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Dinse Announces New Director and Shareholder of the Firm
Burlington, VT (January 2020) – Dinse is pleased to announce that James P. Langan has been elected as a Director and Shareholder of the firm.
Jim joined the firm in 2014 after beginning his legal career in the real estate department of a large Boston law firm and the Division of Finance of the University of Vermont. His practice focuses primarily on real estate and business transactions. Jim assists clients in all areas of commercial real estate and land use practice, including purchases, sales, state and local permitting, leasing, and common interest community governance. He also provides guidance to clients with their business operations, including financing, commercial contracting, acquisitions, employee housing, and permitting and zoning. Jim grew up in Vermont and is a graduate of Harvard University and William & Mary Law School.
IRS Announces 2020 Benefits Limits Adjustments
The IRS has announced cost-of-living adjustments for various limits on retirement plan and other benefit limits for 2020. You can read more HERE.
If you have any questions please contact either member of our Employment & Employee Benefits practice group:
Maggie Platzer Daniel Sharpe
mplatzer@dinse.com dsharpe@dinse.com
New England Super Lawyers Recognizes Ten Dinse Attorneys
Burlington, VT (November 2019) – Dinse P.C. announces that two attorneys have been ranked in the Top 100 2019 New England Super Lawyers nomination, research and blue ribbon review process and Top 50 Women attorneys. Eight attorneys have been selected for inclusion on the 2019 New England Super Lawyers list in five different practice areas, and two attorneys have been selected for inclusion on the 2019 New England Rising Stars list. Attorneys are identified as “Super Lawyers” based on extensive nomination and polling among New England attorneys aimed at identifying New England’s top attorneys in each class. Attorneys are identified as being “Rising Stars” based on extensive nomination and polling among New England attorneys who are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less.
The attorneys listed for the 2019 Top 100 / Top 50 Women are as follows:
• Top 100: Ritchie Berger
• Top 50 Women: Karen McAndrew
The practice areas and the attorney(s) listed in each area for the 2019 New England Super Lawyers list are as follows:
• Business Litigation: Ritchie Berger, Karen McAndrew
• Business/Corporate Law: Jeffrey McMahan, Afi Ahmadi, David Gurtman
• Estate Planning & Probate: Mark Langan
• Health Care Law: Linda Cohen
• Real Estate Law: Austin Hart
The practice areas and attorneys listed for the 2019 New England Rising Stars list are as follows:
• Business/Corporate: Ted Lawrence
• Civil Litigation: Plaintiff: Kendall Hoechst
Dinse Brief: Final Overtime Rule on Minimum Salary Level for Exempt Employees
Earlier this week, the U.S. Department of Labor (DOL) released its final rule increasing the minimum salary level for workers to qualify as exempt employees under the Fair Labor Standards Act (FLSA). The DOL estimates that 1.2 million additional workers will be entitled to overtime pay as a result of this increased salary level.
As a reminder, an employee is exempt from the overtime pay requirement of the FLSA if three conditions are satisfied: (1) the employee is paid a predetermined fixed salary each pay period that is not subject to reduction because of the quantity or quality of his/her work; (2) the employee is paid no less than a specific minimum salary threshold; and (3) the employee primarily performs job duties that qualify as professional, executive or administrative white collar work, as defined by the FLSA regulations. The final rule focuses only on the second condition: the salary threshold.
Specifically, the final overtime rule increases the salary threshold level from $455 per week to $684 per week. This equates to a salary level of $35,568 annually. The final rule also allows employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the new salary level. If the nondiscretionary bonuses and incentive payments in a given year (52 week period) are insufficient to meet the salary threshold required for exempt status, an employer must make a “catch-up” payment within one pay period of the end of the 52 week period. If the employer chooses not to make a “catch up” payment, the employee will be entitled to overtime pay for any overtime hours worked during the entire prior year.
