While businesses have long grown weary of the plaintiff bar’s seemingly endless stream of website accessibility lawsuits, it appears that judges in the SDNY may be increasingly feeling the same way. For the second time this spring, following on the back of the decision in Mendez v. Apple, a judge in the SDNY, in the case of Diaz v. The Kroger Co., 18-cv-7953 (KPF),has granted a business’ motion to dismiss a website accessibility lawsuit. While decided on multiple grounds, the Court’s decision is primarily based on mootness, providing businesses who have already taken the necessary steps to comply with the Web Content Accessibility Guidelines (WCAG) at Levels A and AA, and to also maintain compliance going forward, with a potential blueprint to defeat “secondary strike” lawsuits brought in the SDNY.

Background

In Diaz, the plaintiff, who asserted she is visually impaired, alleged that the defendant – a supermarket chain based in Ohio – failed to make its website accessible to individuals who were blind. As a result, plaintiff claimed that she was unable to learn about certain products on the site, as well as promotions and coupons.

Defendant sought to dismiss the lawsuit on two grounds: (i) lack of subject matter jurisdiction, because its remediation of the barriers identified in the complaint rendered plaintiff’s claims moot; and (ii) lack of personal jurisdiction, because the Ohio-based defendant does not transact business in New York State, and accordingly, New York’s long-arm statute does not subject it to the court’s review.

Defendant’s Remediation of the Issues Identified in the Complaint Rendered Plaintiff’s Complaint Moot

In support of its motion to dismiss for lack of subject matter jurisdiction, defendant submitted an affidavit from one of its employees, a “Group Product Design Manager.” In the affidavit, the employee affirmed the following, which the Court found to be significant:

  • Defendant had undertaken to comply with the WCAG before this lawsuit was filed;
  • The website now complies with the WCAG 2.0 standards;
  • The employee “personally” confirmed that all of the deficiencies identified in the complaint had been remedied;
  • The barriers to access which were identified in the complaint no longer exist;
  • Defendant was committed to keeping the website in compliance with the WCAG so that it would remain accessible;
  • Defendant had no intention of undoing those changes or regressing to non-compliance with the WCAG and ADA (both due to the time/cost involves in achieving compliance and due to a desire to avoid future similar lawsuits); and
  • Defendant intended to keep the website up to date with any new website accessibility standards that are issued/promulgated.

The Court acknowledged that, “there are few cases in the federal courts, and none with precedential value on these issues,” and that, “several sister courts in this District have found, on the facts of those cases, that the defendants had failed to establish mootness.” Nevertheless, the Court distinguished this case from those that denied similar motions to dismiss for mootness, finding that the employee’s affidavit in this case clearly and fully met the “stringent showing required by the Supreme Court’s mootness precedent.” Simply put, plaintiff identified several barriers on the website, the defendant remediated them, brought the website into compliance with the WCAG, and stated its intention to remain in compliance going forward. Despite the fact that the defendant did not provide any concrete plans for future compliance, the court was satisfied with the employee’s representation that the company was committed to monitoring any technological updates in the future to provide individuals with visual impairments with equal access to the website, and it found these representations sufficient to render the complaint moot.

Of key importance, the court also considered and rejected the argument – which plaintiffs regularly assert in this context – that ADA claims involving websites can never be mooted, because websites are constantly being revised, updated, and edited, with new content added, replaced, and deleted. Once again, the Court recognized that other courts outside of this jurisdiction have previously accepted this argument. While agreeing “alleged violations are more likely to reoccur with websites” than in the brick and mortar context, the court refused to adopt, what it characterized as, “[p]laintiff’s sweeping, technology-specific exception to the mootness doctrine.” Instead, the court stated that, “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts.”

The New York District Court Lacked Personal Jurisdiction over the Ohio Grocery Store That Did Not Provide Any Delivery Services to New York State Residents

Despite recognizing that it could have dismissed the case for lack of subject matter jurisdiction, and concluded its opinion there, the Court went further and also considered and accepted defendant’s argument that the New York district court lacked personal jurisdiction over the Ohio grocery store. The Court rejected plaintiff’s argument that the website’s provision of certain services – such as information about calorie counts and cook time – was sufficient to confer jurisdiction over the Ohio defendant. The court personally reviewed the website and confirmed that the defendant’s grocery stores did not deliver to any New York state zip code (its closest source for deliveries was in Virginia). Based on this, the Court held that the defendant did not transact business with any resident of New York State, and that the plaintiff’s mere accessing of the website from New York was insufficient to subject it to the court’s jurisdiction.

While not the primary argument advanced by defendant in support of its application for dismissal, the Court’s analysis and holding is nonetheless significant in light of the fact that serial plaintiffs, such as the one that filed this case, have filed, and continue to file, website accessibility lawsuits against defendants operating in other jurisdictions, and who do not transact business in the state in which the lawsuit was filed. This holding may be persuasive in these, highly specific, cases.

