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.

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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.

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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.

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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.

Our colleagues Jeff Landes, Jeff Ruzal, and Adriana Kosovych are featured on Employment Law This Week – Predictive Scheduling Laws, the New Normal? – Deep Dive Episode speaking on predictive scheduling laws and the impact on business. Taking the guesswork out of scheduling for wage workers is an attractive proposition for regulators. Laws that require employers to publish employee work schedules a certain amount of time in advance so that employees (especially those in the hospitality and retail industries) can have greater flexibility and work-time predictability to deal with family and other events and responsibilities are becoming more common in several cities, and the state of Oregon currently has predictive scheduling laws on the books, and the trend is growing, with proposed legislation in many jurisdictions across the country.

Watch the segment below.

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Our colleague Sharon L. Lippett 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: “A Reminder from the DOL: Document a Plan’s Procedures for Designating Authorized Representatives.”

Following is an excerpt:

While the Information Letter does not directly respond to the query from counsel to the Entity, the DOL’s response indicates that the Entity could be an authorized representative. The DOL states that, although a plan may establish reasonable procedures for determining whether an individual has been authorized to act on behalf of a claimant, “the procedure cannot prevent claimants from choosing for themselves who will act as their representative or preclude them from designating an authorized representative for the initial claim, an appeal of an adverse benefit determination, or both.”

The Information Letter further provides that the description of claim and appeal procedures included in a plan document and in the summary plan description for the plan must include any procedures for designating authorized representatives.  The Information Letter references the Benefit Claims Procedures Regulation FAQs, (the “FAQs”) which include FAQs on the appointment of authorized representatives. FAQ B-1 provides that, with one exception, an example of a reasonable procedure that a plan may establish to determine an authorized representative is completion of a form by the claimant identifying the authorized representative. The exception is where a claim involves urgent care, in which case a plan must permit a health care professional with knowledge of the claimant’s medical condition to act as the authorized representative if the claimant is not able to act on his or her own behalf.

Read the full post here.

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.

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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.

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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.