ACC Employment and Labor Committee September Newsletter
Message from the Chair  
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Recent Presentations and Webcasts  
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Message from the Chair

Welcome to the September newsletter. It is packed with information regarding recent Legal Quick Hits and legal developments that were reported by our subcommittees. Our next monthly call will be on September 6. You always can find the meeting time and dial-in information on the ELLC’s webpage ( 

The October ELLC meeting will be held as part of ACC’s Annual Meeting in Washington DC, as described below. We also have a great lineup of programs. We kick off with the ever-popular Employment Law Update on Monday, October 16. Other topics include multinational employment law practice, contingent workers and an employment law primer for new in-house practitioners, as well as an ethics program. We look forward to seeing you at the Annual Meeting!

Jack Erkilla
Chair, Employment and Labor Law Committee 
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Upcoming Events

Wednesday, September 6, 2017 at 3:00 PM ET, 7:00 PM GMT – Legal Quick Hit: Paid Family Leave: The Next Big Leave Challenge. 

This Legal Quick Hit will address the growing number of paid family leave laws with a focus on New York’s Paid Family Leave Law which becomes effective on January 1, 2018.  Topics to be covered include: 

  • Existing paid family leave legislation

  • Paid family leave legislation that has been enacted but is not yet effective

  • Pending paid family leave legislation in other states

  • Brief Overview of New York's Paid Family Leave Law, including:

    • Who is a covered employer

    • What employees are eligible for leave

    • The reasons employees can take leave

    • How much leave is available

    • Benefits accompanying leave including pay, health insurance, and job restoration

    • Options for funding the benefit, including payroll deductions

    • Interaction with FMLA and Company policies

    • Suggestions for compliance strategies

Click here to register for the upcoming September Legal Quick Hit, presented by Frank Alvarez, Principal at Jackson Lewis P.C.

Don’t Forget to Register for ACC’s Annual Meeting in Washington DC, October 15-18, 2017.  

ELLC will be holding a Business Meeting Lunch on Monday, October 16, 2017, at 1:15 p.m., during the Annual Meeting program. See for additional details on the program schedule and conference registration information.
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Recent Presentations and Webcasts

August Legal Quick Hit Presented by Patricia Pryor, Principal at Jackson Lewis P.C.: Sick Leave – Is it Contagious?

In this Legal Quick Hit, Ms. Pryor discussed how paid sick leave laws continues to sweep the nation on a state level, and county/city level.  Ms. Pryor examined which jurisdictions have “caught” the bug, which have “vaccines” to prevent it, and practical solutions for trying to “cure” (or at least limit) the negative side effects it has on attendance policies.  For more information and current updates on paid sick leave laws, check out Ms. Pryor’s presentation here.

Ms. Pryor can also be contacted at or 513-322-5035.

July Legal Quick Hit Presented by Jackson Lewis P.C.: Protecting Your Company’s Most Important Assets: Talent and Information

In this Legal Quick Hit, Eric Winton, Principal at Jackson Lewis P.C., discussed how with the recent passing of the Defend Trade Secrets Act, and pending state legislation regarding non-competition agreements, reports from the Treasury Department and White House and increasing press coverage, non-competition and other restrictive covenants are more relevant than ever.  Mr. Winton also discussed how best to protect assets such as company information and employees in this changing environment, while still maintaining the ability to hire qualified new staff from competitors.  For more information, see the Quick Hit materials here.

June Legal Quick Hit Presented by Jackson Lewis P.C.: The NLRB under Trump Administration.

This Legal Quick Hit, presented by Linda Carlozzi, Shareholder at Jackson Lewis P.C., discussed how many of the NLRB’s recent decisions have set new rules or reversed long-standing precedents.  Ms. Carlozzi discussed how a Republican majority Board is likely to revise a number of NLRB policies and decisions, including those concerning election rules, joint employer, handbook policies, and social media.  For more information, see the Quick Hit materials here.

May Legal Quick Hit Presented by Jackson Lewis P.C.: Class Action Waivers.   

A recap of this Legal Quick Hit, and a link to the handout materials, was provided in our last newsletter in May 2017. Since that time, Jackson Lewis P.C. issued its quarterly Class Action Trends Report.  A copy of this report can be obtained here.

