Tag: business

Privacy Tip #382 – Beware of Fake Package Delivery Scams During Holiday Season

There are lots of package deliveries this time of year. When shopping online, companies are great about telling you when to expect the delivery of your purchase. Fraudsters know this and prey on unsuspecting victims especially during this time of year.

Scammers send smishing texts (smishing is just like phishing, but through a text), that embeds malicious code into a link in the text that can infect your phone or try to get victims to provide personal information or financial information.

It is such a problem, that the Federal Trade Commission (FTC) recently issued an Alert to provide tips to avoid these scams.

The tips include:

What to do

  • If you get a message about an unexpected package delivery that tells you to click on a link for some reason, don’t click.
  • If you think the message might be legitimate, contact the shipping company using a phone number or website you know is real. Don’t use the information in the message.
  • If you think it could be about something you recently ordered, go to the site where you bought the item and look up the shipping and delivery status there.
  • No matter the time of year, it always pays to protect your personal information. Check out these resources to help you weed out spam text messages, phishing emails, and unwanted calls.

These are helpful tips any time of year, but particularly right now.

Copyright © 2023 Robinson & Cole LLP. All rights reserved.
For more news on Holiday Package Delivery Scams, visit the NLR Antitrust & Trade Regulation section.

Teenagers Making a Buck Over School Break? Employers Beware: The Department of Labor Dictates When and Where

For many kids (and school staff), the last bell before winter break heralds freedom and fun. But many teenagers also use the extended time off from school to squeeze in some extra paid work. That means employers should brush up on their obligations under child labor laws. Doing so is especially important since the United States Department of Labor (DOL) announced an increased focus on identifying and stopping unlawful child labor earlier this year. On the heels of this initiative, we outlined best practices for manufacturing employers to avoid inadvertent use of child labor.

In this article, we outline key child labor requirements for companies across industries, as compliance with these requirements is likewise under the DOL’s microscope. Namely, the DOL enforces the Fair Labor Standards Act (FLSA) regulations which dictate when and where children aged 14 to 17 can work. The DOL can (and has been with increasing frequency) investigate employers to review compliance with these parameters — and penalize employers who do not comply.

RESTRICTIONS ON WORK HOURS

Under FLSA regulations, children aged 14 and 15 may not work:

  • During school hours;
  • More than 3 hours on a school day, including Friday;
  • More than 8 hours on a non-school day, such as during winter break;
  • More than 18 hours during a week when school is in session;
  • More than 40 hours during a week when school is not in session, such as during winter break — meaning no overtime for this group; or
  • Before 7:00 a.m. or after 7:00 p.m. (except between June 1 and Labor Day, when the evening hour is extended to 9:00 p.m.) — meaning, you guessed it, no work after 7:00 p.m. during winter break.

Keep in mind that state laws often set stricter work hours requirements. For example, while the FLSA does not restrict work hours for children aged 16 and 17, many state laws do.

RESTRICTIONS ON WORK ENVIRONMENTS

FLSA regulations also ban 14- and 15-year-olds from working in anything other than a list of specified environments. For example, they may work in:

  • Most office jobs;
  • Most retail and food service establishments;
  • Occupations like bagging groceries, stocking shelves, and cashiering;
  • Intellectual or artistically creative occupations, like as a musician, artist, or performer;
  • Limited kitchen work involving cleaning and preparation of food and beverages (but no “cooking” unless certain conditions are satisfied, and no baking); and
  • Clean-up work and grounds maintenance (so long as certain power equipment is not used).

