When it comes to the 2018 Supreme Court term, the NFIB Small Business Legal Center helped secure positive outcomes in four cases.

Weyerhaeuser v. U.S. Fish & Wildlife Service In this case, the Court affirmed that small business owners have a right to contest “critical habitat” restrictions under the Endangered Species Act. That’s important because in many cases, the government imposes unreasonable restrictions, with little or no benefit to the public. This is just the latest in a series of decisions making clear that the government must seriously consider whether the benefits of regulation justify the burden imposed on the economy. Knick v. Township of ScottA 1985 Supreme Court decision required small business owners to pursue claims for just compensation for a taking of private property in state court. That was problematic because state court judges may be more hostile to property rights, and more deferential to state and local authorities. But, in Knick v. Township of Scott the Supreme Court sided

with us—holding that there was no basis for the supposed “state litigation rule.” The decision opens the federal courthouse doors once and for all.

Food Marketing Institute v. Argus LeaderThis case concerned whether the Freedom of Information Act (FOIA) can be used by third parties to collect information on private businesses. In past cases we have asked the courts to protect the privacy of small business owners when we saw activists trying to obtain sensitive information on ranchers and farmers—including home phone numbers and email addresses. And, in Food Marketing Institute, we continued to argue that confidential business information should be withheld from disclosure under FOIA. Ultimately, the Supreme Court agreed in 6-3 decision.

Kisor v. Wilkie In one of the biggest cases of the term, the Supreme Court considered overturning Auer v. Robbins, which directs judges to defer to federal agencies when

there are questions about what their regulations mean. We argued in our amicus brief for the Court to overturn Auer.

We succeeded in getting the Court to impose firm limitations on Auer. This decision requires judges to use every tool available to decide upon the best interpretation for ambiguous regulatory language. Courts may only defer to an agency’s interpretation under extremely limited circumstances.

It was heartening to see the Supreme Court take the side of small business in so many cases. The Court’s next term starts in October will likely include even more cases that will affect millions of small businesses’ ability to succeed and contribute to their communities. Thanks to the support of our generous donors, the NFIB Small Business Legal Center will continue to advocate for small business at the highest court in the land.

The BriefFALL 2019

Supreme Court Wrap-Up for 2018 Term: A Good Year for Small Business

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By Karen R. Harned,Executive Director

The NFIB Small Business Legal Center Playbook for Small Business

I’m a big football fan and recently had the opportunity to take my son to see my Oklahoma Sooners and Dallas Cowboys play at home. It was an amazing experience, sharing something I love so much with him and having that great one-on-one time that is so precious.

Just like a football team, the Small Business Legal Center has our own legal “playbook” that we develop and follow. Relying on NFIB’s excellent research regarding the issues of most importance to small business, as well as NFIB’s Member Ballot, we come up with “plays” to achieve long-term objectives.

For example, a big focus of our work is trying to rein in the administrative state so that unaccountable government bureaucrats have less power to impose unnecessarily burdensome regulations on America’s small business owners. Our playbook is comprised of finding cases that establish legal principles that will strengthen the separation of powers between the three branches of government. And, we are effectively executing that playbook, with the Supreme Court’s decision last term in Kisor v. Wilkie that dramatically limited the instances in which judges can defer to an agency’s interpretation of its own regulations. We also have a playbook for fighting local mandates that impose new burdens on small business in violation of a state’s constitution, like our challenge to Austin’s paid sick leave ordinance.

But to execute any good play, you must hit the turf. Hopefully, you know that you can call the NFIB Small Business Legal Center anytime you have a legal question. Although we can’t provide you with legal advice, we often can point you in the right direction. We take over a thousand calls from small business owners each year on a host of issues. And those calls also help us determine what cases we engage.

For example, we get numerous calls each year from small business owners regarding the use of independent contractors. But in addition to working those individual calls, we are in the courts fighting for common-sense laws that give you the flexibility you need to use independent workers in your business. Recently, we filed a brief in the 9th Circuit Court of

Appeals in Lawson v. Grubhub asking the court to not retroactively enforce its recent strict new test that significantly narrows the category of workers who are considered an independent contractor in California.

