Author: Stephanie Hill

In most circumstances, private employers benefit when they have arbitration agreements with their employees, because arbitration can resolve disputes more quickly with less expense, and the agreements may even ward off frivolous lawsuits. A recent ruling in favor of a Meyers Nave client demonstrated yet another significant benefit.

On August 6, 2021, a San Diego Superior Court Judge granted the employer’s motion to compel the arbitration of the plaintiff’s individual wage and hour claim and stayed that plaintiff’s California Private Attorneys General Act (“PAGA”) claim until after arbitration of the individual claim. The Court rejected the plaintiff’s argument that the outcome of his individual claim will have no bearing on his PAGA claim, ruling, “Although the PAGA and individual claims are conceptually independent, they both arise out of the same nucleus of facts – i.e., defendant’s alleged violations of California labor law and whether any of those violations were committed against plaintiff.”

This decision, simplifying the case for now to just one employee’s claims, rather than potentially hundreds of employees, reduces plaintiff’s leverage. Meyers Nave continues to encourage private and non-profit employers to consider the benefits of arbitration and ensure that agreements are enforceable, by regularly updating them as the law changes.

For more information, contact Meyers Nave attorneys.

The number of lawsuits alleging websites are not accessible as required by the Americans with Disability Act (“ADA”) has been growing rapidly in California. Businesses and public entities should proactively update their websites to ensure that they are accessible to individuals with disabilities who are visually impaired, blind, or hard of hearing.

1) What Does It Mean for a Website to Be “Accessible”?

To access and navigate websites, individuals who are blind or hard of hearing may use assistive technology such as screen readers, text enlargement software, and text-to-speech programs. Hard of hearing employees may need closed captioning to understand videos on websites. Although there is no mandated standard for websites, the most commonly used are the Web Content Accessibility Guidelines (“WCAG”) created by the World Wide Web Consortium.

While the ADA was enacted in 1990, before the internet was in common use, courts have found that the ADA requires that many websites must be accessible to individuals with disabilities. Title II of the ADA prohibits state and local government entities from discriminating against qualified individuals with disabilities or excluding them from services, programs, and activities. Title III of the ADA requires businesses and nonprofits considered public accommodations to provide equal opportunities to access the goods or services they offer.

2) The Number of Lawsuits Alleging Websites Are in Violation of the ADA is Growing.

After the ADA was enacted, most complaints alleged barriers to access at physical stores and restaurants. In recent years, a growing percentage of ADA claims concern access to websites. Certain individuals with disabilities and plaintiffs’ attorneys specialize in filing a high volume of claims, typically alleging violation of the ADA and the state counterpart, the California Unruh Civil Rights Act. The New York Times recently profiled one of these plaintiffs.

Despite the high volume of these cases, because most ADA website accessibility cases settle, the contours of what is required is slowly developing. In June 2021, for example, in the case of Domino’s Pizza v. Robles, Case No. CV 16-6599 JGB (Ex), 2021 WL 2945562 (C.D. Cal. June 23, 2021), a federal district court judge ruled among other things, that providing a telephone line for the plaintiff to place an order was insufficient, where the plaintiff was put on hold for over 45 minutes when he tried to call.

3) With the Increase in Virtual Meetings and Online Services, Public Entities Should Ensure Access for Individuals with Disabilities.

Due to the COVID-19 pandemic, over the last 18 months, many public entities made a dramatic shift to virtual meetings and providing online services. A number of public entities have subsequently received complaints regarding the lack of closed captioning for live and prerecorded public meetings and websites are not accessible to individuals who are blind, vision impaired, or hard of hearing. The U.S. Department of Justice has also issued some technical assistance documents regarding accessibility.

4) Take Action Before a Claim Is Made

Rather than waiting for a claim, organizations should proactively update their websites, and ensure access to their facilities and services. Some suggestions include:

• Have an independent ADA consultant or ADA qualified user test your website for accessibility.
• Update or modify your website as necessary, including displaying the entity’s accessibility practice.
• Conduct routine website accessibility testing, especially after website updates.
• Evaluate whether other online platforms, such as mobile applications are accessible.

