This edition of Take 5 highlights compliance with cutting-edge issues—such as pay equity, workplace violence, and artificial intelligence (“AI”)—that have a significant impact on retailers. We also provide an update on National Labor Relations Act (“NLRA”) compliance and New York City drug testing to assist you in navigating an increasingly complex legal landscape.

Watercooler (and Bathroom) Conversations Among Co-Workers About Work-Related Matters Are Not Always Protected Concerted Activity Under the NLRA

RyAnn M. Hooper

Historically, a conversation between two or more employees about working conditions or other terms or conditions of employment is deemed protected activity under the NLRA, and an employer cannot retaliate against the employees for taking part in such a conversation or for their content. On April 10, the National Labor Relations Board (“Board”) issued a decision in which it made clear that these are not absolute principles. In rejecting the findings of an administrative law judge, the Board explained that such conversations are only entitled to the NLRA’s protection when the chatter is work-related and made with the intent to insight collective action among the workforce. In Quicken Loans, Inc., 367 NLRB No. 112 (April 10, 2019), the Board held that bathroom remarks made by a mortgage banker to a co-worker complaining vociferously about the employer’s routing of a client call to him, which was overheard by a manager and involved swearing about the client, was not protected. Because the Board found that this griping was purely a matter of the complainer’s concerns and it did not have any goal of “mutual aid or protection” or seek collective action, the discharge of the co-worker was upheld.

The New Jersey Equal Pay Act: How to Assess Compliance 

Marc A. Mandelman and Ann Knuckles Mahoney

With the first anniversary of New Jersey’s Diane B. Allen Equal Pay Act (“Act”) approaching, now is an excellent opportunity for retailers to be reminded of the heightened awareness of employees to pay equity issues and to take steps to ensure compliance with the Act. The Act is one of the most expansive equal pay laws in the nation, with a broad definition of “protected class” and a narrow list of factors that would justify pay disparities. Retailers can assess potential noncompliance by taking the four-step approach outlined in the article “4 Steps For New Jersey Equal Pay Act Compliance,” which was recently authored by David W. Garland and Marc A. Mandelman, Members of the Firm at Epstein Becker Green, and Anthony J. Campanelli and Kevin R. Corbett, Partners at Deloitte Financial Advisory Services LLP. (A subscription to Law360 is required to access the full article.) More information on the legal requirements of the Act can be found in our Act Now Advisory titled “New Jersey Enacts Sweeping Equal Pay Law.”

Avoiding Workplace Violence: Steps to Take Now 

Elizabeth K. McManus

As incidents of workplace violence continue to make headlines, employers are increasingly aware of the potential threat of violence in the workplace and their obligation to provide workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious harm,” as set forth in the Occupational Safety and Health Act’s general duty clause.

To proactively prevent and address incidents of workplace violence, employers should consider taking the following steps now:

  1. Adopt a Comprehensive Workplace Violence Prevention Policy. A workplace violence prevention policy should clearly define “workplace violence” and refer to a broad range of prohibited behaviors, from verbal assaults to threats or acts of physical violence or damage to property.
  2. Train Your Workforce. Conduct training sessions to disseminate the workplace violence prevention policy, and teach employees and other staff the proper channels for reporting threats or incidents of violence.
  3. Document Reported Incidents and Investigate. Keep careful records of any reports of potential or actual workplace violence. Any threats or actual incidents of violence should be immediately, thoroughly, and appropriately investigated.
  4. Carry Out Additional Actions, as Needed. Periodically review your reporting records to determine if there are any patterns or trends emerging that must be addressed.

New York City Bans Pre-Employment Marijuana Drug Testing

Ann Knuckles Mahoney

New York City recently passed a law prohibiting employers, labor organizations, and employment agencies, and all of their agents, from requiring a prospective employee to submit to a marijuana or tetrahydrocannabinols (commonly known as “THC”) drug test as a condition of employment. The law includes several exceptions and does not apply, for example, to transport-related positions, such as positions requiring a commercial driver’s license, and safety-related positions. If drug testing is required by a collective bargaining agreement, the law will not apply to such testing. Since drug testing is common in the retail industry, retailers with operations in New York City should ensure compliance with the law before it becomes effective on May 10, 2020. Retailers in New York City will need to review their drug-testing policies and procedures, and cease pre-employment testing of cannabis and THC, unless an applicable exception applies. Additionally, job postings should also be reviewed to ensure that they do not reference impermissible testing.

