On-Call Scheduling Of Hourly Employees: Should Employers Use It?

By | Employment Agreements, Featured Articles, Texas Business Lawyer | No Comments

on-call schedulingSome businesses require hourly employee on-call scheduling (also known as on-call shifts) to ensure there’s just enough workers to meet labor requirements for shifts. This means employees have to put their lives on hold, calling in a couple hours before coming to work to see whether not they’re actually needed for a particular shift.

For the employer, this appears to save money because during slow times labor costs can be minimized by telling an employee not to come in for all or part of a shift. And if the business has a high turnover, such as fast food restaurants, it may make sense to double book employees with the expectation one will quit or simply not show up.

For example, if two employees scheduled for the same position on a shift call in and expect to work, it’s easy to tell one he isn’t needed while requiring the other to show up.

Is On-Call Scheduling Illegal?

As pointed out by Daniel Wiessner in “Retailers to drop on-call scheduling amid state probes,” some states’ attorneys general contend on-call scheduling violates applicable wage laws because it requires hourly employees to perform some work (e.g. calling in one or more times) without getting paid. That’s in addition to the moral issue of putting workers in limbo where they cannot make concrete plans for a day they may or may not be working.

Implementing On-Call Shifts Effectively

If you’re going to use on-call scheduling in your business where it’s legal to do so, be sure to compensate the employee for the burden of being placed in limbo and try to keep such scheduling to a minimum per employee (e.g. no more than one shift per pay period). Just as you don’t want customers to get your goods and services for free, don’t steal your employees’ lives away by abusing their work schedules.

Alternative To On-Call Schedules

Although wage and hour laws vary by state, a better method to meet labor requirements is to replace on-call shifts with a financial incentive making it worthwhile for an employee who has a day off to want to come in and work an extra shift if requested to do so by management. Because the act is voluntary and compensated, employee productivity is likely to increase, legal risks are minimized, and the employer is less likely to abuse the system when there is a direct additional cost to making a call for more labor.

An experienced business lawyer can help you avoid the legal pitfalls of on-call scheduling and other employee wage and hour practices.

Website Accessibility For The Blind: Will You Be Sued?

By | eCommerce and Technology, Featured Articles, Internet Lawsuits, Internet Lawyer | No Comments

website accessibility for the disabledAs recently reported by the Wall Street Journal, there’s a new trend of trial lawyers cashing in by suing over website accessibility for the blind under the Americans With Disabilities Act (ADA).

Does The ADA Apply To Website Accessibility?

The courts are split on whether or not the ADA actually covers website accessibility for the visually impaired and other disabled persons. For some, a key factor is whether or not the business also has an offline presence (e.g. a brick-and-mortar retail store) in addition to the site itself.

However, plaintiffs’ attorneys will want to settle these cases without a court getting to the point of examining the merits of the underlying discrimination claims. To minimize potential liability, defense counsel (and defendants’ insurers) also have an incentive to settle pre-trial.

Given this situation, it’s likely that a website owner will spend over $100,000 counting the settlement amount and defense costs.

Like many lawsuits, the attorneys are often the primary beneficiaries (fees and expenses) while the actual plaintiffs incidentally benefit. The lawyers may get the lion’s share of any monetary settlement while the blind plaintiffs get the “win” to the extent the defendants agree to modify their websites to make them more accessible.

How To Make Your Website More Accessible For Visually Impaired Visitors

According to Internet Lawyer Mike Young, the American Foundation for the Blind has created a valuable resources page with helpful tips on website accessibility. Be sure to also check out the W3C’s Web Content Accessibility Guidelines (WCAG) 2.0.

You may also wish to encourage visitors with vision impairment to use software applications like Microsoft’s Narrator, Apple’s VoiceOver, and the KNFB Reader (available for iOS and Android OS devices) to experience your website’s content.

As a final note, there’s no guarantee that your company still won’t be sued by someone looking for a payday rather than actual website access. However, by taking a few reasonable steps, you’re reducing your legal liability exposure while making a positive impact in the online world by accommodating those who are blind or have other disabilities.

Of course, if you have any questions about website legal compliance issues, you should consult with an experienced Internet lawyer.

Additional Reading: Law firms file and settle dozens of ADA suits claiming websites aren’t accessible to the blind by Debra Cassens Weiss (ABA Journal, Nov. 1, 2016).

Voyeurism Law: Protecting Your Business From Voyeur Videos and Photos

By | CyberCrime, Featured Articles, Privacy, Social Media | No Comments

voyeurism lawVoyeurism is a problem for business owners today. For example, former Playboy Playmate Dani Mathers took photo(s) of a naked woman showering at an LA Fitness gym and posted to Snapchat to make fun of the woman’s physique.

The social media backlash against Mathers has resulted in her losing her job, a lifetime ban from the gym, and she may face criminal charges for her conduct and prison time if convicted.

Prison time for digital voyeurism is becoming more common. Earlier this year, Georgetown Orthodox Rabbi Barry Freundel was recently sentenced to more than six years in prison after admitting to video recording 52 women taking nude ritual baths at the synagogue.

But what about your business’ potential liability for voyeurism?

When voyeur videos or photos are taken at a business, there’s always a risk that the victim will sue both the person who recorded the video or took the pictures as well as the business where it occurred. For example, Fox Sports reporter Erin Andrews sued both the stalker who recorded peephole nude videos of her and the hotel owner and operator.

Initially on the hook for $27 million in the subsequent civil suit, the hotel settled the case for $5 million.

What can you do to protect your business from voyeur videos and pics?

Although there’s no complete shield to prevent a lawsuit, your liability exposure can be significantly reduced by taking the following steps.