Materials and Handouts from other past Legal Quick Hits can be found under the “Events “tab on ACC’s Employment and Labor Law Committee webpage at:
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Recent Committee Reports Highlights

Policy Subcommittee

A.   New State and Federal Laws and Regs 1.

1. California has been busy as usual. There are new regulations on gender identity and gender expression discrimination. Gender identity can be male, female, combination, neither or transgender or transitioning.

2. All employers must notify new hires, and employees upon request, about their rights if they are victims of domestic violence, sexual assault or stalking. If accommodations are needed, engage in the interactive process.

3. Los Angeles passed the Fair Chance ordinance, prohibiting employers from seeking criminal history until after conditional offer of employment. They must include notices of the ordinance on job posting and at their worksite. To rescind an offer, there's a fair chance process outlined in the ordinance.

4. Both California and Los Angeles use a "job related and consistent with business necessity" standard in its ban the box regs which are much like EOOC guidance but stricter.

5. California recently amended the Fair Pay Act. It's stricter than federal Equal Pay Act. It prohibits employers from paying one employee less than the wage rate paid to an employee of the opposite sex or another race or ethnicity for substantially similar work. The company would have to show that the pay differential was based on factors other than sex, race, or ethnicity and it has to be job related and consistent with business necessity, and that the factors were relied upon reasonably. Prior salary alone can't justify the disparity. There are criminal fines and imprisonment.

6. California recently amended the Fair Pay Act. It's stricter than federal Equal Pay Act. It prohibits employers from paying one employee less than the wage rate paid to another employee of the opposite sex or another race or ethnicity for substantially similar work. The company would have to show that the pay differential was based on reasonable factors that are job related and consistent with business necessity, other than sex, race, or ethnicity. Prior salary alone can't justify the disparity. There are criminal fines and imprisonment.

7. Oregon is the second state in the nation requiring employers in the retail, hospitality, and food services establishments that employ 500 or more worldwide to give hourly workers advance notice of their work schedules. It has some compensation rules and some limits on the hours employees can work without ten hours of rest between shifts. They get overtime for working during rest periods and other compensation when the employer changes the schedule, increasing or decreasing the work hours. And it's complicated. This starts phasing in on July 1, 2018. Washington has a similar law.

8. Washington is the third state to adopt a biometric privacy law. It requires notice and consent or alternate safeguards.

9. Oregon Equal Pay Act of 2017 expands existing protections and imposes new restrictions on use of salary histories in setting compensation. Applies to all covered groups under anti-discrimination laws.

10. Massachusetts has the Pregnant Workers Fairness Act now, which will take effect April 1, 2018. It's like many other states' laws.

11. Immigration, Visas:   Federal agencies are trending toward merit-based awards of H1B visas and rejecting more visa applications before they can get to the lottery. USCIS memos say: don't try to get entry level workers such as computer programmers, or workers in jobs commanding only level 1 wages into the country. Those occupations are not specialty occupations. Specialty positions are those that genuinely and for specific reasons need college graduates to do complex duties.

12. USCIS: On July 17, USCIS released a revised version of I-9 and accompanying I-9 handbook for employers. It's effective immediately but you can use the current one through September 17, 2017. There are subtle changes in wording and a few new prompts for preparer and translator information. The revised I 9 form added consular report of birth abroad to List C. The handbook is a handy reference guide. Each new paperwork violation on each I-9 prepared on an expired version of the form can cost $2156.


B.   Interesting Cases:

1. On July 13, 2017, the US District Court for the District of Hawaii found that the Department of State's interpretation of the US Supreme Court travel ban decision was too narrow. The Court said that the department of state had to broaden its definition of "close familial relationship" between a person from one of those six countries and a family member here. It must be broadened beyond parents, parents-in- law, spouses, fiancées, children including adult children, siblings and half-siblings. It must also include grandparents, grandchildren, siblings-in-law, aunts, uncles, nephews, nieces and cousins. Trump appealed and on July 19, the Supreme Court refused to modify the Hawaii District Court's decision.

