Hawaii Court Enjoins Trump Travel Ban For Excluding Non-Immediate Family Members of US Persons and DHS-Approved Refugees

In June the Supreme Court enforced temporarily President Trump’s travel ban to the extent it excludes persons without a “bona fide relationship” to a person or entity in the U.S. The Court expressly identified wives and mothers-in-law as persons who have a bona fide family relationship to a person in the U.S.  Following the Court’s decision, the Trump administration interpreted “bona fide relationship” narrowly, to include only fiancés, spouses, children, parents and siblings of the U.S. person. On July 13 a federal judge in Hawaii loosened the travel ban by entering a nationwide injunction that orders the Trump administration to exempt from the ban grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, nieces, nephews, and cousins of persons in the U.S. U.S. District Judge Derrick Watson criticized the Administration’s narrow definition of bona fide family relationship as “the antithesis of common sense,” which “dictates that close family members be defined to include grandparents.”

Additionally, Judge Watson enjoined enforcement of the ban to the extent it excludes from entry refugees who have formal assurance from a U.S. resettlement agency. Judge Watson reasoned that such assurance “meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades…Bona fide does not get any more bona fide than that.”

Immediately, the Justice Department appealed Judge Watson’s ruling to the Ninth Circuit and simultaneously filed motion papers with the Supreme Court requesting clarification. In its motion, the Justice Department argues that Judge Watson’s interpretation of the travel ban “empties the Court’s decision of meaning,” because it includes “not just ‘close’ family members, but virtually all family members…Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision.” The Justice Department asked the Court to stay the effective date of the Hawaii court’s order until the Court resolved the motion to clarify the Court’s June ruling. The Justice Department’s motion, which remains pending, may be viewed here.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

SCOTUS Lifts Injunctions Against Trump Travel Ban for Aliens Unable to Establish Bona Fide Relationship with a U.S. Person or Entity

On June 26, the Supreme Court granted the Trump Administration’s petitions for certiorari and agreed to review next term the Fourth and Ninth Circuits’ decisions that affirmed broad injunctions against enforcement of the President’s second Executive Order on U.S. entry by foreign nationals. In the meantime, in a per curiam decision, the Court granted in part the Administration’s request to lift the lower courts’ injunctions against the travel ban affecting nationals of six predominantly Muslim countries, the 50,000-person refugee cap, and the suspension of the refugee program “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” The Court will hear argument on these consolidated cases in October 2017.

The Supreme Court left in place the lower courts’ injunctions “only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) [of the second Executive Order] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2.”

The Court defined “bona fide relationship” as including individuals with a “close familial relationship,” including a wife or a mother-in-law. For entities, the relationship “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.”  This category includes a student who has been admitted to a U.S. university, a person who accepted a job offer with a U.S. employer, and a lecturer invited to address an American audience. The Court stated that the same “bona fide relationship” test will apply to a foreign national who seeks entry to the U.S. as a refugee, regardless of the 50,000- person cap.

Justices Thomas, Alito, and Gorsuch concurred in part and dissented in part. Justice Thomas stated that he would “grant the government’s applications for a stay in their entirety” and agreed “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” The Administration can therefore rely on at least three solid votes to overturn the injunctions in their entirety next fall.

If you would like to discuss the current status of the President’s Executive Order, and the implications of the Executive Order and the Court’s decision for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Fourth and Ninth Circuits Sink Trump Travel Ban as Prelude to High Court Review

In the most recent judicial setbacks to President Trump’s Executive Order earlier this year suspending the U.S. entry of aliens from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), reducing the number of refugees allowed entry in 2017 to 50,000, indefinitely and then temporarily barring the admission of Syrian refugees, and suspending the Refugee Admissions Program for 120 days, on May 25 the Fourth Circuit en banc enjoined nationally enforcement of the Executive Order. Although the Justice Department argued that the Order’s primary purpose is advancing national security, the court, with three of the 14 judges dissenting, remained unconvinced that the travel ban had “more to do with national security than it does with effectuating the President’s promised Muslim ban.” The Fourth Circuit found that the Order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The opinion referenced statements that President Trump made in 2016 while on the campaign trail, which the court found supported its finding that the Executive Order was religiously motivated and violated the Constitution’s Establishment Clause. However, the court vacated the lower court’s injunction to the extent it enjoined the President. International Refugee Assistance Project v. Trump.

