Ninth Circuit Rejects Due Process and Primary Jurisdiction Arguments in ADA Website Accessibility Case

In Robles v. Domino’s Pizza LLC, No. 17-55504 (9th Cir. Jan. 15, 2019), the 9th U.S. Circuit Court of Appeals reversed a district court’s dismissal of the plaintiff’s ADA claim pursuant to the primary jurisdiction doctrine due to the lack of website accessibility regulations from the Department of Justice. In doing so, the Court issued three important rulings.

First, to the extent there was any doubt, the Court held that the ADA applies to websites of places of public accommodations if there is a sufficient nexus between the website and a physical brick and mortar location. Second, the Court held that applying the ADA to websites does not violate the Fourteenth Amendment right to due process merely because DOJ has not implemented specific regulations setting forth a technical standard for website accessibility. Third, the Court held that the district court erred in dismissing the case under the primary jurisdiction doctrine because DOJ has expressed no interest in promulgating regulations governing website accessibility and, therefore, deferring to the DOJ would delay the resolution of the plaintiff’s claims.

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The 11th Circuit Holds Prior Settlement in Website Access Case Does Not Moot Identical Second Lawsuit Seeking the Same Injunctive Relief

Retailers and other companies have been besieged by lawsuits alleging that their websites are not accessible to visually impaired users in violation of the Americans with Disabilities Act (“ADA”) and similar state laws. Some companies have been sued multiple times by different plaintiffs represented by different lawyers, even though the companies had previously agreed in earlier settlements to ensure that their websites are accessible to the visually impaired.

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Justice Gorsuch Casts Deciding Vote Rejecting NLRB’s Prohibition on Class Action Waivers

In a long-awaited decision, the United States Supreme Court, by a 5-to-4 vote, overturned the National Labor Relations Board’s (the “Board”) ruling that class action waivers violate the National Labor Relations Act (NLRA) because they interfere with the right to engage in “protected activity,” which, according to the Board, includes the ability to bring class or collective actions. Epic Sys. Corp. v. Lewis, No. 16-0285, 2018 WL 2292444, at *23 (U.S. May 21, 2018).

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Congress Attempts to Offer Relief to Businesses Faced with ADA Access Lawsuits

Title III of the Americans with Disabilities Act (ADA) requires “places of public accommodation,” such as retail businesses and restaurants, to be accessible to persons with disabilities. Common architectural features that permit access include handicap parking, curb cuts, wheelchair ramps and other design modifications. The ADA provides a private right of action to force a non-compliant establishment to make the necessary physical alterations to allow access. If the lawsuit is successful, the ADA provides for reasonable attorneys’ fees—a prospect that has fueled the proliferation of ADA lawsuits.

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Federal Court Dramatically Reduces Attorney-Fee Award to Plaintiffs in FLSA Collective Action Against Chipotle

The United States District Court for the District of Minnesota has dramatically cut an attorney-fee request in a wage-and-hour collective action against Chipotle Mexican Grill Inc. from $3.2 million to $600,000, finding the original amount “excessive” in light of the relatively small $62,000 recovery and straightforward nature of the case. Harris et al. v. Chipotle Mexican Grill Inc., No. 13-CV-1719 (SRN/SER), 2018 WL 617972 (D. Minn. Jan. 29, 2018).

The 81 percent fee reduction marks the end of an almost five-year saga, which began in 2013 as a nationwide putative collective action by employees Marcus Harris and Julius Caldwell. Through the action, Harris and other named plaintiffs, who were employed as hourly workers at Chipotle’s Crystal, Minnesota, restaurant sought unpaid straight time and overtime wages based on allegations that Chipotle forced its non-exempt employees to perform off-the-clock work, pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and the Minnesota Fair Labor Standards Act, Minn. Stat. §§ 177.21-177.35.

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The Ninth Circuit Asks the California Supreme Court to Weigh in on Bag Checks

On August 16, 2017, the Ninth Circuit Court of Appeals issued an order certifying a question regarding an important wage and hour issue to the California Supreme Court: Is time spent on an employer’s premises waiting for and undergoing required exit searches of bags or packages voluntarily brought to work for purely personal convenience by employees compensable as “hours worked” under California law?

The question arose in Frlekin v. Apple, Inc., an appeal in a wage and hour class action brought against Apple, Inc., by current and former nonexempt California retail store employees. In the suit, the plaintiffs sought compensation for time that they spent waiting for and undergoing exit searches whenever they left Apple’s retail store locations, pursuant to the company’s Employee Package and Bag Searches policy. The at-issue policy, which is similar to ones in place at many other large retailers, required that employees undergo unpaid, manager-performed bag/package checks before leaving the stores—at breaks or at the end of their shifts.

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