For the 16- and 17-year-old cohort, the FLSA prohibits working in “Hazardous Occupations,” which are identified in a series of “Hazardous Occupation Orders” (“HOs”). The HOs prohibit working in or with:

HO 1 Manufacturing and storing of explosives.
HO 2 Driving a motor vehicle and being an outside helper on a motor vehicle.
HO 3 Coal mining.
HO 4 Forest fire fighting and fire prevention, timber tract management, forestry services, logging, and sawmill occupations.
HO 5* Power-driven woodworking machines.
HO 6 Exposure to radioactive substances.
HO 7 Power-driven hoisting apparatus.
HO 8* Power-driven metal-forming, punching, and shearing machines.
HO 9 Mining (other than coal mining).
HO 10 Meat and poultry packing or processing (including the use of power-driven meat slicing machines).
HO 11 Power-driven bakery machines.
HO 12* Balers, compactors, and paper-products machines.
HO 13 Manufacturing brick, tile, and related products.
HO 14* Power-driven circular saws, band saws, guillotine shears, chain saws, reciprocating saws, wood chippers, and abrasive cutting discs.
HO 15 Wrecking, demolition, and shipbreaking operations.
HO 16* Roofing operations and all work on or about a roof.
HO 17* Excavation operations.

The asterisk* indicates that there are student-learner and apprenticeship exemptions, which typically involve specific criteria that employers must meet in order to employ a 16- or 17-year-old in the occupation. (Please note: No 14- or 15-year-old is ever permitted to work in an HO.) This winter break, remember that “HO, HO, HO” is generally a “no, no, no” for minor employees.

BOTTOM LINE: BE CAREFUL WITH THE KIDS!

Employing minors can be a great way for them to gain valuable real-world experience and, of course, money. But employers should take care to ensure that their minor employees are scheduled appropriately and are not permitted to work in any prohibited tasks or with any prohibited equipment. Don’t let the extra help around the holidays trigger a DOL investigation or child labor law violation!

© 2023 Foley & Lardner LLP
For more news on Employing Minors Over Holiday Break, visit the NLR Labor & Employment section.

Parody of Iconic Sneaker Isn’t Entitled to Heightened First Amendment Protection

The US Court of Appeals for the Second Circuit upheld a temporary restraining order and preliminary injunction enjoining use of a trademark and trade dress associated with an iconic sneaker design over a First Amendment artistic expression defense. Vans, Inc. v. MSCHF Product Studio, Inc., Case No. 22-1006 (2d Cir. Dec. 5, 2023) (per curiam). This case is the first time a federal appeals court has applied the Supreme Court of the United States’ recent decision in Jack Daniel’s v. VIP Products, which clarified when heightened First Amendment protections apply to expressive uses of another’s trademark and trade dress.

MSCHF Product Studio is a Brooklyn-based art collective known for provocative works that critique consumer culture. It sells its works in limited releases during prescribed sales periods called “drops.” It promoted and sold a shoe called the “Wavy Baby,” which is a distorted, corrugated version of the iconic black-and-white Vans Old Skool sneaker. MSCHF claimed that the product was a commentary on consumerism in sneakerhead culture and that the Wavy Baby shoes were not meant to be worn but were instead “collectible work[s] of art.”

MSCHF promoted the shoes using the musician Tyga. Vans sent MSCHF a cease-and-desist letter and a week later filed a six-count complaint in federal court, including a claim for trademark infringement under the Lanham Act. The following day, Vans filed a motion for a temporary restraining order, seeking to have the court enjoin the sale of the Wavy Baby shoes. Nevertheless, MSCHF proceeded with its pre-planned drop of the Wavy Baby sneakers and sold 4,306 pairs of the Wavy Baby in one hour.

About a week later, after oral argument on the temporary restraining order (TRO) motion, the district court granted Vans’s motion. The district court concluded that Vans would likely prevail in showing a likelihood of consumer confusion and rejected MSCHF’s contention that the Wavy Baby was entitled to special First Amendment protections because it was an artistic parody. MSCHF appealed.

The Second Circuit held the appeal in abeyance pending the Supreme Court’s Jack Daniel’s decision. In that case, Jack Daniel’s sued the maker of a squeaky dog toy that resembled the iconic whiskey bottle and used puns involving dog excrement in place of the actual language of the Jack Daniel’s label. In a unanimous decision, the Court clarified that special First Amendment protections (as used in the Rogers test for expressive works that incorporate another’s trademark) do not apply when a trademark is used as a source indicator—that is, “as a mark.”

