By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”. Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..” The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.” The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Andrew S. Boutros, Christopher RobertsonJohn R. Schleppenbach, and Craig B. Simonsen

Seyfarth Synopsis:  The United States Department of Justice recently filed a seismic motion to dismiss in a series of healthcare fraud-related cases.  In doing so, the government questioned the whistleblowers’ theory of False Claims Act liability and stressed the expense to the government of monitoring the litigation and responding to discovery.  This is the latest step the DOJ has taken to reign in potentially unwarranted FCA suits in the wake of its so-called Granston Memo.

This past Monday, December 17, 2018, the United States Department of Justice (DOJ) took the significant step of filing a motion to dismiss eleven False Claims Act (FCA) suits brought by whistleblowers alleging that patient assistance services supplied by pharmaceutical companies are unlawful kickbacks.  This concrete and decisive action by the DOJ suggests it intends to strongly implement its recent policy memo targeting weak or unfounded FCA actions.

By way of brief background, the FCA, 31 U.S.C. §§ 3729 – 3733, provides civil penalties against any “person” who, in relevant part, “knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.”  Although the U.S. Attorney General can bring suit under the FCA, the FCA permits private persons, known as “relators,” in what is known as a “qui tam” action, to bring suit on behalf of the government and collect as a reward a percentage of the recovery.  The recovery can include civil penalties of $5,500 to $11,000 for each violation, treble damages for the funds fraudulently obtained, plus attorneys’ fees and costs.  Thus, some firms specialize in investigating and bringing FCA claims in hopes of reaping these sizable rewards.

The relators in the eleven actions the DOJ seeks to dismiss are all backed by one such specialist firm, National Health Care Analysis Group, and all raise the same theory (which was recently successful in a suit by California regulators) that drug makers are in essence paying “kickbacks” when they assist prescribing doctors with prior authorizations and nurses with information to educate patients about how to use their drugs properly.  The DOJ’s dismissal motion was strongly critical of that theory, describing the provision of patient support services related to medication as “common industry practices” that are “appropriate and beneficial to federal health care programs and their beneficiaries.”  The DOJ also told the courts that, based on its investigation “the government has concluded that the relators’ allegations lack sufficient factual and legal support.”

In addition, the DOJ’s filing stressed the “substantial costs in monitoring the litigation and responding to discovery requests” that the DOJ would incur should these FCA suits go forward. It noted the six-year period covered by the complaints and the nearly 500,000 prescriptions written by more than 10,000 physicians during this time frame.  Ultimately, it concluded the allegations of the complaints were “unlikely to yield any recovery sufficient to justify the significant costs and burdens that the government will occur if the cases proceed.”

These arguments are consistent with the positions articulated in the DOJ’s January 10, 2018 memorandum on Factors for Evaluating Dismissal Pursuant to 31 U.S.C. §  3730(c)(2)(A) (Granston Memo), which directed federal attorneys to be more aggressive about ending FCA suits that lack substantial merit.  The Granston Memo states that “over the last several years, the Department has seen record increases in qui tam actions filed with annual totals approaching or exceeding 600 new matters.  Although the number of filings has increased substantially over time, the rate of intervention has remained relatively static.  Even in non-intervened cases, the government expends significant resources in monitoring these cases and sometimes must produce discovery or otherwise participate.”

This latest DOJ motion to dismiss does not represent the DOJ’s first action to implement the Granston Memo.  Earlier this month, the DOJ asked the United States Supreme Court to dismiss an appeal in an FCA case out of the Ninth Circuit because the DOJ was no longer interested in pursuing the case.  In that matter, too, the DOJ cited “burdensome discovery which would distract from the agency’s public-health responsibilities.”

In light of these developments, it would not be surprising to see additional motions to dismiss from the DOJ in FCA cases in 2019 and beyond.  More than ever, defense-oriented FCA practitioners must vigilantly look for opportunities to invoke the Granston Memo and its policy underpinnings in FCA suits—especially ones that seek to push the FCA envelope with novel, aggressive, or questionable theories of liability.