On June 12 the Ninth Circuit in a per curiam decision by a three-judge panel, also upheld a lower court’s nationwide injunction against enforcement of the travel ban, but on the separate grounds that the Executive Order violated U.S. immigration law. The court stated that the revised travel ban “exceeded the scope of authority delegated to [the President] by Congress.” The panel held that by broadly prohibiting entry by all persons from the listed countries, the Executive Order is too broad and ignores important factors, such as the alien’s working arrangements, family matters and access to U.S. medical care. The Ninth Circuit did not address Establishment Clause issues, as the Fourth Circuit did. Instead, its major concern was that “the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” However, the court vacated the injunction against the President and against the Government’s conducting internal reviews of security risks posed by nationals of the listed countries and the refugee program. Hawaii v. Trump.

The Supreme Court must now decide whether to hear the Administration’s appeal from the Courts of Appeals decisions this term. Most recently, in view of the current non-enforcement of the travel ban, on June 14 the President revised the 90-day ban on travelers and the 120-day ban on refugees to ensure they do not expire in the interim and will take effect 72 hours if and after the Administration prevails in having the injunctions lifted.

If you would like to discuss the implications of the Executive Order and these court decisions for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nulllgenovaburns.com.

Two Federal Courts Dismiss ADA Website Accessibility Claims

In the last two months, at least two federal district courts have dismissed website accessibility lawsuits filed against private companies under the Americans with Disabilities Act (“ADA”), proving that this issue continues to be the Achilles Heel of the Department of Justice’s (“DOJ”) Regulatory Arena.

For context, imagine a blind person who is unable to make online mortgage payments because his bank’s website did not provide him the means.  The DOJ is tasked with enforcing the ADA, a federal statute that provides for equal access to places of public accommodation, including private businesses, for such persons with disabilities.  However, the text of the ADA is silent about public accommodations’ websites, and a recent executive order aimed at decreasing federal regulations has all but eliminated any chance that the DOJ will issue regulations on that topic.  The absence of such regulations has emboldened disability advocacy groups across the nation to flood the courts with lawsuits against companies alleging a failure to provide equal access to audio, audiovisual, or other content made available online.

Not so fast, said the U.S. District Court for the Central District of California.  On March 20, 2017, in the case of Robles v. Domino’s Pizza LLC, No. 16-06599, the federal court dismissed ADA web accessibility litigation brought against the enormous food retailer, Domino’s.  The court relied on the “primary jurisdiction doctrine,” which allows courts to dismiss complaints pending the resolution of an issue that is “within the special competence of an administrative agency.”  Noting that Congress has vested exclusive authority with the DOJ to promulgate regulations defining what web accessibility standards to impose on private companies, the court concluded that it was inappropriate to render judgment against Domino’s in the absence of such regulations.

There are various other legal issues that arise in ADA web accessibility cases, including the concept of standing, which means having a concrete injury that can be rectified by a court order, and whether a website is a place of public accommodation.  The U.S. District Court for the Southern District of Florida, in the case of Gomez v. Bang & Olfusen America, Inc., No. 16-23801, shed light on both issues.  The Gomez court dismissed an ADA web accessibility claim brought by a plaintiff who contended that the company’s website could hypothetically impede a blind person from enjoying all the benefits of the company’s retail stores on the basis that the plaintiff did not have a particularized injury (i.e., standing).  As the court concluded, “[h]is generalized grievances are wholly unconnected to any harm he actually suffered at the place of public accommodation (i.e. the concrete, physical store) and are therefore insufficient to survive a motion to dismiss.”  The court also recognized that websites are not included in the ADA’s express list of public accommodations: “If Congress – recognizing that the internet is an integral part of modern society – wishes to amend the ADA to define a website as a place of public accommodation, it may do so.  But the Court, having no legislative power, cannot create law where none exist.”