Artificial Intelligence for Recruitment and Selection in Retail

Matthew Savage Aibel

Companies are increasingly using AI in their recruitment and selection of employees. Usually, AI is used as a part of a third-party “digital hiring platform.” These products, explicitly or implicitly, promise to reduce or eliminate the bias of hiring managers in making selection decisions. These technologies can hold a particular appeal in retail, where there may be an inclination from a hiring manager to hire for a certain look. (Abercrombie & Fitch was infamously sued over such allegations.)

The digital hiring platforms use AI to grade applicants based on a variety of purportedly objective factors. For example, a platform may scan thousands of resumes and select applicants based on education level, work experience, or interests, or rank applicants based on their performance on an aptitude test—whatever data point(s) the platform has been trained to evaluate based on the job opening. Some even go a step further and analyze candidates’ facial expressions, eye contact, or tone of voice during video interviews. The appeal of these technologies is obvious, and they may streamline a cumbersome and expensive hiring process for retailers.

Their use, however, is not without risk. The Illinois Legislature just passed a bill, likely to be enacted into law, entitled the “Artificial Intelligence Video Interview Act.” This law imposes new notice and consent requirements upon all employers hiring for positions in Illinois. There are other risks and considerations as well, including the potential for hidden bias, disparate impact, disability accommodation, and data privacy. Companies using digital hiring platforms must take steps to mitigate against these risks, including conducting due diligence on the products, or else they may be susceptible to a lawsuit.

Read the Take 5 on our website.

Our colleagues 

Following is an excerpt:

On July 2, 2019, New Jersey joined IllinoisNevadaNew MexicoNew York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered qualifying user of medical cannabis. Under the Law, an “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” In addition, the Law requires employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that comes back positive for cannabis.

Specifically, if an employee or applicant tests positive for cannabis, the Law requires the employer to provide written notice offering the individual the right to provide a “legitimate medical explanation” for the positive test result or to request a retest of the sample. The individual has three days after receiving the notice to (i) provide the explanation, which may include authorization for the use of medical cannabis issued by a health care practitioner, proof of registration with the state’s newly created Cannabis Regulator Commission, or both, or (ii) request a confirmatory retest of the original sample at the individual’s own expense. …

Read the full post here.

As previously reported, last week the Massachusetts Department of Family and Medical Leave (“DFML”) announced several changes, both substantive and procedural, to the state’s Paid Family and Medical Leave program (“PFML”). This week, the DFML has provided further guidance on changes to the worker notice requirements, issued new workplace posters, and posted the final regulations.

Updates to Notice Requirement

As part of its June 14, 2019 announcement, the DFML changed the deadline for employers to provide required notices to workers for a second time, now setting the deadline for September 30, 2019. The DFML issued the new model notices this week in English, and we anticipate the other languages will follow soon.

If an employer provided written notices to its workforce prior to the June 14, 2019 announcement, the employer must now provide an addendum sheet, which explains the updated program dates and contribution rates. The addendum will be provided by the DFML this week.

The DFML has provided additional guidance as to the procedures for the worker acknowledgement component of the required notices. As we previously reported, one component of the required notices provided to both W-2 and 1099-MISC workers is the requirement that employers obtain either a written acknowledgment of the receipt of the notice, or a statement indicating the worker’s refusal to acknowledge the notice. When a worker fails to acknowledge receipt of the notice, the DFML will consider the employer or covered business entity to have fulfilled its notice obligation, as long as the employer can establish that it provided each member of its current workforce with the notice and an opportunity to acknowledge, or decline to acknowledge, receipt of said notice. The DFML clarified that employers should not send the notices, addendums, or acknowledgment forms to the DFML, but should instead retain them pursuant to the employer’s document retention policy.

New Poster Information

The English and Spanish versions of the new workplace poster are now available, and the DFML states that additional translations will be available this week. Employers are required to provide the poster in English and in each language that is the primary language of five or more individuals in the employer’s workforce if the posters are available from the DFML.

Final Regulations

 The DFML has also released an unofficial version of the final regulations, which offer guidance on the rights and responsibilities of both employers and employees under the state’s PFML. The official version of the final regulations will be available from the Secretary of State’s Office on or before July 1, 2019. We will have a follow-up post reviewing any substantive changes to the regulations.

What Massachusetts Employers Should Do Now

In addition to the steps we have previously suggested, Massachusetts employers should consider the following actions:

  • If PFML notices were already provided, issue the addendum.
  • If PFML notices were not provided, use new templates to prepare notices.
  • Post the new English workplace poster and the Spanish poster if applicable, and monitor the DFML website for any other relevant posters
  • Ensure that there is a system in place for retention of all documents related to the notices to workers.
  • Regularly check the DFML website for updates.
  • Consider attending an educational session on the PFML. There are currently three scheduled educational sessions: in Dartmouth on June 24, 2019; in Rockland on June 26, 2019; and in Springfield on June 28, 2019.