The Second Circuit concluded that the Jack Daniel’s case “forecloses MSCHF’s argument that Wavy Baby’s parodic message merits higher First Amendment scrutiny” because, even though the product is a parody, the Rogers test does not apply if the mark is also used as a source identifier. The Second Circuit drew a direct parallel between Wavy Baby and the punning dog toy in the Jack Daniel’s case, noting that in both cases the infringing product evoked the protected trademark and trade dress of the target to benefit from the “good will” developed by the source brand. Hence, the Court held that the district court did not err in applying the traditional likelihood-of-confusion analysis rather than the speech-protective Rogers test.

Practice Note: An alleged infringer of a trademark may claim that its product is artistic expression to trigger the heightened First Amendment protections offered by filters such as the Rogers test. However, after Jack Daniel’s, courts are more likely to regard such defenses with skepticism unless the allegedly infringing work falls into a more canonical category of artistic expression such as a film, television show, song or video game.

This article was authored by Karen Gover.

© 2023 McDermott Will & Emery
For more news on First Amendment Trademark Protections, visit the NLR Intellectual Property section.

Chicago’s New Paid Leave and Paid Sick Leave Ordinance Delayed Six Months

Just over a month after passing the Chicago Paid Leave and Paid Sick Leave Ordinance (the Ordinance), which brought sweeping new paid leave and paid sick leave requirements to employers with Chicago employees, the city has amended the Ordinance to delay its effective date and limit the number of covered employees.

As amended, the Ordinance will not take effect until July 1, 2024, rather than December 31, 2023. In addition, the Ordinance no longer covers employees who have worked merely two hours within the city in any two-week period. Instead, the Ordinance now reverts to the definition of “Covered Employee” found in the current Chicago and Cook County paid sick leave ordinances: an employee who has worked at least 80 hours in any 120-day period within the city’s geographic limits.

The amended Ordinance also potentially gives employers an opportunity to remedy Ordinance violations before being subject to claims for non-compliance. Specifically, employees will be prohibited from filing claims against their employers until the earlier of 16 days or the next regular payday after the employer’s alleged violation. While described by some as a “cure” period, there is no requirement that an employee actually notify their employer of an alleged violation before bringing a claim. For employers concerned about fielding claims for inadvertent violations, this change may be small comfort.

With the effective date of the Ordinance delayed until July 1, 2024, Chicago employers now have six more months to prepare for its new requirements. In the meantime, the city’s current paid sick leave ordinance remains in effect, so for now that benefit is business as usual for Chicago employers.

© 2023 Much Shelist, P.C.
For more news on Chicago’s Paid Sick Leave Ordinance, visit the NLR Labor & Employment section.

COVID Vaccine Class Action Reminds Employers to Individually Consider Accommodations

Tyson Foods, Inc. (“Tyson”) is no stranger to religious accommodation lawsuits over the impact of its COVID-19 vaccine mandate given its continued efforts to operate through the height of the pandemic in 2021—but the battle just heated up with a proposed class action complaint filed in the Eastern District of Arkansas.

Tyson’s recent troubles derive from its 2021 vaccine mandate (the “Vaccine Mandate”) requiring all leadership team members to be vaccinated by September 24, 2021, all corporate team members to be vaccinated by October 1, 2021, and all other team members to be vaccinated by November 1, 2021. The Vaccine Mandate coincided with an OSHA rule (which the Supreme Court subsequently ruled unconstitutional) requiring workers with at least 100 workers to be vaccinated or to produce weekly test results showing that they were virus-free. Tyson, a huge company with warehouse operations, clearly fell within its ambit and had strong incentives to keep its workforce safe.

Notably, while in place, the OSHA rule required employers to grant medical and religious exemptions from the mandate. Likewise, Tyson’s Vaccine Mandate required Tyson to afford reasonable accommodations to employees with sincerely-held religious beliefs that prevented them from receiving the vaccine, as required by the OSHA rule. However, various plaintiffs have alleged that the only accommodation typically offered to religious objectors was to be placed on an unpaid leave of absence called LOA+, which lasted approximately one year. Plaintiffs claim that requests to telework were refused in favor of this unpaid leave.

