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 EBGLaw.com.

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.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into May 2019.

First up this month, the confusion is over for employers. EEO-1 pay data does not need to be submitted to the EEOC by the end of the month. In what may be the final chapter of the EEO-1 pay data reporting issue, a federal judge in Washington, D.C., ruled that the deadline would be postponed until September 30, 2019. Our colleague Robert J. O’Hara shares his insights in this month’s episode.

Watch the full episode below. 

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML”) recently issued regulations and guidance concerning employers’ obligations under the Paid Family and Medical Leave Law (“PFML”), including a quick-approaching deadline for providing notice to employees of their rights under the PFML. On May 1, the DFML announced that it is extending the deadline for employers to provide the employee notice from May 31, 2019 to June 30, 2019.

In addition, the DFML has moved the deadline for employers to apply for a private plan exemption for Quarter 1 only from June 30, 2019 to September 20, 2019.

Under the DFML’s rules, applications for private plan exemptions must be approved in the quarter prior to the quarter in which they go into effect. Thus, this is a one-time exception to the rule. However, as the DFML reminds and cautions, contributions to PFML begin on July 1, 2019, and the September 20, 2019 extension of the exemption application deadline “only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward.”

What Employers Should Do Now

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

  • Ensure that the company is prepared to distribute the employee notice by the new deadline.
  • For employers deciding whether to apply for a private plan exemption during the newly announced extension period, consult with tax and/or legal advisors as to what the DFML describes as “the implications associated with applying for a private plan exemption that may or may not be approved.”
  • As the DFML is continuing to accept comments on the draft PFML regulations, consider submitting comments and/or attending two additional listening sessions to be held in May. According to the DFML, the dates for these sessions will be announced shortly. Thus, anyone interested in attending should check the DFML website regularly for updates.

Webinar – Spring/Summer 2019

Internship programs can help employers source and develop talent, but they do not come without their pitfalls. If you are an employer at a tech startup, a large financial institution, a fashion house, or something else entirely, and you plan on having interns this summer, this webinar is for you. Learn the steps for creating a legally compliant internship program.

For many years, the U.S. Department of Labor (“DOL”) used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern would not be subject to the wage and hour requirements of the Fair Labor Standards Act. This changed at the beginning of 2018, when the DOL adopted the “primary beneficiary test” in a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience. Employers that fail to follow the requirements to ensure that an intern is properly treated as an unpaid intern, rather than an employee who is entitled to minimum wages and overtime, could face costly wage and hour litigation.

Our colleagues Jeffrey M. Landes, Lauri F. Rasnick, and Ann Knuckles Mahoney guide viewers on how they can establish lawful unpaid internship programs. This webinar also addresses the extent to which wage and hour laws apply to interns, and the seven factors that make up the “primary beneficiary test.” This webinar provides viewers practical tips for administering an internship program, whether paid or unpaid, by identifying key considerations for all stages of the internship process.

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

As we recently reported, New York’s Westchester County has published on its website Employer and Employee FAQs, along with a Notice of Rights to Employees, concerning the county’s Earned Sick Leave Law, which became effective on April 10, 2019. The county has now issued the required poster. Covered employers can download the poster and display it in a conspicuous location at their office or facility.

Notably, the poster only references the obligation of employers with five or more employees to provide paid sick time; it is silent with respect to the mandate that employers with fewer than five employees provide unpaid sick leave. However, the county’s Human Rights Commission advises that all covered employers must display the poster.

It is no secret that businesses have long been awaiting a court decision that would help stem the surging tide of website accessibility cases – over a thousand of which have been filed in the Southern District of New York over the last two years.  While the S.D.N.Y.’s recent decision dismissing a website accessibility complaint in Himelda Mendez v. Apple, Inc., 18-cv-07550 (LAP) (S.D.N.Y. March 28, 2019) may not have gone as far as businesses would have hoped, it is nonetheless an important victory.  Ideally, by requiring greater effort from the plaintiff’s bar to successfully maintain a website accessibility lawsuit, perhaps the court will finally see a reduction in the number of such claims being filed every week.

