Hunton Employment & Labor Perspectives

The Scope of the Issue

The Americans with Disabilities Act (the “ADA”) has been the source of a tremendous amount of litigation since President George H.W. Bush signed it into law in 1990.  Over the past few years, Plaintiffs’ counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.”  42 U.S.C. § 12182(a).  While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that:  (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access.   Plaintiffs have also challenged the accessibility of mobile applications and online job application interfaces.

The Federal government has entered its 12^th day of partial shutdown, making it the fourth longest in American history to date.   But, not all government departments are affected, and the Department of Labor is one that is not.  The DOL is already fully funded for 2019, so the current stalemate between Congress and the President does not affect its resources.

California’s legislature and courts have acted to curb an employer’s ability to recover its fees and costs when it prevails in a lawsuit brought under California’s Fair Employment and Housing Act (“FEHA”, Government Code § 12940 et seq.), even if the plaintiff employee rejected the employer’s Code of Civil Procedure Section 998 offer to compromise.

Before the lame duck period of the 115^th Congress, Rep. Jerrold Nadler (D-NY) and a group of 58 Democrat co-sponsors, introduced the Restoring Justice for Workers Act (H.R. 7109), which would prohibit  employers from requiring employees to sign mandatory arbitration agreements.

In Hernandez v. Pacific Bell Co., a California court held that employees who drive between their homes and a client worksite (in this case, a customer’s residence) using a company vehicle under the company’s voluntary vehicle take-home program need not be compensated for the commute time.

Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”

Employers failing to strictly comply with FCRA requirements in conducting background checks continue to face expensive consequences.  On November 16, 2018, the United States District Court for the Southern District of California approved a $1.2 million settlement of a class action lawsuit alleging violations of the FCRA filed against the popular pet supplies chain Petco.

The Department of Labor (“DOL”) recently published an Opinion Letter (FLSA-2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA-2009-23) and reversing its Obama-era position on the 20% tip credit rule.  This opinion letter marks another major shift in DOL’s policy and presents a welcome change for employers in the restaurant industry.

In the recent election, Californians voted to add an employer-friendly provision to the Labor Code that allows emergency ambulance workers to be on-call during breaks.  California is one of 24 states that allow voters to initiate laws through the petition process.

On October 29, 2018, the Internal Revenue Service, Department of Labor and Department of Health and Human Services (the “Departments”) jointly released proposed regulations in response to President Trump’s executive order calling for an expansion of the ability of employers to offer health reimbursement arrangements (“HRAs”) to their employees and to allow HRAs to be used in conjunction with nongroup coverage.