The final rule also increases the total annual compensation threshold for Highly Compensated Employees from $100,000 per year to $107,432 per year, of which $684 must be paid on a weekly or fee basis. Employers of Vermont employees, however, should not rely on this FLSA exemption, since Vermont law does not recognize it.
Unlike the DOL’s ill-fated prior attempt in 2016 to increase the salary threshold for exempt employees, the current final rule does NOT provide for a mechanism for automatically updating the salary level. Instead, the DOL intends to update the salary threshold more regularly in the future through notice-and-comment rulemaking.
The effective date of the final rule is January 1, 2020.
Employers should immediately review the salary levels of their exempt employees. For those employees who are paid below the new salary threshold, employers will need to determine whether to reclassify the employees as nonexempt, or increase their current salary level to maintain the employees’ exempt status. Simultaneously, employers will need to consider whether the new rule will create salary compression issues; whether staff should be added to limit overtime liability for newly classified nonexempt employees; whether policies should be implemented to limit remote work or restrict work beyond 40 hours in a single workweek for newly classified nonexempt employees; and whether work flow will be hampered in any way. Employers will also need to develop a robust and comprehensive communication and training program to manage the workplace changes that will result from the final rule.
For more information on the final rule, or for assistance in evaluating the rule’s impact on your organization, please contact:
Amy McLaughlin amclaughlin@dinse.com
Karen McAndrew kmcandrew@dinse.com
Kendall Hoechst khoechst@dinse.com
Vermont newspaper editor learns that free speech comes with a price
Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
When a person who is paid to edit the written words of others fails to edit his own words, his job may be in jeopardy.
Background
Early this year, Denis Finley, editor of the Burlington Free Press, Vermont’s largest newspaper, was fired for the tone and content of several tweets about matters in the news. Like most print media, the Free Press has watched its subscribership and advertising revenue decline as fewer and fewer people wait for the arrival of a morning newspaper on their doorstep. As a result, “tweeting” and connecting on social media were apparently encouraged as part of Finley’s role in a nod to the direction in which the news business is headed—faster, shorter, instantaneous feeds of information to a public that has access to cable and network news 24/7.
Gannett, which owns the Free Press, has a policy that makes clear that social media is “core to [its] strategic goal of reinventing local journalism in the digital age.” As editor of the paper, it was not out of line for Finley to post editorial comments on matters of interest in the news. And post he did, often in the rapid-fire “Twittersphere.”
In covering Finley’s firing, the Washington Post’s “Morning Mix,” a blog about news from around the world, quoted several tweets that did not lead to his firing but did provoke strong opposition. When the New York Times tweeted that President Barack Obama (by then out of office) would be the first guest on David Letterman’s new Netflix talk show, Finley shot back, “Another reason not to subscribe to Netflix.” When Politico tweeted, “2017 is almost over. Here are the 18 politicians, activists, and operatives to watch in the new year,” Finley responded, “In other words, ignore them. Politicians, activists and operatives are what got us into this mess. The only people who care are whores, like Politico.” VTDigger, an online investigative reporting source, noted that Finley had made light of allegations of sexual misconduct against Roy Moore and Charlie Rose in other tweets.
Finley’s firing was a result of a Twitter war he started in response to a news report that Vermont was considering putting a third gender option on driver’s licenses. He commented: “Awesome! That makes us one step closer to the apocalypse.” Critics and critics of the critics on both sides jumped in, and Finley didn’t let it drop. He responded to one offended follower by asking, “What if someone said it’s awesome they are going to recognize pedophiliacs on licenses?” He wrote, “I’m not being snarky, I’m just asking. Not all recognition is awesome.”
Gannett promptly announced that Finley had “left the company.” Finley reportedly said he was fired because he expressed opinions with which the company disagreed. The company said he was fired because he violated its social media policy. Gannett’s social media policy is posted online and admonishes all employees not to “post comments that include discriminatory remarks, harassment, threats of violence or similar content” and to “exercise discretion in sharing personal information, and political, cultural or religious views.” Although Gannett has not publicly pointed to those provisions in discussing Finley’s termination, it seems likely that the prohibition against making “discriminatory remarks” about a topic of political interest was the language used to justify his firing.