Those with questions about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Seyfarth Shaw’s White Collar, Internal Investigations, and False Claims Team.

By Gerald L. Maatman, Timothy F. Haley, and Ashley K. Laken

Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions.  While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal.  Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace.  Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.

In January 2018, Makan Delrahim, the Assistant Attorney General for the Antitrust Division, said that the Department Of Justice (“DOJ”) had been very active in reviewing potential antitrust violations resulting from agreements among employers not to compete for workers.  (We previously reported on this announcement here.)  He said that he was “shocked” at how many there were and that in the coming months there would be announcements of enforcement actions.  He also mentioned that if the conduct occurred or continued after issuance of the October 2016 joint DOJ and Federal Trade Commission (“FTC”) Antitrust Guidance for Human Resource Professionals (the “Joint Guidance”), the DOJ may treat those agreements as criminal.

On April 3, 2018, the first of these announcements was made.  See “Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees,” available at (“News Release”).  The DOJ advised that it filed a complaint in which it alleged that Knorr-Bremse AG (“Knorr”), Westinghouse Air Brake Technologies Corporation (“Wabtec”) and Faiveley Transport S.A., before it was acquired by Wabtec, entered into agreements not to compete for each other’s employees (“no-poach” agreements).  The DOJ contends that these were naked agreements – i.e., not reasonably necessary for a separate, legitimate business transaction or collaboration – and amounted to per se violations of Section 1 of the Sherman Act.  With the Complaint DOJ also filed a Competitive Impact Statement; Explanation of Consent Decree; and Stipulation and Proposed Final Judgment.  (See News Release.)

As noted, Mr. Delrahim stated that there were a number of these investigations ongoing, and in the News Release said that this Complaint was “part of a broader investigation by the Antitrust Division into naked agreements not to compete for employees.”  So more of these announcements can be expected, and some may be announcements of criminal prosecutions.

Many Employees Are Unaware That the Antitrust Laws Apply to the Employment Market

Often some business executives and human resource professionals are unaware that the antitrust laws apply to the workplace.  Executives who would never consider discussing prices with their competitors are unaware that discussing wages or salaries could have antitrust risks.  Similarly, employee covenants not to compete are commonplace and many executives have them in their own employment contracts.  So unless they have received specific training, an executive may be unaware of the antitrust risks associated with no-poaching agreements.  And up until recently even the most elaborate and detailed antitrust compliance policies that strictly prohibited discussing prices rarely addressed the exchange of wage and salary information or prohibited no-poaching agreements.

But the DOJ and FTC have now greatly ratcheted up their enforcement efforts with respect to alleged restraints in the employment market.  And with the DOJ and FTC taking the position that naked no-poaching agreements are per se unlawful and subject to criminal prosecution, the antitrust risks have been greatly increased — not to mention the costly class actions that are likely to follow any settlement with the DOJ.

Employers Should Investigate and Implement Compliance Programs

Thus, employers can no longer ignore the risk.  If they have not already done so, employers should consider:

  1. Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information; or whether it has entered into any no-poach agreements.  The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.  Also, if it is discovered that the company has engaged in any “naked” wage-fixing or no-poaching agreements on or after October 25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.
  2. Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.  Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.  Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.  These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.

On January 25, 2018, Associate Attorney General Rachel Brand released an Department memo “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (“Brand Memo”), directed to the Heads of Civil Litigating Components within the USDOJ directing that the Department no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.

The USDOJ, (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated regulatory requirements, not agency guidance documents or policies. The practice of agencies, such as EPA, pursuing enforcement actions against companies who have failed to comply with “guidance” has long been a concern of the regulated community and their defense counsel; we frequently challenge and object to EPA’s efforts to enforce “guidance” that has not gone through public notice ad comment rulemaking. It is a relief that the USDOJ will no longer be a party to such enforcement cases.