Although these cases may suggest a shield to ADA web accessibility litigation, there are just as many courts across the country taking completely opposite views.  For example, only one year ago, a Massachusetts federal court rejected the “primary jurisdiction doctrine” (relied upon in Robles) as a basis to dismiss ADA web accessibility claims made against Harvard University and the Massachusetts Institute of Technology.  See Nat’l Ass’n of the Deaf, et al., v. Harvard Univ., et al., No. 15-30023; Nat’l Ass’n of the Deaf, et al. v. Massachusetts Inst. of Tech., No. 15-30024.  Given the national split over these issues and the unlikelihood that the DOJ will issue clarifying regulations, businesses should be cautious.

The first step a business should take to minimize the risk of expensive litigation and exhausting DOJ investigations is to designate an ADA coordinator/compliance group to audit its website.  Companies should simultaneously work with counsel so that reports and findings from these audits are generated under privilege.  In addition, companies should adopt strong website accessibility polices and staff training materials.  Moreover, one of the most effective ways to stave off litigation is to provide a customer service, like a hotline, devoted to assisting customers who encounter difficulties in accessing a company’s web content.

Those with questions about these emerging issues or looking for a preliminary assessment of their legal exposure under the ADA should contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Brigette N. Eagan, Esq., Counsel with the firm’s Human Resources Practice Group, at beagan@nullgenovaburns.com or 973-533-0777.

 

District of New Jersey Ruling Leaves Employers High and Dry as to Guidance on Dealing with Medical Marijuana Users

On February 21, 2017, the District of New Jersey dismissed a wrongful termination lawsuit by a medical marijuana user who claimed that the employer failed to accommodate his disability in violation of the New Jersey Law Against Discrimination (“NJLAD”).  See Thomas Barrett v. Robert Half Corporation, et al., No. 15-624.  The case raises key issues for New Jersey employers whose employees are legally using medical marijuana, however, the court avoided dealing with the significant substantive issues for employers and their employees raised by medical marijuana, including preemption issues, by focusing on a defect in how the complaint was plead.

The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”), protects medical marijuana patients “from arrest, prosecution, property forfeiture, and criminal and other penalties” for using medical marijuana to alleviate suffering from debilitating medical conditions.  Since the law was passed in 2010, ambiguities remain regarding the rights of employees who use medical marijuana.  Currently, the NJCUMMA does not require employers to provide reasonable accommodations for “the use of marijuana in any workplace.”  However, the statute is silent on use of medical marijuana outside of the workplace, and there is currently no case law clarifying this provision.  Employers who drug test their employees are obviously left in limbo because if an employee tests positive for marijuana, the employer will be hard pressed to prove that the positive test results from workplace use of marijuana as opposed to use outside of the workplace.

In Thomas Barrett v. Robert Half Corporation, et al., No. 15-6245, the plaintiff suffered chronic pain resulting from a car accident and was issued a license from the State of New Jersey Department of Health’s Medicinal Marijuana Program.  Mr. Barrett alleged that he notified his employer, Robert Half Corp., a staffing company, that he was issued a medical marijuana license and that it was for treatment of his disability.  Prior to a new work assignment, his supervisor required him to submit to a drug test, to which Mr. Barrett alleges he responded by again informing his employer that he was licensed to use medicinal marijuana.  He claimed that his employer responded by telling him not to worry about failing and to simply present his license at the time of the test.  Nevertheless, about a week after starting his new work assignment, Mr. Barret was terminated due to a positive drug test.

In moving to dismiss, the employer argued (i) the plaintiff failed to request accommodation with enough specificity, (ii) the NJCUMMA is preempted by the federal Controlled Substances Act (“CSA”) and should not prohibit employers from terminating employees whose conduct violates federal law, and (iii) even if not preempted by federal law, the NJCUMMA does not confer employment protections.