Takeaways

This decision is clearly another positive development for businesses facing website accessibility lawsuits in the SDNY (particularly of a repeat nature). However, notwithstanding the court’s thorough, multi-faceted, analysis, the precedential value of this decision should not be overstated. As the Court acknowledged, its holding diverges from those in other circuits, and, in some ways, other courts in this district. Accordingly, while this decision undoubtedly provides businesses – particularly those frustrated by multiple lawsuits notwithstanding their attempts to modify their websites to comply with the WCAG – with additional grounds through which to fight back, it remains unclear whether other district court judges will engage in the same analysis or reach the same conclusion. Moreover, while this court accepted the representations made by the defendant’s employee in his affidavit, we would strongly recommend that any company that seeks to file a similar motion to dismiss for mootness include support from an outside website accessibility expert (containing considerably greater details about how the company achieved compliance and its plans to maintain compliance going forward) as well as that of a qualified employee.

Like the Mendez v. Apple decision earlier this spring, this decision does not preclude serial plaintiffs from filing multiple, identical, lawsuits against various defendants. Nevertheless, there has been a marked decline in the number of website accessibility lawsuits filed in the SDNY following the Mendez decision. We expect that this decision will further ebb the flow of these lawsuits in the SDNY.  That said, given recent decisions in other jurisdictions (e.g., California state court), this will most likely simply result in more lawsuits being filed elsewhere. In the meantime, as we’ve repeatedly noted for years, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives).

June 12, 2019 Update

Only approximately a week after the Kroger decision, another judge in the SDNY has recommended the dismissal of a website accessibility case for lack of personal jurisdiction.  In Tucker v. FirstLight Home Care Franchising, LLC, U.S. Magistrate Judge Kevin Nathaniel Fox provided further support for the argument that simply alleging that defendant operates a website that a user can access in New York is insufficient to establish personal jurisdiction over that defendant.

In Tucker, the defendant, a Delaware company, maintained its principal office in Ohio. In support of its motion, the defendant submitted an affidavit affirming that less than 5% of the company’s revenue comes from its New York business, and additionally, the website is merely informational; the defendant does not conduct business, make sales, or otherwise derive revenue through the website.  Moreover, according to a supporting affidavit, a website user cannot order, purchase, pay for, or otherwise transact business of any kind on the website.  The Court noted that plaintiff failed to submit any affidavits or supporting materials in opposition, rather, he merely made factual assertions in the memorandum of law, (including some not previously included in the complaint), which the Court refused to credit.  Based upon these facts, the Court recommended that the district court grant the motion and dismiss the complaint.

As in Kroger, this decision will only have limited value because the facts here are incredibly specific.  However, this decision further demonstrates that judges in a generally pro-plaintiff district are, with increasing frequency, beginning to crack down on plaintiffs’ attempts to blitz the courts with website accessibility cases (particularly when attempting to establish personal jurisdiction by merely alleging that they accessed a defendant’s website in New York, with nothing more to support their claims).

Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

In our newest installmentCassandra Labbees, an Associate in the Employee Benefits and Executive Compensation practice, in the New York office, presents on “Hot New Benefits.”

Benefits are a useful and necessary tool in the recruitment and retention of employees. As a result, new benefit options are continuously being developed and offered by employers. This 15-minute crash course will discuss a few of those new benefit options as well as the tax and public policy considerations that may impact which benefits employers choose to offer.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleagues Frances L. Kenajian and Nathaniel M. Glasser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the retail industry: “Summer Networking Events: Workplace Harassment Can Happen Outside the Workplace.”

Following is an excerpt:

Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual harassment training. States such as CaliforniaConnecticutDelaware, and Maine have similar requirements. Further, even where not required, case law and agency guidance recommend anti-harassment training in several other states. New York does require employers to establish policies against sexual harassment.

Employers should remind their employees that they remain subject to company policies at events outside the workplace.

Read the full post here.

Please join Nathaniel M. Glasser, Elizabeth K. McManus, Jeremy M. Brown, and Joshua A. Stein for an engaging and informative discussion of topical labor and employment issues facing all retailers. The presenters will address cutting-edge employment matters and share best practices in a private forum in which all attendees can freely participate, exchange insights, and network with colleagues.

Topics will include:

Artificial Intelligence for Recruiting and Selection
We will discuss the legal and practical implications of the various types of artificial intelligence (AI) that can be used to make employment decisions, such as:

  • Cognitive assessments for applicants
  • AI-powered interviewing technology
  • Chatbots that interact directly with applicants and employees
  • Harassment-reporting apps and software

Violence in the Workplace
We will explore current issues confronting retail employers related to workplace violence and best practices for providing a safe workplace, including how to:

  • Develop and enforce a policy prohibiting workplace violence
  • Identify and assist troubled employees

For more information, please visit EBGLaw.com.