But what about the First Amendment?
Many online comments about Finley’s firing asked what happened to the right to free speech and the First Amendment to the U.S. Constitution. The Constitution, however, has little to do with it, and references to the First Amendment reflect a lack of understanding of its reach. The Bill of Rights, which the First Amendment helps form, states in relevant part, “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
Although public employers and employers that receive certain federal funds face limitations on the extent to which they can restrict speech, the limitations on Finley’s speech (and the consequences of him expressing his opinions) were imposed by Gannett (a private employer), not by a governmental or government- funded agency. And even public employers may impose reasonable restrictions on the “time, place, and manner” of speech.
What should employers do with this knowledge?
There are limitations in the law on even private employers silencing speech. You cannot, for example, prohibit employees from discussing the terms or conditions of their employment, and in Vermont, you cannot prohibit employees from discussing their wages with each other. However, it is perfectly acceptable to enact policies governing speech that is disrespectful or vulgar, discloses confidential company information, or contravenes the values your company ascribes to. You may take disciplinary action against employees who violate your company’s stated policies or guidelines.
In this age of the rapid proliferation of social media— where much of the dialogue seems derogatory, defamatory, and grossly inappropriate in a civilized society— enacting a social media policy that sets guidelines for employees who may have become inured to the harm that can result from social media makes good sense. If you have questions or concerns about what limitations may be imposed on employee speech, consulting with counsel could prevent headaches down the road.
Karen McAndrew can be reached at kmcandrew@dinse.com or 802-864-5751.
Must your website be ADA-compliant? Trump administration remains mum
Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kendall Hoechst
Title III of the Americans with Disabilities Act (ADA) requires most businesses that offer goods or services to the public to make those goods and services equally available to disabled consumers. Plaintiffs’ lawyers, lured by the availability of attorneys’ fees under the statute, have begun sending demand letters and initiating ADA lawsuits in droves, claiming a variety of businesses’ websites are insufficiently accessible and are therefore discriminatory. The courts are split on how far Title III extends, resulting in a confusing legal landscape of conflicting guidance.
The U.S. Department of Justice (DOJ) has maintained for years that Title III applies to websites and has promised regulations to provide standards for evaluating website accessibility under Title III. However, the Trump administration recently put those long-overdue regulations on hold—indefinitely. Now, getting answers on this confusing issue will be more difficult than ever, but there are steps you can take to reduce your potential risk.
Title III of the ADA
Title III of the ADA requires all places of “public accommodation” (which includes most businesses that provide goods or services to the public) to ensure that consumers with disabilities are able to participate in the “full and equal enjoyment” of the goods or services they provide. Places of public accommodation may be required to make reasonable modifications to their practices or procedures, provide auxiliary aids and services, and remove architectural and communication barriers in their existing facilities.
The ADA was the most sweeping civil rights legislation passed by Congress since Title VII of the Civil Rights Act of 1964, but the Internet didn’t exist when it was drafted. Lawmakers had no conception of how the World Wide Web would change global commerce or affect our daily lives. Now that the Internet’s central role in modern life is unassailable, determining how Title III’s general prohibition on discrimination translates in the digital age has been a challenge for employers and for the courts. What a business should be required to do to ensure its website doesn’t discriminate against visitors with disabilities is the subject of much debate.
Title III provides for a private right of action for injunctive relief and an award of attorneys’ fees and costs. However, no monetary damages are available. The incentive of attorneys’ fees has led to a recent glut of demand letters by plaintiffs’ lawyers and a corresponding increase in ADA lawsuits filed in the federal courts. The same small groups of lawyers have sent hundreds, if not thousands, of demand letters to businesses all over the country, and they show no signs of slowing down.
