Legal Updates

Website Accessibility Lawsuits Continue as The ADA Turns 27

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits.”

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OIG Updates FY 2017 Work Plan to Include Review of Medicare Claims for Telehealth Services Provided to Rural Beneficiaries: Will Substantive Change to Medicare Reimbursement for Telehealth Follow?

Updates to OIG FY 2017 Work Plan

The United States Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) recently updated its FY 2017 Work Plan. Traditionally, OIG’s annual Work Plan has given health care providers a preview of OIG’s enforcement priorities. With the OIG now making updates to its Work Plan on a monthly basis, providers stand to gain even more insight into how the focus of OIG is constantly shifting in order to assist in the identification of significant compliance risk areas.

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As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits

Today marks the 27th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.

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Dismissal of pregnant employee with morning sickness unlawful

The Federal Circuit Court has found that an employer took unlawful adverse action against a pregnant employee when it dismissed her for taking time off work due to morning sickness and to attend medical appointments1.

The background to the dismissal was that:

  • In March 2016, the employee attended a three-month review meeting halfway through her six month probation period. The company told the employee that she appeared to be “going alright” and did not raise any performance concerns. The employee told the company that she was pregnant and that she intended to commence maternity leave on 1 September 2016.
  • Over the next three months, the employee took a total of seven days sick leave due to morning sickness, plus four days’ annual leave to attend medical appointments related to her pregnancy.
  • On 3 June 2016, the last working day before her probation period expired, a director of the company dismissed the employee telling her that: “due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment”.
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No indication of when the reduction in the bankruptcy minimum period to one year will occur

In December 2015, the Federal Government proposed changes to its insolvency laws as part of its National Innovation and Science Agenda (NISA). Changes included a proposal to reduce the minimum bankruptcy period from three years to one year, with the aim of encouraging innovation and risk taking by reducing the consequences associated with bankruptcy.

Other reforms proposed as part of NISA include a proposed safe harbour carve out to protect directors from insolvent trading liability and a stay on the enforcement of ipso facto clauses while a company is under voluntary administration. These three reforms are separate to those contained in the Insolvency Law Reform Act 2016 (Cth).

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New fines for data protection breaches – Mistakes for which you have to pay

By Maxim Ali
Senior Associate

By Robert Houchill

As has been extensively reported in Russia, since 1 July 2017 the Russian Code for Administrative Offences has been amended to include new fines for the ‘inappropriate’ processing of personal data.

Public attention has mainly been focused on the size of the new fines as set out in Article 13.11 of the Code; whilst previously a company or organisation could be fined up to 10,000 roubles (around $170) for a breach, this has now been increased to 75,000 roubles (around $1,270).  The risks are heightened by the fact that a fine can be imposed for each individual breach, accordingly for an organisation that might be involved in the processing of a large volume of data (such as internet companies, banks, insurers or large corporations) the total fines can quickly add up to be a very significant sum.

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Second Circuit Adopts “Motivating Factor” Causation Standard for FMLA Retaliation Claims

The U.S. Court of Appeals for the Second Circuit recently clarified that the “motivating factor” standard of causation applies to Family and Medical Leave Act (FMLA) retaliation claims, instead of the “but for” causation standard applied in Title VII and ADEA retaliation cases. The “but for” standard is more onerous for the plaintiff, who must demonstrate that discrimination or retaliation was the determining factor for the adverse employment action, not just one reason among others. The less burdensome “motivating factor” causation standard requires the plaintiff to show only that the action was motivated at least in part by discriminatory or retaliatory animus.  In Woods v. START Treatment & Recovery Ctrs., Inc., the Second Circuit vacated and remanded the jury verdict where the district court incorrectly instructed the jury to apply the “but for” causation standard to Plaintiff’s FMLA retaliation claims.  Specifically, the court held that the “motivating factor” standard applies to FMLA retaliation claims actionable under 29 U.S.C. § 2615(a)(1), which prohibits “any employer to interfere with, retrain, or deny the exercise of or the attempt to exercise” rights under the FMLA.

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George A. Hewett to Speak at America East Conference

On August 3, Davis Malm shareholder George A. (Tony) Hewett, will participate in a panel at America East 2017, an annual conference for U.S. Small Business Administration (SBA) lenders. Mr. Hewett’s panel, “SBA 504: What Happens After Closing,” is designed to help the lead bank and SBA licensed certified development companies (CDCs) understand the SBA closing issues that could impact, or even delay, funding of an SBA loan. The panel will discuss the SBA District Office approval process. Attendees will also hear best practices from the panelists to help ensure a pleasant borrower experience during and after the settlement process.

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Covert workplace surveillance: are there grounds for it?

A recent unfair dismissal case, Ms Shahin Tavassoli v Bupa Aged Care Mosman, in which an employee was dismissed based on footage obtained covertly by another employee, has raised some issues regarding covert workplace surveillance.

In considering the case, employers are reminded to:

  • exercise caution when considering undertaking covert surveillance or otherwise using covert surveillance footage, including where an employee produces video footage secretly taken of another employee and
  • ensure compliance with applicable surveillance laws if surveillance is considered necessary in the workplace.
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What you need to know about changes to the Retail Leases Act now in effect

Changes to the Retail Leases Act 1994 (NSW) (RLA NSW) have come into force from 1 July 2017, following a quiet 13-year period without any amendments to the act. Both landlords and tenants of retail premises in New South Wales will be impacted – here are some key changes they must know:

Lessor’s Disclosure Statements

We see the introduction of section 12A, which provides:

  • That a lessee is not liable to pay any amount to the lessor regarding any outgoings unless the liability to pay the amount was disclosed in the lessor’s disclosure statement for the lease.That where a cost estimate has been provided, and the estimated amount is less than the actual amount – if there was no reasonable basis for the estimate when the lessor’s disclosure statement was given, then the lessee’s liability for any payment will be determined on the estimate and not the actual amount.
  • That where a cost estimate has been provided, and the estimated amount is less than the actual amount – if there was no reasonable basis for the estimate when the lessor’s disclosure statement was given, then the lessee’s liability for any payment will be determined on the estimate and not the actual amount.
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