Is the Tide Turning on Website Accessibility Claims? California Court of Appeal Upholds a ‘Bona Fide Intent’ Requirement

The Court of Appeal of the State of California, Fourth Appellate District, recently handed a potentially significant website accessibility win to the business community under the Unruh Civil Rights Act (Unruh Act) when it upheld a jury verdict in Thurston v. Omni Hotels Mgmt. Corp. (Cal. Ct. App. Sept. 23, 2021), finding that the blind user of a hotel’s website reservation mechanism lacked a “bona fide intent” to make a hotel reservation.

DOL Cracks Down, and Opens Cracks, on Employers Keeping Tips

Employers will soon face stricter financial penalties for keeping their employees’ tips under a final rule published by the U.S. Department of Labor (DOL) on September 24, 2021. Section 3(m)(2)(B) of the Fair Labor Standards Act (FLSA) prohibits employers—including “managers and supervisors”—from keeping employees’ tips “for any purposes,” regardless of whether employers claim a tip credit.

New York City Council Passes Six Bills Protecting Gig Economy Delivery Workers

On September 23, 2021, the New York City Council passed six bills—a first-of-its-kind legislative package directed at gig economy workers—that seeks to provide protections to the city’s food delivery workers. The bills, each of which amend the administrative code of New York City, have been sent to Mayor Bill De Blasio, who has already voiced his support for the legislation. The legislative package is the culmination of a lengthy controversy in New York City regarding the rights and protections that should be afforded to gig workers. Notably, many states, including New York, have been engaged in prolonged legal battles over the questions relating to the treatment of gig workers.

Massachusetts Supreme Judicial Court Addresses ‘Service Charges’ Under the Massachusetts Tips Act

Massachusetts is seeing an increase in Tips Act claims, and the Massachusetts Supreme Judicial Court (SJC) just reinforced that a lack of clarity in fee- and tip-related documentation may result in employer liability, including mandatory treble damages and attorneys’ fees. The Massachusetts Tips Act requires that an employer or person who collects “service charges” or “tips” (as those terms are defined under the act) remit the proceeds of those charges to service employees and waitstaff in proportion to the services the employees provided to the employer.

The Key to NYC: Unlocking the City Starts With COVID-19 Vaccination Proof for Dining, Fitness, and Entertainment Venues

On August 3, 2021, New York City Mayor Bill de Blasio announced that proof of vaccination would be required for individuals to enter certain indoor establishments. In a first of its kind mandate, New York City officially implemented the “Key to NYC” through Emergency Executive Order 225, which became effective on August 17, 2021.

Alabama Attorney General Issues Public Notice Summarizing State Law on Vaccine Requirements

On May 24, 2021, Alabama Governor Kay Ivey signed into law Senate Bill 267 (Act No. 2021-493), a measure prohibiting state entities and private businesses from requiring individuals to show proof of vaccination in order to receive goods or services. Following “an increase in legal questions related to … COVID-19 vaccination[s],” Alabama Attorney General Steve Marshall issued a public notice on July 26, 2021, summarizing Alabama law on vaccination requirements and related matters.

Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back

Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.

Wisconsin Legislature Expressly Authorizes Electronic Tip Declarations

Like the federal Fair Labor Standards Act, Wisconsin law allows hospitality employers to pay certain tipped employees less than the minimum wage with the understanding that the tips they receive will cover the difference. More specifically, Wisconsin law allows employers to claim a tip credit of up to $4.92 per hour for employees who “customarily and regularly receive tips.” Among other things, Wisconsin law requires employers to have a “signed tip declaration” in order to claim the credit.

California’s SB 93: Governor Signs COVID-19 ‘Rehiring and Retention’ Law

On April 16, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 93 into law. This new statute creates California Labor Code Section 2810.8 and requires that employers in certain industries make written job offers to employees whom they laid off because of COVID-19. Employees have five business days to respond and, if more than

Minneapolis Enacts ‘Hospitality Worker Right to Recall’ Ordinance, Effective May 1, 2021

Hospitality and event center workers received additional job rights protection under a new ordinance passed by the Minneapolis City Council. The new ordinance requires employers to recall those workers, if and when they are needed in reverse order of seniority. Ordinance No.2021-12, entitled “Hospitality Worker Right to Recall,” seeks to minimize the impact on affected employees in an industry particularly hard-hit by the COVID-19 pandemic and to stabilize the workforce.

Eleventh Circuit Holds Websites Not Places of Public Accommodation Under ADA, Rejects ‘Nexus’ Standard

On April 7, 2021, the Eleventh Circuit Court of Appeals rendered its long-awaited opinion in Gil v. Winn-Dixie Stores, Inc., reversing a trial court’s decision against Winn-Dixie, holding that websites are not places of public accommodation under Title III of the Americans with Disabilities Act (ADA), and that Winn-Dixie’s website does not violate 42 U.S.C. § 12182(b)(2)(A)(iii).

