In another blow to those defending website accessibility cases, brought by legally blind or visually impaired plaintiffs under the Americans with Disabilities Act (ADA), the United States Court of Appeals for the Ninth Circuit recently reversed the dismissal of a lawsuit filed pursuant to Title III of the ADA in the United States District Court for the Central District of California.  In Robles v. Domino’s Pizza, Case No. 17-5504, the plaintiff, a blind man, alleged that Domino’s had failed to construct, design, maintain and operate both its website and  mobile application in such a manner so that he could fully access them.  Robles claimed that on at least two separate occasions he had tried to order a customized pizza online from Domino’s but was unsuccessful because the Domino’s website and mobile application did not allow his software to read them.

The federal district court dismissed Robles’ complaint without prejudice.  Although the district court found that Title III of the ADA did in fact apply to both Domino’s website and mobile application, the court, nevertheless, concluded that the application of the ADA to the Domino’s website and mobile application violated the company’s due process rights because the Department of Justice had failed to provide any helpful guidance on the issue and that “regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III.”  Since the district court felt that only such regulations could cure these due process issues, it invoked what is known as the “primary jurisdiction doctrine”, a doctrine that allows a trial court to stay or dismiss a complaint without prejudice.

On appeal, however, the Ninth Circuit reversed and remanded the case back down to the trial court, agreeing with the district court that the ADA did apply to Domino’s website and mobile application but disagreeing with the district court’s application of the primary jurisdiction doctrine and its conclusion that imposing liability on Domino’s pursuant to Title III of the ADA somehow violated its due process rights.  The appellate court further reasoned that Robles was not seeking to have Domino’s held liable for a failure to comply with private industry standards regarding website accessibility, known as the Web Content Accessibility Guidelines 2.0; rather, an equitable remedy, requiring compliance with WGAC 2.0 was a possibility.

The Ninth Circuit, in its opinion in Robles, made clear it was expressing no opinion as to whether Domino’s website or mobile application actually complied with the ADA but rather was leaving that determination to the trial court.

Last week, the U.S. Department of Labor (“DOL”) proposed an increase to the salary threshold required for executive, administrative and professional workers to qualify for overtime exemptions under the Fair Labor Standards Act (“FLSA”).  Currently, the minimum annual salary figure required to qualify for such “white collar” exemptions is $23,660; that number is now expected to increase to $35,308 per year, or $679 per week.  While the increase is substantial, it remains lower than the approximate $47,000 minimum salary proposed near the end of the Obama era.  In addition, the DOL has also proposed an increase to the FLSA’s highly-compensated employee exemption from $100,000 to $147,414.

There will be a 60 day window for the public to provide the DOL with comments about the proposed rules.  Once the rules go into effect, or some modified version thereof, employers will need to review their employment and payroll records to determine which employees may no longer qualify under the prior exemption thresholds and would therefore be entitled to overtime pay.  Alternatively, employers may decide to increase salaries for those newly non-exempt individuals so as to bring them back above the exemption line.  In either event, the DOL’s proposed rules will clearly have a significant impact on employers’ hiring, staffing and payroll decision-making.

On February 19, 2019, Governor Murphy signed into law A3975, which significantly expands New Jersey’s paid family leave insurance program (“PFLL”) and temporary disability benefits law. By way of background, the PFLL has been in place since 2008 and currently provides eligible employees with benefits for up to six (6) weeks of qualifying family leave. A3975 significantly amends and expands the benefits provided under this law.

The law provides for the following:

  • As of June 30, 2019, the definition of a covered employer under the New Jersey Family Leave Act (“NJFLA”) will be expanded to include individuals or entities that employ thirty (30) or more employees (instead of the original threshold of fifty (50) employees) for each working day during each of twenty (20) or more calendar workweeks;
  • Effective July 1, 2020, the law doubles the benefit leave period originally provided to eligible employees under the PFLL from six (6) weeks to twelve (12) weeks in a twelve (12) month period;
  • Effective on July 1, 2020, the law increases the weekly benefit amount such that employees can now receive 85% of their weekly wage with the maximum possible benefit amount increasing to 70% of New Jersey’s average weekly wage. Based on this year’s data, the average weekly benefit will increase from $650 per week to $860 per week;
  • Also effective July 1, 2020, employees are permitted up to fifty-six (56) days of intermittent leave within a twelve (12) month period, which is increased from forty-two (42) days;
  • An expanded definition of who is a “family member” within the meaning of the law. A3975 now includes care for siblings, in-laws, grandparents, grandchildren, domestic partners, other blood relatives and any individual with whom the employee has a close association, which is the equivalent of a family relationship;
  • The provision of paid family leave benefits for employees taking leave under the NJ Safe Act due to domestic or sexual violence. Specifically, employees taking leave under the NJ Safe Act to seek medical attention, counseling or legal assistance for domestic or sexual violence, as well as participate in legal proceedings and safety planning, may elect to receive paid family leave benefits. An employee may also take leave under this provision of the law if he/she requires the leave to care for a covered family member; and
  • A broader definition of “family leave” to include care for foster children and children who are born via a gestational carrier.

In terms of allowing employees to return to work at the end of the period for which benefits are collected, it is important to remember that the PFLL is a benefits law and not the same as the NJFLA, which expressly allows eligible employees to take job-protected leave and guarantees an employee reinstatement to the exact position held prior to the leave. However, employees should be aware of the anti-retaliation provision in the PFLL, which provides that employees cannot be retaliated against for taking paid family leave benefits. Before denying reinstatement to an employee who is collecting PFLL, employers should consult with counsel.

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.