In another example, we continue to hear from small business owners who are threatened with lawsuits for some minor Americans with Disabilities Act violation. At the same time, we are currently asking the Supreme Court to take a case (Domino’s Pizza v. Guillermo Robles featured on p. 3) to clarify whether the ADA applies to websites and what that means for small business.

Thanks to your support, the NFIB Small Business Legal Center is on the field for you in courts across this country and the U.S. Supreme Court. But we are also there on the sidelines helping you come up with your own game plan for a legal issue you face. If we can ever be of assistance, please do not hesitate to give us a call.

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Small Business Legal Center Asks Court to

Decide Whether ADA Applies to Websites

Recently, the Small Business Legal Center filed a brief with the U.S. Supreme Court that urged the high court to decide whether or how the Americans with Disabilities Act applies to business websites and mobile apps. The dispute centers around how much accommodation internet businesses must provide to disabled customers, since the ADA does not address websites and mobile apps. With thousands of lawsuits filed each year against businesses, and federal courts divided on the issue, business groups and disability rights groups agree that the U.S. Supreme Court needs to clarify whether the ADA applies to websites and apps. The case arises from a U.S. Court of Appeals for the 9th Circuit decision that allowed a blind Domino’s customer to sue over the company’s allegedly inaccessible website.

The Legal Center argued in its brief that there is no law on the books saying whether and how the ADA covers websites and mobile apps. We also noted that because of the uncertainty in the law, the only real winners are plaintiffs' lawyers who are getting quick settlements and raking in attorneys’ fees in these suits.

Disability rights groups argued that clear international website accessibility standards exist, and businesses in the United States must follow them. The Supreme Court will likely decide whether to hear the case, Domino’s Pizza v. Guillermo Robles, this fall. For updates on this case andother Legal Center filings, visit nfib.com/legal.

In Case You Missed It – July’s Legal

Webinar Recap: Public Accommodation

Under the Americans with Disabilities

Act: How Does the ADA’s Title III Apply

to Your Small Business?

As noted in this newsletter’s article about the dispute over whether the Americans with Disabilities Act applies to websites, over the past few years, many small businesses have seen an influx in lawsuits for violating the ADA. This federal law protects disabled individuals from discrimination in places of public accommodations including restaurants, retail stores, hotels, and much more. Under the ADA’s Title III, places of public accommodation – including small businesses - are required to provide specific services and ensure effective communication for customers with disabilities. “Grandfather provisions,” often found in local building codes do not exempt businesses from their obligations under the ADA.

In July, the Small Business Legal Center’s Senior Executive Counsel, Beth Milito, teamed up with Dana Barton, Director, Rocky Mountain ADA Center, to discuss the most common ADA Title III violations that small businesses might encounter. Beth and Dana outlined the legal risks of noncompliance with the ADA and answered the most common questions about public accommodation compliance, including:

• An overview of what constitutes a publicaccommodation

• Landlord versus tenant responsibility forpublic accommodation

• Parking requirements• Restroom access• Service animal policy• Website accessibility

Unfortunately for small businesses, the number of ADA Title III lawsuits filed in federal courts continues to grow. According to the law firm of Seyfarth Shaw, for the period from January 1, 2019 through June 30, 2019, 5,592 ADA Title III lawsuits were filed in federal court, versus 4,965 filed in first six months of 2018. That’s a 12 percent increase, with many filed over website accessibility. With the total number of ADA Title III lawsuits continuing to climb, with no legislative or regulatory relief for businesses in sight, it’s more important than ever for small businesses to get into compliance now. Failure to do so can cost a business thousands of dollars in litigation and renovation costs. You can watch Beth and Dana’s archived ADA webinar by visiting NFIB.com/webinars.

Join the Small Business Legal Center for First Wednesday Legal Webinar

Upcoming 2019 webinars:

October 2OSHA Essentials for Small Business

November 6Tax Planning Essentials for Small Business

December 4Employment Law Essentials for Small Business

*All webinars are recorded and available to watch at any time, visit nfib.com/webinars to register or watch an archived webinar.

