WebsiteWebsite Accessibility Under the ADA: What You Need to Know

Website Accessibility Under the ADA: What You Need to Know

Many of us are familiar with the Americans with Disabilities Act, otherwise known as the ADA. It is a landmark civil rights legislation that was signed into law by President George H.W. Bush in 1990. It works to guarantee that individuals with disabilities have equal opportunities to participate in mainstream American life, from finding employment opportunities to shopping at the mall or entering a public library.  But “mainstream” life has changed a lot over the past 30 years, especially with the tremendous growth we have seen with the advent of the internet. More and more companies with or without brick and mortar stores have some type of online presence. As such, the past few years there has been a tremendous amount of litigation surrounding how the ADA should be applied to websites.  

Current Status of the ADA

When the ADA was first enacted, Congress could not have anticipated just how far the internet would reach into everyday life. As a result, the ADA focuses on accessibility and discrimination issues that would happen in person—for example, standards for accessibility for brick-and-mortar business locations and employment setting. The ADA does not specifically provide guidance regarding the accessibility standards applicable to internet or online businesses nor does it expressly exclude online businesses either.  

Title III of the ADA requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. Over more recent years, the argument arose that this concept applied to websites, prompting a wave of litigation by plaintiff’s claiming that accessibility barriers experienced on a website violated the ADA because it denied them full access to and equal enjoyment of the goods, services, and accommodations of the website. But with no formal guidelines or laws in place outlining what online ADA compliance actually means for online businesses (with or without a connection to a brick-and-mortar business), it has been largely left up to the courts to decide what compliance looks like.  

As we reported at the end of last year, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s, sending a relatively clear statement that Title III of the ADA does in fact apply to websites. But the Supreme Court’s denial of cert still leaves businesses hoping for actual guidelines in limbo, waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.

Recommended Steps for Addressing Website Accessibility  

In the meantime, Beckage has proactively monitored this area of the law over the past few years and recommends clients take intentional and protective measures to address website accessibility sooner rather than later. As either part of litigation defense strategy or proactive website remediation measures, we generally recommend implementing a comprehensive, phased approach to website accessibility, including the following measures:  

Working with Beckage or a trusted third-party vendor that we together vet and retain to perform an independent website-accessibility audit for conformance with the Web Content Accessibility Guidelines (WCAG), the prevailing set of guidelines that set forth website accessibility standards.  

Implementing a forward-facing website accessibility notice that is prominently and directly linked from the website home page that provides individuals with disabilities who are experiencing technical difficulties the ability to request assistance. Those staffing the phone line and receiving e-mails regarding this should be knowledgeable about the statement and be trained on how to help users that are experiencing technical difficulties navigating the website.

Deploying an internal website accessibility policy that guides the organization’s decision making and processes and procedures for designing, developing, and procuring accessible content on the website. Most websites are regularly updated and modified and accordingly there should be procedures in place as part of this internal policy for regularly reviewing the website for new accessibility barriers.  

We also recommend regularly testing your website with assistive technology used by the disability community to access your content such as the JAWS screen reader. This process can provide valuable intel on potential and unforeseen barriers that may occur to users.  

Even without specific guidelines or a clear understanding of what compliance looks like, there are several low-cost, high impact steps companies can take to address website accessibility.  We recommend clients work on website accessibility alongside their larger public-facing disclosure compliance work, such as regularly updating their Website Privacy Policy and Terms of Use to comply with the evolving paradigm of privacy legislation and regulations such as the California Consumer Protection Act (CCPA) and GDPR.  While the legal standards of website accessibility are still murky, the technology to support accessibility online is only getting stronger. Beckage’s Accessibility Team, made up of web developers and a former web design business owner, is here to help you navigate ADA website compliance and make your online presence more welcoming and accessible to everyone. From litigation defense to proactive website remediation, our experienced team is uniquely positioned to partner with your business and assist with your ADA compliance efforts.  

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Home OfficeWhat We Have Learned About Remote Workforce Safeguards During COVID-19

What We Have Learned About Remote Workforce Safeguards During COVID-19

Beckage lawyers have been working with businesses to put them in a legally defensible position in pivoting their workforce to a distributed workforce. We have learned a few things from our work and watching what is happening around the globe.

Technical Safeguards Have Had To Quickly Pivot:

Companies are working to narrow their threat surface.

Organizations are working toward making their workforce 100% remote to safeguard employees but with that advantage there is an increase in exposure of company assets “in the wild.” With this increased risk it becomes necessary for those responsible to implement technical safeguards to offset this increased risk. Where preventative controls are not realistic, an organization should look to implement detective controls.