The Brand Memo is a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (“Guidance Policy” or “Sessions Memo”), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

The Brand Memo states that “…consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” “Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking.”

Under the USDOJ’s new policy, USDOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”The Brand Memo also indicates that “the Guidance Policy . . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the USDOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applies only to future affirmative civil enforcement actions brought by the Department, as well as, “wherever practicable,” those matters pending as of January 25, 2018, we see the Guidance Policy and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Labor & Employment Group, OSHA Compliance, Enforcement & Litigation Team, or the Environmental Compliance, Enforcement & Permitting Team.

By Jason E. Burritt, Michelle Gergerian, and Dawn M. Lurie

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

Background

A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service. The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS issued guidance suspending the “three day rule” for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications). OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily. Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.

To stay up-to-date on immigration developments, sign up for Seyfarth’s new BIG Immigration Law Blog.

By Ashley K. Laken and Timothy F. Haley

Triancular_red_flagSeyfarth Synopsis: On October 20, the DOJ and the FTC jointly issued their Antitrust Guidance for HR Professionals, stating that DOJ intends to pursue employers criminally for alleged wage fixing and no-poaching agreements.  

On October 20, 2016, the DOJ and FTC jointly issued their “Antitrust Guidance for Human Resource Professionals.”  The Guidance explains how antitrust law applies to employee hiring and compensation practices.  The agencies also issued a “quick reference card” that lists a number of “antitrust red flags for employment practices.”

In a nutshell, agreements (whether formal or informal) among employers to limit or fix the compensation paid to employees or to refrain from soliciting or hiring each other’s employees are per se violations of the antitrust laws.  Also, even if competitors don’t explicitly agree to limit or suppress compensation, the mere exchange of compensation information among employers may violate the antitrust laws if it has the effect of suppressing compensation.

The seriousness of this issue is underscored by the agencies’ statements in their press releases that the guidance is aimed at putting companies on notice that DOJ will proceed criminally against wage fixing and no-poaching agreements.  There also has been a significant uptick in recent years in class action litigation and enforcement activity challenging antitrust violations in the employment context.  In one exchange of wage information case in Detroit, a group of hospitals paid a total of $90 million to settle the case, and in one consolidated case involving allegations of agreements among employers not to poach each other’s employees, the defendants settled for a total of $435 million.

The evidence in many of these cases demonstrates that many HR professionals and other managers and executives do not realize that the antitrust laws apply in the employment marketplace just as they do in the commercial marketplace.  It is important that those HR professionals and other managers and executives who are involved in recruiting, hiring or the compensation process have a clear understanding of antitrust requirements as applied to those practices.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Antitrust/Trade Regulation Team or the Workplace Policies and Handbooks Team.

By Kristina Launey

Seyfarth’s ADA Title III Specialty Team has reported extensively on the legal uncertainty surrounding the accessibility of businesses’ websites to individuals with disabilities.  Today it reports that businesses’ long wait for website accessibility regulatory guidance will continue, as the Department of Justice (DOJ) announced  last week that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

All the while, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”.  This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other regulatory requirements with which the business must comply upon risk of violating established laws.  This external pressure has only increased of late—we have seen plaintiff’s lawyers initiate a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities.  We have seen time and again businesses settle (most recently, as we had predicted, Scribd joined that club)—hence the dearth of case law in this area—quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape.  These enterprising litigants know this.

Why Should Employers (Who May or May Not Be Subject to Title III) Care? As an example, digital accessibility in employment has also made news lately: The Partnership on Employment and Accessible Technology (PEAT, funded by the Office of Disability Employment Policy in the U.S. Department of Labor) recently issued a report on its 2015 research findings, “eRecruiting & Accessibility: Is HR Technology Hurting Your Bottom Line?”, which sought to answer the question: What if top talent is falling through the cracks due to accessibility issues in eRecruiting, rather than a lack of qualifications?  PEAT researched the top HR technology companies offering these tools, and conducted one-on-one interviews with more than two dozen technology providers, employers, accessible technology consultants, disability advocates, and other experts in the business, disability, and accessibility fields.

