Don’t forget – April 1 marks the beginning of a new set of sexual harassment training requirements in New York City. While the training requirement began across New York State on October 9, 2018 (and must be completed by October 9, 2019), the City imposes additional requirements on certain employers. Both laws require training to be provided on an annual basis.

While the State law requires training of all New York employees, regardless of the number of employees in the State, the City law applies only to employers with 15 or more employees. However, when counting employees under the City law, an employer must also count independent contractors who work for the employer in New York City.

What topics need to be covered? There is some overlap in the training requirements for the City and State laws, but the City law has a few additional requirements. The chart below summarizes the requirements:

Interactive Training Content

NYS

NYC

Define sex harassment, with specific examples

Yes

Yes

Explain federal & state harassment laws

Yes

Yes & NYCHRL

Describe employees’ remedies & right of redress

Yes

Yes

Detail forums for adjudicating complaints – EEOC & NYSDHR

Yes

Yes & Commission

Educate on “bystander” intervention

No

Yes

Explain responsibilities of supervisory and managerial employees

No

Yes

Define & provide examples of retaliation

No

Yes

As a reminder, all New York State employers should have a sexual harassment policy in place. New York City employers also need to post a sexual harassment prevention poster and provide a copy to new hires.

If you need New York State or City training that is compliant with all of these various requirements, check out our e-learning solution, Halting Harassment: Rules of the Road for a Respectful and Inclusive Workplace.

On March 1, 2019, the New York State Department of Labor (NYSDOL) announced that it is no longer pursuing predictive scheduling regulations (or “call-in pay”) that would have affected most employers in the state. For the time being, New York employers do not have to worry about pending statewide regulations regarding call-in pay. Keep in mind, however, that New York City employers are still subject to the Fair Workweek Law.

The proposed NYSDOL regulations would have required employers provide “call-in pay” ranging from two to four hours at the minimum wage in these scenarios:

  • if the employee reports to work and is sent home early,
  • when a shift is scheduled less than 14 days before the start of the shift,
  • when shifts are cancelled less than 72 hours before the start of the shift,
  • when an employee is required to be in contact less than 72 hours before the shift to find out whether to report for that shift, and
  • when an employee is required to be on call.

The NYSDOL decided to let the proposed regulations expire after receiving “extensive feedback” during the comment period, and issuing a subsequent round of revised regulations that included exemptions. The NYSDOL did, however, expressly leave open the possibility of re-evaluating predictive scheduling laws in the future with the New York State Legislature.  Stay tuned for future developments in this area.

Our colleague Laura A. Stutz at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the retail industry: “Race Discrimination on the Basis of Hair Is Illegal in NYC.”

Following is an excerpt:

The New York City Commission on Human Rights published legal enforcement guidance defining an individual’s right to wear “natural hair, treated or untreated hairstyles such a locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”   The guidance applies to workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles”:

[W]hile an employer can impose requirements around maintaining a work appropriate appearance, [employers] cannot enforce such policies in a discriminatory manner and/or target specific hair textures or hairstyles. Therefore, a grooming policy to maintain a ‘neat and orderly’ appearance that prohibits locs or cornrows is discriminatory against Black people because it presumes that these hairstyles, which are commonly associated with Black people, are inherently messy or disorderly. This type of policy is also rooted in racially discriminatory stereotypes about Black people, and racial stereotyping is unlawful discrimination under the [New York City Human Rights Law].

A grooming or appearance policy prohibiting natural hair and/or treated/untreated hairstyles to conform to the employer’s expectations “constitutes direct evidence of disparate treatment based on race” in violation of the City’s Human Rights Law. …

Read the full post here.

Our colleague Kevin Sullivan at Epstein Becker Green has a post on the Wage and Hour Defense Blog that will be of interest to our readers in the retail industry: “California Court of Appeal Concludes That Certain Types of On-Call Scheduling Triggers Requirement to Pay Wages.”

On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc. It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift despite never physically reporting to work.

Each of California’s Industrial Welfare Commission (“IWC”) wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.” …

Read the full post here.

Building on progressive legislation passed last year, Governor Andrew Cuomo announced a sweeping proposal to strengthen protections against harassment in the workplace. The four part sexual assault and harassment safety reforms initiative, titled “TIME’S UP New York Safety Agenda,” is contained in the Governor’s 2019 Executive Budget, which was released on January 22, 2019. The safety reforms seek to prevent sexual harassment and assault from occurring while simultaneously enabling survivors to seek justice.

