Category: Kathleen Carter

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Do You Comply with Website Accessibility Laws?

Recent OCR Investigations Stress Importance of School District Website Accessibility by Individuals with Disabilities

By Kathleen M. Carter

Email: kathleen.carter@mhtlaw.com

Thousands of complaints are made to the U.S. Department of Education’s Office for Civil Rights (OCR) each year regarding disability discrimination by educational institutions. Recently, a focus of those complaints has been on the accessibility (or lack thereof) of school districts’ websites for individuals with disabilities.

Specifically, complainants are alleging that websites of many school districts and educational institutions violate the law because they present barriers to users who are visually impaired, hearing impaired, cognitively impaired, and those with disabilities affecting fine motor control. In response, OCR is aggressively investigating the accessibility of such websites. Indeed, a recent press release from OCR describes just some of the settlements that have been reached recently with school entities following such OCR investigations, each of which involves extensive policy implementation and review, training, auditing, reporting, and development of a proposed corrective action plan. It goes without saying that cooperation with the OCR investigation in each instance came at a substantial cost and time for the educational entities involved.

The underlying basis of the OCR investigations is an analysis of whether public entities’ websites are in compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit people from being excluded from participation in, being denied the benefits of, or otherwise being subject to discrimination by public entities or recipients of financial assistance. This prohibition against discrimination applies to all programs, services, and activities, which includes a school district’s website. Examples of accessibility violations include:

  • Websites not using “alt tags,” or text descriptions, for images, which present difficulties for individuals with visual impairments using screen readers to navigate a website;
  • Use of certain text font, size, and color that makes text difficult to read for individuals with visual impairments;
  • Website content only accessible by use of a computer mouse, which presents difficulties for individuals with visual impairments or disabilities affecting fine motor control; and
  • Audio content without accurate captions and transcripts, inhibiting individuals with hearing impairments from accessing web content.

Despite a clear indication by OCR that public school districts’ websites must address these issues and otherwise be accessible to individuals with disabilities, to date there has been no final rule or regulation issued by the DOJ as to how public entities should ensure that their website is accessible to individuals with disabilities.

In the absence of official guidance and regulation, the OCR has used as its “benchmarks for measuring accessibility,” the privately developed Web Content Accessibility Guidelines (WCAG) and Web Accessibility Initiative Accessible Rich Internet Applications Suite (WAI-ARIA), both of which can be found on the Web Accessibility Initiative Website . While these guidelines are not legally binding, in the absence of official guidance, they provide the best standard by which to measure website compliance. Another important resource is the Section 508 Standards, which Federal Agencies must follow for their own web pages and which can be found on the United States Access Board Website.

School districts should take affirmative steps to ensure the accessibility of their website.  While there are numerous technical issues that need to be taken into account for website accessibility, one way to begin to identify common accessibility problems is through “WAVE,” a free online tool to evaluate website accessibility. It can be found at http://wave.webaim.org/.  Upon review and identification of any accessibility issues, school districts should work with their IT Departments to ensure not only that the website pages are accessible, but also that proper training is given to any staff who add content to the website and that additional content is accessible.

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New Overtime Rules Double Salary Requirements for Exempt Employees

On December 1, 2016, Most Employees’ Annual Salaries Must be at Least $47,476 to Qualify as Exempt from Overtime Pay Requirements

By Kathleen M. Carter

kathleen.carter@mhtlaw.com

On May 23, 2016, the Department of Labor issued new rules regarding the Fair Labor Standards Act (“FLSA”) that almost double the threshold salary requirements for employees to qualify as exempt from overtime pay requirements, raising the minimum salary from $455/weekly ($22,750 annually) to $913/weekly ($47,476 annually) (the “Adjusted Salary Threshold”). The new rules take effect on December 1, 2016, and will result in nearly 4.2 million more people qualifying for overtime pay.  Although these new rules apply to all employers, including units of local government, the FLSA also contains provisions specific to local governments.

Generally, the FLSA requires that overtime compensation be paid at a rate not less than one and one-half times a non-exempt employee’s regular rate of pay for each hour worked in excess of 40 hours per work week. Certain employees, however, are exempt from these requirements and need not be paid overtime.

In order to qualify as exempt, an employee must satisfy a “duties test” and be paid a specified minimum salary. It was this minimum salary requirement that was adjusted by the new overtime rules and with which employers must comply by December 1, 2016.

In addition to the Adjusted Salary Threshold, the new rules: (1) raised the compensation level for “highly compensated individuals” to be considered exempt to $134,004, annually; (2) defined that up to 10% of an employee’s standard salary level can come from non-discretionary bonuses, incentive payments, and commission, paid at least quarterly; and (3) established a mechanism for an automatic 3-year adjustment of the salary threshold.

Not all municipal employees will be affected by the new rules. For example, the new rules will not impact currently non-exempt hourly and salaried employees, who will continue to be entitled to overtime if they work more than 40 hours in a work week. Moreover, the new rules will not affect any employees who are not covered by the FLSA, such as independent contractors.  The FLSA also provides several exemptions unique to public bodies, such as the “small-agency” exemption for law enforcement or firefighter agencies that employ fewer than five such employees.  Otherwise, the new rules will significantly impact many municipal employees previously considered to be “exempt.”

With respect to municipal employees to whom the new rules apply, there are several options that municipal employers may use to comply with the new rules, including:

  • Raise salaries of currently exempt employees to meet the new threshold and maintain their exempt status;
  • Maintain salaries and either prohibit overtime or pay overtime for hours worked over 40;
  • Adjust wages so that when overtime is calculated, average pay remains the same; or
  • Utilize compensatory time rather than cash overtime payments (only applicable to state and local governmental employers and in certain instances).

The penalties can be steep for violations of the FLSA overtime provisions. Accordingly, regardless of the method chosen, municipal employers should review employee compensation and their “duties” classifications to ensure that they are prepared to comply with the new rules.

MHT will soon provide a seminar to public bodies that addresses the new rules and offers guidance for how public bodies should proceed. Additional information related to the new overtime rules can also be found at http://mhtlaw.com/overtime/.