In the order dismissing the action, the court only ruled that Mr. Barrett failed to plead a request for accommodation of his disability, and therefore failed to state a claim.  The court held that it was insufficient for the plaintiff to simply notify his employer that he was licensed to use medical marijuana as treatment for his disability.  Instead, a plaintiff must allege that he requested an accommodation in connection with his disability.  By ruling strictly on whether the plaintiff requested an accommodation, the court left the other points raised in the employer’s motion to dismiss unaddressed – particularly, whether an employee who does properly request an accommodation has a right to such an accommodation under the NJLAD for medical marijuana use, assuming that any marijuana use takes places outside of the workplace.  Currently, there is legislation pending in the New Jersey State Senate and Assembly, Bill S-2161, that would make it unlawful for an employer to take adverse employment action (e.g., termination) against an employee for being enrolled in the State medical marijuana program or failing a drug test.  However, the bill has yet to come out of committee.  Moreover, even if the bill does become the law in New Jersey, it is an open question as to whether the law and the NJCUMMA are preempted under federal law by the CSA, especially with a new federal Department of Justice which has issued public comments indicating a desire to continue to strictly enforce marijuana prohibition.

As a practical matter, employers are in a bind because anyone who has a license to legally use medical marijuana is likely going to have a disability under the NJLAD (and possibly the Americans with Disabilities Act).  Plaintiff employees may try to conflate any adverse employment action as being related to the underlying disability as opposed to marijuana use.  As  a result, the standard advice to employers that they must have anti-discrimination policies in place, policies regarding reasonable accommodations, and training on these policies, is more important than ever.  Any adverse action against an employee based upon performance should always be backed up with the appropriate paper trail of performance reviews and/or employee discipline documents to help to show that the termination was not based upon a protected characteristic such as disability.

As to potential adverse action that an employer takes against legal medical marijuana users based solely on failing a drug test for marijuana, employers are in a difficult position.  For employers in the transportation and logistics industry where the federal Department of Transportation mandates drug testing and does not allow exceptions for medical marijuana, an employer is going to have a strong legal defense if a fired truck driver attempts to sue after being terminated for testing positive for marijuana, even if he or she has a license to use medical marijuana.  However, in other industries where there is no federal drug testing requirement, employers must carefully weigh the benefits and risks before taking adverse action against an employee for a failed drug test based upon marijuana if the employee has a legal license for medical marijuana.  Any employers dealing with issues involving medical marijuana should consult with an attorney as the law is constantly evolving in this area.

If you have any questions or would like to discuss employers’ obligations regarding medical marijuana users, please contact Harris S. Freier, Esq., of the firm’s Employment Law and Appellate practice groups, at hfreier@nullgenovaburns.com, or call 973-533-0777.  Please visit our free Labor & Employment Blog at www.labor-law-blog.com to stay up-to-date on the latest news and legal developments affecting your workforce.

What Pretext? The Tenth Circuit Shows the Value in Trucking & Transportation Employers Citing to Safety and Customer Complaints to Justify Discharge

On March 10, 2017, the Tenth Circuit in Henson v. AmeriGas Propane, Inc., no.: 16-7057, declined to revive a discrimination and wrongful discharge lawsuit in finding that the lower court was correct in its holding that that the former AmeriGas Propane, Inc. delivery driver who brought the claims had not shown that his termination was pretextual.  While this case originated out of Oklahoma, it provides beneficial guidance for our transportation trucking, and logistic clients.

In his initial complaint, filed in May 2015, Plaintiff Isaac Henson alleged that AmeriGas Propane, Inc. (“AmeriGas”) violated the Americans with Disabilities Act of 1990 (and subsequent Amendment) as well as Oklahoma’s Retaliatory Discharge Act for terminating his employment because his disabilities and/or because AmeriGas regarded him as disabled. Henson also asserted that he was terminated because he engaged in statutorily protected activity under Oklahoma’s workers’ compensation law.