Currently, in order to prevail on a claim of sexual harassment/hostile work environment under the New York State Human Rights Law (“NYSHRL”), a plaintiff must show that the “workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’. . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”[1]  Governor Cuomo has proposed to amend the NYSHRL to lower the “severe or pervasive” standard, although his proposal did not articulate the new standard that would take its place. Additionally, the proposal would amend existing legislation to require that all Non-Disclosure Agreements include specific language advising employees of their ability to file a complaint with a state or local agency, and to testify or participate in a government investigation.  New York employers would also be required to conspicuously post a sexual harassment educational poster designed and distributed by the State Division of Human Rights. Cuomo further proposes eliminating the statute of limitations on rape claims.

The TIME’S UP New York Safety Agenda arose out of recommendations made by TIME’S UP, led by a coalition of women in New York, including actresses, activists, attorneys and business executives.

_________________________

[1] Father Belle Community Ctr., Inc. v. New York State Div. of Human Rights, 221 A.D.2d 44 (4th Dep’t 1996), leave to appeal denied, 89 N.Y.2d 809 (1997).

Our colleagues at Epstein Becker Green have a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: “Mayor de Blasio Proposes Mandatory Paid Personal Time Law.”

On January 9, 2019, Mayor Bill de Blasio announced his plan to make New York City the first city in the country to mandate that private sector employers provide paid personal time (“PPT”) for their employees. Under the proposal, employers with five or more employees would be required to grant their employees 10 days of PPT to use for any purpose, including vacation, religious observance, bereavement, or simply to spend time with their families. It is unclear whether the proposed legislation would apply to only full-time workers, or whether, similar to the Earned Safe and Sick Time Act (“ESSTA”), it would include many part-time employees as well. The Mayor said he would work with the New York City Council to develop the legislation, and several Council members have already voiced their support for the proposal. …

Read the full post here.

As expected given the extreme volume of website accessibility lawsuits filed over the last few years, in the first few weeks of the new year, United States’ Circuit courts have finally begun to weigh in on the law as it pertains to the accessibility of websites and mobile applications, and the results are generally disappointing for businesses.

Background

The U.S. Department of Justice (“DOJ”) has long taken the position that Title III of the Americans with Disabilities Act (“Title III”, “ADA”) applies to both websites and mobile apps, however, its withdrawal of Advanced Notice of Proposed Rulemaking (“ANPRM”) on December 26, 2017 and its September 25, 2018 letter (which effectively passed the onus to Congress to issue legislation on website accessibility standards), have prompted an onslaught of private demand letters and lawsuits filed in both state and federal court against businesses based on the theory that their websites are inaccessible to individuals with disabilities. As those who have confronted these lawsuits may know, the current state of the law has led to businesses being subject to duplicative actions in different jurisdictions, primarily, New York, California, and Florida. Last fall, both the Ninth and Eleventh Circuit courts held oral argument on website accessibility cases, with both panels expressing similar concerns about the current uncertainty in the law and how one can achieve and confirm a sufficient level of accessibility.

The Ninth Circuit Reverses Domino’s

Yesterday, in Robles v. Domino’s Pizza, the Ninth Circuit held that Title III applies to both websites and mobile applications. This decision reversed the district court’s dismissal of a class action lawsuit which asserted that Domino’s Pizza violated the ADA and California’s Unruh Civil Rights Act (UCRA) by failing to make its website and mobile app accessible to individuals who are blind or visually impaired. While the district court’s decision in Robles was always considered an outlier, the Circuit Court’s decision is significant because the Ninth Circuit considered, and rejected, defenses which have traditionally been advanced by businesses that have litigated website accessibility matters. For example, the Court refused to accept as a matter of law/summary judgment that providing a telephone hotline is sufficient alternative method for a company to satisfy its obligations under Title III to customers who are blind or have low vision (noting it was an issue of fact that required specific and contextual supporting factual evidence). The Court also rejected the concept that imposing liability in this context violates companies’ due process rights because DOJ has failed to issue clear technical standards for compliance.

At the outset, the Ninth Circuit agreed with the district court that Domino’s is a “place of public accommodation” and accordingly, the ADA applies to its website and mobile app, thereby requiring it to provide auxiliary aids and services to make its visual materials available to individuals who are blind. Drawing upon prior district court decisions from within the Ninth Circuit, the Court focused on the “nexus” between Domino’s website and mobile app and its physical restaurants, and found that the alleged inaccessibility of the website and app unlawfully prevents customers from accessing the goods and services at Domino’s physical locations. Notably, the Ninth Circuit declined to determine whether the ADA covers websites or mobile apps whose inaccessibility does not impede access to the goods and services at a physical location, reinforcing courts in the circuit’s position more narrowly construing the ADA to apply only to websites with a nexus to a brick-and-mortar location (as opposed to the more expansive positions taken by district courts in Massachusetts, New York, and Vermont).