One of the first suits to be filed was Reed, et al., v. Tyson Foods, Inc., No. 21-CV-01155-STA-JAY, 2022 WL 2134410 (W.D. Tenn. June 14, 2022), in which several plaintiffs sought injunctive relief against the Vaccine Mandate in part on religious and disability theories under Title VII and the ADA. Though parts of the case were allowed to proceed, these specific claims were dismissed without prejudice for failure to exhaust administrative remedies. Tyson also succeeded on defeating religious claims based on the Religious Freedom Restoration Act (“RFRA”) on a motion to dismiss in another Tennessee case, after failing to secure dismissal in another, similar case based on Title VII and the RFRA. Compare Johnson v. Tyson Foods, Inc., No. 21-CV-01161-STA-JAY, 2023 WL 3901485 (W.D. Tenn. June 8, 2023) with Hayslett v. Tyson Foods, Inc., 636 F. Supp. 3d 900 (W.D. Tenn. 2022). The latter case settled out-of-court in July 2023.

Beyond these, Tyson also faced other single-plaintiff suits on religious vaccine accommodation grounds in Tennessee, Kentucky, and Missouri, with varying results. Matthews v. Tyson Foods, Inc., No. 1:22-CV-1192-STA-JAY, 2023 WL 25733 (W.D. Tenn. Jan. 3, 2023)(motion to dismiss denied under Tennessee state law); Collins v. Tyson Foods, Inc., No. 1:22-CV-00076-GNS, 2023 WL 2731047 (W.D. Ky. Mar. 30, 2023)(motion to dismiss granted under RFRA, ADA, and Kentucky state law, but denied under Title VII); Reese v. Tyson Foods, Inc., No. 3:21-05087-CV-RK, 2021 WL 5625411 (W.D. Mo. Nov. 30, 2021) (motion to dismiss granted as to public policy and invasion of privacy claims, but denied under state discrimination law). Some of these cases were subsequently settled, as well.

On November 16, 2023, plaintiff Sarah Pearson brought a proposed class action complaint in Pearson v. Tyson Foods Inc., 4:23CV01080, purporting to represent:

All Arkansas based Tyson employees or former Arkansas based Tyson employees who worked remotely (telework) prior to August 3, 2021, who requested a religious accommodation to continue working remotely (telework) in response to Tyson’s COVID Vaccine Mandate, and who were instead placed on LOA+ by Tyson;

and

All Arkansas based Tyson employees or former Arkansas based Tyson employees who worked remotely (telework) prior to August 3, 2021, who requested a religious accommodation when Tyson ended its COVID Vaccine Mandate on October 31, 2022, and who were subsequently not reinstated to the same job and terminated.

For each, Pearson recites the allegations required to sustain a class action: numerosity (in excess of 50 putative class members, per her complaint), commonality, typicality, and adequacy. These allegations can prove tricky in the case of sincerely-held religious beliefs and leaves of absence, but not necessarily impossible. Compare Robinson v. Gen. Motors Co., No. 4:15-CV-158-Y, 2015 WL 13731154 (N.D. Tex. Oct. 21, 2015) (denying class certification in part because “determining individual class members would require the Court to wade through thousands of leave requests and evaluate each individual’s circumstance . . . to determine whether a GM employee even qualifies . . .”) with Jennings v. St. Luke’s Health Network, Inc., No. 5:23-CV-1229, 2023 WL 5938755 (E.D. Pa. Sept. 12, 2023) (denying without prejudice motion to strike class action allegations in religious discrimination vaccine case, pending discovery).

Here, Pearson’s complaint reveals numerous specific allegations which are likely specific to her, including that Tyson offered her an in-person job in a different city once the Vaccine Mandate ended, which she declined.  However, it remains to be seen if Tyson’s alleged policy of placing all religious objectors on leave may break through the barriers to commonality, typicality, and adequacy otherwise posed by, e.g., different religions, belief systems, communications with human resources, and leave requests.

Following these recent developments, employers are advised to remember that religious discrimination accommodation requests should not be taken lightly, and should result in an individualized interactive process with each employee. Even apparently implausible religious beliefs, associated with religions that do not otherwise espouse such beliefs, may be (or be deemed by a court to be) sincerely-held.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on COVID-19 Vaccine Mandates, visit the NLR Labor & Employment section.