2. On July 17, the Federal District Court for Maryland, in Levin v. Impact Office, LLC, denied the employer's motion to dismiss. Plaintiff had resigned and the former employer had collected her company-paid cell phone. She had previously deleted all e-mails stored on the phone, including personal e-mails from her Gmail account. Of course, they weren't gone. She sued her employer for unauthorized access to her personal e-mails which violated the Stored Communications Act. They accessed and forwarded to their attorney a number of pre- and post- resignation personal e-mails which were still stored on Google servers, including e-mails between plaintiff and her lawyer. The SCA is violated if someone gets unauthorized access to a facility through which an electronic communication service is provided, and thereby obtains, alters or prevents authorized access to an electronic communication while it is in electronic storage in such system. Electronic storage is any temporary, intermediate storage of an electronic communication incidental to the electronic transmission thereof, and any storage for purposes of backup protection of such communication. This is generally understood to cover e-mail messages that are stored on a server, before they have been delivered to or retrieved by the recipient. The e-mails would have needed to be either unopened, or stored for backup purposes after delivery, to meet SCA's electronic storage definition. Considering the court's interpretation of electronic storage under the SCA, companies that issue mobile devices to employees for work and personal use should consider the extent and manner to which they access those devices collected from separated employees. By the way, if the messages had been opened and were resting exclusively on the cell phone ISP's server; this would not qualify as stored communication.

3. July 17: California Court certified a class of more than 40,000 applicants in an FCRA case. The named plaintiff was convicted of battery in 1998 and it was expunged in 2010. An inaccurate background report showed a battery conviction in 2010. The company placed a no-hire recommendation in its file one day after receiving the inaccurate report from the background check vendor, instead of waiting five business days after sending the pre-adverse action notice notification before denying employment. Then when they should have been sending the post adverse action statement, they belatedly sent the plaintiff a pre-adverse action communication. When the plaintiff finally straightened out the inaccurate report, the employer no longer needed the position filled. In addition, the background disclosure violated FCRA by including a statement that the applicant fully understands that all employment decisions are based on legitimate, nondiscriminatory reasons, which the Court saw as an implied liability waiver.

4. On July 13, Arroyo v. Volvo Group North America, LLC was decided by a federal district court in Illinois. The court reduced the judgment to $850,000 but affirmed the jury's finding that Volvo violated the ADA and USERRA. Over the course of the six years that Arroyo worked for them as a material handler, they granted 900 days of military leave, plus FMLA and disability leave. They also gave her many accommodations for her service-related PSTD, including time off to attend VA therapy appointments, an office in which to meditate, a mentor, breaks during panic and anxiety attacks, and use of earplugs. She demanded many more accommodations which they did not make. What caught the jury's attention, though, was evidence that management considered disciplining Arroyo for her absences when she was in the hospital for PSTD, even though they were aware of it and joked that she was really vacationing in Hawaii and was really becoming a pain. They also repeatedly expressed frustration with her military absences. Many of her attendance related infractions which were the grounds for her termination involved her being between 1 and 10 minutes late for work, and Volvo did not terminate other employees for similar infractions. If management hadn't made inappropriate jokes and if Volvo hadn't seized on minor infractions to justify termination, liability could have been avoided.

5. On July 12, the Supreme Court of New Jersey denied summary judgment for the employer in Grande v. St. Clare Health Systems. Grande was a registered nurse assigned to patients recovering from strokes. One of the essential job functions included frequently lifting 50 pounds from waist to chest. She began working in 2000, but between 2007 and 2010, she had a series of job-related injuries from repositioning patients. She took a total of more than twelve months in three years to recover. After her last injury, her doctor cleared her to return to work with no restrictions, but the hospital required her to undergo an FCE exam before returning to work. The FCE people said that she had permanent lifting restrictions and could not transfer patients without assistance. At the time, Grande's doctor concurred with the FCE findings, but a month after she was let go for being unable to do the job safely, her doctor cleared her to return to work without restrictions, but the hospital did not rehire her. The issues precluding summary judgment were as follows: At one end of the spectrum, there was an issue as to whether her absences were sufficiently chronic and excessive to preclude her from showing that she was actually performing the job for which she was terminated. At the other end of the spectrum, there was also a dispute about whether the lifting standards that the FCE relied on actually were the standards of her position, and whether the report established that she could not perform her job either with or without a reasonable accommodation. The record was silent on accommodations. The hospital failed to provide objective evidence that she was unable to perform her job without posing a risk of harm to herself or others. The Court held that an employer relying on the "direct threat" must show that it relied on factual or scientifically validated data. In and of themselves, the three prior injuries in three years were not sufficient to support the defense. The FCE was silent on whether she was at risk of injuring herself or others if she continued to perform her job and the hospital failed to present any expert evidence on the issue.

