Employment Law Update 2017-8
Posted on Jun. 14, 2017

This is Legal-mail no. 2017-8 prepared for interested HR professionals trying to deal with the complex American employment laws.







LOTS OF ADA FACILITY LAWSUITS IN UTAH: Here is an interesting legal news update from my partner Mike Judd--Title III of the Americans with Disabilities Act (ADA) requires places of “public accommodation” to remove all architectural and structural “barriers to access.” Under the ADA, “public accommodations” include hotels, restaurants, theaters, retail stores, gas stations, many professional offices, museums, parks, private schools, social service centers, and recreational facilities. Unlike the ADA’s regulations regarding “commercial facilities,” which are triggered by new construction or substantial modification of an existing facility, these ADA barrier-removal requirements apply to public accommodations whenever removal is “readily achievable.” These “readily achievable” changes include installing ramps, widening doors, installing ADA-compliant bathroom fixtures, and creating ADA-compliant accessible parking spaces with appropriate signage. In the ten years prior to 2016, only a handful of ADA-access cases had been filed in Utah. In the past year-and-a-half, Utah ADA plaintiffs have filed more than 300 cases against business owners up and down the Wasatch Front. The epicenter of these complaints is in northern Utah County, primarily in American Fork and Lehi, but cases have been filed against businesses as far south as Spanish Fork and as far north as Davis County. These complaints generally allege ADA violations in parking lots and restrooms, and are often based on nothing more than the height of accessible-parking signs or the absence of a “van accessible” designation on a posted sign. While the ADA does not allow plaintiffs to recover damages for ADA violations, it does permit recovery of attorneys’ fees, and ADA plaintiffs typically request payment of their fees as part of any settlement. We recommend that anyone operating a place of “public accommodation” carefully review their compliance with all applicable ADA regulations.

INACCESSIBLE WEBSITES A PROBLEM UNDER ADA: See that article right above? It applies to websites too. A federal court recently issued a ruling saying that a company (grocery) violated the ADA when its website was not accessible to a blind customer. Businesses need to take this ADA stuff seriously, and get in compliance or get sued.

DOL STILL LOOKING AT OT REGULATION SALARY INCREASE: The United States Department of Labor (DOL) apparently still is considering increasing the minimum salary an employer must pay to an employee in order for that employee to be exempt from overtime pay under the Fair Labor Standards Act (FLSA). The current salary threshold is $455/week, or $23,660/year. Last year, DOL issued regulations that doubled these minimum salaries, but a court put the new regulation on hold. The Trump administration is considering what to do with them now. New DOL Secretary Alexander Acosta suggested in his confirmation hearings that, due to the increase in the cost of living, the salary amount should be increased to somewhere around $33,000/year (which is about $635/week). DOL is expected to soon request information from the public on this issue.

DOL REVOKES EXPANSIVE EMPLOYEE AND JOINT EMPLOYER DEFINITIONS: The Trump DOL also recently revoked some legal interpretations on employment laws that had been issued by the previous Obama administration. One interpretation was a letter issued about FLSA suggesting that workers more likely are employees covered by FLSA than they are independent contractors not covered by FLSA. Another revoked guidance was a memo taking a broad view that businesses doing activities together were joint employers.

EMPLOYMENT LAW WOES AT UBER: It is a common tale. Someone gets a great idea for a company (“if you build a better mousetrap the world will beat a path to your door”), the business grows very fast and makes a lot of money. Yet, the growing business does not grow its administrative and legal compliance functions as quickly as its employee roster. Soon, the company is besieged with legal compliance issues, many of them involving HR law. Uber seems to be the latest company to deal with this phenomenon. For your summer reading (and learning), here are some interesting news reports about the developing situation: (1) http://www.foxbusiness.com/features/2017/05/25/this-is-ubers-biggest-employee-problem-and-its-not-sexism-says-hr-boss.html , (2) https://www.nytimes.com/2017/02/22/technology/uber-workplace-culture.html?_r=0, (3) https://www.nytimes.com/2017/06/13/technology/uber-sexual-harassment-huffington-bonderman.html, and (4) http://www.cnbc.com/2017/06/13/eric-holder-report-on-uber-suggests-curbing-drug-use-at-the-office.html.

Written by: Employment Attorney Michael Patrick O'Brien

Email: mobrien@joneswaldo.com

 Phone: 801-534-7315

Website: www.joneswaldo.com

Follow me on Twitter @mobrienutah


Legal-mail is a legal and legislative update service sent out about twice a month to interested HR professionals. As a courtesy, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012