The rate of lawsuits filed in federal courts related to website and app accessibility has now hit a rate of one-an-hour—that’s 8 per day, 40 per week, and possibly over 2,000 lawsuits this year. Research of federal dockets shows that cases settle—and settle fast. Most cases do not go into discovery and do not even last 60 days before they are voluntarily dismissed. Why? It’s cheaper to settle than defend. And the lawyers filing these cases know that.

The startling statistic is that many defendants in these cases have been sued more than once—25% of cases are filed against a defendant that has already been sued and settled with another plaintiff.

Who Is Most at Risk? Top Industries:

  • Retail;
  • Hospitality and tourism;
  • Food Service;
  • Banking and credit unions; and
  • Entertainment venues.

 

Top 5 Jurisdictions (for the second year, in order):

  1. California,
  2. New York,
  3. Florida,
  4. New Jersey, and

What Can You Do?

  1. Assemble a team including e-commerce, marketing, IT, web developers, compliance, legal and senior leadership.
  2. Develop a plan to bring all websites for all brands into compliance.
  3. Get into full compliance with WCAG 2.0 AA quickly.
  4. Place someone in charge of maintaining ongoing compliance and periodic auditing.

Source Data: UsableNet: ADA Midyear Report

 

The Department of Labor unveiled its final rule updating the salary threshold for so-called “white collar” exempt employees. The final rule, effective January 1, 2020, raises the salary threshold to qualify for one of the “EAP” exemptions to $35,568 per year or $684 per week. The current threshold is $23,660 per year. The Obama administration had proposed a $47,476 cutoff, which was struck down in a court challenge.

Recall that the EAP exemptions are the executive, administrative, and professional exemptions to the overtime provisions of the Fair Labor Standards Act (FLSA). Employees must meet the duties of one or more of the EAP exemptions–plus be paid at least the weekly salary threshold.

Employers with exempt workers making less than $684 per week (or $35,568 per year) should evaluate whether to reclassify the workers as non-exempt, and pay them overtime for hours worked over 40 in a workweek, or raise their salaries.

Notably, the new rule raises the “highly compensated” worker threshold from $100,000 to $147,414. This exemption covers highly compensated workers who perform some managerial duties, but has a less strict duties test.

Proof that your business is never too small to be noticed by the federal (or state) Department of Labor: a small dental surgery practice was investigated for unpaid overtime violations. The Department of Labor determined that 13 employees were paid their regular hourly rate for all hours worked—regardless of whether they worked more than 40 hours in a workweek. Overtime should have been paid when the employees exceeded 40 hours in a workweek at a rate of 1.5 times the regular hourly rate. The practice was ordered to pay $8,656 in back wages and liquidated damages.

Similarly, this matter also highlights the need to have all non-exempt (overtime eligible) employees accurately track and attest to hours worked each workweek. A practice of presuming that an employee has only worked his/her regular full-time schedule can open a business up to potential challenge by an employee or a class of employees who allege hours of off-the-clock work, resulting in unpaid overtime.

Read the full Dept. of Labor press release: https://www.dol.gov/newsroom/releases/whd/whd20190621

Never fear. Some employees have no shame and will lie about anything–even a fake dying spouse.

As Newsweek reported last week, https://t.co/d9NpMTGiFS?amp=1, an executive at Ford Models allegedly made up a story about a dying husband in order to get released from her non-compete. She asked to go to Canada to care for her husband and consult. Instead, she took a job with a rival in Manhattan. Ford Models is now suing her. To make matters worse, Ford Models alleges that she stole trade secrets using her email and company computer before leaving for the competitor.

While it is never good form to doubt an employee’s sick or dead relative story, sometimes instincts are correct that the employee is being shady.

You’ve had an employee blow a deadline or miss the mark on a project or presentation. But you’re avoiding providing feedback.

Key Tips for Delivering Feedback:

  1. Prompt but not “in the moment”
  2. Constructive and with intention
  3. Treat it as a conversation
  4. Focus on details
  5. Don’t Over-explain or sugarcoat it
  6. Provide action items

Prompt

Give the feedback promptly. Don’t wait until the employee’s annual review to tell him/her about it. He/she will have no time to fix the issue before it negatively affects his/her performance review and raise. Plus, you will be dealing with months of sub-par performance.

On the other hand, do not provide feedback in the heat of the moment. If you are particularly annoyed or mad, the feedback will come across more reactive and emotional. Give yourself time to cool off and then provide the feedback while the details are fresh in your mind.

Constructive

The goal of feedback is to improve the employee’s performance and help the employee succeed. Keep that intention in mind when delivering the news. If you strike a tone that shows that you care about the employee’s success, the employee will be more receptive to the feedback.

Conversation

Approach the meeting as a conversation. Ask the employee if it is a good time to have a conversation. If it is not, the message will get lost. Come back when the employee is less busy or distracted.

Ask the employee about the project: What went well? What could have been better? Maybe the employee is aware of the issue already but unsure how to fix it.

If possible, deliver the message face-to-face. If face-to-face is not an option due to work location, use a video conferencing or telephone (if no visual option exists). Reading non-verbal cues can be critical to determining if the employee understands the message and is on board. Email is the worst form of communication for feedback. It avoids confrontation, but it can be easily misconstrued.

Details

Focus on the details and actions that fell short of your expectations. Rather than saying, “you don’t seem focused on your work or committed to the company,” give details about how the employee has missed project deadlines and turned in finished work with errors. Inform the employee why their behavior affects the company or organization. It may seem obvious to you that late work or tardiness affects the company, but their impact may be lost on the employee.