The Circuit Court also noted that after the plaintiff filed the lawsuit, Domino’s website and mobile app began displaying a telephone number to assist customers who are visually impaired and who use a screen reading software. The Ninth Circuit held that a company’s use of a telephone hotline presents a factual issue, and, simply having a hotline, without any discovery regarding its effectiveness, is insufficient to award summary judgment to a company and determine that it has complied with the ADA. (This underscores that proving the sufficiency of an alternative means of access to a website – short of making the website itself accessible – could prove to be a costly endeavor.)

Citing DOJ’s failure to issue technical standards and withdrawal of ANPRM, Domino’s had argued that: (i) imposing liability would violate due process because it lacks fair notice of the technical standards that it is required to abide by; and (ii) the complaint was subject to dismissal under the doctrine of primary jurisdiction pending DOJ’s resolution of the issue. The Ninth Circuit rejected both arguments. First, the court held that DOJ’s failure to issue guidance on the specific standards or regulations does not eliminate a company’s obligation to comply with the ADA and its obligation to provide “full and equal enjoyment” to individuals with disabilities. Second, the Ninth Circuit held that the district court erred by invoking the doctrine of primary jurisdiction in order to justify its dismissal of the complaint without prejudice pending DOJ’s resolution of the issue. The court found that DOJ’s withdrawal of ANPRM meant that undue delay in resolving this issue “is not just likely, but inevitable,” which required the court to weigh in.

The Robles court did not rule on whether Domino’s website and mobile app comply with the ADA, and did not provide any guidance on how a company’s website or mobile app would comply with the ADA.

The Fourth Circuit Places Minor Restrictions On Standing

Two weeks ago, in Griffin v. Department of Labor Federal Credit Union, the Fourth Circuit considered another defense that has been increasingly asserted by businesses: whether plaintiff has standing to sue. In Griffin, the court rejected the plaintiff’s standing to bring a lawsuit against a Credit Union where he was not eligible for membership, he had no plans to become eligible to be a member, and his complaint contained no allegation that he was legally permitted to use the site’s benefits. The court also held that plaintiff’s status as a tester was insufficient to create standing where he was unable to plausibly assert that returning to the website would allow him to avail himself of its services. Unfortunately, this is an exceedingly narrow holding which should do little to undercut the rampant stream of filings by serial ADA website plaintiffs, as the heightened standard for joining a credit union would not apply to most other industries/websites. Therefore, while technically a victory for businesses, this decision did not issue the significant blow to serial plaintiffs that defendants had hoped would provide a clear defense moving forward.

Looking Ahead

We next await the holding of the 11th Circuit in Winn-Dixie. Unfortunately, it does not appear that, under this administration, we should expect DOJ to promulgate website accessibility guidelines. Similarly, with the government currently shut down (and other issues likely considered more pressing to the general public upon its reopening), it is extremely unlikely that Congress will amend the ADA or promulgate new legislation clarifying these issues in the near future.

Therefore, for the time being, businesses should expect to continue to face the seemingly endless stream of serial plaintiff website accessibility demand letters and lawsuits. As we have repeatedly noted, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (confirming such status by human-based code and user/assistive-technology testing). Moreover, based upon the scope of the Ninth Circuit’s decision in Domino’s, these matters may soon expand to include mobile apps as well. Therefore, to the extent businesses had, to date, treated mobile application accessibility as a best practice, they should now consider the issue with increased urgency.

The New York State Department of Labor (“DOL”) recently issued proposed statewide regulations that would require employers to pay employees “call-in pay” when employers use “on call” scheduling or change employees’ work shifts on short notice. This is not the DOL’s first foray into this area – in November 2017, the DOL released similar proposed regulations but ultimately declined to adopt them. The DOL’s new set of proposed regulations would apply to the vast majority of employers operating in New York, but are of particular interest to New York City retail employers, who regularly use “on call” scheduling, and who are already subject to the New York City Fair Workweek laws.

When Would Employers Have to Pay Call-In Pay?

The proposed regulations would require employers to pay their employees “call-in pay” under the following five circumstances:

  • Reporting to work: An employee who reports to work for any shift at the request or permission of the employer must receive four hours of call-in pay.
  • Unscheduled shift: An employee who reports to work at the request or permission of the employer for a shift that was not scheduled at least 14 days in advance must receive two hours of call-in pay.
  • Cancelled shift: An employee whose shift is canceled by the employer within 14 days of the start of the shift must receive two hours of call-in pay. If the employee’s shift is cancelled within 72 hours of its scheduled start, the employee must receive four hours of call-in pay.
  • On-call: An employee who is required by the employer to be available to report to work for any shift must receive four hours of call-in pay.
  • Call for schedule: An employee who is required to contact the employer within 72 hours of the start of a shift to confirm whether to report to work must receive four hours of call-in pay.

