Florida has long been considered a hotbed of lawsuits filed under Title III of the Americans with Disabilities Act.   Certainly, that practice has continued with the most recent trend of ADA cases, namely lawsuits alleging that websites are not accessible to the legally blind or visually impaired.

For those defending website accessibility cases under the ADA, unfortunately three fairly recent court decisions on cases filed in federal courts in south Florida will probably only increase the number of such lawsuits in Florida and further embolden counsel representing plaintiffs.   Most recently, on August 29, 2018, in the second known case where there has been a ruling on the merits in a website accessibility case, Judge Marcia G. Cooke of the United States District Court for the Southern District of Florida, in the case of Gomez v. General Nutrition Corporation, granted the Plaintiff’s Motion for Summary Judgment on the issue of liability, concluding that General Nutrition Corporation’s website was a place of public accommodation under the ADA, that “the remaining evidence suggests the Website is inaccessible” and that “[b]ecause the inaccessibility of the Website prevents Gomez from fully enjoying a service of the physical store, GNC is discriminating against Gomez and violating the ADA.” Judge Cooke left open the issue of remedy in denying summary judgment as to remedy.

The importance of the partial summary judgment in the Gomez case cannot be understated in that Judge Cooke found that the Defendant had violated the ADA without a trial. In Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the first website accessibility case where there was a decision on the merits, Judge Robert N. Scola, Jr., also of the United States District Court for the Southern District of Florida, ruled in favor of the Plaintiff and against Winn-Dixie but only after a full trial.  That case, by the way, is currently on appeal to the United States Court of Appeals for the Eleventh Circuit which heard oral argument over four months ago.  There has been no decision yet on the appeal.

About a month before the decision in Gomez, the United States Court of Appeals for the Eleventh Circuit, in Haynes v. Dunkin’ Donuts, LLC et al., an appeal of the dismissal of a website accessibility case that had been filed in the United States District Court for the Southern District of Florida, reversed that dismissal, ruling that the blind plaintiff could pursue his claim that the website in question was inaccessible.   The case was remanded back down to the trial court to conduct further proceedings.

On February 4, 2019, Governor Phil Murphy signed into law a bill (A-15) that will increase New Jersey’s minimum wage to $15 per hour by 2024 for the majority of New Jersey’s workers.  Pursuant to the new law, the State’s minimum wage, which is currently $8.85 per hour, will increase according to the following schedule:

  • $10 per hour on July 1, 2019
  • $11 per hour on January 1, 2020
  • $12 per hour on January 1, 2021
  • $13 per hour on January 1, 2022
  • $14 per hour on January 1, 2023
  • $15 per hour on January 1, 2024

Notably, certain types of employees are placed on a slower path to $15.  For example, seasonal workers and employees working for businesses that employ 5 employees or less will not reach $15 per hour until 2026.  The minimum wage for farm workers will increase to $12.50 by 2024, with the possibility to attain $15 per hour by 2027 if approved by state officials.

New Jersey has now joined California, Massachusetts, New York, and Washington D.C., as well as other cities and localities, in raising the minimum wage to $15 per hour.

New York City passed two new laws to expand employer obligations with regard to nursing mothers.  Effective March 18, 2019, New York City employers with four (4) or more employees will be required to comply with the requirements set forth by these new laws.  Pursuant to these laws, an employer must provide a lactation room for nursing mothers upon request (if it would not impose an undue burden upon the employer) and issue a written lactation room policy.

Lactation Room Requirements

Under Int. No. 879-A, covered New York City employers must make a lactation room available for nursing mothers upon request within “reasonable proximity” to the employee’s work area.  A “lactation room” is defined as a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.  The room must also include a chair, an electric outlet, a surface on which to place personal items, and nearby access to running water.  In addition, employers are now also required to provide a refrigerator suitable for breast milk storage in “reasonable proximity” to the employee’s work area.

While an employee is using the lactation room to express breast milk, the law requires that the room cannot be used for other purposes.  However, when the room is not in use by a nursing mother, the room may be used for alternative purposes.  If an employer would like to use the lactation room for multiple purposes, notice must be given that employees who wish to use the room for lactation purposes will be given first priority.

If providing a lactation room would pose an undue hardship, employers must still engage in an interactive process with the employee to find another suitable accommodation.  Once this interactive process is complete, the employer must issue a written determination of what accommodations will be granted or denied.  Pursuant to previous court decisions and prior guidance issued by the New York City Commission on Human Rights (the “Commission”), employers should beware that it will be difficult to establish that providing a lactation room is an undue burden.

Lactation Policy Requirements

According to Int. No. 905-A, employers are also required to enact a written lactation room policy that must:

  • Describe how an employee can submit a request for a lactation room;
  • State that the employer will respond to such a request within five (5) business days of receipt of the request;
  • Set forth a procedure to apply to situations where two or more employees need to use the lactation room at the same time;
  • Provide that the employer will allow employees to take reasonable breaks to express breast milk pursuant to Section 206-c of the New York State Labor Law; and
  • State that if the request for a lactation room imposes an undue burden on the employer, the employer shall engage in a cooperative dialogue with the employee.

Employers are required to distribute these policies to all employees upon hire and should also incorporate the policies into their respective employee handbooks.  The Commission will create a model lactation room policy and lactation room request forms for employers to use as a template.

In light of the quickly approaching effective date of the new laws, covered New York City employers should review their current lactation and accommodation policies to ensure compliance with these laws.  If an employer does not already provide its employees with a lactation room that meets the requirements set forth above, the employer should begin taking steps to provide such a room.  Any employer who believes providing a lactation room may impose an undue burden should consult with counsel.

The Suffolk County, New York Legislature has passed the Restricting Information on Salaries and Earnings Act (the “RISE Act”), which will prohibit employers in Suffolk County with four (4) or more employees from inquiring about job applicants’ wage or salary history during the hiring process.  The RISE Act amends the Suffolk County Human Rights Law and will go into effect on June 30, 2019.

With the passage of this new law, Suffolk County joins other localities within New York State, including Albany County, New York City, and Westchester County, in enacting salary history ban legislation.

Under the RISE Act, an employer or an employer’s agent (including an employment agency or employee) may not:

  • Inquire, whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits. For purposes of this prohibition, “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

The RISE Act, however, specifically allows an employer or an employer’s agent to inquire about wage or salary history when such inquiries are made pursuant to: (1) federal, state, or local law or (2) a collective bargaining agreement.

Notably, the RISE Act does not include certain exceptions that are found in other salary history ban laws passed by localities within New York State.  For example, employers in New York City and Westchester County may consider a job applicant’s salary history when the applicant makes an unprompted and willing disclosure of his or her salary history.  The RISE Act does not expressly address this exception.

Before the RISE Act goes into effect on June 30, 2019, employers in Suffolk County should review their employment applications to ensure that applicants are not asked for their prior wage or salary information.  Employers should also confirm that their interview and pre-employment background check procedures comply with the new law.

Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.