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Archive for the ‘Employment Law Blog (US)’ Category

Cal. Attorney Sanctioned $50,000 for Reckless and Malicious Conduct at Deposition

Posted on: February 18th, 2019

By: Jenny Jin

A California Court of Appeal upheld a $50,000 sanction against an attorney based on conduct at a deposition.

On February 4, 2019, the Court of Appeal issued its opinion in the case Anna Anka v. Louis Yeager. This case involved a child custody dispute between Paul Anka’s ex-wife, Anna Anka, and her first husband, Louis Yeager. As part of this dispute, the trial court had ordered that a confidential child custody and evaluation report be performed. Mrs. Anka was then subsequently involved in a second child custody dispute with her second husband/now ex-husband, Paul Anka.

Mrs. Anka was represented by the same attorney in both custody disputes. Mrs. Anka’s attorney took Mr. Yeager’s deposition as part of Mrs. Anka’s second custody dispute. During the deposition, Mrs. Anka’s attorney asked Mr. Yeager a series of questions to attempt to elicit confidential information regarding the contents of the evaluation and report from the first child custody dispute. Mr. Yeager testified that he could not recall the information. However, the trial court still sanctioned Mrs. Anka and her attorney $50,000 jointly and severally for her attorney’s reckless and malicious line of questioning that was orchestrated to elicit confidential child custody information.

The Court of Appeal affirmed the $50,000 sanctions against the attorney, but reversed the sanctions award as to Mrs. Anka. The Court found that the disclosure of confidential information was due solely to the attorney’s reckless and malicious conduct during the deposition. The Court opined that “besides being an advocate to advance the interest of the client, the attorney is also an officer of the court” and further that “counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands.” The Court held that the attorney’s conduct in eliciting confidential information during the deposition was not only reckless, but was intentional and willful.

The takeaway from this case is that in both California and across all states, there are real ethical limitations to zealous representation during depositions. Attorneys must remember to balance their duty to zealously represent their client’s interests with their duty as officers of the court to conduct themselves with integrity, courtesy, and professionalism.

If you have any questions or would like more information, please contact Jenny Jin at (415) 352-6451 or [email protected].

As Commerce Moves Online, the Americans with Disabilities Act Follows

Posted on: February 11th, 2019

By: Natalie Pulley

Does the Americans with Disabilities Act, requiring accessibility in public accommodations, apply to a business’ online presence? The Eleventh Circuit has weighed in on the issue, finding in Dennis Haynes v. Dunkin’ Donuts LLC that the ADA applies online.

In Dennis Haynes, the plaintiff is blind and relies on screen reading software. He attempted to go on the website for Dunkin’ Donuts but the website was not compatible with his, or any, screen reading software. The plaintiff sued Dunkin’ Donuts, LLC, claiming that it violated Title III of the Americans with Disabilities Act by not maintaining a website compatible with screen reading software. He alleged that the inaccessibility of Dunkin’ Donuts’ website has denied blind people the ability to enjoy the goods, services, privileges, and advantages of Dunkin’ Donuts shops.

The Eleventh Circuit agreed with his position and found that a website must comply with ADA requirements. The court found that a website is a service that facilitates the use of brick and mortar shops, which are places of public accommodation. Further, the court found that the ADA is clear that whatever goods and services the business offers as part of its public accommodation, it cannot discriminate against people on the basis of a disability, even if those goods and services are intangible. This opinion sides with a federal court ruling from Florida, which ruled that a supermarket chain could be liable under the statute for operating an inaccessible site.

While there is no blanket requirement of any specific auxiliary aides on corporate websites, the proliferation of website lawsuits presents a risk of liability. Corporations should take proactive steps to ensure that their websites are accessible to those with hearing, muscular, and visual impairments.

If you have any questions or would like more information, please contact Natalie Pulley at [email protected].

Haynes v. Dunkin’ Donuts, Ltd. Liab. Co., 741 F. App’x 752 (11th Cir. 2018)
Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017)

 

 

 

Florida Employment Law and The Use of Consistent Terminology

Posted on: January 17th, 2019

By: Michael Kouskoutis

Florida’s First DCA recently reversed summary judgment in favor of Florida A&M University (FAMU) in a contract dispute with the school’s former head football and basketball coaches.