Please contact us to minimize any future litigation risks associated with website accessibility issues and ADA violations.

On July 26, 2021, the U.S. Department of Justice released a memorandum that bolsters employers’ efforts to mandate vaccines for its employees to maintain a safe work environment. The memorandum, which does not override state law, makes clear that the COVID-19 vaccines’ FDA emergency use authorization status does not preclude employers, both public and private, from mandating vaccines as part of their return to office policies.

For more information, contact Meyers Nave attorneys.

Ferra v. Loews Hollywood Hotel, LLC
On July 15, 2021, the California Supreme Court issued a decision in Ferra v. Loews Hollywood Hotel, LLC that further discourages employers from allowing their employees to miss meal, rest, and recovery breaks and potentially opens employers up to significant retroactive liability. Under California law, private employers are obligated to provide their employees certain meal, rest, and recovery breaks. If employees are not provided their required breaks, then their employers are obligated to pay those employees “one additional hour of pay at the employee’s regular rate of compensation.” Before the California Supreme Court’s recent rulings, employers typically used an employee’s base rate of pay when compensating employees for missed breaks as opposed to their “regular rate of pay” (which is higher as it typically includes additional incentive payments like bonuses and commissions and is used to calculate an employee’s overtime rate).

In Ferra v. Loews Hollywood Hotel, LLC, a bar employee argued that her employer should have paid her for her missed rest periods at her regular rate of pay as opposed to her base rate of pay. The Court disagreed with the trial and appeals court and unanimously held that employers must compensate their employees for missed meal, rest, or recovery periods by providing an additional hour of pay at employees’ regular rate of pay, not their base rate of pay. The Court also noted that this ruling applies retroactively. Public entity employers are not required to pay this premium for missed meal periods, rest, and recovery breaks and thus this holding is not applicable to them.

Takeaways for Employers
Going forward private and non-profit employers should immediately update their pay calculations for employees who miss meal periods, rest, and recovery breaks to be sure that they are being compensated at the correct rate. Please contact our firm if you would like to discuss the potential impact of this ruling on your business and for advice on how to minimize your possible risk and exposure.

Slidewaters LLC v. Washington State Dept. of Labor and Industries, et al.

On July 8, 2021, the Ninth Circuit Court of Appeals upheld the dismissal of a waterpark’s action against the State of Washington for allegedly violating its constitutional rights when the State first closed waterparks and later imposed capacity restrictions in an effort to combat the COVID-19 pandemic.  The Ninth Circuit decision held that challenges involving economic rights and companion COVID-19 restrictions will generally be reviewed under the deferential rational basis standard of review.

In response to the COVID-19 pandemic, the State of Washington imposed restrictions on a number of industries, which included a complete closing of waterparks during the summer of 2020 and 50% capacity limit for the summer of 2021.  Slidewaters challenged these restrictions, asserting a substantive due process violation on the basis that the restrictions impinged on its “right to pursue a common calling and right to use its property as well as its employees’ right to work and its owners’ right to pursue their business and use their property as they see fit.”

The Ninth Circuit affirmed the dismissal of Slidewaters’ claim.  The court explained that the rights to pursue a common calling and to use property as one wishes are economic in nature, not fundamental rights—such as the First Amendment right to free exercise of religion at issue in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct 63 (2020)—and therefore trigger only rational basis review.  Under that deferential standard, the Court that the State is entitled to great leeway in fashioning regulations to protect the public health, and even greater leeway during an emergency.  Thus, creating categories of activity that were based on how “essential” they are is a permissible way for the State to regulate activity, and the State is not required to do an individual assessment of every individual business or property.

Slidewaters is the latest decision affording governments great latitude in regulating economic activity to protect against the threat of COVID-19.  In distinguishing between economic and religious rights at issue where the Supreme Court has applied strict scrutiny, the Ninth Circuit has made clear that secular businesses seeking to challenge state and local COVID-19 restrictions will face a steep uphill climb.