Beckage has evaluated various control options for access management. A few of these are:

• Shortening screensaver times

• Session lockout times

• Tiered approach for modifying user access to high risk platforms, applications, and, where possible, data

• Multi-factor authentication for email and high-risk applications/systems

• VPN and Virtual Desktop Infrastructure

With so many tech vendors selling a variety of services and products, companies are getting lost in the hype and simply want to know how they balance it all as part of a larger game plan.

Organizations Valuing Importance Of Administrative Safeguards:

Companies are realizing how essential it is to have more administrative safeguards in place.

Beckage has reviewed the most relevant policies and procedures that relate to remote workforce. Organizations should analyze if those policy and procedures contain steps or tasks that require key stakeholders to be present.

Additionally, organizations need to confirm that their Incident Response, Disaster Recovery, and Business Continuity Plan are all sustainable with a remote workforce. They should verify that such policies and procedures (including call-trees and responsible party contact lists) are accessible to those who need access. Beckage has suggested that organizations look at cloud-based solutions for storing their policies and procedures. This would enable workforce to access documents even if their network is down.

Physical Safeguards Are Very Important:

With buildings becoming vacant, physical safeguards will become more indispensable than ever. If an organization’s facility is going to have a skeleton crew then there are several questions which need to be addressed such as:

• Who will be responsible for safeguarding assets onsite?

• Does this person(s) have an intimate knowledge of the protocols in the event there is a breach or other criminal activity?

• Does the workforce understand what steps to take in the event they lose a device while working remotely?

• Is the procedure documented and has it been distributed?

• Has the organization walked through the process to commission and decommission devices remotely?

Struggle In Addressing Pandemic & Complying With New Laws:

In the middle of the pandemic, companies have still had to meet the compliance milestones of the NY SHIELD Act and California’s Consumer Protection Act (CCPA), especially where the Attorney Generals responsible for enforcing them have not provided extensions of time to comply despite the organizational disruption of the pandemic.

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Beckage attorneys, who are also technologists, former CISO and current Certified Information Systems Auditor (CISA) are available to answer any questions you have about the foregoing safeguards and their impact and compliance with NY SHIELD Act, the CCPA, the

European Union’s General Data Protection Regulation (GDPR) or any other privacy or data security statute. Visit us at Beckage.com or call us at 716 898 2102.

Beckage is proud to be the only firm in 2019 named for its “Technology Transactions” practice in Upstate New York Super Lawyers and routinely cited by Law.com for our insights in this fast-moving arena, along with several other awards and recognition in tech and law. We thank you for your business and encourage you to visit our blog regularly for updates on this area of law and others.

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Modern office with panelled glass wallsPreparing for New York’s New Sexual Harassment Laws

Preparing for New York’s New Sexual Harassment Laws

In the wake of the #MeToo movement and widespread attention on sexual harassment in the workplace, on April 12 Governor Cuomo passed into law the 2019 Budget, which included a package of laws aimed at combating sexual harassment.  These laws apply to employers of all sizes – even those with only one employee and obligates employers, among other things, to 1) distribute a written sexual harassment policy, and 2) perform annual sexual harassment training.  Now is the time to revisit your anti-sexual harassment programs and policies and make the necessary changes to ensure compliance with these laws. Here are a few key elements employers need to know.  

Sexual Harassment Policy:
By Oct. 9, every employer in New York state must have a written sexual harassment prevention policy in place and distribute it to its employees.

Employers can use the model policy created by the New York State Department of Labor and the New York State Division of Human Rights, or they can create their own policy provided that it equals or exceeds the minimum standards set forth in the model policy.   

Some key elements the policy must include:  

  • A statement prohibiting sexual harassment;  
  • Examples of prohibited conduct that would constitute unlawful sexual harassment;
  • Information concerning the federal and state statutory provisions concerning sexual harassment, remedies available and a statement that there may be applicable local laws;
  • A standard complaint form;
  • A prohibition on retaliation;  
  • A procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
  • An explanation to employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; and
  • A statement that sanctions will be enforced against those who engage in sexual harassment and managers and supervisors who knowingly allow sexual harassment.  

A sexual harassment policy can be provided to employees in hard copy or electronically but must also be accessible and printable during working hours.  Employers are required to prepare and distribute a compliant written policy by October 9, 2018.  