Henson began working as a delivery driver for AmeriGas in May 2011. His responsibilities included filling and delivering propane tanks to commercial and residential customers. While executing those tasks in August 2012, he injured the middle finger of his right hand. AmeriGas attempted to accommodate him by assigning light work duties as needed. Despite this, Henson still required over sixty medical and occupational-therapy appointments and underwent hand surgery in April 2013. In September 2013, he advised AmeriGas that his doctors recommended a second surgery. During this time, Henson’s performance declined, though his initial performance appraisal was generally positive. There were repeated safety violations, including three separate incidents of Henson driving too fast and running a stop sign. In November 2012, he received a formal written warning in an employee disciplinary report for the safety violations. Also in April 2013, Henson received a second written warning and a four-day suspension for insubordination, a negative attitude, and customer service deficiencies. In May 2013, his performance appraisal reiterated AmeriGas’s safety concerns and advised him to be more positive toward the company. Ultimately, Henson was terminated in October 2013, with AmeriGas citing insubordination along with another safety violation: leaving the gauge open on a customer’s propane tank.

Dissatisfied with the termination, Henson filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and with the Oklahoma Employment Security Commission. He exhausted his administrative remedies but secured a right-to-sue letter, prompting him to file suit asserting that (1) AmeriGas violated the federal law when it fired him because of his hand impairment; and (2) AmeriGas violated the Oklahoma state law when it fired him in retaliation for engaging in statutorily protected activity. The district court found that Henson established a prima facie claim of discrimination under both federal and state law, however, it also found that AmeriGas established a legitimate and nondiscriminatory reason for termination. Moreover, the court said that AmeriGas was aware of Henson’s injury and its impact on his ability to perform his duties well before the need to go for a second surgery.

On appeal, the Tenth Circuit rejected Henson’s pretext argument using a standard similar to the Third Circuit and found that Henson’s performance history outweighed any timing issues as to the discharge being close to Henson’s workplace injury. The court also found that Henson’s self-assessment of his performance was not enough to show pretext. Rather, it noted that it is the manager’s perception of the employee’s performance, as opposed to a subjective self-evaluation, that is relevant to review of legitimate and nondiscriminatory termination practices carried out in good faith by a company.

This case is useful for our clients in the transportation, trucking, and logistics industries because it shows that when an employer effectively uses written discipline and can cite to safety and/or customer complaints, this can provide a powerful counter to a plaintiff’s claims of pretext.  Employers in any industry should always try to ensure that there is a written and comprehensive record of discipline and/or performance reviews of employees to negate a plaintiff’s pretext argument.

For questions about employment issues involving the trucking and logistics industries, please contact John Vreeland, Esq., Chair of the Transportation, Trucking & Logistics Group and Partner in the Labor Law Practice Group at jvreeland@nullgenovaburns.com or (973) 535-7118, or, Harris S. Freier, Esq., Partner in the Firm’s Employment Law and Appellate Practice Groups, at hfreier@nullgenovaburns.com or (973) 533-0777.  Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments effecting your workforce.

Trump Blinks and Signs Revised Executive Order; States React Immediately

On March 6 President Trump signed a second Executive Order revoking his January Order and replacing it with Executive Order (“March Order”) effective March 16, 2017 that is intended to overcome court challenge. The March Order suspends for 90 days entry into the U.S. of nationals of six countries, but carves out limited exceptions for certain categories of affected aliens. After issuing the March Order, the Justice Department immediately asked the federal court in Seattle to halt Washington’s and Minnesota’s legal challenge from proceeding against the January Order and notified the Court notice that the Government plans instead to enforce the provisions of the March Order.  However, for the moment the Seattle lawsuit remains pending.