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML”) recently extended the deadline for employers to provide notice to employees of their rights and obligations under the State’s Paid Family and Medical Leave (“PFML”) law. Subsequently, on June 11, 2019, Massachusetts Governor Charlie Baker, state Senate President Karen Spilka, and state House Speaker Robert DeLeo released a joint statement announcing that implementation of certain aspects of the PFML program are being pushed back, and that “technical changes” will be adopted to clarify the program. Thereafter, on June 14, 2019, the DFML released a notice on its website confirming one substantive revision along with several procedural revisions to the PFML program, including the following:

  • Contribution Rate: The total contribution rate has been raised from 0.63% to 0.75% of qualifying employee earnings. Given the newly shortened contribution timeframe, the increase is to ensure full funding for the commencement of benefit payments, still scheduled for January 1, 2021.
  • Contribution Start Date: The date for employers to begin withholding PFML contributions from qualifying employee earnings has been moved from July 1, 2019 to October 1, 2019. Contributions for the period of October 1, 2019 to December 31, 2019 must now be remitted by January 31, 2020 via MassTaxConnect.
  • Required Notices: The deadline for notice requirements has been extended for a second time. Now, employers have until September 30, 2019 to notify all covered individuals, including W-2 employees and 1099-MISC workers, of their rights and obligations under the PFML. Updated model notices should be available shortly on the DFML website.
  • Private Plan Exemption: The deadline for employers with private leave programs that meet or exceed the requirements of the PFML to apply for an exemption from the state program has also been extended for a second time, from September 20, 2019 until December 20, 2019. If an employer’s plan is approved, it will be exempt from the October 1, 2019 start date for collecting contributions. (If an employer does not receive an exemption by October 1, the Massachusetts Department of Revenue advises that the employer collect employee contributions until it is actually approved for a private plan exemption.
  • Final Regulations Effective: The DFML is expected to post the final regulations on its website later today. The final regulations will become effective on July 1, 2019.

What Massachusetts Employers Should Do Now

Given the latest changes, in addition to the steps we have previously suggested, employers should consider the following actions:

  • Adjust the company’s preparations for the implementation of the PFML program to align with the new deadlines, especially the date for beginning deductions of employee contributions.
  • Consult with tax and accounting advisors regarding the new contribution rate and coordinate with payroll. In addition, communicate the state’s increase in the contribution rate to employees.
  • Regularly check the DFML website for updates, including the new notices and regulations.
  • Consider attending an educational session on the PFML. One will be held in Rockland on June 26, 2019 and another will be held in Springfield on June 28, 2019.

While businesses have long grown weary of the plaintiff bar’s seemingly endless stream of website accessibility lawsuits, it appears that judges in the SDNY may be increasingly feeling the same way. For the second time this spring, following on the back of the decision in Mendez v. Apple, a judge in the SDNY, in the case of Diaz v. The Kroger Co., 18-cv-7953 (KPF),has granted a business’ motion to dismiss a website accessibility lawsuit. While decided on multiple grounds, the Court’s decision is primarily based on mootness, providing businesses who have already taken the necessary steps to comply with the Web Content Accessibility Guidelines (WCAG) at Levels A and AA, and to also maintain compliance going forward, with a potential blueprint to defeat “secondary strike” lawsuits brought in the SDNY.


In Diaz, the plaintiff, who asserted she is visually impaired, alleged that the defendant – a supermarket chain based in Ohio – failed to make its website accessible to individuals who were blind. As a result, plaintiff claimed that she was unable to learn about certain products on the site, as well as promotions and coupons.

Defendant sought to dismiss the lawsuit on two grounds: (i) lack of subject matter jurisdiction, because its remediation of the barriers identified in the complaint rendered plaintiff’s claims moot; and (ii) lack of personal jurisdiction, because the Ohio-based defendant does not transact business in New York State, and accordingly, New York’s long-arm statute does not subject it to the court’s review.