6. A district court case, In Re Experian Data Breach Litigation is a roadmap for how you get documents recognized as covered by the work product privilege. The doctrine was found to protect a forensic report prepared in response to a data breach suffered by Experian. The third party that prepared the report was retained by outside counsel after the company became aware of a potential incident. In subsequent class action litigation brought by affected individuals, Experian refused to turn over the investigator's report, claiming that it was privileged as attorney work product. The court found that the report was prepared because of anticipated litigation, among other reasons, and thus could be protected by privilege. The court looked at the totality of circumstances and said it didn't matter that anticipated litigation was just one of several reasons for preparing the report. What was important was that the report was drafted in its particular format because of anticipated litigation. Also, the investigator was engaged by outside counsel and conducted its investigation at counsel's direction. In addition, the report was used by counsel to evaluate Experian's legal obligations and develop their legal strategy, was closely protected by counsel and was not widely disseminated to the breach response team or other employees working on remediation. So it was protected from discovery.

7. A recent website accessibility case is -  Lucia Marrett v. Five Guys Enterprise. The SDNY dismissed Five Guys motion for summary judgment and held Title III does apply to websites, which is a place of public accommodation. The restaurant argued that they were trying to make their website accessible and the court said, "Well you haven't done it yet."

Other website accessibility cases: CD Cal, Gorecki v. Hobby Lobby Stores, Inc. June 15, district court denied Hobby Lobby's motion to dismiss and held that a retailer's website constitutes a public accommodation under Title III of ADA, and noted that the website allows consumers to buy products, search for store locations, view special pricing offers, obtain coupons and buy gift cards. The court relied on DOJ regs requiring public accommodations to use auxiliary aids and services to communicate effectively with disabled customers.

But on June 13, a judge in the CDFLA handed down a bench trial verdict against retailer Winn Dixie. Gil v. Winn Dixie Stores, Inc. was the first website accessibility case to go to trial. The Court said that a website which is a gateway to physical locations, and therefore a public accommodation that is subject to the ADA, Title III and must be made accessible to people with visual impairments. The legal issues were whether the website was a public accommodation, whether the plaintiff was denied equal and full enjoyment of the store's goods, services, facilities, privileges, advantages or accommodations because of a disability, and whether the requested modifications to the website are reasonable and readily achievable. The plaintiff shopped there, and competitors had accessible websites. The court said that the website's online pharmacy management system, the ability to access digital coupons that link automatically to a customer's reward cards, and the ability to find store locations are services that would be important to the visually impaired. There was testimony that accessibility issues could be corrected with simple modifications to one or two source codes. Estimates of the cost of fixing the website ranged from $37,000 to $250,000, but the court said that both figures paled in comparison to the $2 million it spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website. The fact that third party vendors operate certain parts of the website was not a legal impediment to the store's obligation to make its website accessible to the disabled because most of the third party vendors may already be accessible and if not, the store had a legal obligation to require them to be accessible if they choose to operate within the store's website. The Website Content Accessibility Guidelines (WCAG) 2.0 were adopted as part of the injunctive terms of the decision.

On March 20, 2017, in CD.Cal, court decided a website accessibility action, Robles v. Domino's Pizza LLC. The court held that it would violate Domino's due process rights to hold that the website violated the ADA since DOJ failed to issue promised website accessibility regs. But the court said that some type of accommodation would be required so that the plaintiff could have full and equal enjoyment of services.

The lesson of these cases taken together, don't ask for WCAG, just ask for "full and equal enjoyment of the website," which is language from Title III in the ADA.