Split over applicability to nonphysical access
The federal circuit courts of appeal are split on whether Title III applies only to discrimination occurring at a physical place. Courts on the narrow end, including the 3rd, 6th, and 9th Circuits, have concluded that public accommodations must be physical spaces or the goods and services provided must have a sufficient nexus to a physical place in order to be covered by Title III. A brick-and-mortar store that has an online shopping function on its website might be a public accommodation under this analysis, but an online-only retailer would not.
Courts on the broad end, including the 1st, 2nd, and 7th Circuits, have read Title III to encompass more than physical access to particular types of businesses. (The 2nd Circuit’s rulings apply to all Vermont employers.) These courts have concluded that discrimination may occur when goods or services of a public accommodation are enjoyed by customers who never visit a physical location.
Federal district courts applying and interpreting Title III in cases where the business’s website has no connection to a physical place open to the public have reached results on both ends of the spectrum and in between. The best indication of how a Vermont court would apply Title III is a 2015 case from the U.S. District Court for the District of Vermont that suggests the ADA will be interpreted broadly here. In National Federation of the Blind v. Scribd Inc., the court held that a digital library’s website and mobile applications were public accommodations under Title III even though the website operator had no goods or services available at a physical location open to the public. That suggests that even businesses that don’t have any physical offices or facilities open to the public may nevertheless be required to make their websites accessible.
So far, most of the cases that have been brought before the courts have settled. No court has provided a clear indication of what would be required to demonstrate that a website is appropriately accessible or that modifications are not necessary.
DOJ’s interpretation of Title III
As early as 1996, the DOJ took the position that Title III applies to websites and Web-based goods and service providers. In 2010, the DOJ maintained that position in an Advanced Notice of Proposed Rulemaking in which it considered revising the regulations implementing Title III to establish requirements for making the goods and services offered by public accommodations accessible to individuals with disabilities. The DOJ sought comments from the public on issues such as how much time businesses should have to comply and the standard that should be adopted to define an accessible website.
Observers have speculated that the regulations might require websites to conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA. Those voluntary guidelines, issued by the World Wide Web Consortium (W3C), have been cited with approval by the DOJ in public settlement agreements of Title III lawsuits. The WCAG ensure that websites have features that people with disabilities need for accessibility, such as compatibility with screen readers for users who are blind or have visual impairments and captions for audio content for users who are deaf or hard of hearing. The WCAG have been adopted as the standard for federal agency websites and are considered the gold standard by private- sector experts.
While the DOJ has insisted that websites need to be accessible, it hasn’t provided any guidance in the form of regulations after 2010 to enable businesses to determine whether their websites meet the standard. The DOJ has nevertheless pressured businesses to make their websites more accessible.
Without clear standards, confusion has reigned, and it’s now likely to continue indefinitely. Federal agencies periodically provide notice in the Unified Regulatory Agenda about the regulations that are under development. The Trump administration’s first agenda, published on July 20, 2017, lists the website accessibility regulations on its “inactive” list. This appears to be part of the administration’s larger effort to reduce the number of regulations that are in development and signals that the website accessibility regulations have been shelved for now.
What does this mean for employers?
Despite the lack of regulatory assistance, the leading Vermont case on the issue suggests that Vermont courts will apply Title III to employers’ websites. Assuming there’s a duty to make websites accessible, Title III doesn’t provide for monetary damages. However, given the lack of clear standards, it could be expensive to make a website compliant, and a lawsuit might result in an award of attorneys’ fees to a successful plaintiff.
Some cases suggest that an effective alternative to website accessibility could be acceptable. For example, if it’s possible to staff an alternative means of access, such as a 24-hour toll-free phone number listed on the website, that may be enough to accommodate disabled visitors.
You may wish to consider proactively ensuring your website is accessible. For example, you could hire an expert familiar with the technical requirements of WCAG 2.0 AA to scan your website and provide recommendations. You may also want to keep accessibility issues in mind the next time your website is redesigned.
Kendall Hoechst can be reached at khoechst@dinse.com or 802-859-7042.