Defendant’s Remediation of the Issues Identified in the Complaint Rendered Plaintiff’s Complaint Moot

In support of its motion to dismiss for lack of subject matter jurisdiction, defendant submitted an affidavit from one of its employees, a “Group Product Design Manager.” In the affidavit, the employee affirmed the following, which the Court found to be significant:

  • Defendant had undertaken to comply with the WCAG before this lawsuit was filed;
  • The website now complies with the WCAG 2.0 standards;
  • The employee “personally” confirmed that all of the deficiencies identified in the complaint had been remedied;
  • The barriers to access which were identified in the complaint no longer exist;
  • Defendant was committed to keeping the website in compliance with the WCAG so that it would remain accessible;
  • Defendant had no intention of undoing those changes or regressing to non-compliance with the WCAG and ADA (both due to the time/cost involves in achieving compliance and due to a desire to avoid future similar lawsuits); and
  • Defendant intended to keep the website up to date with any new website accessibility standards that are issued/promulgated.

The Court acknowledged that, “there are few cases in the federal courts, and none with precedential value on these issues,” and that, “several sister courts in this District have found, on the facts of those cases, that the defendants had failed to establish mootness.” Nevertheless, the Court distinguished this case from those that denied similar motions to dismiss for mootness, finding that the employee’s affidavit in this case clearly and fully met the “stringent showing required by the Supreme Court’s mootness precedent.” Simply put, plaintiff identified several barriers on the website, the defendant remediated them, brought the website into compliance with the WCAG, and stated its intention to remain in compliance going forward. Despite the fact that the defendant did not provide any concrete plans for future compliance, the court was satisfied with the employee’s representation that the company was committed to monitoring any technological updates in the future to provide individuals with visual impairments with equal access to the website, and it found these representations sufficient to render the complaint moot.

Of key importance, the court also considered and rejected the argument – which plaintiffs regularly assert in this context – that ADA claims involving websites can never be mooted, because websites are constantly being revised, updated, and edited, with new content added, replaced, and deleted. Once again, the Court recognized that other courts outside of this jurisdiction have previously accepted this argument. While agreeing “alleged violations are more likely to reoccur with websites” than in the brick and mortar context, the court refused to adopt, what it characterized as, “[p]laintiff’s sweeping, technology-specific exception to the mootness doctrine.” Instead, the court stated that, “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts.”

The New York District Court Lacked Personal Jurisdiction over the Ohio Grocery Store That Did Not Provide Any Delivery Services to New York State Residents

Despite recognizing that it could have dismissed the case for lack of subject matter jurisdiction, and concluded its opinion there, the Court went further and also considered and accepted defendant’s argument that the New York district court lacked personal jurisdiction over the Ohio grocery store. The Court rejected plaintiff’s argument that the website’s provision of certain services – such as information about calorie counts and cook time – was sufficient to confer jurisdiction over the Ohio defendant. The court personally reviewed the website and confirmed that the defendant’s grocery stores did not deliver to any New York state zip code (its closest source for deliveries was in Virginia). Based on this, the Court held that the defendant did not transact business with any resident of New York State, and that the plaintiff’s mere accessing of the website from New York was insufficient to subject it to the court’s jurisdiction.

While not the primary argument advanced by defendant in support of its application for dismissal, the Court’s analysis and holding is nonetheless significant in light of the fact that serial plaintiffs, such as the one that filed this case, have filed, and continue to file, website accessibility lawsuits against defendants operating in other jurisdictions, and who do not transact business in the state in which the lawsuit was filed. This holding may be persuasive in these, highly specific, cases.


This decision is clearly another positive development for businesses facing website accessibility lawsuits in the SDNY (particularly of a repeat nature). However, notwithstanding the court’s thorough, multi-faceted, analysis, the precedential value of this decision should not be overstated. As the Court acknowledged, its holding diverges from those in other circuits, and, in some ways, other courts in this district. Accordingly, while this decision undoubtedly provides businesses – particularly those frustrated by multiple lawsuits notwithstanding their attempts to modify their websites to comply with the WCAG – with additional grounds through which to fight back, it remains unclear whether other district court judges will engage in the same analysis or reach the same conclusion. Moreover, while this court accepted the representations made by the defendant’s employee in his affidavit, we would strongly recommend that any company that seeks to file a similar motion to dismiss for mootness include support from an outside website accessibility expert (containing considerably greater details about how the company achieved compliance and its plans to maintain compliance going forward) as well as that of a qualified employee.

Like the Mendez v. Apple decision earlier this spring, this decision does not preclude serial plaintiffs from filing multiple, identical, lawsuits against various defendants. Nevertheless, there has been a marked decline in the number of website accessibility lawsuits filed in the SDNY following the Mendez decision. We expect that this decision will further ebb the flow of these lawsuits in the SDNY.  That said, given recent decisions in other jurisdictions (e.g., California state court), this will most likely simply result in more lawsuits being filed elsewhere. In the meantime, as we’ve repeatedly noted for years, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives).