In Mendez, plaintiff, who asserted that she is visually impaired and legally blind, alleged that Apple’s website is inaccessible to individuals who are blind, and accordingly, denied her full and equal access to its website, and as a result, its physical stores. In support of her claims, plaintiff asserted generally that when she visited Apple’s website, she encountered multiple, but unspecific access barriers.  Apple moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that plaintiff had failed to allege that she had sustained any particularized injury, and additionally, noting that the complaint was identical to over four hundred other complaints that had been filed over the last two years (of which plaintiff had been a party to over forty).

The court agreed and granted Apple’s motion to dismiss.  While the court acknowledged that the law permits plaintiffs to file duplicative lawsuits where the same harm exists, it added that, “those who live by the photocopier shall die by the photocopier.”  In short, the court held that plaintiff’s failure to assert any concrete or particularized injury was fatal to her claims, and warranted the dismissal of the complaint.  Specifically, the court was troubled by the plaintiff’s failure to provide a date that she attempted to access the physical store or to specify what good or service she was unable to purchase.  Plaintiff similarly failed to identify the sections of the website that she tried, but allegedly could not, access.  While plaintiff asserted that general barriers to the website existed, the court noted that she did not allege which of those barriers prevented her from accessing the store.

The court similarly rejected plaintiff’s argument that she was unable to plead the requisite injury with specificity because she was unable to determine what information was contained on the website because of its alleged inaccessibility.  Relying on the “futile gesture” language of the ADA – 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 – plaintiff argued that the standard for futility should be even more lenient in the website accessibility context than in the brick and mortar context.  Plaintiff contended that, in the digital world, a plaintiff who is blind cannot know what they are unable to access.  While the court acknowledged that that this doctrine may apply at some level in this context, it refused to accept that a lower threshold exists for website accessibility cases.

While this decision does not preclude serial plaintiffs from continuing to file significant numbers of similar website accessibility matters against multiple businesses, by requiring greater time and effort from plaintiff’s counsel to successfully maintain website accessibility actions, businesses can hope that the S.D.N.Y. will now be considered a less hospitable jurisdiction to file “cut and paste” style complaints.  Of course, in light of Ninth Circuit’s decision in Robles, and the Eleventh Circuit’s reversal of Hooters (which, in practice, allowed plaintiffs to file website accessibility actions even where the business already has a prior website accessibility settlement agreement from a previous lawsuit), businesses should expect to continue to face website accessibility demand letters and lawsuits and, therefore, should continue their efforts to achieve substantial conformance with the Web Content Accessibility Guidelines (WCAG) 2.1 at Levels A and AA as quickly as possible.

We continue to await the Eleventh Circuit’s decision in Winn-Dixie and will have our assessment of its impact on this ever-evolving body of law shortly after it is decided.

Our colleague Tzvia Feiertag 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: “NJ Employers and Out-of-State Employers with NJ Residents Prepare: State Updates Website on Employer Reporting for New Jersey Health Insurance Mandate.”

Following is an excerpt:

As employers are wrapping up their reporting under the Affordable Care Act (“ACA”) for the 2018 tax year (filings of Forms 1094-B/C and 1095-C/B with the IRS are due by April 1, 2019, if filing electronically), they should start preparing for new reporting obligations for the 2019 tax year.

After a string of failed efforts to repeal the ACA, Congress, through the Tax Cuts and Jobs Act of 2017 (“TCJA”), reduced the federal individual shared responsibility payment assessed (with limited exceptions) against individuals who failed to purchase health insurance to $0 beginning January 1, 2019. In response, to ensure the stability and provide more affordable rates for health coverage, States, such as New Jersey, have stepped in and adopted their own individual health insurance mandates. New Jersey’s individual health insurance mandate requires employers to verify health coverage information provided by individuals. To assist with employer reporting, New Jersey has launched an official website (lasted updated on March 19, 2019) with guidance on the filing requirements. …

Read the full post here.