Don’t Miss Out!

THE NFIB SMALL BUSINESS LEGAL CENTER, a 501(c)(3), public interest law firm, protects the rights of America's small business owners by serving as the voice of small business in the courts and the legal resource for small business owners nationwide. It is not a legal defense fund for small business, but a legal tool to affect precedent-setting legal decisions that will influence small business’ bottom line.

1201 F Street NW, Suite 200, Washington, D.C. 20004 | (800) 552-NFIB | e-mail: legalcenter@nfib.org

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From workers’ compensation to employment laws and personal injury, many small business owners’ most pressing concerns stem from state and local laws. That’s why the NFIB Small Business Legal Center spends so much time advocating for small business in state courts. Keep reading for an update on our state amicus program.

In Pennsylvania, existing consumer protection laws make it illegal for businesses to make misleading statements; however, in Gregg v. Ameriprise Financial Inc., a state court held that businesses are strictly liable for any consumer confusion. The NFIB Small Business Legal Center filed in this case, arguing that only bad actors—who intend to deceive consumers—should be subject to suit. We also filed in Dana Holding Company v. Workers Compensation Appeal Board in an effort to limit the impact of a 2017 Pennsylvania Supreme Court decision, which allows workers compensation claimants to rely on questionable reports from doctors—thereby greatly expanding employer liability.

In California, we’re working to limit liability for California businesses that hire other companies to provide services. In Johnson v. Serenity, plaintiffs’ attorneys try to manipulate a law so that small businesses can be sued not just for time that the service company spends working on their project, but also for time its employees spend waiting at home to be called out to service any number of clients. The Legal Center argues that this radical interpretation must be rejected.

We also are trying to limit the negative impact of the California Supreme Court’s controversial decision in Dynamex v. Superior Court, which significantly limits the ability of small businesses to use independent contractors in that state. To make matters worse, the California courts are now applying these newly pronounced rules retroactively. However, we’ve secured a preliminary victory in prompting the federal courts to question whether retroactive application is appropriate. In response to our amicus filing, in Vasquez v. Jan Pro Franchising, the federal courts are now calling upon the California Supreme Court to clarify whether Dynamex should apply to businesses that relied in good faith on the old rules.

NFIB SMALL BUSINESS LEGAL CENTERMedia Mentions

June 24, 2019 – ABC News reported on the NFIB Small Business Legal Center’s victory for small business privacy rights in Food Marketing Institute v. Argus Leader. “Small business owners expect privacy when it comes to their confidential information and the Supreme Court's decision today reaffirms just that,” said Karen Harned, executive director of the Legal Center.https://abcn.ws/2lQF1EA

June 25, 2019 – The Fresno Business Journal reported on the NFIB Small Business Legal Center’s efforts to educate small business owners on new rules for working with independent contractors, as set forth by the California Supreme Court’s decision in Dynamex v. Superior Court. http://bit.ly/2koFFJ6

July 16, 2019 – Law 360 covered the NFIB Small Business Legal Center’s filing in a precedent setting Americans with Disabilities Act (ADA) case. The Legal Center is urging the Supreme Court to decide whether the ADA’s disability access requirements apply to websites.http://bit.ly/2lOMOCJ

July 17, 2019 – KDKA 2, CBS Pittsburgh highlighted the NFIB Small Business Legal Center’s response to the Pennsylvania Supreme Court’s decision to uphold a municipal paid sick leave ordinance. Karen Harned said, “This decision will fall especially hard on small businesses, and, unfortunately, open the door for other municipalities to follow Pittsburgh’s lead.”https://cbsloc.al/2lRe8jM

August 19, 2019 – The Northern California Record reported on small business concerns over litigation abuse under California’s controversial Proposition 65, which authorizes lawsuits against manufactures, merchants and distributors (even if located out-of-state) if they fail to include specific chemical warnings on everyday consumer products. Luke Wake, senior staff attorney at the Legal Center said: “We’ve continually raised concerns about [this law] as creating open season for plaintiffs...” http://bit.ly/2lRep6i

Limiting Liability for Small Business

Owners in the States