Don’t Over-explain

At the same time, do not provide too many details that your message gets lost. Sometimes, in an attempt to soften the message, managers provide too many details and filler content. The message gets watered down, or worse, lost entirely. The commonly given advice to sandwich constructive criticism between two items of praise is ill-advised. It hides the real message. Promptly give positive feedback when it is warranted, and the negative or constructive feedback will be better received, since the message is not always negative. In addition, providing prompt positive feedback encourages the desired actions and behaviors to continue.

Action

Provide the employee with specific goals to achieve going forward. Be specific about the behavior you want to see going forward. Rather than say, “you need to turn it around,” say “you need to turn your work in by 5pm on the date you said that you would have it completed and ensure that it is spell-checked and proofread.”

Other examples of action items include:

  • Specific hours of work arrival and departure
  • Required training courses to complete
  • Defined objective measures of quality or productivity as goals

If the issues are serious and ongoing, schedule regular check-ins to discuss the progress on the action items. If there is improvement, be sure to inform the employee. Recognizing the positive change will encourage more change and build trust.

 

For all of the federal contractors and subcontractors, OFCCP released new compliance guides on posting and notice, recordkeeping for Section 503 and VEVRAA, and general guidance. As a reminder, OFCCP has other guidance on its website to assist contractors, see: Compliance Assistance Guides Page.

It is always a good idea to be prepared for a potential audit and work with your affirmative action plan vendor and legal counsel.

A local diner in Florida scheduled an applicant for an interview for a server position. When she disclosed her pregnancy, they told her not to come to the interview. Her boyfriend took to social media and posted a screenshot of the written Facebook messenger discussion between the diner and his pregnant girlfriend (side).

His posting resulted in media attention and local outcry. Long time patrons of the establishment threatened boycotts. http://www.fox13news.com/news/local-news/lakeland-diner-denies-woman-interview-because-she-is-pregnant

The diner posted to Facebook that they made the decision to reject her as an applicant based on her lack of experience and posted her resume to demonstrate her lack of qualification–which subjected them to further backlash. Eventually, the owner of the diner confirmed that he did not authorize the communication with her about cancelling the interview. He invited her to come in for an interview and a fair shot at the position. She declined.

This is clearly an example of what not to do when an applicant discloses her pregnancy and why going viral on social media can be harmful to your business.

Cannabidiol (known as “CBD”) is a compound naturally found in marijuana and hemp. For commercial use, it usually is extracted from hemp and combined with oil for vaporizing. It also can be found in creams and other products. It is being marketed as a treatment for pain, inflammation, anxiety, insomnia, epilepsy, and other illnesses.

In 2018, the federal farm bill removed hemp and CBD from the coverage of the Controlled Substances Act’s Schedule I drug list. This means that it is legal to market and sell at the federal level—even though some state laws restrict its sale and use. Its use is expected to grow exponentially over the next few years. Little is known about its actual effectiveness for the treatment of pain or other ailments because of the lack of studies. There is strong scientific evidence behind its use for epilepsy and seizures.

Why Should Employers Care?

CBD oil will not result in a positive drug test. Why? “Hemp” is required to contain a THC concentration of no more than 0.3 percent. This means that, even daily use, generally would not result in a positive drug test because a drug test looks at the THC concentration in urine. Marijuana potency can range from 0.4-25% THC. Further, CBD oil does not have the psychoactive effect of marijuana and has no presently known impairing effects.

CBD and hemp, however, are unregulated by the FDA. That means that an employee could unknowingly acquire some illegal CBD oil derived from cannabis (marijuana) that contains a much higher concentration of THC. It would be impossible to know if the positive drug test was the result of illegal CBD oil or actual marijuana use.

Is There a Duty to Accommodate CBD Oil Use?

Employers probably do have to accommodate CBD oil use where it is used as a treatment for a qualifying disability under the Americans with Disabilities Act. Unlike medical marijuana, where most employers do not have to accommodate its use because it is illegal under federal law, CBD oil is a legal product. (There are a few states where court decisions have held that employers must accommodate off-duty medical marijuana use.) Employers likely must allow its use off-duty and on duty, to the extent allowed for other over-the-counter drugs. If an employer prohibits all vaping, the employer would need to engage in the interactive process with the disabled employee to determine if there is a duty to accommodate CBD oil vaping or if another reasonable accommodation would suffice.

Employers would be smart to review their drug-free workplace policies and drug testing programs and consider the impact of CBD oil.

The Democratic House of Representatives passed a $15 per hour nationwide minimum wage. Given the composition of the Presidency and the Senate, it i is unlikely to go anywhere this year.

On Thursday, July 18, 2019, H.R. 582, the “Raise the Wage Act” passed 231-199, mostly along party lines. The Congressional Budget Office (“CBO”) estimated that enactment of a $15 per hour minimum wage would raise wages for 17 million workers and lift 1.3 million families out of poverty, but also result in the loss of 3.7 million jobs. Given the fact that the Senate and Presidency are controlled by Republicans, this bills is unlikely to become law.

Presently, the federal minimum wage is $7.25 per hour ($2.13 for tipped workers), and Ohio’s minimum wage is $8.30 ($4.15 for tipped workers). I think we will continue to see the trend of state and local minimum wage increases that are increasingly difficult for employers with multi-state operations to comply with.

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