The Fifth Circuit found, in Coca-Cola, that a vending machine is not a place of public accommodation and does not have to be accessible. The plaintiffs who lost in the Fifth Circuit are appealing to the Supreme Court and the DOJ is on record with a brief agreeing with Coke and the Fifth Circuit.

8. On July 17, the Second Circuit adopted a motivating factor causation standard for FMLA retaliation claims, not the but-for causation test, which is harder for plaintiffs to prove. Woods v. Start Treatment and Recovery Centers. They deferred to the DOL's standard, because the statute is unclear and the interpretation is reasonable. In this case, if the employee performed poorly and engaged in serious misconduct but retaliation for FMLA leave was part of the employer's motivation, plaintiff can win. This is consistent with Third Circuit.

9. Following a somewhat similar decision in Rhode Island, The Massachusetts Supreme Judicial Court recently denied summary judgment to the employer, holding that an employee terminated for testing positive for lawful medical marijuana use may go to trial on a claim for disability discrimination under Massachusetts Law. She was applying for a job and admitted that she used pot to treat Crohn's disease and IBS. Barbuto v. Advantage Sales and Marketing, LLC. The company said that they were following federal, not state, law. The court found this argument irrelevant because the protections were in Mass. disability law, not the medical marijuana act. The employer said she couldn't be qualified under the state disability law because the accommodation she sought was a federal crime. But the Medical Marijuana Act implicitly recognizes that off-site medical marijuana may be a permissible accommodation. The court also rejected an argument that the federal law should preempt state law. The court held that only the employee was at risk of being federally prosecuted for using pot, so the legality of its use should not impact the determination of its reasonableness as an accommodation. Employers would have to show an undue hardship to avoid accommodating medical pot, or show that the pot would do more harm than good to the employee's work performance. Employers can still prohibit its use in the workplace, though, in safety sensitive jobs.

10. A Washington federal district court judge ordered an employer to pay a terminated employee a little over $1.8 million in damages and more in punitive and emotional distress, for failing to accommodate the employee's use of opioids that were prescribed for her migraines, and for terminating her for a positive test result. She was a customer service rep for over twenty years and had had migraines most of her adult life. She took off work for injections of the opioid. Sometimes the drug caused confusion, sleepiness, and slurred speech, but she could return to work if she rested for a few hours after the injection. The company only gave her four hours between the injection and return to work, which was not quite enough time. The company's fitness for duty policy prohibited employees from working under the influence of drugs or alcohol. There could be reasonable suspicion drug tests if the supervisor believed they were impaired by drugs or alcohol. There was no exception for prescription medications to treat disabilities. After a reasonable suspicion test, which was given because she looked impaired, but there was no evidence that she was really unable to work, she was sent for counseling for substance abuse but no substance abuse was found by the counselor. She tested positive again and was terminated. Her doctor always put on the FMLA forms that a positive test didn't necessarily mean she was impaired, but the company ignored that and never communicated with the lab to explain the situation. Lesson: an employee on prescription opioids should be presumed to be an employee with a medical condition, not a substance abuser, which can be hard to do when we're always hearing about the opioid epidemic. Don't address it through discipline but through interactive process. This was a failure to accommodate case. They could have given her more time to rest; they could have allowed her to remain at home for the rest of the day after an injection. In general, employees have a protected right to use prescribed, controlled substances and come to work unless such use creates a safety issue or undue risk of harm.

For more information or to get involved with the Policy Subcommittee, we encourage you to contact Committee Chairs Gregory Watchman at; Alice Conway at; or Colleen Higgins Schultz at


Traditional Labor Subcommittee

1. § Justices to Hear NLRB Class Action Waiver Cases In October

The U.S. Supreme Court has set October 2, 2017 as the date for oral arguments in a closely watched battle over the legality of arbitration agreements requiring workers to waive their rights to file class or collective actions against their employers. Arbitration agreements that require employees to pursue claims in arbitration, rather than in court, have traditionally been enforced via the Federal Arbitration Act (FAA). Relying on a series of Supreme Court decisions, employers have used class and collective action waivers in such agreements. However, the National Labor Relations Board (NLRB) has challenged employers as having violated the NLRA when employees are required to agree to such waivers in arbitration agreements a condition of employment. Past Supreme Court decisions were narrowly decided by 5-4 and 5-3 votes in non-employment cases. Justice Gorsuch is expected to have replaced Justice Scalia’s vacant position prior to the October 2, 2017 oral arguments.

