Our colleague at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the technology industry: “DOJ Finally Chimes In On State of the Website Accessibility Legal Landscape – But Did Anything Really Change?

Following is an excerpt:

As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities. One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year. Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility. Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points…

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Start Spreading the News – EDNY Denies Motion to Dismiss Website Accessibility Complaint.”

Following is an excerpt:

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing. Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility. In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

Our colleague Daniel J. Green, an Associate at Epstein Becker Green, has a post on the Trade Secrets & Noncompete Blog that will be of interest to many of our readers in the technology industry: “Aggressive New Antitrust Guidance for Human Resources Professionals Threatens Criminal Prosecution for Certain Unlawful Wage Fixing and No Poaching Agreements”

Following up on a string of civil enforcement actions and employee antitrust suits, regarding no-poaching agreements in the technology industry, on October 20, 2016 the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) issued Antitrust Guidance for Human Resources Professionals (the “Guidance”). The Guidance outlines an aggressive policy to investigate and punish employers, and individual human resources employees who enter into unlawful agreements concerning employee recruitment or retention.

The Guidance focuses on three types of antitrust violations:

  • Wage fixing agreements: agreements among employers to fix employee compensation or other terms or conditions of employment at either a specific level or within a range;
  • No poaching agreements: certain agreements among employers not to solicit or hire one another’s employees not ancillary to an overarching pro-competitive collaboration; and
  • Unlawful information exchanges: exchanges of competitively sensitive information which facilitate wage matching among market participants.

Read the full post here.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Joshua A. SteinFrustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts. 

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see: 

http://www.hospitalitylaboremploymentlawblog.com/2015/06/articles/ada/doj-further-delays-release-of-highly-anticipated-proposed-website-accessibility-regulations-for-public-accommodations/

https://www.technologyemploymentlaw.com/ada-and-disability-law/access-board-seeks-to-revise-accessibility-standards-for-information-and-communications-technology-of-federal-agencies-and-certain-technology-manufacturers-moving-to-functionality-based-approach/

http://www.ebglaw.com/joshua-a-stein/news/key-issues-facing-places-of-public-accommodation-at-the-25th-anniversary-of-the-ada/