San Diego Extends COVID-19 Hotel and Janitorial Worker Recall and Retention Ordinance Until March 2022

On March 2, 2021, the City Council of San Diego, California, extended the “COVID-19 Worker Recall and Retention Ordinance” (O-21231/O-2021-20). The ordinance provides certain rights and preferences to hotel and janitorial workers affected by the COVID-19 pandemic. The ordinance originally took effect on September 8, 2020, and was set to expire on March 8, 2021. However, given the extraordinary loss of jobs in San Diego in the building services, leisure, and hospitality industries, the city council opted to extend the ordinance’s sunset provision until March 8, 2022, by way of an emergency ordinance (O-21296/O-2021-97).

American Rescue Plan Act Signed: Details on the Latest COVID-19 Relief Package

On March 11, 2021, President Joe Biden signed into law the American Rescue Plan Act of 2021—a $1.9 trillion economic relief package. While the legislation marks the first major legislative victory for President Biden and the administration, it is the sixth federal legislative relief package aimed at addressing the COVID-19 pandemic and its economic fallout. The legislation continues some programs established in these previous efforts, but it also adds some important components. Set forth below are some of the major provisions of the American Rescue Plan Act.

Coachella’s New COVID-19 Premium Pay Ordinance for Agricultural, Grocery, Restaurant, and Retail Employers

On February 10, 2021, the City Council of Coachella, California, passed the “Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance.” Coachella is located in Riverside County, California. Other cities in the state that have enacted similar measures in 2021 include Montebello, in Los Angeles County, and Oakland, in Alameda County.

Massachusetts Amends Holiday Premium Pay Law and Tips Act as Part of Economic Stimulus Package

On January 14, 2021, Massachusetts Governor Charlie Baker signed into law an economic stimulus bill, H.5250, An Act Enabling Partnerships for Growth, which includes two significant changes to Massachusetts wage and hour laws. First, the new legislation amended the law pertaining to holiday premium pay on New Year’s Day, Columbus Day, and Veterans Day (M.G.L. c. 136 § 16) to phase out the premium pay requirement by 2023. Second, the legislation enacted a sweeping amendment to the Massachusetts Tips Act (M.G.L. c. 149 § 152A) to broaden significantly the definition of “wait staff employee.” These changes will offer significant economic relief to the retail and hospitality industries.

New York City Says Goodbye to At-Will Employment for the Fast Food Industry

On January 5, 2021, New York City Mayor Bill de Blasio signed legislation that effectively ends at-will employment for fast food employees in New York City. The new law takes effect on July 4, 2021, and would make New York City the nation’s first jurisdiction to create job protections for a particular industry. However, at least some portions of the new law may be ripe to challenge on federal preemption and other grounds.

Ontario Government Passes Regulation to Create Flexibility in the Hospitality, Tourism and Trade Show Industries

On December 17, 2020, the government of the Province of Ontario enacted Regulation 764/20, which will permit unions and employers in the hospitality, tourism, and trade show industries to negotiate for greater flexibility in the application of termination pay, severance, recall rights and other related matters under the Employment Standards Act, 2000 (ESA).

Ontario Tightens COVID-19 Restrictions in ‘Hotspot’ Regions for at Least 28 Days

On October 9, 2020, the Government of Ontario announced additional restrictions on and closures of public gatherings, specific businesses, and indoor food and drink service, in an effort to limit the spread of COVID-19. These restrictions are currently applicable within the “hotspots” of the “Ottawa, Peel, and Toronto public health unit regions.”

COVID-19 Orders Upon Orders—What Does It All Mean for St. Louis County Businesses?

Since March 2020, St. Louis County Executive Dr. Sam Page, and the county’s acting director of the Department of Public Health (DPH), Dr. Emily Doucette, have issued more than 20 orders and “safe operating guidelines” regarding COVID-19. On July 29, 2020, with an effective date of July 31, 2020, the DPH issued its third amended public health order setting forth its current “Business and Individual Guidelines for Social Distancing and Re-Opening.” In some respects, this third amended order is a significant step backwards toward stricter requirements compared with the county’s original reopening guidelines.

20 Tips for U.S. Virgin Islands Employers in 2020: Updated COVID-19 Guidance for Restaurants, Bars, and Nightclubs; Travel Requirements; and Reinstatement of Plant Closing Act

Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part seven of this series addresses several provisions of  U.S. Virgin Islands Governor Albert Bryan, Jr.’s July 1, 2020, ninth supplemental executive order extending the state of emergency due to COVID-19 that he initially declared on March 13, 2020.

Florida Restricts Sale of Alcohol Due to Surge in COVID-19 Cases Among Young Adults

On June 26, 2020, the Florida Department of Business and Professional Regulation (DBPR) issued Emergency Order 2020-09 suspending the sale of alcoholic beverages for on-premises consumption at all businesses that “derive more than 50 [percent] of gross revenue from such sales.” The DBPR issued the order due in part to a spike in the number of individuals who have tested positive for COVID-19 in June 2020, especially among younger people who may have been visiting bars, pubs, and nightclubs where alcohol is served and such establishments failing to comply with orders on occupancy restrictions.