The coaches both had 4-year contracts with the University, each with a specific end date and permitting early termination only in specific circumstances.  Well before their contractual end dates, both coaches received 60 days’ notice of termination, with neither coach having committed any of the terminable offenses listed in the contract. The coaches filed suit, demanding (among others) payment on the remainder of the contracts. On FAMU’s motion for summary judgment, the trial court agreed with the University, that the terminations were justified by the University’s regulations, which permit employee termination upon 60 days’ notice.

On appeal, the First DCA emphasized that FAMU did not use consistent terminology with respect to termination in its regulations and employment contracts, leading the Court to conclude that an ambiguity exists since different meanings may have been intended. Further, because the Court determined that the termination provisions were ambiguous, it also reversed summary judgment on the coaches’ claims for fraudulent inducement and negligent misrepresentation.

As this case awaits trial, employers should be mindful of the terminology used among its employment and regulatory documentation.  If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

Philadelphia Burdens New Fair Workweek Law to Impact 130,000 Workers & Employers

Posted on: January 9th, 2019

By:  John McAvoy

On December 7, 2018, the Philadelphia City Council passed the Fair Workweek Employment Standards Ordinance by an overwhelming margin of 14-3. Effective January 1, 2020, the objective of the Ordinance, which was introduced in June by Councilwoman Helen Gym (D), is to provide more predictable hours, advanced scheduling, among a slew of other protections for the roughly 130,000 workers in the food, service, and hospitality industries. The Ordinance’s seven co-sponsors hope the new restrictions will help break the cycle of poverty plaguing the nation’s fifth largest city.

To that laudable yet impracticable end, the Fair Workweek Ordinance imposes significant restrictions and standards on large service industry employers with respect to how they schedule, hire, and pay their workers. It also provides for a private right of action against employers that permits recovery of back pay, presumed damages, liquidated damages up to $2,000, attorneys’ fees and equitable relief.

After much debate with local businesses, the new Ordinance as enacted covers only those “retail establishments,” “hospitality establishments,” and “food services establishments” that employ 250 or more employees overall and have 30 or more locations worldwide, including chains and franchise locations.

New York, San Francisco and other large municipalities through the country have been implementing similar “fair workweek” laws since 2014. Philadelphia is the second largest city to adopt the practice. Like similar legislation enacted across the country, Philadelphia Fair Workweek Ordinance imposes four main requirements on employers:

  1. Schedules in Advance. Employers must provide new hires with a written, good faith estimate of the employee’s work schedule. That schedule can change, but the initial estimate must include: the hours the employee can expect to work over a typical 90-day period; whether the employee can expect to work any on-call shifts; and “a subset of days and a subset of times or shifts that the employee can typically expect to work, or days of the week and times or shifts on which the employee will not be scheduled to work.” The employee can request a different work schedule, but the employer is free to grant or deny the request for any reason that is not unlawful. Employers will also have to consider employee work schedule requests, including requests not to be scheduled for certain shifts, days, times or locations as well as requests for changes in hours worked. Additionally, employers must provide employees with a written work schedule at least 10 days before the first day of a scheduled period (14-days effective January 1, 2021). Employees must receive notice of any proposed changes to the posted work schedule as promptly as possible and prior to the change taking effect, and they have the right to decline to work any hours not reflected on the posted work schedule.

 

  1. Predictability Pay. The Ordinance requires employers to compensate employees for changes to the work schedule. This is commonly referred to as “predictability pay.” The amount of the mandated compensation is to be determined. There are, however, exceptions to this requirement. For example, if the employee initiates the schedule change, or there’s a mutual agreement between the employer and employee, an emergency, or for one of the other less common reasons outlined in the Ordinance, then employers are under no obligation to provide predictability pay.

 

  1. Rest Between Shifts. An employee may decline, without penalty, any work hours that are scheduled or otherwise occur less than 9 hours after his or her prior shift ends. However, if the employee works that second shift, the company must pay that employee $40.

 

  1. Offer Work to Existing Employees. Employees must offer extra shifts to current employees before hiring a new employee. However, if existing employees turn down the offer of extra shifts or if extra shifts would implicate overtime pay, then employers are free to hire new employees.

Employers who violate these requirements subject their business to potential liability. The Free Workweek Ordinance makes it unlawful to interfere with, restrain, or deny the exercise of protected rights under the ordinance. Retaliation is also prohibited, with a rebuttable presumption of retaliation for any adverse action within 90-days of an employee exercising protected rights, unless the adverse action was due to well-documented disciplinary reasons that constitute just cause. The Office of the Mayor of Philadelphia is charged with enforcing the new Ordinance, raising questions as to enforcement policy and litigation.