1. In places where nudity or partial nudity is likely to occur, prominently post signs that prohibit photography and filming. This can include:

  • bathrooms;
  • changing rooms;
  • fitting rooms;
  • hotel/motel rooms;
  • locker rooms;
  • massage rooms;
  • public baths;
  • showers;
  • sauna;
  • pools, etc.

If you have escalators and other locations where it is possible for upskirt pics or video to be taken without consent, you may also wish to post signs in these locations too.

2. In areas of your business where voyeurism could occur, have your cleaning staff routinely check for hidden cameras and video recording devices. You may wish to invest in hidden camera detectors to make it easier to discover spy cameras. Any suspicious devices should be reported to you immediately so that your business attorney and law enforcement can handle the matter.

3. Whether it’s a gym membership contract, a check-in agreement at a hotel, or some other written form of agreement you have with a customer, consider having the agreement modified by an experienced contracts lawyer to ban filming and photography in areas where voyeurism could occur on your premises. Your attorney may also want to include related indemnification and defense provisions.

How to Use a Non-Disparagement Clause to Protect Your Business

By | Dallas Business Lawyer, Dallas Business Lawyer, eCommerce Agreements, Employment Agreements, Featured Articles, Social Media, Technology Contracts | No Comments

non-disparagement clause

What is a non-disparagement clause?

A non-disparagement clause is an optional part of a contract that typically requires each party to the agreement will not say bad things about the others to third parties or the public in general. It’s designed to protect the reputations of all involved in the deal as well as prevent contractual disputes from going atomic through smear tactics.

Why have non-disparagement provisions become more important?

Traditionally, attorneys would focus on including nondisparagement clauses in settlement agreements that ended existing disputes before or during litigation. This is part of cleaning up a mess that’s already been made and trying to limit the damage caused in the process because the parties involved don’t like each other.

Today, because it’s so easy to ruin a company’s reputation through negative posts on consumer review websites and in social media outlets like Facebook, business owners are preemptively trying to gag their customers by having routine contracts provide for no disparagement.

Dallas Internet Lawyer Mike Young notes a recent Texas case where a couple was sued after posting a one-star review of a pet-sitting company on Yelp for violating a non disparagement clause. “The business was demanding up to $1 million to cover alleged damages from the negative review,” he said.

Are “no disparagement” clauses enforceable?

It depends.

There are conflicting opinions by courts in various jurisdictions on whether or not you can enforce such a clause against your customers.

As a general rule of thumb, a non-disparagement clause that’s between your company and another business (a B2B transaction) is more likely to be enforced by a court than such a clause between your business and individual(s) in a business-to-consumer (B2C) transaction.

When striking down “no disparagement” provisions in consumer agreements, employment agreements, and settlement agreements, judges tend to rely upon the First Amendment rights of the individuals or vagueness in the boilerplate to reach such a decision.

Should you include a non disparagement clause in your agreements even if it might be unenforceable?

Yes.

According to Dallas Internet Lawyer Mike Young, the primary purpose of the clause is to discourage the parties from discrediting each other in the first place rather than trying to obtain damages after disparagement has occurred. “If nothing else, the clause reminds everyone involved in a deal to be nice to each other.”

Joint-Employer Liability: How To Avoid It As A Business Owner

By | Dallas Business Lawyer, Dallas Business Lawyer, Employment Agreements, Featured Articles, Franchising, Licensing | No Comments

joint-employer liabilityAs noted by the Wall Street Journal in the editorial “A Joint-Employer McDouble,” both the federal government and class action attorneys are working hard to impose joint-employer liability on franchisors for alleged misconduct by franchisees with regard to employee claims.

Business Opportunity Licensors and Joint Liability

According to Dallas Internet Lawyer Mike Young, the theories being used to shake down franchisors like McDonalds may also be applied to those who license rather than franchise their business systems. In other words, if franchisors can be held jointly liable as employers, it’s not too far of a stretch for the same legal arguments to be applied in suits against business opportunity licensors for claims made by licensees’ employees.

Indirect Control and Joint-Employer Liability

The National Labor Relations Board (NLRB) is attempting to impose joint employer liability under the theory that a franchisor indirectly controls at least some of a franchisee’s employees.

Ostensible Agency and Joint Liability

As noted in the Wall Street Journal editorial, it appears that plaintiffs’ attorneys may succeed if they can show that franchisee employees reasonably believed that franchisees were acting as ostensible agents for the franchisors when committing misconduct.

How to Reduce the Risk of Being Held Jointly Liable

License instead of Franchise

In addition to less regulatory burdens, licensing your business system (instead of franchising) reduces the odds you’ll be on the hook as a joint-employer. Unlike franchising, there are many ways to structure a business licensing deal so that a licensee’s employees don’t even know of the licensor’s existence.

Lacking knowledge of a licensor-licensee relationship, it would be difficult for a licensee’s workers to argue joint employer liability under ostensible agency or indirect control theories.” – Dallas Internet Lawyer Mike Young

Indemnification and Defense

It may be appropriate for your franchise agreement or business opportunity license agreement to make it clear that if an employee of a franchisee or licensee brings a claim against you as an alleged joint employer, that your franchisee/licensee will indemnify and defend you against such a claim.

Written Employment Agreements and Policies

Of course, whether you’re a franchisor or a business system licensor, you may want to ensure that your respective franchisees and licensees make it clear in employment policies and any written employment agreements that you do not control their employees (directly or indirectly) and that your franchisee or licensee is not acting as your ostensible agent with regard to employment matters.

Your business lawyer can prepare related provisions for use in employment contracts and workplace policies.