On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620). Title III of the Americans with Disabilities Act was enacted to ensure access for persons with disabilities to public accommodations. Too often however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access. By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses.
The new year brings new laws for California employers to grapple with. Below we highlight the most significant new employment laws affecting California employers as of January 1, 2018. Companies based in California or with operations in California are encouraged to review their policies and procedures in light of these developments.
On Friday, January 5, 2018, the U.S. Department of Labor (“DOL”) posted a brief statement and updated its Fact Sheet on Internship Programs Under the Fair Labor Standards Act to clarify that going forward, it will use the “primary beneficiary” seven factor test for distinguishing bona fide interns from employees under the FLSA. The DOL’s approach is consistent with the test adopted by appellate courts such as the Second and Ninth Circuits.
Gender Pay Transparency Act Vetoed. On Sunday, October 15, California Governor Jerry Brown vetoed the California Gender Pay Gap Transparency Act, AB 1209, a proposed law that would have required (1) large employers in California to collect and disclose data on how they’re paying men and women differently, and (2) the California Secretary of State to publicly post the data on a state government website. The proposal – previously deemed a “job killer” by the California Chamber of Commerce, and characterized as the “public shaming of California employers” bill by many – was strongly opposed by the business community. The Governor expressed concern about the proposal’s ambiguous language and expressed concern that the ambiguity “could be exploited to encourage more litigation than pay equity.” Continue Reading California Governor Vetoes and Approves Pay Equity Bills
The Department of Justice’s (“DOJ’s”) often criticized rulemaking delays have resulted in no new website accessibility rules for places of public accommodation to receive notice of and implement. Notwithstanding the obvious due process concerns raised by these delays, more and more website accessibility cases are being threatened and filed every day. Most, not unexpectedly, settle. Winn-Dixie did not, and what happened next is worth a closer look.
Beginning next week, on March 13, 2017, San Jose employers must offer existing part-time employees additional work hours before hiring any temporary, part-time, or new worker. This is a result of a vote last fall by voters in San Jose, California who approved “The Opportunity to Work Ordinance” (Ordinance No. 2016.1, codified at Chapter 4.101 of the San Jose Municipal Code) – a local measure that directs employee hours and hiring practices.
San Jose’s Office of Equality Assurance, the local agency tasked with monitoring, investigating, and enforcing the Ordinance, recently issued its Opportunity to Work FAQs, which provides additional guidance on how employers can comply with the new ordinance. Following more comprehensive scheduling ordinances passed in San Francisco and Emeryville last year, San Jose is the third northern California city to enact a scheduling ordinance.
With its May 26 Lewis v. Epic-Systems Corp. decision, the Seventh Circuit became the first circuit to back the reasoning in D.R. Horton, Inc., 357 NLRB No. 184 (2012), and held that a mandatory arbitration agreement prohibiting employees from bringing class or collective actions against their employer violates the National Labor Relations Act (NLRA). This decision creates a circuit split regarding the enforceability of arbitration agreements with class action waivers in the employment context, and the issue is now ripe for potential Supreme Court review.