In 2018 and 2019, there were approximately 5,000 federal lawsuits filed against hotels, restaurants, stores, and other places of public accommodation alleging that their websites violated Title III of the Americans with Disabilities Act (“ADA”). In all likelihood this number of lawsuits will increase in 2020 now that the U.S. Supreme Court has declined to review a Ninth Circuit Court of Appeals decision against Domino’s Pizza that essentially gave the green light for individuals with visual impairments to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible. You can read more about the Supreme Court’s decision here.
Despite the Supreme Court’s recent denial of Domino’s petition for Writ of Certiorari, business owners and operators have at least some room for optimism. Indeed, as we explained in a prior blog post, there were two rulings from the Southern District of New York in the Spring of 2019 that ruled in favor of businesses when: (1) the business had already fixed the website which mooted the case; and (2) the plaintiff had failed to identify any concrete or particularized injuries she suffered, including which sections of the website she tried to access, the date on which she visited the website, and what goods or services she was unable to purchase. Thus, it is comforting to know that at least some defenses are available and can succeed on a motion to dismiss.
Then, in November 2019, another business prevailed on a website accessibility case, this time in a case arising out of the Eastern District of New York. See Castillo v. The John Gore Organization, Inc., Case No. 1:19-cv-00388-ARR-PK (E.D.N.Y. Nov. 14, 2019). This case arose out of a theater’s stated policy on its website Continue reading
In a blog post from February of this year, we discussed the case of Robles v. Domino’s Pizza, in which a blind man sued Domino’s in 2016 for violating the Americans with Disabilities Act (“ADA”) after he was unable to order food from the pizza chain’s website using screen reading technology because the website lacked sufficient software compatibility capabilities. Because the ADA guarantees people with a disability “full and equal enjoyment of the goods and services … of any place of public accommodations,” the plaintiff claimed that he had been the victim of unlawful disability discrimination. Domino’s, on the other hand, argued that while the ADA applies to its brick-and-mortar locations, it does not apply to its website because a website is not defined in the ADA as a place of public accommodation.
In its decision, the U.S. Court of Appeals for the Ninth Circuit agreed with the plaintiff, finding that the ADA protects not just restaurants, hotels, stores, and other physical “brick and mortar” locations, but also the “services of a public accommodation,” notably websites and apps. The Court then found that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impeded access to the goods and services of its physical pizza franchises. Notably, this decision was the first by any U.S. Court of Appeals Continue reading
As we have written about on multiple occasions, public access lawsuits relating to website accessibility under Title III of the Americans with Disabilities Act (“ADA”) have been increasing at a rapid pace. In fact, 2019 is on pace to have more than 2,000 website accessibility lawsuits, which will be by far the highest number on record (and this number does not include the hundreds of “brick and mortar” lawsuits filed against places of public accommodations). Thus, regardless of whether you own or manage a retail store, a large hotel chain, a small bed & breakfast, or any other place of public accommodation, you are at serious risk of getting hit with an ADA lawsuit relating to your company’s website, especially if your website does not comply with the Web Content Accessibility Guidelines (“WCAG”), a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.
Nonetheless, there are two recent rulings that at least provide a sliver of hope for business owners, although both cases arise out of the Southern District of New York and therefore are limited to that jurisdiction. Most recently, on June 4, 2019, a judge in the Southern District of New York ruled that a website accessibility case could be mooted by a defendant fixing their website. (See Diaz v. The Kroger Company, 1:18-cv-07953). In that case, Diaz, a legally blind individual, brought a lawsuit against Kroger, a large supermarket chain, alleging that Kroger’s website was not compatible with screen reader software and thus failed to comply with Title III of the Americans with Disabilities Act because it denied equal access to visually impaired customers. In response, Kroger filed a motion to dismiss, claiming that among other things: (i) it had undertaken to make its website comply with WCAG 2.0 before the lawsuit was even filed; (ii) its website was now fully compliant with WCAG 2.0; (iii) that each barrier to access identified by the plaintiff had been fixed and/or no longer existed; and (iv) it was committed to keeping the website in compliance with WCAG 2.0 in the future. By taking those actions, the court found that the plaintiff’s ADA claim was moot and thus granted Kroger’s motion to dismiss. Continue reading
Over the past several years, we have written extensively about employers’ obligations to make their websites accessible for individuals with visual, hearing and physical impairments. In the past, we have counseled employers who are considered a “place of public accommodation” (such as a hotel, restaurant, place of recreation, doctor’s office, etc.) to at the very least do some due diligence to determine whether their websites are accessible for disabled users, so that those individuals can use and navigate those websites and/or purchase goods sold on the websites. (For more information about the developing law on this issue, check out our prior posts here and here.) Now, for the first time, a U.S. Court of Appeals has ruled on this issue and has confirmed that so long as there is a “nexus” between a company’s website and a physical location (which is typically the case), a company must make its website accessible or risk significant legal exposure for violating the Americans with Disabilities Act (“ADA”).
(As a reminder, although not the subject of this blog post, we have also written about a second consideration here regarding website accessibility that applies only to hotels and other places of lodging and currently is the subject of a tremendous amount of litigation. Specifically, the implementing regulations of Title III of the ADA require a hotel’s website to provide information regarding various accessibility features at its property, so that a mobility impaired individual can determine whether he or she can navigate the public areas and guestrooms at the property.).
Hospitality employers nationwide continue to be hit with class action lawsuits alleging failure to properly pay/distribute tips, as well as failure to correctly characterize service charges and automatic gratuities. These lawsuits have the potential to result in verdicts or settlement amounts more costly than virtually any other employment-related matter. As a result, it is important to periodically review what is or is not permissible under the law is it relates to tips, service charges, and automatic gratuities.
Most employers are familiar with the basic premise that a tip is a voluntary amount a guest leaves for an employee over the amount due for the goods sold or services rendered, while a service charge is an amount agreed-upon in advance by a venue for services provided, often in connection with large pre-planned events. However, service charges are treated differently than tips for tax and other purposes, and automatic gratuities add an extra complicated layer in this analysis. A brief synopsis of the differences of these terms from a legal perspective is set forth below:
As most of our blog readers are aware, the Fair Labor Standards Act (“FLSA”) requires employers to keep records on wages, hours and other items, as specified in Department of Labor regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.
In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, typically need not be compensated. Until now, the courts have held that such periods of time are “de minimis” and thus need not be compensated. The FLSA’s de minimis rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.