Title III and fly in the face of a variety of statutory, regulatory, and precedential support.  Moreover, as those who have followed our blogs are aware, the Southern and Eastern Districts of New York issued a number of decisions in recent months openly demonstrating their fatigue with the repeated website accessibility lawsuits. Please see our previous blog posts: June 6 and April 12.  We suspect that this latest barrage will do little to improve their mood; particularly where a number of compelling defenses will be available to companies who are tired of settling accessibility matters.  We will, of course, keep you updated on their reactions

The New York City Commission on Human Rights (“the Commission”) published a legal enforcement guidance (“Guidance”) clarifying its standards with respect to discrimination based on actual or perceived immigration status and national origin. The Guidance applies to employers, housing providers, and providers of public accommodations.

As the Guidance explains, “[d]iscrimination based on immigration status often overlaps with discrimination based on national origin and/or religion.” Under the New York City Human Rights Law (“NYCHRL”), employers with four or more employees are prohibited from discriminating on any of these bases against job applicants, employees, interns and independent contractors.

Much of the focus of the new Guidance is on discriminatory conduct based on citizenship status and “work authorization” status. In this regard, the Guidance reiterates the following mandates:

  • Employers may not discriminate among work-authorized individuals, including citizens, permanent residents, refugees, asylees, and those granted lawful temporary status, unless required or explicitly permitted by law.
  • Job application and interview questions related to work authorization must be applied uniformly to all applicants, and not selectively, based on the actual or perceived immigration status or national origin of the applicant.
  • If an employer employs workers who are unauthorized to work, those workers may not be treated less favorably on the basis of their immigration status.
  • Employers may not engage in “document abuse” by demanding documents from a job applicant or worker beyond those required to establish work authorization under federal law, including green cards and birth certificates. Employers must accept any document from the “List of Acceptable Documents” established by federal law on a Form I-9.
  • Except in limited, specified circumstances, employers may not re-verify an employee’s work authorization.
  • An employer may not take any adverse action against an applicant or worker based on a No-Match Letter from the Social Security Administration.
  • Employers may refuse Immigration and Customs Enforcement (“ICE”) access to non-public facing areas of their workplace if the agents do not produce a warrant signed by a judge.
  • An employer may not threaten workers with ICE involvement to harass, intimidate, or retaliate against employees.
  • The guidance instructs against the use of such terms as “illegal alien” and “illegals,” and reiterates that the NYCHRL prohibits the use of such terms to demean or offend people in the workplace.

The Guidance provides examples of specific kinds of actions that violate the NYCHRL including the following:

  • Granting workers different break arrangements based on their immigration or work authorization status.
  • Threatening to contact ICE if a worker attends a necessary medical appointment.
  • Refusing to accept a Social Security card and demanding a birth certificate from a job applicant because the applicant has an accent.
  • Prohibiting hotel housekeepers from speaking Spanish while cleaning because it might make guests uncomfortable.
  • Using a No-Match letter as an excuse to terminate an otherwise qualified worker.
  • Providing Polish workers (or workers of any specific nationality) first priority in scheduling to the disadvantage of its U.S. citizen workers (or workers of another nationality).

The Guidance further instructs that once an employer hires a worker who is unauthorized to work or undocumented, that worker is covered by the NYCHRL and may file a claim of discrimination with the New York City Commission on Human Rights or a lawsuit.

Finally, employers should be aware that a new state law, effective August 15, 2019 and applicable to all New York employers as of February 8, 2020, prohibits employers from threatening, penalizing, or otherwise discriminating or retaliating against an immigrant employee, including threatening to report that person or a member of his or her family to U.S. immigration authorities.

The recent focus by both the state and the city on discrimination based on immigration status suggests that employers should anticipate increased scrutiny and enforcement concerning this issue.

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML”) has been providing on-going substantive and procedural regulations and guidance to effectuate the state’s Paid Family and Medical Leave program (“PFML”), which applies to employers with 25 or more “covered individuals” in the employer’s workforce. Most recently, the DFML issued further guidance (“Guidance”), to clarify when an employer should include 1099-MISC contractors and certain visa holders in their workforce count.

How to Determine if You Meet the 25-Covered Individual Threshold for Reporting

Identifying When a 1099-MISC Contractor Is a ‘Covered Individual’

The PFML requires Massachusetts employers to report their total workforce count to the DFML, but only employers with 25 or more “covered individuals” need to withhold and remit contributions to the PFML program.

