Employment Law This Week®: Federal Decision on Website Accessibility, Mandatory Class Action Waivers, Sexual Harassment Case Dismissed, Upcoming Employment Laws

Episode 77: Week of June 26, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Nation's First Website Accessibility Trial

Our top story: The verdict is in: Winn-Dixie must make its website accessible. A visually impaired individual sued the grocery chain because his screen reader could not process the store locator and coupon sections of the chain’s website. In what is believed to be the first federal decision on website accessibility, a district court judge in Florida found that Winn-Dixie violated Title III of the Americans with Disabilities Act by not providing a fully accessible public website. He ordered the grocery chain to make the entire website accessible, even sections that may be run by a third party. Joshua Stein, from Epstein Becker Green, has more:

“There were two aspects to the Winn-Dixie holding that I found particularly striking. The first was just how little the court required to establish a nexus between the website and the brick-and-mortar stores. In this case, you can't even purchase goods from a Winn-Dixie store on their website. All you could do was identify store locations, find coupons, and upload those coupons to your discount cards to bring them into the store. Nevertheless, the court found this was sufficient for a nexus to apply. Second, the court expanded the obligations for accessibility well beyond what most settlement agreements have found to date, requiring that Winn-Dixie make third-party avenues of its website accessible as well. This didn't just apply to advertisers that might have a contract with Winn-Dixie but also to tech giants like Google, where Winn-Dixie clearly had no control over their applications.”

Watch the extended interview here and read Joshua Stein's recent blog post.

(2) DOJ Reverses Position on Class Waiver Agreements

The Department of Justice (DOJ) reversed its position on whether mandatory class action waivers violate the National Labor Relations Act. The DOJ has filed a brief arguing that mandatory class action waivers are enforceable in employment arbitration agreements. The brief was filed in a consolidated set of cases to be argued before the U.S. Supreme Court. The DOJ took the opposite position last year while representing the National Labor Relations Board in these same cases. The DOJ acknowledged as much in its brief but stated that, after the change in administration, it had reached the opposite conclusion.

(3) Sixth Circuit Affirms Dismissal of Sexual Harassment Claims

The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of sexual harassment claims after decisive remedial action by the employer. In the suit brought by the Equal Employment Opportunity Commission, three female employees claimed that they were sexually harassed by a store manager. The Sixth Circuit affirmed the dismissal of the action, finding that the employer established an affirmative defense by promptly investigating and then terminating the manager’s employment. In addition, the Sixth Circuit held that the manager was not a “supervisor” under the law, because he did not have authority to take tangible employment actions against the employees, which would have held the employer to a higher standard.

(4) Several Employment Laws Take Effect July 1

A number of new state and local labor laws and regulations are set to go into effect on July 1. Paid sick leave laws will take effect in Minneapolis and St. Paul, Minnesota; Chicago and Cook County, Illinois; and the state of Arizona. In Seattle, an ordinance will go into effect that requires employers to post schedules at least 14 days before a work shift. And California’s new regulations limiting the ability of employers to consider criminal history in employment decisions will also take effect. In December of this year, Delaware will become the first state to prohibit employers from asking applicants about compensation history.

(5) Tip of the Week

Christina Berti, Director and Associate General Counsel for Deutsche Bank, shares some advice on best practices for an effective whistleblower retaliation investigation:

“Whistleblower retaliation investigations are becoming all the more frequent lately, given our increased regulatory environment. You want to create a dialogue with the whistleblower to explain the process of the investigation, give status reports on its progress, and ultimately deliver the outcome. You always want to be responsive to the whistleblower's requests to provide you additional information after your initial intake meeting. In this way, you'll be apprised of any new developments which may impact your findings. And lastly, as a final closing tip, it’s really important to coordinate with your HR and legal advisory teams, in terms of any new developments that might occur during the course of the investigation that may impact the whistleblower and other relevant witnesses who are active employees.”

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