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Retail Law Advisor

Category Archives: Employment

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Five Important Employment Trends for Massachusetts Retailers in 2018

Posted in Employment, Retail

Having survived the holiday shopping season, retailers should begin to prepare for any new employment laws that will go into effect in the coming year (and, of course, should ensure that they are complying with existing laws). This process can be even more challenging for retailers with stores in multiple locations, particularly if those stores… Continue Reading

Update: Tip Pooling by Restaurant Owners Remains in Flux

Posted in Employment, Restaurants, Retail

This past April, we reported on a recent Ninth Circuit ruling which upheld a 2011 Department of Labor (“DOL”) rule that prohibits restaurants from instituting tip-pooling arrangements that include both front-of-house staff that are customarily and regularly tipped (such as waiters, waitresses, bellhops, and service bartenders) and back-of-house staff that are not customarily and regularly… Continue Reading

E-commerce Is Changing the Definition of Retail Employment

Posted in E-commerce, Employment, Retail, Retail Sales

The retail landscape is in the midst of a mind-boggling – and fast-moving – evolution.  In a short amount of time, Americans have radically changed how they shop for things, utilizing multiple channels of shopping to meet their needs.  80% of Americans are now shopping online, and they utilize e-commerce for a wide range of… Continue Reading

Forging a Legal Firewall: Recent Decisions May Shield Retailers from ADA-Based Website Inaccessibility Claims

Posted in Employment, Litigation, Retail

In a post published earlier this year, we commented on a surge of lawsuits being filed under Title III of the Americans with Disabilities Act (“ADA”). Title III of the ADA prohibits discrimination in the full and free enjoyment of public accommodations on the basis of disability. Where websites and mobile applications serve as extensions… Continue Reading

Blazing the Trail: SJC to Decide Medical Marijuana Discrimination Case

Posted in Employment, Retail

Marijuana in the workplace is currently a hot topic for retail employers, especially since voters in Massachusetts and other states legalized the recreational use of marijuana in November 2016. The law that passed and became effective in December 2016 explicitly notes that employers retain their authority to implement policies and practices restricting employees’ use of marijuana,… Continue Reading

The Ascendency of Accessibility: Surge in Website Lawsuits Continues

Posted in Compliance, Employment, Restaurants, Retail, Technology

The proliferation of accessibility lawsuits under Title III of the Americans with Disabilities Act (ADA) has not abated. It is well-documented that ADA-related litigation increased by 37% from 2015 to 2016, which is symptomatic of long-term trends. Growth is fueled in part by litigants’ increased focus on internet-based technologies, including websites and mobile applications. This… Continue Reading

Retailers’ On-Call Scheduling Practices Under Scrutiny in Eight States and D.C.

Posted in Employment, Retail

On April 12, 2016, New York Attorney General Eric Schneiderman sent letters to fifteen retailers requesting information regarding their use of “on-call shifts” in scheduling employees. The letters were similar to those letters sent by the New York Attorney General in April, 2015 with a critical difference – the Attorneys General from California, Connecticut, the… Continue Reading

Retail Litigation Center: A National and Influential Force In Litigation

Posted in Employment, Intellectual Property, Litigation, Retail

The Retail Litigation Center (RLC) is a trade organization attached to the Retail Industry Leaders Association (RILA) that describes itself as “the only organization dedicated to advocating the retail industry’s perspective in those judicial proceedings that are most important to the retail community.”  Launched by RILA in 2010, the RLC is a membership-based organization whose members include many… Continue Reading

Pushing Back on Just-in-Time Scheduling

Posted in Employment, Retail

In September 2014, this blog asked the question: “Is Just-in-Time Scheduling Good for Business?”  Twenty months later, it seems like that question has been answered and our prediction that retailers may be legally required to alter their Just-in-Time scheduling practices has come true, at least in New York and San Francisco. Just-in-Time (JIT) scheduling or… Continue Reading

The War for Talent: It’s On

Posted in Employment, Holiday, Retail

It’s not exactly news that we have a war for talent in the U.S. Since the recession of 2008, business commentators have followed the U.S. population’s return to work. When unemployment was high and workers had no alternatives, they often stayed at jobs regardless of their level of satisfaction or room for advancement. However, now… Continue Reading

Uber Drivers: Employees or Independent Contractors?

Posted in Employment, Retail, Tax

Since its founding in 2009, Uber has gained both praise and notoriety for shaking up the taxi industry by allowing individuals who meet minimum requirements to provide an on-demand car service via the Uber mobile app.  In December 2014, there were 162,037 active Uber drivers in the United States alone.  In San Francisco, where the… Continue Reading

It’s Time to Give Your Hiring Processes a Check-up. Are They Compliant?

