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WEBSITE ACCESSIBILITY AND THE ADA

The Americans with Disabilities Act (ADA) has now been in place for 27 years. As the first comprehensive civil rights law to focus on the basic and universal needs of people with disabilities, the ADA prohibits discrimination and guarantees people with disabilities the same opportunities as everyone else to participate in mainstream life.

The law’s core purpose is to ensure that persons of all abilities have physical access to public spaces. The scope of the physical accessibility requirement was heavily litigated throughout the 1990s, before the Internet became a meaningful presence in everyday life. The growing popularity of online transactions, however, has spawned a new wave of litigation focused on the ADA’s application to commercial websites. In the absence of statutory or regulatory guidance, plaintiffs have turned to the courts, and the developing body of case law makes clear that the ADA accessibility requirements fully apply to commercial websites, as their own “place of accommodation” or simply an extension of the business that they represent.

Lucia Marett v. Five Guys Enterprises LLC, for example, involved a website that enabled customers to place online food orders for pick up or delivery. Five Guys moved to dismiss the case, arguing that Title III of the ADA did not apply to websites and, even if it did, the case was moot because the web site was already in the process of being updated. In denying Five Guys’ motion to dismiss, the U.S. District Court for the Southern District of New York held that Title III of the ADA applied to the web site, and rejected Five Guys’ other arguments. In support of its ruling, the Court cited both the text of the ADA and its broad legislative purpose, and held that Title III applied to the web site, either as its own place of accommodation or as an extension of the services provided by Five Guys’ restaurants. The Court was not persuaded by efforts to modify the web site because the necessary modifications had not been completed, and there was no assurance that further accessibility issues would not remain.

More recently in Gil v. Winn Dixie, a visually‐impaired plaintiff claimed he could neither fully access the Winn Dixie store website using his screen reader nor use the features of the site. The website contained a variety of coupons, store information, prescription refill options, and other services. There, the Court did not feel it necessary to reach the issue of independent coverage, finding instead that the web site was “heavily integrated” into Winn Dixie’s brick and mortar stores and served as a bridge to the physical locations. The court held that Gil and other visually impaired customers had a right to access Winn Dixie’s website and enjoy equal access to the services, facilities, and advantages provided therein, and further held that Winn Dixie failed to prove that it would be unduly burdensome to modify its website and make it accessible. Therefore, the Court granted injunctive relief and recovery of attorneys’ fees.

The Five Guys’ ruling instructs that a business conducting business in cyber‐space must comply with Title III accessibility requirements, and Winn Dixie cautions that bricks and mortar locations that expand their product and service offerings through an online presence must ensure compliance with respect to that platform as well. The current “standard” for accessibility compliance appears to be compliance with the WCAG 2.0 Guidelines.

(For more information see https://www.w3.org/WAI/intro/wcag ). 7/31/2017 By: Laura Canada Lewis

The Wage and Hour Division’s New Guidance Addressing Joint Employment

On January 20, 2016, Dr. David Weil, the Administrator of the Wage and Hour Division of the Department of Labor (“WHD”), published the first Administrator’s Interpretation of the year (“Administrator’s Interpretation”). This Administrator’s Interpretation specifically addressed joint employment under the Fair Labor Standards Act (“FLSA”) and Migrant and Seasonal Agricultural Worker Protect Act (“MSPA”), in an effort to offer additional guidance for the treatment of joint employment under these two statutes.[1] The FLSA and MSPA are both worker protection acts. The FMLA requires employers to provide employees with unpaid, job-protected leave for qualified medical and family reasons. The Migrant and Seasonal Agricultural Worker Protect Act (“MSPA”) “protects migrant and seasonal workers by establishing employment standards related to wages, housing, transportation, disclosures and recordkeeping,” and requires farm labor contractors to register with the DOL.[2] Both statutes are under the purview of the WHD.

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Procedural Update on NLRB’s Browning Ferris Joint-Employer Decision

The NLRB issued its landmark decision in Browning-Ferris on August 27, 2015.[1] Browning-Ferris (“BFI”) operated a recycling business that directly employed 60 employees.[2] It also used Leadpoint, a subcontractor, to provide an additional 150 staff members to sort recyclable materials from waste and to clean the facility.[3] Under the services agreement between the two companies, the Leadpoint employees were to be screened, hired, disciplined, and supervised by Leadpoint but allowed BFI to involve itself in hiring, discipline, scheduling, and wages of the employees. Notably, the agreement prevented Leadpoint from paying its employees more than BFI, required Leadpoint applicants to undergo drug testing and prohibited Leadpoint from hiring workers that BFI had already rejected, provided BFI the right to discontinue use of Leadpoint employees, and permitted BFI to control the productivity pave of Leadpoint employees and timing of their shifts.[4]

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