Employer Law Report

U.S. Supreme Court rules that public sector unions may no longer collect fees from nonmembers

On Wednesday, June 27, 2018, the United States Supreme Court ruled in a 5-to-4 decision that the application of public sector union fees to nonmembers is a violation of the nonmembers’ First Amendment rights. The Court’s decision in Janus v. AFSCME overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of union fees from nonmembers for collective bargaining related costs, excluding lobbying and political expenses. In overturning the decision, the majority in Janus held that Abood was “poorly reasoned” and an “anomaly in…First Amendment jurisprudence.” The court’s decision in Janus will have a long-lasting effect on public sector labor unions and will affect millions of unionized workers across the country.

Continue Reading

Final association health plan regulations provide opportunity for small employers…maybe

In February, we reported that the Department of Labor (DOL) issued a proposed rule that could make it easier for small businesses to join together to purchase health insurance. That proposed rule sparked considerable debate on the general merits of association health plans (AHPs), as well as on the nuances of the proposed rule. Some commentators and experts remained skeptical of such arrangements, citing to the history of AHPs being used as a vehicle for fraud. Others were clearly in favor of any rule that might provide small employers with a new avenue to provide health coverage to their employees. And still others were cautiously optimistic, reserving judgment until some of the open issues in the regulations were resolved.

Well, the debate can now begin in earnest, as the DOL has issued the final regulations. Continue Reading

Adding more confusion to the world of website accessibility, WCAG 2.1 has been published

As many of you know, we have been keeping up on the growing litigation involving the accessibility of websites under the Americans with Disabilities Act (ADA) in our past posts: “Florida federal judge holds that supermarket chain’s website must be accessible to disabled” and “ADA public accommodations law reform on its way?” Many stakeholders have urged that websites of businesses that operate public accommodations should be accessible to the WCAG 2.0 AA standard. WCAG is the Web Content Accessibility Guidelines developed by the World Wide Web Consortium (W3C), the private organization focused on improving the Internet experience and who develops recommendations for website accessibility. There are levels of “success criteria:” A, AA and AAA—in increasing levels of accessibility. The government recently issued regulations requiring federal government websites to be accessible to the WCAG 2.0 AA standard and often insists on this same level of compliance when it settles enforcement actions against private businesses. Continue Reading

Uber app decision in California highlights ongoing litigation for website and app accessibility

A California federal court refused to dismiss a case against Uber alleging that its app did not offer accessible ride options even though the plaintiffs failed to even download the app.

In Crawford v. Uber Tech. Inc., the Northern District of California denied a motion for judgment on the pleadings based on a lack of standing. Uber alleged that the plaintiffs lacked standing to challenge its mobile application because both users admitted that they never download the app. The plaintiffs, instead, argued that they were deterred from downloading the app because they knew that it did not offer the option to call a wheelchair-accessible vehicle. The court agreed that plaintiffs are not required to go to the “futile gesture” of attempting to become a customer when the plaintiffs know that the services are inaccessible.

While the facts of this case (accessibility of ride-sharing services) are limited in their application, the holding on the standing issue has broad application. A primary attack on accessibly litigation has been the standing issue, including arguments that the plaintiff never attempted to be a customer, is ineligible to be a customer or is located too far from the physical location to reasonably be considered a future customer. This case accepts that being deterred from visiting the website or app is sufficient to establish standing.

New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid

As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.

Continue Reading

U.S. Supreme Court rules that mandatory, individual arbitration of employment disputes trumps employees’ rights to participate in class action lawsuits

On Monday, May 21, 2018, the United States Supreme Court ruled in a 5-to-4 decision that employers may require workers to accept individual arbitration for wage and hour and other workplace disputes rather than banding together to pursue their claims in class actions in federal or state courts. The Court’s decision in Lewis v. Epic Sys. Corp. overturns the position of the National Labor Relations Board (NLRB) and resolves a split among federal courts of appeals. The case is one of the most important employment law cases to be decided by the Supreme Court in the past decade and could affect millions of U.S. workers and their employers.

Continue Reading

New test should increase employer ability to create unpaid internship positions

Many employers allow students to intern in their workplaces so that the students can gain exposure to real world work, learn about a particular industry or career, or earn credit hours towards their degree requirements. If these interns are unpaid, however, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements without careful consideration of the FLSA risk lawsuits from former interns and United States Department of Labor (DOL) investigations.

Continue Reading

Sixth Circuit upholds termination of human resources employee for employment application misrepresentations and performance deficiencies

Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc..

Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing professional at Oakwood Healthcare, Inc. (Oakwood) on the day she returned from a three-month maternity leave. During her maternity leave, her supervisor had identified deficiencies in her work performance that prompted the supervisor to go back and review her qualifications. When she checked, she found what Ms. Bailey acknowledged in deposition were “embellishments” on her employment application. In notifying Ms. Bailey of her termination, Oakwood relied on both the deficiencies and the misrepresentations. Ms. Bailey later sued, claiming that she was fired because of her pregnancy, her race and her age as well as in retaliation for concerns she had expressed about the rejection of employment applications of certain African-American candidates for employment at Oakwood prior to her maternity leave. The district court granted summary judgment in Oakwood’s favor on each of these counts. Continue Reading

Ohio court whittles away at employers’ defense of voluntary abandonment of employment in workers’ compensation cases

In Ohio, it has been a long-standing principle that an employee injured at work could lose eligibility for temporary total disability compensation in a workers’ compensation claim when the employee is terminated by the employer for violation of a written work rule. The written work rule must define clearly the prohibited conduct, identify the conduct as a dischargeable offense, and was known or should have been known by the employee.

However, a recent court decision by the Franklin County Court of Appeals in State ex rel. Demellweek v. Indus. Comm, is limiting this defense for employers. In its ruling, the court held that employers will not be entitled to use the voluntary abandonment doctrine as a defense when the employer terminates an employee for a minor infraction. Continue Reading

Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly

Many thanks to Arslan Sheikh for his assistance in preparing this post.

In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, employers should be aware of this recent decision and consider how it may apply to them. Continue Reading

LexBlog