Call-in pay for time that an employee actually attends work should be calculated at the employee’s regular rate or overtime rate of pay. All other call-in pay should be calculated at the basic minimum hourly rate with no allowances.

Exceptions to the Call-In Pay Requirements

The proposed regulations do include a number of exceptions to the call-in pay requirement, including the following:

  • The proposed regulations do not apply to employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.
  • An employee would not be entitled to call-in pay during any work week in which his or her weekly wages exceed 40 times the applicable basic hourly minimum wage rate.
  • Employers do not need to pay call-in pay for unscheduled shifts for new employees during their first two weeks of employment, or for any employee who volunteers to cover a new or previously scheduled shift.
  • In the event that an employer responds to a weather or other travel advisory by offering employees the option to voluntarily reduce or increase their scheduled hours (i.e., arrive early/late, depart early/late), the employer does not need to pay call-in pay for employees’ unscheduled or canceled shifts.
  • An employer does not need to pay call-in pay when it cancels a shift at the employee’s request for time off, or due to an act of god or other cause outside the employer’s control.

Special Note for New York City Retail Employers

Retail employers operating in New York City are already subject to the Fair Workweek laws, which took effect in November 2017. Under the City law, retail businesses must schedule employees’ shifts at least 72 hours in advance, and cannot add or cancel shifts with less than 72 hours’ notice. In addition, retailers generally cannot require employees to come to work with less than 72 hours’ notice, or require them to call in within fewer than 72 hours before the start of a shift to determine if they should come to work. The DOL’s proposed regulations, however, would permit employers to take these very same actions as long as they pay employees the correct amount of call-in pay. The DOL’s proposed regulations do not address this potential conflict with the New York City Fair Workweek laws, or any other potential impact on the existing City law.

The comment period on the DOL’s proposed regulations has closed, and we can expect that they could be adopted as early as the first quarter of this year. It is more likely that the DOL will adopt these regulations on this go-round – especially given the current political climate within New York State (including the most recent mid-term elections, which put Democrats in control of the state legislature). We will keep you updated with any further developments. If the regulations are adopted, all New York employers – particularly retail employers in New York City – should contact counsel to ensure that their policies are updated and in compliance.

Our colleagues  at Epstein Becker Green have a post on the Hospitality Employment and Labor blog that will be of interest to many of our readers in the retail industry: “New Massachusetts Department of Family and Medical Leave Launches Website, Issues First Round of Guidance.”

Following is an excerpt:

The brand-new Massachusetts Department of Family and Medical Leave (“DFML”) has launched its webpage and issued the first set of guidance for both employers and employees. The DFML was created to help facilitate the implementation of Massachusetts’ new Paid Family and Medical Leave programs (“PFML”). The deadline for employers to start making contributions toward the PFML programs is July 1, 2019, and employees may begin receiving benefits beginning on January 1, 2021.

The DFML’s first set of guidance provides comprehensive FAQ documents, one for employers and one for employees. …

Read the full post here.

As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities.  One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year.  Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility.  Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points:

  1. DOJ continues to take the position that the ADA applies to public accommodations’ websites, explaining that this interpretation is consistent with the ADA’s overarching civil rights obligations; and
  2. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in determining how to comply with the ADA’s general requirements of nondiscrimination and effective communication.

This line of reasoning is similar to that adopted in judicial decisions holding that while the ADA’s overarching civil rights obligations apply to websites, it would be inappropriate to specifically require compliance with WCAG 2.0/2.1, without the WCAG having been officially adopted by the government as a required standard.  Of course, as those cases note, DOJ’s position begs the question, if a business has to make the goods and services offered on its website accessible to individuals with disabilities how else can it provide for “full and equal enjoyment” and/or “effective communication” if the business does not otherwise offer a website in substantial conformance with WCAG 2.0/2.1.  Indeed, DOJ’s views on this issue stops far from providing businesses with an ironclad defense.  While DOJ explains that public accommodations have “flexibility” in determining how to comply with the ADA’s requirements it also cautions that, “…noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” (emphasis added)  By way of example, a select number of cases have contemplated the validity of offering telephone service as an alternative to an accessible website (something DOJ had also previously considered during the since abandoned rulemaking process), with several courts expressing doubt that the availability, speed, and thoroughness of such a telephone service could ever fully equal that of the independently usable accessible website.  With that in mind, any employer looking to establish that it provides a viable alternative to an accessible website would have to be prepared to engage in a significant amount of litigation to prove the viability/accessibility of its alternative offering.

In concluding its response, DOJ seemingly passes the onus for resolving these issues back onto Congress, noting, “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts [to address the risk of litigation on covered entities].”  Of course, given the number of higher profile matter currently confronting both DOJ and Congress, it would not be surprising if promulgating new website accessibility legislation/regulation will not be high on their lists.