Under the March Order, entry by nationals of six countries -Iran, Libya, Somalia, Sudan, Syria and Yemen- is suspended through June 14, 2017. The suspension of entry into the U.S. will apply only to foreign nationals from the six countries who 1) are outside the U.S. as of March 16, 2017, and 2) did not hold a valid visa as of 5 p.m. EST on January 27, 2017 and 3) do not have a valid visa as of March 16, 2017. The suspension of entry into the U.S. will not apply to U.S. permanent residents, any foreign national who is admitted to or paroled into the U.S. on or after March 16, 2017, any foreign national who has a document other than a visa valid on March 16, 2017 that permits the individual to travel in the U.S., any dual national of one of the six countries if the individual is traveling using a passport from the non-designated country, any foreign national traveling on a diplomatic visa, NATO visa, C-2 visa for travel to the U.N. or a G-1, 2, 3 or 4 visa, any foreign national granted asylum, and any refugee already permitted to be in the U.S. No immigrant or nonimmigrant visas issued before March 16, 2017 is being revoked by the March Order and any individual whose visa was revoked as a result of the January Order is entitled to a travel document permitting travel to and entry into the U.S.

Although the March Order does not list Iraq as a banned country, decisions about issuance of visas or granting entry to any Iraqi national will be subject to additional scrutiny to determine if the alien has connections to ISIS or other terrorist organizations, or otherwise poses a threat to national security or public safety.

The March Order also suspends all refugee travel into the U.S. under USRAP and suspends decisions on all refugee status applications through July 16, 2017. The January Order banned all Syrian refugees’ admission into the U.S. indefinitely. The Secretaries of State and Homeland Security retain the ability to jointly determine a refugee’s admission into the U.S. on a case-by-case basis so long as admission is in the national interest and poses no threat to national security and welfare. Finally, for fiscal year 2017 entry by refugees in excess of 50,000 is suspended until the President determines additional entries are in the country’s interest.

The first state to challenge the March Order was Hawaii which sued in Honolulu federal court claiming that the March Order results in an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism. U.S. District Judge Derrick Watson will hear Hawaii’s request for a temporary restraining order on March 15. New York’s Attorney General announced that New York will join Washington and Minnesota in the pending federal case in Seattle. Other states are expected to follow New York’s and Hawaii’s example.

If you have any questions or would like to discuss how the March Executive Order affects your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Union Fund Uses NY False Claims Act to Blow Whistle on Prevailing Wage Violator and Recover $33,750

In the first reported case of its kind in New York, in February a union fund received a five-figure settlement payment from a Harlem-based general contractor that worked on a New York City affordable housing project after the fund blew the whistle on the contractor’s failure to pay prevailing wages. The fund filed a whistleblower complaint under the N.Y. False Claims Act, which allows a whistleblower to file a qui tam lawsuit if it knows of and reports violations of the Act. The Act makes liable entities that knowingly present to the state or local government false or fraudulent claims for payment or avoid their obligations to pay the state or a local government. State of New York v. A. Aleem Construction, Inc.

A whistleblower that files a successful claim under the Act can recover 15 to 25 percent of any recovery if the State intervenes in the matter and converts the qui tam action into an attorney general enforcement action. If no State intervention, the whistleblower can recover between 25 and 30 percent of the total recovery. New York is among 29 states, including New Jersey, plus D.C. that offer an incentive payment or “bounty” to persons who blow the whistle on prevailing wage violators. A whistleblower who plans or initiates the violation that is the basis of the action can recover but in a reduced amount.

The union fund’s whistleblower complaint caused the State to investigate and determine that the general contractor violated prevailing wage laws by failing to pay laborers working on the project the required prevailing wages and benefits and failing to maintain proper payroll records. Under the settlement, the general contractor agreed to pay $225,000 to resolve the Action, $33,750 of which, or 15%, was paid to the fund.

