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. …

Read the full article here.

On August 20, 2019, Governor Andrew M. Cuomo signed A5618/S1040 (the “Amendment”) into law, amending the New York State Human Rights Law (“NYSHRL”) with respect to protections for victims of domestic violence. The Amendment becomes effective November 18, 2019.

The Amendment broadens the definition of “victim of domestic violence” to make it consistent with the Domestic Violence Prevention Act (NY Soc. Serv. L § 459-A). In addition, although the NYSHRL previously prohibited discrimination against victims of domestic violence, the Amendment explicitly adds victims of domestic violence as a protected class under the NYSHRL. Further, the Amendment requires employers to reasonably accommodate victims of domestic violence who must be absent from work “for a reasonable amount of time” to:

  • seek medical attention for injuries caused by domestic violence;
  • obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
  • obtain psychological counseling related to domestic violence, including for a child who is a victim of domestic violence;
  • participate in safety planning relating to domestic violence; and
  • obtain legal services or participate in legal processes relating to an incident of domestic violence.

Employers are not required to provide an accommodation where it would pose an undue hardship. A determination of whether the absence will cause an undue hardship requires an evaluation of factors, such as the size of the employer’s business and the nature of its operation, including the composition and structure of its workforce. Employers may require employees to use any available paid time off during any leave provided as an accommodation.

The Amendment requires an employee to provide the employer with reasonable notice of the need to be absent, if feasible. If advance notice was not feasible, the employee must, upon employer request, provide a certification confirming the need for the time-off accommodation.. A police report, court order or other court document, or document from a medical professional, domestic violence advocate, health care provider, or counselor are acceptable forms of certification. Of note, the Amendment was passed alongside other new laws aimed at offering greater support for victims of domestic violence.

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.

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.