Exempt Employees Status Changes Afoot Under the WMWA
The Washington State Department of Labor & Industries last updated the Washington Minimum Wage Act’s salary threshold and “white collar” exemption (executive, administrative and professional) requirements in 1976. Consequently, L&I is looking to update those. In particular, the proposed salary threshold increase for an exempt employee in Washington is anticipated to go from $23,660 per year to between $56,160 and $70,200. This proposed increase is even greater than the Obama era U.S. DOL increase, which was $47,476 per year and ultimately struck down in federal court. L&I has yet to finalize the salary increases or changes to the white collar exemption requirements but anticipates these changes will become effective January 1, 2020. I will continue to keep you updated as this develops.
Strict Liability Imposed on Employers for WLAD Public Accommodation Claims
On January 31st the Washington State Supreme Court issued a watershed decision impacting the landscape of state law based discrimination cases. In Floeting v. Group Health Coop., Christopher Floeting was a patient at Group Health. He alleged he was sexually harassed repeatedly by a Group Health employee during his medical appointments. He lodged a complaint with Group Health. Group Health, unaware of the harassment until that time, investigated and terminated the employee.
Despite Group Health having no prior knowledge of the harassment and taking prompt, corrective remedial action after learning of the same, Group Health was held strictly liable for its employee’s sexual harassment of Mr. Floeting under the Washington Law Against Discrimination Act (“WLAD”). The court distinguished between discrimination/harassment claims arising from the employment context, i.e., employee alleges harassment against another employee, versus “consumer claims”, i.e., a claim based on a company being a place of public accommodation. The WLAD states its unlawful for any person (company) or agent or employee of that company to commit an act of discrimination in a place of public accommodation. A place of public accommodation is defined, in part, as “a place of public resort, accommodation, assemblage, or amusement” and includes, but is not limited to, places of: entertainment; sport; medical service or care, including doctor offices and pharmacies; theaters; restaurants and bars; hotels; a facility for the sale of goods, merchandise, services, or personal property; public transportation facilities; bank; or where personal services are rendered; such as the office of an accountant, lawyer, or insurance agent.
Under Washington law, a customer is entitled to the full enjoyment of privileges offered by the place of public accommodation, which includes the right to be free from discrimination. Because of this, the court declined to find that there will only be liability when the employer authorized, knew, or should have known of the discrimination and failed to take prompt and adequate corrective action – the standard for a discrimination claim in the employment context. In fact, the company does not even need to know about the discrimination for liability to be imposed, and liability can be imposed for misconduct by all levels of employees and not just supervisors.
Additionally, unlike discrimination claims in the employment context, the conduct does not need to be severe or pervasive. The court held “a single discriminatory act in a place of public accommodation may violate WLAD.” That being said, the conduct must still be “objectively discriminatory” based on what a reasonable person would find to discriminatory for liability to be imposed.
Take away – While the court found that discrimination training and supervision will not save a company from liability, because strict liability does not depend on proving negligence or intent to harm, companies need to continue to have unlawful discrimination policies, procedures, training and supervision. This is because doing so can still be used as a defense against a discrimination claim in the employment context. Additionally, if a plaintiff in a public accommodation claim tries to allege the company had a culture of discrimination or failed to have policies and training in place, the employer may potentially be able to bring in such evidence to the contrary. Companies should consider obtaining insurance coverage against such claims, if coverage is not already in place. Another potential consideration is having cameras (without audio since Washington is a dual-party consent state) in common areas, provided that companies understand that the camera footage may also be used to prove the alleged event occurred.
ADA Requires Your Website to be ADA Compliant
Robles v. Domino’s Pizza, LLC isan internet website accessibility case out of the Ninth Circuit Court of Appeals, involving Title III of the Americans with Disabilities Act (“ADA”). The court held that under the ADA, the requirement that places of public accommodation must provide aids and services for individuals with visual impairments applies to Domino’s Pizza’s website and mobile app. This is because Title III of the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.” Robles, a visually impaired customer, tried to access Domino’s website and mobile app unsuccessfully on two occasions to order pizza. The court found that the alleged inaccessibility of the pizza company’s website and app impeded access to goods and services of Domino’s physical pizza franchises which are places of public accommodation. In short, Domino’s website and app are extensions of their physical locations.
The court ruled that Domino’s had a legal obligation under the ADA to ensure its website and app provided effective communication and facilitated “full and equal enjoyment” of Domino’s pizza to disabled customers. The court ruled as such even though the Web Content Accessibility Guidelines (“WCAG”) 2.0AA, which govern private industry standards for website accessibility, have not been formally adopted into regulations under the ADA, have not been adopted by the Department of Justice (“DOJ”), and the DOJ has not provided specific regulations on website accessibility parameters.
Take away – Places of public accommodation, especially those whose products or services are related to physical stores open to the public, should consult with their IT professionals to ensure the accessibility of their websites and mobile apps under the WCAG 2.0AA guidelines. (See, http://www.w3.org/TR/WCAG20/) Although the WCAG is not the legal standard for determining whether there was a Title III violation, the courts will look to the WCAG to determine a remedy. Additionally, businesses should post an accessibility statement on their website informing the public of the business’ commitment to accessibility and how customers can go about contacting the business should they encounter accessibility issues; such as a phone number.