The Guidance clarifies that, under the PFML program, an individual who meets the three-part criteria for being an independent contractor is not a covered individual. Further, even if a worker does not meet the State’s criteria for being an independent contractor because, for example the individual performs work in the usual course of the employer’s business, the person still should not be counted as a “covered individual” unless they: (i) perform services as an individual entity; (ii) live in Massachusetts; and (iii) perform services in Massachusetts. Notably, the DFML’s Guidance confirms that an employer is required to contribute on behalf of or to report on 1099-MISC workers only when such workers comprise more than 50 percent of the employer’s Massachusetts workforce.

Employers should anticipate that the DFML may continue to revise the rules for determining whether and how employers should count their 1099-MISC workers as part of their workforce total. We understand, for example, that additional guidance will be forthcoming, including how long a worker must have been employed each quarter to count as a covered individual. At this time, we conservatively suggest employers count any 1099-MISC Massachusetts-based workers as covered individuals for the purposes of calculating whether they meet the 25-covered individual threshold, as well as for withholding and remitting PFML contributions from such individuals.

Visa Holders

In addition, the Guidance clarifies that:

H-2A visa-holders are not covered individuals. Accordingly, employers are not required to withhold or remit PFML contributions on behalf of these workers and should not count these individuals towards the employer’s 25-covered individual threshold.

  • However, individuals working under all other temporary foreign worker visa programs, as well as international students and foreign exchange visa holders (e.g. F-1. OPT, H-1B, H-2B, O-1, O-2, etc.), are considered covered individuals and employers must withhold and remit PFML contributions for them.

We are continuing to follow-up with the DFML and will provide updates on any further guidance or refinements to the rules for determining whether and how Massachusetts employers should count their 1099-MISC workers as part of their workforce total under the PFML.

Other Notable Reminders for Massachusetts Employers

As a reminder, all Massachusetts employers were required to display a poster in the workplace that explains benefits available to workers under the PFML law by July 1, 2019. The poster is available in several languages here. Additionally, on or before September 30, 2019, employers and covered businesses were required to provide written notice to their current workforce of PFML benefits, contribution rates, and other provisions. Information about the notices is available here.  Finally, October 1, 2019 was the start of the first wage payment withholding period. Regardless of when the work was performed, pay that is issued to covered individuals on or after October 1, 2019 is subject to the PFML withholding mandate.

Employers seeking information about potential reasonable accommodations, and tips on the interactive process, can turn to the newly updated Job Accommodation Network (JAN) Toolkit.

The Department of Labor provides funding for JAN as a free, comprehensive, online resource to assist businesses in complying with the Americans with Disabilities Act (ADA). According to the website, the Toolkit “provides resources to support organizational efforts to accommodate applicants, candidates, and employees with disabilities; to train those serving in roles critical to managing disability; and to promote disability inclusion throughout the workplace.”

Earlier this week, Epstein Becker Green hosted our Annual Workforce Management Briefing, including a panel discussion relating to reasonable accommodations. We were joined by Jeanne Goldberg, from the U.S. Equal Employment Opportunity Commission. Learn more about the Briefing and access presentation materials here.

Our colleagues Jeffrey H. Ruzal and Carly Baratt 

Following is an excerpt:

As background, FLSA Section 7(i) exempts a retail or service establishment employee from the FLSA’s overtime pay requirements if (i) the employee’s regular rate of pay exceeds 1.5 times the federal minimum wage for any week in which the employer seeks to claim the exemption and (ii) more than half of the employee’s compensation “for a representative period (not less than one month)” represents commissions on goods and services.  29 U.S.C. § 207(i).  In Opinion Letter FLSA2019-13, the WHD provided guidance on the representative period requirement, addressing whether four weekly pay periods or two bi-weekly pay periods, or alternatively, six consecutive weekly pay periods or three bi-weekly pay periods constitute a valid representative period.

As the WHD observed, the implementing regulations provide no guidance on the meaning of the phrase “not less than one month” other than the self-evident statement that the period cannot “be less than 1 month.”  29 C.F.R. § 779.417(c).  Accordingly, the WHD proceeded to interpret this language, guided by the Supreme Court’s holding in Encino Motorcars, LLC v. Navarro that FLSA exemptions receive a fair and appropriate reading.  Relying on Supreme Court and other case law, the WHD posited that a fair reading of a “month” is a “calendar month”—i.e., the period of time from a given day of a particular month in the calendar to the corresponding day of the following month. …

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