U.S. Supreme Court Vacates, Dismisses as Moot Decision Holding ADA ‘Tester’ Has Standing to Sue

The U.S. Supreme Court vacated a decision by the U.S. Court of Appeals for the First Circuit holding a self-appointed “tester” has standing to sue under the Americans With Disabilities Act (ADA). Acheson Hotels, LLC v. Laufer, No. 22-429. However, the Court declined to address the merits of whether the tester had a sufficient concrete and particularized injury to establish standing, holding the case had become moot and leaving in place a deep circuit split on the standing issue.

Reservation Rule; Title III

Deborah Laufer had sued Acheson Hotels for alleged violation of the Reservation Rule, a Department of Justice regulation requiring places of lodging to identify and describe accessible features in the hotels and guest rooms offered through their reservations service. The information must have enough details to allow individuals with disabilities to determine whether a given hotel or guest room meets their accessibility needs.

Title III of the ADA requires hotels to make reasonable modifications to reservations policies, practices, or procedures when necessary to ensure that individuals with disabilities can reserve accessible hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.

Case of Self-Appointed Tester

As a self-appointed tester, Laufer has sued more than 600 hotels by searching the internet for hotel websites and finding those that lack such accessibility information. Although Laufer has no intention of accessing the hotels she sued, she claims to enforce the law on behalf of other disabled persons.

In response to Laufer’s suits, the hotels argued Laufer lacks standing to bring these lawsuits. Allowing Laufer and other self-appointed testers to sue thousands of hotels across the United States on behalf of every disabled person in the country simply by visiting their websites would cause a flood of litigation from other testers, the hotels warned.

The First Circuit joined the Fourth and Eleventh Circuits to hold that Laufer has standing. In contrast, the Second, Fifth, and Tenth Circuits have held that she lacks standing.

Dismissal Requested

After Acheson Hotels had submitted its merits brief to the Court, but before oral argument, another court sanctioned one of Laufer’s attorneys for misconduct related to some of Laufer’s ADA cases for repeatedly demanding $10,000 in attorneys’ fees after filing boilerplate complaints. Laufer dismissed her lawsuit with prejudice, ostensibly because of that sanction.

Laufer then urged the Supreme Court to dismiss the case on the ground of mootness, arguing “mootness is easy and standing is hard,” so the Court should “refrain from resolving a difficult question in a case that is otherwise over.” Acheson Hotels urged the Court to decide the standing issue, arguing “the standing issue might not come back anytime soon. Acheson Hotels argued, the Court recounted, “While Laufer has disavowed the intention to file any more ADA tester suits, others will file in the circuits that sided with her, and hotels will settle, regarding it as pointless to challenge circuit precedent.” It continued, “‘Why would any hotel take a case this far,’ Acheson asks, ‘if the respondent can evade our review by abandoning a claim rather than risking a loss?’”

Dismissed as Moot

In an 8-1 opinion by Justice Amy Coney Barrett, the Court dismissed the case as moot.

The Court explained, “We are sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court. We are not convinced, however, that Laufer abandoned her case in an effort to evade our review.” It continued, “She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others.” Although, the Court said, “Laufer’s case against Acheson is moot, and we dismiss it on that ground, … [w]e emphasize, however, that we might exercise our discretion differently in a future case.”

The Court also vacated the First Circuit’s decision under its practice of “Munsingware vacatur,” meaning the issue is once again open in that circuit.

Dissent

Justice Clarence Thomas filed a lone dissent. He would have reached the standing issue, reasoning “whether Laufer had standing the day she filed her suit is logically antecedent to whether her later actions mooted the case.” Moreover, he continued, “the circumstances strongly suggest strategic behavior on Laufer’s part.” In addition, he wrote, “Laufer’s logic is … that she dismissed her claim—and the Court should no longer address whether she had standing—because an attorney she hired in an entirely different case engaged in misconduct.” According to Justice Thomas, he “would not reward Laufer’s transparent tactic for evading our review.”