The bounty paid to the union fund for reporting to the State violations of prevailing wage laws serves as another wake-up call to the employer community that claims for violations of prevailing wage laws can come from various sources including even the unions and their funds that negotiate and benefit from the wages and benefits, and the added incentive of a bounty in exchange for blowing the whistle is likely to encourage more unions and their funds to follow suit. In addition, on February 21 the U.S. Supreme Court reversed the 2nd Circuit Court of Appeals’ dismissal of a 2011 suit brought under the federal False Claims Act by two former Wells Fargo employees who sought damages on behalf of taxpayers for fraud occurring during their employment with the bank. The Court vacated the dismissal of the lawsuit and in the process endorsed broader support for whistleblower claims at the federal level. Bishop v. Wells Fargo & Co. The federal False Claims Act provides similar encouragement, not limited to employees, to blow the whistle on violators of the Davis-Bacon Act.

If you have any questions or would like to discuss how these state and federal whistleblower protections apply to your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Wage and Hour Compliance Practice Group and  at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Appellate Court Expands Rice Notice Requirements

Following the February 8, 2017 Appellate Division decision in Kean Federation of Teachers v. Morell, public bodies must review their processes for issuing Rice notices and making available meeting minutes to the public.

In its decision, the Appellate Division expanded the application of the Rice notice requirements to include all situations in which the public body intends to take action on an agenda item which will affect an employee’s “employment appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or [discipline]” of its employees. This requirement attaches to all agenda items, regardless of whether the public body intends to hold a discussion about the matter.  The Court reasoned that presenting a Rice notice for all employees on a particular agenda allows the public body to have “flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity” to request a public discussion.

In the same decision, the Court also evaluated the timeframe required for a public body to release its meeting minutes so that it meets the OMPA’s requirement of making them “promptly available”.  At issue was a set of minutes from the September 15, 2014 meeting, which took 94 days to release.  A second set, from the December 6, 2014 meeting took 58 days to release.  Although the Court did not expressly define a timeline to comply with making minutes “promptly available,” it suggested that a reasonable timeframe for release is within 30-45 days.  Even without a clear rule, the Court makes it clear that a 2 or 3 month delay is not justifiable, and mandates public bodies to “adopt a protocol that makes the availability of its meeting minutes a priority.”

The Court’s clear directive to the parties is applicable to all public bodies effective immediately.  Public bodies should review their protocols to ensure that Rice notices be issued in advance of taking action on agenda items involving employment matters.  Public bodies must also review its processes to ensure an efficient method of producing required meeting minutes (including those which are subject to redaction) relatively soon after receipt of a request.

For additional guidance regarding compliance with the Court’s mandate, please contact Jennifer Roselle at 973-646-3324 or jroselle@nullgevnoaburns.com. Ms. Roselle is Counsel in the Firm’s Labor Law and Education Law Practice Groups.

Uber Scores Victory Compelling Arbitration in Wage & Hour Misclassification Suit

Just a few days after being in the news and facing consumer boycotts for allegedly seeking to profit as a result of a taxi boycott of JFK International Airport related to President Trump’s immigration Executive Order, Uber received good news when it received a pro-employer legal ruling in a suit brought against the company by its New Jersey drivers.

In a published opinion filed on January 30, 2017, Hon. Freda L. Wolfson, U.S.D.J. of the U.S. District Court for the District of New Jersey held that a proposed class of Uber drivers must arbitrate their claims that Uber misclassified them as independent contractors, failed to pay overtime compensation, and required drivers to pay business expenses purportedly incurred for Uber’s benefit.  In Singh v. Uber Technologies Inc., No. 16-03044 (D.N.J. January 30, 2017), the District Court made two significant findings that are favorable to employers: (1) employment agreements incorporating so-called “clickwrap” or hyperlinked agreements by reference are enforceable—whether or not the employee actually reviews the agreement—so long as the employer provides reasonable notice that the terms and conditions of that agreement apply; and (2) Uber’s agreement with its drivers is not considered a contract involving “transportation employees,” and therefore is not subject to the exemption provisions of the Federal Arbitration Act (FAA), which the court construed narrowly.