From this, it identified the following as the top accessibility issues in this area:

  • (Lack of) Awareness – employers and technology providers tend to underestimate the need for accessible online job applications.
  • Compliance vs. usability mindset – the assumption that a website that complies with Section 508 of the Rehabilitation Act of 1973 (which requires that federal agencies make their electronic and information technology accessible to people with disabilities) meets the needs of all users, without regard to usability.
  • Technology, logistics, and cost – the belief that technical solutions for the most common accessibility issues already exist, but are expensive and difficult to implement.
  • Complexity – the failure of employers to consider accessibility challenges beyond the job application form itself, including processes related to job sourcing, pre-employment testing, and digital interviews; as well as how the application integrates with the overall corporate website (which may also have accessibility issues – see Title III discussion above).
  • Customization – built-in accessibility features are sometimes lost from off-the-shelf accessible products when vendors customize and install a tailor-made application.
  • Inadequate testing – technology providers and consultants suggested to PEAT that employers rarely tested their online job application software with actual users prior to launch.

After gathering this information from employers, IT providers, developers, and advocacy organizations, PEAT surveyed 427 people with varying disabilities (including vision, hearing, physical/motor, and cognitive/intellectual disabilities) about their experiences using eRecruiting tools. It found that 46% rated their last experience applying for a job online as “difficult to impossible.”  Of those, 9% were unable to complete the application and 24% required assistance from the employer.  Even after asking the employer for assistance, 58% were still unable to complete the application.  Of the 67% of survey respondents who were asked to complete pre-employment assessments or testing for a job opportunity, 22% were unable to complete testing and 19% required assistance. And, of the 50% of respondents who reported they used social media as part of their job search process; 40% experienced accessibility or usability issues, such as features they could not access at all or that were not user-friendly.

What’s the Problem? Top reported issues were:

  • Complex navigation
  • Timeout restrictions
  • Poor screen contrast
  • Confusing, poorly written, and inconsistent instructions
  • Fields that did not state an accepted format (such as date fields) and fields that were mislabeled or not labeled at all
  • Images that conveyed information, but did not have alternative text for individuals using screen readers
  • Applications and questionnaires that:
  • Relied on color, graphics, or text embedded with graphics to convey directions or important information
  • Could not be navigated with keystrokes and required mouse input
  • Had to be signed using a mouse
  • Videos or audio instructions that were not closed captioned
  • Inaccessible “CAPTCHAs“ (used to determine whether or not the user is human) with no audio option
  • Trouble uploading the necessary documents
  • No notice about use of pop-up windows, which are blocked by most browsers in many settings, such as libraries and employment centers
  • Lack of contact information for technical support
  • Lack of information on how to request an accommodation

Even if the risk of a consumer or employee lawsuit – or class action – were not enough motivation to develop an enterprise-wide digital accessibility plan, the report notes that these issues affect all applicants for employment, not just people with disabilities: “Think of closed captioning, curb cuts, and voice recognition — technologies initially created for people with disabilities and now used by everyone.”

To learn more about digital accessibility, the surge of ADA Title III litigation activity, and what your business can do to mitigate risk, visit our Team’s blog, www.adatitleiii.com, and join our Title III Team for a webinar on December 2, 2015:  Is Your Business the Subject of a Title III Lawsuit Yet?”.

By Minh N. Vu

Only four months into 2014, the Department of Justice (DOJ) has already made clear that it is pursuing an aggressive enforcement agenda when it comes to the obligation of public accommodations to ensure effective communication with individuals with disabilities.

Please click HERE to read the “Management Alert” authored by our colleague on the ADA Title III Specialty Practice Team.