2. § 5th Circuit Denies NLRB to Find Several T-Mobile Workplace Rules Pass Muster

On July 25, 2017, the Fifth Circuit on Tuesday mostly struck down a National Labor Relations Board ruling that invalidated various T-Mobile and MetroPCS employee handbook rules, including workplace behavior requirements, but upheld the NLRB’s challenge to a rule banning workplace recordings. The Fifth Circuit declined to enforce three of the NLRB’s rulings and upholding the legality of T-Mobile’s workplace rules on: (1) encouraging employees to maintain a “positive work environment”; (2) commitment-to-integrity policy that prohibits “arguing or fighting”; and (3) acceptable use policy prohibiting employees from sharing nonpublic information by email including wage information. The Fifth Circuit upheld the NLRB’s ruling that T-Mobile’s recording policy that bans employees from “any and all photography on corporate premises without permission from a supervisor” would discourage employees from engaging in a protected activity.

3. § Senate Labor Committee Advances NLRB Nominees

Republicans on the Senate Health, Education, Labor and Pensions Committee on Wednesday signed off on the Trump administration’s nominees to fill the two vacancies on the National Labor Relations Board over objections from some committee Democrats. Attorneys Marvin Kaplan and William Emmanuel were both advanced on 12-11 votes for the two remaining vacant seats on the five-member NLRB. Both nominees still face a confirmation vote before the full Senate.

For more information or to get involved with the Traditional Labor Subcommittee, we encourage you to contact Committee Chairs Micah Heilbrun at or Darryl Uffelmann at


ERISA Subcommittee

1. 401(k) Plan Fix-It Guide - The IRS recently updated the 401(k) Plan Fix-It Guide to reflect updates to the Employee Plans Compliance Resolution System (EPCRS).
As background, IRS Fix-It Guides provide information on how to identify, fix and avoid common 401(k) plan compliance failures. The recent changes mainly reflect the modifications made to the EPCRS by Revenue Procedure 2016- 51. This guide provides valuable information to plan sponsors who are looking to keep their 401(k) plans compliant.

2. Cyber Security and HIPAA HHS recently published its June cyber newsletter, which discusses security concerns that HIPAA-covered entities and business associates (BAs) must take into account when implementing file-sharing and collaboration tools.

In the newsletter, HHS provides examples of how cloud computing and file sharing services can introduce additional risks to the privacy and security of ePHI — risks that employers subject to HIPAA’s security rule must identify as part of their risk analysis process and mitigate as part of their risk management process. Specifically, misconfigurations of file sharing and collaboration tools, as well as cloud computing services, are common issues that can result in the disclosure of sensitive data, including ePHI.

While no new employer requirements are published, this HHS cyber Newsletter » and the Guidance on HIPAA & Cloud Computing » can be helpful to maintain compliance.

3. The ACA is here to stay...for now. After dramatic votes, political horse trading and last minute please in the middle of the night, the Senate failed to pass any form of repeal and replacement for the Affordable Care Act. Although the Senate is said to be turning its attention to tax reform, it is always possible that the ACA may find its way back to the floor in coming months. For now, it’s important to maintain full compliance with the ACA.

For more information or to get involved with the ERISA Subcommittee, we encourage you to contact Committee Chairs Ronald Peppe at or Jennifer Fournier at

Access Subcommittee Reports on the ELLC Webpage!  The ELLC posts its subcommittee reports on its web page.  You can check out the subcommittee reports at: OR under the Minutes & Agenda Tab on your ELLC homepage at:

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Join Our Leadership!

ELLC is looking for members interested in serving as Committee Secretary as well as leadership positions for various subcommittees.  This is a great way to meet your colleagues and help shape the future of the Employment and Labor Law Committee.  If you would like to volunteer or learn more about what’s available, please get in touch with the ELLC Chair, Jack R. Erkilla, at
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