Mandatory Sexual Harassment Training:
Beginning Oct. 9, every New York state employer must provide sexual harassment prevention training to all employees on an annual basis. Employers can either use the model sexual harassment prevention training program created by the New York State Department of Labor and the New York State Division of Human Rights or establish their own training program that equals or exceeds the minimum standards provided by the model.  While it hasn’t been officially confirmed, it seems likely that this training can be given online provided it is interactive. The training must include the following:

  • An interactive component;
  • An explanation and examples of prohibited sexual harassment;
  • Information on federal and state statutes prohibiting sexual harassment;
  • Remedies and rights of redress under the applicable statutes; and
  • An explanation of added responsibilities for supervisory employees.

Employers may satisfy the “interactive” training requirement by: (1) asking questions of the employees as part of the program; (2) including question and answer portion to accommodate employee questions; (3) using a live trainer to conduct the training or making a live-trainer available to answer questions; or (4) requiring employee feedback about the training. Employers should implement as many of the above interactive components as is feasible. All employees must receive a compliant sexual harassment training on or before October 2019.

New hires must receive a compliant sexual harassment training within 30 calendar days of hire.  

Special Provisions for New York City Employers:
Beginning April 1, 2019, all New York City employers with 15 or more employees must provide interactive (but not necessarily live) sexual harassment prevention training to all full- and part-time employees and interns annually, and to new employees within 90 days of hire.

The NYC Commission on Human Rights will create an interactive training module that will be available to employers free of charge.  While these government-created training programs will meet minimum legal requirements, employers should consider providing more detailed, in-person sexual harassment and anti-discrimination training programs.

Beckage attorneys are available to help employers navigate these new sexual harassment laws, including drafting and reviewing sexual harassment policies as well as offering webinars and interactive training programs to ensure compliance with the new laws.    

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or practitioner licensed to practice in the jurisdiction where that advice is sought.

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Arm grabbing book from shelfChanging Times Means Revising Employee Handbooks

Changing Times Means Revising Employee Handbooks

While employee handbooks are not required, creating, maintaining and regularly updating a company handbook is a best practice to follow. An employee handbook lays out basic information to employees about company policies and the employment relationship. But creating and implementing your handbook is insufficient – it is a living and breathing document that must be updated regularly (ideally annually) to ensure compliance with evolving federal, state and local laws as well as fast-moving changes to technology.

A properly drafted employee handbook is a valuable communication tool to help employers avoid legal problems and relay expectations, especially with the proliferation of technology use both in and outside of the workplace. From smart phones to tablets, employees regularly conduct both personal and professional business using various devices. Clear and concise employer-issued policies, such as those that govern social media use, computer use, data security, and bring your own device (BYOD), help set the expectations for both the employees and employers on what behavior is appropriate and can help protect employers from liability if an issue arises.

This past June the General Counsel of the National Labor Relations Board (the “NLRB”) issued a memorandum that, while not binding, provides helpful insight to employers reviewing their handbooks under the National Labor Relations Act (the “NLRA”). By way of background, the NLRA applies to both union and non-unionized workforces and generally protects an employee’s right to discuss wages, hours, and other terms and conditions of employment, known as Section 7 rights. Based on NLRB case law, employers may not maintain any work rule if the rule has a “chilling effect” on such rights. The NLRB will find such a chilling effect if employees would “reasonably construe” the rule’s language to prohibit their Section 7 rights under the NLRA. This memorandum marks a shift in the NLRB’s prior broad prohibition on certain workplace rules and signals a more employer-friendly approach in interpreting federal labor law.

The NLRB memo, issued on June 6, 2018, provides practical examples for employers of specific workplace rules and breaks them down in to three categories of rules that are useful in evaluating employer policies. Rules in the first category are generally lawful and include those requiring civility and authorization to speak on behalf of the employer and preclude the disclosure of confidential customer information. Examples include rules against defamation or misrepresentation, rules against using employer logos or intellectual property, and rules requiring authorization to speak for the company. Rules in the second category warrant “individualized scrutiny” and include, for example, those regulating off-duty conduct, confidentiality and conflicts of interest. Rules in the third category are unlawful and include confidentiality rules regarding wages, benefits or working conditions. The memo does a good job of providing specific examples in each category that are informative in crafting and evaluating language contained in employer policies.

While not binding, this memo is instructive as to what the NLRB will be looking for in terms of its prosecution of employers. Employers are encouraged to carefully review their handbooks and technology-use policies to see where they might be able to articulate stronger expectations in light of the various examples offered in the memo. It is expected there will be more guidance and decisions coming out from the Board in this area over the next several months so employers should proceed cautiously in revisiting rules in their employee handbooks with the assistance of counsel. Beckage attorneys are available to help you draft or redraft rules in light of these changing standards and closely monitor this evolving area of employment law.  

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or practitioner licensed to practice in the jurisdiction where that advice is sought.