Justice Thomas then explained he would have held that Laufer lacked standing. He reasoned, assuming the Reservation Rule creates a right to accessibility information, “Laufer asserts no violation of her own rights with regard to that information.” He continued, “Acheson Hotels’ failure to provide accessibility information on its website is nothing to Laufer, because she disclaimed any intent to visit the hotel.”

Concurrence

In a lone concurrence, Justice Ketanji Brown Jackson explained that, although she agreed that the Court followed its “Munsingware vacatur” precedent, she would instead require a party to show equitable entitlement to such relief.

Takeaway

After Acheson, testers generally lack standing to sue for alleged violation of the Reservation Rule in the Second, Fifth, and Tenth Circuits and have such standing in the Fourth and Eleventh Circuits. The issue is once again open in the First Circuit and remains open in the other circuits. The Supreme Court likely will be called upon again to resolve the circuit split.

Jackson Lewis P.C. © 2023
For more news on Supreme Court ADA Decisions, visit the NLR Litigation / Trial Practice section.

EEOC Takes Action to Address Mental Health Discrimination in the Workplace

Employers must take notice that the United State Equal Opportunity Commission (EEOC) is cracking down on companies that discriminate against workers because they have a mental health condition. Mental health conditions, such as major depressive disorder, bipolar disorder, and schizophrenia, substantially limit brain function. The EEOC determined these disorders constitute disabilities under the American with Disabilities Act (ADA).

The EEOC has significantly increased charges against employers for alleged ADA violations premised upon mental health issues.

In September, the EEOC released its Strategic Enforcement Plan (SEP). A review of the SEP reveals that the EEOC will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities, including workers with mental health related disabilities.

Hence, employers must be extremely careful when dealing with employees or prospective employees who suffer from mental health conditions.

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities. These accommodations are adjustments to the workplace that allow these employees to perform their job duties. These accommodations are usually not costly and can be beneficial in allowing employees to return to work, avoiding productivity losses, and promoting the recruitment and retention of qualified employees.

However, not all employees with mental health conditions require accommodations to perform their job duties. For those who do, accommodations should be individualized and developed with the input of the employee. Below is a list of examples of accommodations that have helped employees with mental health conditions to better perform their job duties. These are not all possible accommodations but provide a starting point to help employers promote an inclusive and supportive work environment. These include:

  • Flexible workplace arrangements
  • Scheduling adjustments
  • Sick leave or flexible use of vacation time
  • Individualized breaks
  • Modification of non-essential job duties
  • Additional training or support
  • Positive reinforcement and flexible supervision
  • Accommodations to the work environment, equipment, and technology
  • Regular meetings between employees and supervisors to discuss workplace issues.

It is important for all employees to be aware of their rights and provide relevant training to co-workers and supervisors. Effective implementation of these accommodations will help create a more inclusive work environment and benefit both employees and employers.

COPYRIGHT © 2023, STARK & STARK
For more news on Mental Health Discrimination in the Workplace, visit the NLR Labor & Employment section.

State and Local Hourly Minimum Wage Rate Increases are “Coming to Town” on January 1, 2024

As 2023 comes to a close, employers should be aware of the hourly minimum wage rate increases set to take effect in various jurisdictions on January 1, 2024. 22 states and more than 40 local jurisdictions will ring in the New Year with new minimum wage rates.

Minimum wage employee in the following states will be impacted by the upcoming increases: Alaska, Arizona*, California*, Colorado*, Connecticut, Delaware, Hawaii, Illinois*, Maine*, Maryland*, Michigan, Minnesota*, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Rhode Island, South Dakota, Vermont, and Washington*. Those states identified with an asterisk also have local jurisdictions with minimum wage increases effective January 1, 2024, which are higher than the applicable state minimum wage.

Employer should confirm that any minimum wage rates are adjusted properly.  In addition, employers with tip credit employees should review their tip credit notices to ensure full compliance with applicable laws (including cash wage being paid to the tipped employee and amount of tip credit claimed by employer).

© Polsinelli PC, Polsinelli LLP in California
For more news on 2024 Minimum Wage Increases, visit the NLR Labor & Employment section.