DOJ Says Web Accessibility Under the ADA Open to Interpretation

After 103 House members of both parties beseeched the Department of Justice (DOJ) to clarify website accessibility rules under the Americans with Disabilities Act (ADA), the nation’s top law enforcement agency essentially took a pass.

justice-responds-to-website-accessibility-rulesThe letter from House members urged the department to “provide guidance and clarity with regard to website accessibility under the … ADA” for those in the public accommodations sector. The response came back, in part:

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

The response also noted that, in 2010, a DOJ Notice of Proposed Rulemaking (NPRM) indicated that an alternative to accessible websites would be a 24/7-staffed hotline. In other words, a website can be accessible to the blind without adhering to the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Massachusetts Restricts Non-Compete Covenants

After years in the making, a Massachusetts law curtailing non-compete agreements took effect this week (Oct. 1), reflecting a nationwide movement to restrict such covenants, which prevent departing employees from joining competing firms or using the knowledge they gained in a new venture.

massachusetts-enacts-noncompete-lawThe law contains several restrictions, including one that precludes the use of non-compete covenants on employees who fall into the non-exempt employment status (hourly workers mostly) under the Fair Labor Standards Act (FLSA). It also restricts the duration of such covenants to one year after the employee departs, unless there is a breach by the employee, in which case it can be extended another year.

Also excluded are undergraduate and graduate students working part-time, employees 18 and younger, and employees laid off or terminated without cause. New hires (and employees) have the right to seek an attorney’s advice before signing the agreement, and the non-compete must be tendered along with the formal employment offer letter or 10 days before commencement of work, whichever is earlier.

If a non-compete is tendered after employment has started, the law says that it must be “supported by fair and reasonable consideration independent from the continuation of employment.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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California Mandates that Women Must Be on Corporate Boards

In a move that is sure to draw high-profile legal challenges, California Gov. Jerry Brown has signed legislation requiring all corporate boards in the state to seat at least one woman member by the end of 2019. Brown said he was signing the law despite potentially “fatal” legal problems in the measure.

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California Gov. Jerry Brown

“Given all the special privileges that corporations have enjoyed for so long, it’s high time corporate boards include the people who constitute more than half the ‘persons’ in America,” Brown wrote in a signing message.

By the end of 2021, the law ups the ante by requiring boards of five members to have at least two women and boards of six or more to have at least three female members.

One of the major legal issues facing the measure is the fact that corporations are governed by the laws of the states where they are incorporated, regardless of where they’re physically located. Some 80 percent of California’s publicly traded companies are incorporated in Delaware. And about one-quarter of all corporations in California lack female board membership.

“There have been numerous objections to this bill, and serious legal concerns have been raised,” Brown said. “I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation. Nevertheless, recent events in Washington, D.C. — and beyond — make it crystal clear that many are not getting the message.”

The measure was opposed by the California Chamber of Commerce and numerous business groups.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Gig Economy Shrinking, DOL Says

The percentage of Americans working in the gig economy has shrunk to 10.1 today from 10.7 in 2005, the Department of Labor (DOL) claims in an unreleased June study, according to Bloomberg Law. The report seems to contradict other assessments that put gig workers at 33 percent of the American workforce.

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Labor Secretary Acosta

The DOL report, however, does not include gig workers who held other employment and used the gig economy as a supplementary source of income.

The DOL numbers came to light after it released another assessment on Sept. 28 saying that just 1 percent of American workers earn their money outside the 9-to-5 by using smartphone apps and websites. The JPMorgan Chase Institute, however, pegs that percentage at 1.6.

Meanwhile, DOL Secretary Alexander Acosta says his agency is looking at drafting new rules for workers in the gig economy.

“The workforce is changing. How we approach work is changing, and we need to start looking at our rules and recognize that what fit 20 or 30 years ago is not going to fit for the modern workplace,” Acosta told Bloomberg Law.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Takes Rare Budgetary Haircut

President Trump today signed into law a “minibus” federal funding measure that keeps the full government running through Dec. 7 while finalizing budgets for some agencies, including the Department of Labor (DOL), which lost $128 million in budgeting from FY 2018.

In addition to the DOL and its $12.1 billion FY 2019 budget, the National Labor Relations Board (NLRB), Department of Defense (DOD) and Health and Department of Human Services (HHS) were all funded at current or higher levels.

The Trump administration had sought a deeper budget cut for the DOL, targeting it at $10.9 billion, and also a cut for the NLRB from $274 million to $249 million.