June 12, 2019 Update

Only approximately a week after the Kroger decision, another judge in the SDNY has recommended the dismissal of a website accessibility case for lack of personal jurisdiction.  In Tucker v. FirstLight Home Care Franchising, LLC, U.S. Magistrate Judge Kevin Nathaniel Fox provided further support for the argument that simply alleging that defendant operates a website that a user can access in New York is insufficient to establish personal jurisdiction over that defendant.

In Tucker, the defendant, a Delaware company, maintained its principal office in Ohio. In support of its motion, the defendant submitted an affidavit affirming that less than 5% of the company’s revenue comes from its New York business, and additionally, the website is merely informational; the defendant does not conduct business, make sales, or otherwise derive revenue through the website.  Moreover, according to a supporting affidavit, a website user cannot order, purchase, pay for, or otherwise transact business of any kind on the website.  The Court noted that plaintiff failed to submit any affidavits or supporting materials in opposition, rather, he merely made factual assertions in the memorandum of law, (including some not previously included in the complaint), which the Court refused to credit.  Based upon these facts, the Court recommended that the district court grant the motion and dismiss the complaint.

As in Kroger, this decision will only have limited value because the facts here are incredibly specific.  However, this decision further demonstrates that judges in a generally pro-plaintiff district are, with increasing frequency, beginning to crack down on plaintiffs’ attempts to blitz the courts with website accessibility cases (particularly when attempting to establish personal jurisdiction by merely alleging that they accessed a defendant’s website in New York, with nothing more to support their claims).

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 installmentCassandra Labbees, an Associate in the Employee Benefits and Executive Compensation practice, in the New York office, presents on “Hot New Benefits.”

Benefits are a useful and necessary tool in the recruitment and retention of employees. As a result, new benefit options are continuously being developed and offered by employers. This 15-minute crash course will discuss a few of those new benefit options as well as the tax and public policy considerations that may impact which benefits employers choose to offer.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleagues Frances L. Kenajian and Nathaniel M. Glasser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the retail industry: “Summer Networking Events: Workplace Harassment Can Happen Outside the Workplace.”

Following is an excerpt:

Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual harassment training. States such as CaliforniaConnecticutDelaware, and Maine have similar requirements. Further, even where not required, case law and agency guidance recommend anti-harassment training in several other states. New York does require employers to establish policies against sexual harassment.

Employers should remind their employees that they remain subject to company policies at events outside the workplace.

Read the full post here.

Please join Nathaniel M. Glasser, Elizabeth K. McManus, Jeremy M. Brown, and Joshua A. Stein for an engaging and informative discussion of topical labor and employment issues facing all retailers. The presenters will address cutting-edge employment matters and share best practices in a private forum in which all attendees can freely participate, exchange insights, and network with colleagues.

Topics will include:

Artificial Intelligence for Recruiting and Selection
We will discuss the legal and practical implications of the various types of artificial intelligence (AI) that can be used to make employment decisions, such as:

  • Cognitive assessments for applicants
  • AI-powered interviewing technology
  • Chatbots that interact directly with applicants and employees
  • Harassment-reporting apps and software

Violence in the Workplace
We will explore current issues confronting retail employers related to workplace violence and best practices for providing a safe workplace, including how to:

  • Develop and enforce a policy prohibiting workplace violence
  • Identify and assist troubled employees

For more information, please visit

Click here to attend, registration is complimentary.

Our colleagues 

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.

Under the law, employers, labor organizations, and employment agencies, and all of their agents, are prohibited from requiring a prospective employee to submit to a marijuana or THC drug test as a condition of employment. This conduct is now characterized as an “unlawful discriminatory practice.” There are, however, several exceptions to the law. For example, the law will not apply to employees in the following roles: safety-related positions, transport-related positions, caregivers, and certain federal contractors. Further, to the extent that a collective bargaining agreement requires drug testing, the law will not apply to such testing. Please see our Act Now Advisory for further details related to these exceptions. …

Read the full post here.

Our colleague Maxine Neuhauser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the retail industry: “New Jersey Issues Updated Family Leave Act and Family Leave Insurance Act Posters.”

Following is an excerpt:

On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act (“NJFLA”), Family Leave Insurance Act (“NJFLI”), and Security and Financial Empowerment Act (“SAFE Act”).  We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees. …

Read the full post here.