Prudent employers should start preparing their businesses now, Even though the new requirements and standards imposed by the Ordinance do not take effect for another year. Complicating matters further is the fact that the Ordinance, as a whole, is rather vague and ambiguous in terms of the restrictions it imposes and the ways in which those restrictions will be enforced. Although the legislature should eventually issue regulations to resolve some of the uncertainty, it is unclear when that will occur or if it will happen before the Ordinance takes effect next January. As a result, employers are left fending for themselves to make sweeping changes to their scheduling, hiring, and payment policies, practices, and procedures towards complying with the Ordinance.

The uncertainty and other difficulties employers will likely experience navigating the exacting requirements of Philadelphia’s Fair Workweek Ordinance is nothing new. Employment law is rapidly changing and evolving in Philadelphia at an unparalleled pace. The Fair Workweek Ordinance joins the ranks of similarly taxing legislation such as Philadelphia’s Salary History Ban Law and its Ban-the-Box Law, to name but two of the many legislative minefields presently impacting local employers.

Given this is a rapidly changing and developing area of the law, employers are encouraged to charge someone in their human resources and/or compliance departments with staying current on Philadelphia’s new employment ordinances and regulations. Noncompliance with an applicable regulation or ordinance, no matter how vague it may be written, can lead to civil liability and ignorance of the law is no defense. Therefore, it is important that employers stay apprised of the rapidly changing employment laws. The person charged with this responsibility should understand the impact a new or proposed law might have on the business and recognize what, if any, changes in the law require an amendment to company policies. It is also suggested that employers consult with experienced legal counsel to ensure that their policies and procedures are fully complaint with new legislation.

Need help understanding/navigating Philadelphia’s new legislation or want to learn more about what Philadelphia’s Fair Workweek Ordinance means for your local business? Let Freeman Mathis & Gary’s employment experts help. Feel free to call or email John McAvoy (215.789.4919 [email protected]) for assistance with your company’s policies and procedures.

Employers Beware – Social Security No-Match Letters are Making a Comeback

Posted on: December 26th, 2018

By: Layli Eskandari Deal

Like a bad penny, the Social Security no-match letters will once again turn up and wreak havoc on employers. It is anticipated that employers will once again start receiving these no-match letters, officially called the “Employer Correction Request Notice,” in the Spring of 2019. The SSA will start notifying employers if the W-2 (Wage and Tax Statements) information contains a social security number and a name that do not match.

These no-match letters have been around for a while, but SSA has not issued them consistently. The idea behind these letters is to notify employers when there is a mismatch between the name and the social security number provided and the SSA records. This can happen for a variety of reasons such as simple human error in imputing the information (such as misspelled name or transposed numbers). Of course, this can also result from an employee providing a false social security number or using another individual’s social security number.

On its face, it seems logical that the SSA would want to correct any mismatched information in an individual’s account. However, U.S. Immigration and Customs Enforcement (ICE) has indicated that there is a duty by the employer to investigate the reasons for the discrepancy. ICE has warned that these letters, if uninvestigated, can lead to a finding of “constructive knowledge” of unauthorized employment during an audit.

Unfortunately, employers are stuck in the middle. SSA states that the no-match letters are not addressing unlawful employment but, on the other hand, ICE is indicating that they can use these letters to show constructive knowledge.

So, what should employers do if they receive a no-match letter?

  1. If a letter is received, don’t assume the worst. There may be a simple reason for the mismatch.  Remember, these letters are not providing any information regarding the employee’s employment authorization or immigration status.
  2. Communicate with the employee.  Let the employee know a letter was received and ask then to verify their information.  Give your employee a reasonable period of time to resolve the discrepancy with the SSA. SSA has provided a sample letter to give to employees.
  3. Follow up with your employee and review any documents that they may provide to you. Submit any employer or employee corrections to the SSA.

This year, ICE’s Homeland Security Investigations launched 6,848 worksite investigations. The number of employer I-9 audits has gone up from 1,360 to 5,891 (comparing fiscal year 2017 to 2018). As ICE ramps up their enforcement efforts in 2019, it is necessary for employers to create a plan to address no-match letters with their employees, as well as, making sure that their I-9s are compliant.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws, please contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].