The remaining unfunded federal agencies will be kept open through Dec. 7 under terms of the minibus legislation, giving Congress time to agree on budget terms for FY 2019.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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WeWork Reaches Settlement over Non-Compete Covenants

WeWork, an international company providing co-work office space, has reached a settlement with the New York State Attorney General over its use of non-compete agreements, which forced employees at its locations nationwide to agree not to take employment in any city where WeWork operates for a period of one year following their departure.

wework-reaches-non-compete-settlementThe agreement, reached with WeWork in New York City, frees WeWork employees nationwide from the covenant, which the Attorney General’s Office called “overly broad.”

The settlement leaves in place a less-restrictive non-complete agreement that lasts for only six months and restricts the departed employees from taking jobs within a 15-mile radius of a WeWork facility offering the same type of employment.

The New York state legislature is considering a bill that would ban companies from forcing non-compete agreements on any employee earning less than $75,000 a year.

READ FAQs on NON-COMPETES IN NEW YORK


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Judge Restores ACA Cost-Sharing Reduction (CSR) Payments

A federal judge has ruled in favor of a Montana health insurer, which brought suit to be paid $5.3 million in cost-sharing reduction (CSR) payments it said was due for 2017 under provisions of the Affordable Care Act (ACA, or Obamacare).

judge-restores-aca-subsidiesPresident Trump ended the reimbursement program a year ago, saying the funds for the CSRs had never been authorized by Congress.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims said the lack of appropriations doesn’t matter.

“The government violated a statutory obligation created by Congress in the Affordable Care Act when it failed to provide Montana Health its full cost-sharing reduction payments for 2017,” Kaplan said, adding that Congress’ failure to appropriate funds does not wipe out the obligation.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Health Care Spending Approaches 20 Percent of GDP

An analysis by the Health Care Cost Institute (HCCI) of nationwide health care spending for enrollees in employer-sponsored insurance plans shows that expenditures rose 44 percent from 2007 to 2016, putting health care on track for a 20-percent slice of Gross Domestic Product (GDP) within 10 years.

health-care-costs-average-4.1-percent-annual-increaseSpending averaged a 4.1-percent annual growth rate during the period, increasing from $3,752 per person in 2007 to $5,394 per person in 2016, according to the report released yesterday and published in Health Affairs. Out-of-pocket expenses also shot up.

About 40 million Americans get their health insurance through work, representing 30 percent of all health care consumers.

“The past decade has been a transformational time in the U.S. health care market with policy changes and innovation disrupting practice models and standards of care,” Niall Brennan, HCCI’s CEO and one of the study’s co-authors, said in a statement. “However, what is remarkable is that even within these dramatic changes, the share of spending across service areas has remained fairly consistent.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New FCRA Disclosure Forms Must Be Used by Sept. 21

The Consumer Financial Protection Bureau (CFPB) has issued an interim final rule updating two model disclosures to reflect changes made to the Fair Credit Reporting Act (FCRA) by recent legislation.

fcra-disclosure-notices-updatedBeginning Friday, Sept. 21, employers and background check agencies must use the new forms or use the forms from 2012 with a sheet attached explaining the information about security freezes detailed in the following paragraphs. The revised forms can be obtained through the link at the end of this post.

In May 2018, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act, which requires nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers. The “national security freeze” restricts prospective lenders from obtaining access to a consumer’s credit report, which makes it harder for identity thieves to open accounts in the consumer’s name.

The Economic Growth, Regulatory Relief, and Consumer Protection Act mandates that whenever the FCRA requires a consumer to receive either the Summary of Consumer Rights or the Summary of Consumer Identity Theft Rights, a notice regarding the new security freeze right also must be included. The Summary of Consumer Rights is a summary of rights to obtain and dispute information in consumer reports and to obtain credit scores. The Summary of Consumer Identity Theft Rights is a summary of rights of identity theft victims. The FCRA requires the bureau to write model forms of these documents. Consumer reporting agencies and other entities can use the bureau’s model forms or their own substantially similar forms.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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States See Surge in #MeToo Complaints

Watch Personnel Concepts’ video on Workplace Harassment Investigations.

Some states are seeing an upsurge in sexual harassment complaints as a result of the #MeToo movement, but federal statistics are less conclusive.

some-states-see-rise-in-sexual-harassment-claimsThe Associated Press reported recently that Massachusetts and New York City have seen so many complaints that they’re hiring additional investigative agents. The Connecticut Commission on Human Rights and Opportunities reports that sexual harassment complaints this year are coming in at almost twice the number as last year.

Idaho and Maine also report having trouble keeping up with the level of complaints. Florida, however, reports it has seen no large uptick.

The Equal Employment Opportunity Commission (EEOC), which enforces the nation’s anti-discrimination and harassment protections, earlier this year said there had been no increase in sexual harassment complaints following the birth of the #MeToo movement.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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