Click here to attend, registration is complimentary.

Our colleagues 

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.

Under the law, employers, labor organizations, and employment agencies, and all of their agents, are prohibited from requiring a prospective employee to submit to a marijuana or THC drug test as a condition of employment. This conduct is now characterized as an “unlawful discriminatory practice.” There are, however, several exceptions to the law. For example, the law will not apply to employees in the following roles: safety-related positions, transport-related positions, caregivers, and certain federal contractors. Further, to the extent that a collective bargaining agreement requires drug testing, the law will not apply to such testing. Please see our Act Now Advisory for further details related to these exceptions. …

Read the full post here.

Our colleague Maxine Neuhauser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the retail industry: “New Jersey Issues Updated Family Leave Act and Family Leave Insurance Act Posters.”

Following is an excerpt:

On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act (“NJFLA”), Family Leave Insurance Act (“NJFLI”), and Security and Financial Empowerment Act (“SAFE Act”).  We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees. …

Read the full post here.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into May 2019.

First up this month, the confusion is over for employers. EEO-1 pay data does not need to be submitted to the EEOC by the end of the month. In what may be the final chapter of the EEO-1 pay data reporting issue, a federal judge in Washington, D.C., ruled that the deadline would be postponed until September 30, 2019. Our colleague Robert J. O’Hara shares his insights in this month’s episode.

Watch the full episode below. 

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML”) recently issued regulations and guidance concerning employers’ obligations under the Paid Family and Medical Leave Law (“PFML”), including a quick-approaching deadline for providing notice to employees of their rights under the PFML. On May 1, the DFML announced that it is extending the deadline for employers to provide the employee notice from May 31, 2019 to June 30, 2019.

In addition, the DFML has moved the deadline for employers to apply for a private plan exemption for Quarter 1 only from June 30, 2019 to September 20, 2019.

Under the DFML’s rules, applications for private plan exemptions must be approved in the quarter prior to the quarter in which they go into effect. Thus, this is a one-time exception to the rule. However, as the DFML reminds and cautions, contributions to PFML begin on July 1, 2019, and the September 20, 2019 extension of the exemption application deadline “only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward.”

What Employers Should Do Now

In addition to the steps we have previously suggested, employers should consider the following actions:

  • Ensure that the company is prepared to distribute the employee notice by the new deadline.
  • For employers deciding whether to apply for a private plan exemption during the newly announced extension period, consult with tax and/or legal advisors as to what the DFML describes as “the implications associated with applying for a private plan exemption that may or may not be approved.”
  • As the DFML is continuing to accept comments on the draft PFML regulations, consider submitting comments and/or attending two additional listening sessions to be held in May. According to the DFML, the dates for these sessions will be announced shortly. Thus, anyone interested in attending should check the DFML website regularly for updates.

Webinar – Spring/Summer 2019

Internship programs can help employers source and develop talent, but they do not come without their pitfalls. If you are an employer at a tech startup, a large financial institution, a fashion house, or something else entirely, and you plan on having interns this summer, this webinar is for you. Learn the steps for creating a legally compliant internship program.

For many years, the U.S. Department of Labor (“DOL”) used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern would not be subject to the wage and hour requirements of the Fair Labor Standards Act. This changed at the beginning of 2018, when the DOL adopted the “primary beneficiary test” in a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience. Employers that fail to follow the requirements to ensure that an intern is properly treated as an unpaid intern, rather than an employee who is entitled to minimum wages and overtime, could face costly wage and hour litigation.

Our colleagues Jeffrey M. Landes, Lauri F. Rasnick, and Ann Knuckles Mahoney guide viewers on how they can establish lawful unpaid internship programs. This webinar also addresses the extent to which wage and hour laws apply to interns, and the seven factors that make up the “primary beneficiary test.” This webinar provides viewers practical tips for administering an internship program, whether paid or unpaid, by identifying key considerations for all stages of the internship process.

Click here to request complimentary access to the webinar recording and presentation slides.

As we recently reported, New York’s Westchester County has published on its website Employer and Employee FAQs, along with a Notice of Rights to Employees, concerning the county’s Earned Sick Leave Law, which became effective on April 10, 2019. The county has now issued the required poster. Covered employers can download the poster and display it in a conspicuous location at their office or facility.

Notably, the poster only references the obligation of employers with five or more employees to provide paid sick time; it is silent with respect to the mandate that employers with fewer than five employees provide unpaid sick leave. However, the county’s Human Rights Commission advises that all covered employers must display the poster.