Posted in Employment, Litigation, Retail

As your prospective employees are brushing up on their interview skills, it’s also a good time to ensure your hiring practices and procedures are in order.  A regular review of employment application processes will keep them up-to-date. Scheduling time with hiring managers and Human Resources to freshen up interviewing procedure helps keep the entire organization… Continue Reading

Massachusetts Expands Parental Leave Rights

Posted in Employment, Retail

Effective April 7, 2015, Massachusetts employers with six or more employees must provide childbirth leave on a gender neutral basis.  Under a new Parental Leave Act law (“PLA”) signed by former Governor Deval Patrick on the day before he left office, Massachusetts men will now be guaranteed eight weeks of unpaid, job protected paternity leave. … Continue Reading

A Five-Point Checklist for the Holiday Shopping Season

Posted in Employment, Holiday, Retail, Technology

The Halloween costume pop-up stores are gone, and they’re starting to be replaced by other seasonal attractions. Before long the snow will by flying, and shoppers will be ready to hit the stores before work, on their lunch hours, and late into the evening. The very brave will hit the doorbusters. Is your business ready… Continue Reading

Is Just-in-Time Scheduling Good for Business?

Posted in Employment, Retail

Ten years ago, retail managers created schedules for hourly employees using a paper, pen, and a working knowledge of the store’s busy periods and their employees lives. Now, in many businesses, computers create employee schedules. Known as Just-in-Time (JIT) scheduling or “scheduling to demand,” JIT scheduling closely links labor supply to consumer demand by relying… Continue Reading

Hostile Doesn’t Mean MEAN: Understanding Employment Law

Posted in Employment, Retail

Dealing with employees also means dealing with their misconceptions about employment law. This blog entry highlights some of these misconceptions and reminds employers of the significance of employment at will. Notwithstanding misunderstanding to contrary, it is still generally and genuinely the case that an employer can fire an employee for any reason or for no… Continue Reading

Spring Cleaning: Dealing with Increased Sexual Harassment Claims

Posted in Employment

Employment lawyers deal with more claims of sex harassment in the spring than at any other time all year (with the possible exception of the weeks immediately following company holiday parties). Whatever the reason, this is the time of year when employers are particularly worried about vicarious liability under Title VII (the federal law that… Continue Reading

Naughty or Nice? Criminal Background Checks for Seasonal Employees at the Top of the List

Posted in Employment, Retail

The recent story of a Mall Santa accused of sexually assaulting an 18-year-old coworker at the Hanover Mall in Massachusetts highlights the potential pitfalls of hiring for the holiday season. In this case, the seasonal employee was subjected to a criminal background check and had no criminal record. That said, the case highlights the fact that… Continue Reading

New Laws Prohibit Employers from Requiring Access to Applicants’ Private Information

Posted in Employment, Privacy, Retail

Most job applicants maintain one, if not several, social media accounts. Many employers now routinely review available social media resources when making employment decisions. This trend, together with cautions and advice, is the subject of previous blog entries. Today’s topic is a little different. New Jersey recently became the ninth state to pass a law… Continue Reading

Risk/Reward: Should Employers Rely on the Internet When Making Hiring Decisions?

Posted in Employment, Retail

By now, we all live with the understanding that the Internet will allow potential employers to learn something about us. Whether it is information on Facebook, LinkedIn, Twitter, or MySpace, most of us have left cyber footprints through which people around us form impressions of who we are. Often, this information is personal. Many times,… Continue Reading

Scrutiny of Databases that Track Private Records of Employee Wrongdoing

Posted in Employment, Retail

Massachusetts recently changed the law governing access to criminal offender record information or CORI to insure that job applicants have an opportunity to find work without suffering unduly from past criminal misconduct. Employers often conduct background checks as part of pre-employment screening. The results of these checks, and other pre-employment inquiries, like drug testing, can… Continue Reading

Revisions to the Family and Medical Leave Act Require Policy Changes and New Posting Obligation

Posted in Employment

Employers routinely are asked to consider requests by employees to take leave pursuant to the Family and Medical Leave Act of 1993 (FMLA). Determining whether an employee is eligible for such leave is usually straightforward: (1) the employee must have been employed for at least a total of 12 months before the leave begins; (2)… Continue Reading

Working With a Complainer: Avoiding Claims for Retaliation

Posted in Employment

Like most businesses, retailers sometimes face claims of employment discrimination from current employees. Many times those claims are made against individual supervisors as well as against the business itself. Often, the claims are filed by current employees who continue to work after complaining, in a very personal way, about the conduct of the people who… Continue Reading

A Tenant’s Employee has a Criminal Record. How Does a Landlord React?

Posted in Employment, Landlords, Liability, Retail, Tenant

Employers often are faced with applicants or employees who have criminal backgrounds. There is legislation which provides guidance to employers who wish to make pre-employment inquiries, establishes certain access to criminal offender record information (“CORI”) and provides for a process by which employers may make employment decisions based on CORI. While for the most part… Continue Reading