In Singh, plaintiff registered with the Uber App (the “App”) in order to become a driver with Uber’s “uberX” platform. Registration required him to electronically accept an Agreement provided by Uber’s technology service provider Raiser, LLC (the “Raiser Agreement”).  When plaintiff logged onto the App, he was able to review the Raiser Agreement by clicking a hyperlink to the Raiser Agreement within the App.  To advance within the App past the hyperlink and actively use the App, plaintiff had to twice confirm that he reviewed and accepted the Raiser Agreement by clicking “YES I AGREE.”

The first page of the Raiser Agreement also contained a paragraph, written in large bold and capital text, indicating that a voluntary arbitration agreement was contained therein.  The arbitration provision required Uber drivers—if they do not opt out within a 30-day period—to individually arbitrate all disputes arising out of, or relating to, the Raiser Agreement, or their relationship with Uber, including disputes alleging breach of contract, wage and hour, and compensation claims on an individual and class or collective basis.  Importantly, the Raiser Agreement’s 30-day opt out provision noted that the arbitration provision was not mandatory, and should the driver choose to opt out of arbitration, Uber would not retaliate against him or her.  Plaintiff was also permitted to spend as much time as he found necessary in reviewing the Raiser Agreement on his smartphone or other electronic devices before accepting it.

Following the filing of litigation by plaintiff, Uber moved to dismiss the complaint and compel arbitration.  In his opposition, the plaintiff first asserted that because Uber only provided a hyperlink, or “access” to the Raiser Agreement, as opposed to providing the document itself, he should not be bound to the Raiser Agreement’s arbitration provision.  In rejecting this argument, the District Court noted that for hyperlinked agreements to bind parties, they must provide “reasonably conspicuous notice of the existence of” the terms of the agreement, citing favorably to ADP, LLC v. Lynch, No. 16-01111 (D.N.J. June 30, 2016), a decision that our firm helped to achieve on behalf of a long-time client.  The District Court determined that since the plaintiff was required to review and agree to the hyperlinked Raiser Agreement before utilizing the App, and the link was prominently displayed, he was provided with sufficient notice of the terms and conditions and therefore manifested intent to be bound by the agreement.

The District Court also held that the parties’ agreement is subject to the FAA, granting the court authority to compel arbitration. Plaintiff argued that his employment with Uber fell within the exemption contained in Section 1 of the FAA, which excludes from the FAA’s ambit contracts involving “transportation employees.”  However, the court noted even if plaintiff was an Uber employee (as opposed to an independent contractor, as Uber argued), Section 1 of the FAA only excludes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  The court found that although the Third Circuit has yet rule on the issue, virtually every other Circuit Court having considered the issue found that the exclusion is to be narrowly construed as only applying “to those employees who are actually engaged in the movement of goods, as opposed to the transportation of people, in interstate commerce.”  Coupled with Congress’s intent to only exclude contracts involving certain categories of workers in this way from the application of the FAA, the District Court held that plaintiff’s job was “too far attenuated from the types of employees to whom the FAA’s exclusion is intended to apply.”

Finally, the District Court also rejected plaintiff’s argument that the Raiser Agreement violated Section 8 of the National Labor Relations Act (NLRA).  While noting that it is an open question whether “an employee may enter into an arbitration agreement requiring the resolution of labor disputes on an individual basis” (indeed, the Supreme Court recently granted certiorari to review this exact issue), the court found it did not need to reach this issue because Uber did not “restrain, or coerce” the plaintiff into being bound by the arbitration agreement contained within the Raiser Agreement because it was optional.

The court’s decision in Singh shows that if crafted correctly, employers are permitted to execute agreements with their employees in more contemporary fashion, and with dispute resolution provisions that are fair and efficient for all parties.

For questions about Singh v. Uber Techs. Inc. and its implications on your company’s arbitration agreements, please contact Harris S. Freier, Esq., a Partner in the firm’s Employment Law and Appellate Practice Groups, at hfreier@nullgenovaburns.com or (973) 533-0777.  Please also sign-up our free Labor & Employment Blog at www.labor-law-blog.com to keep you up-to-date on the latest news and legal developments effecting your workforce.