Joseph C. Liburt

Partner

Silicon Valley


Read full biography at www.orrick.com
Joseph Liburt is a Silicon Valley partner in Orrick's Employment Law and Litigation group, which was recently named Labor & Employment Department of the Year in California by The Recorder.

This award by the premier source for legal news was in recognition of the group's significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.

Chambers USA has consistently recognized Joe as a top employment litigator.  Joe has more than 20 years of experience representing standout companies such as Apple, Sears and Microsoft in their most challenging and complex employment matters.

Most recently, Joe was trial counsel on the team that obtained a complete defense verdict in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense national media scrutiny. Following six weeks of trial and three days of deliberations, a state court jury in San Francisco rejected all of plaintiff’s claims that she was passed over for promotion because of her gender and complaints about discrimination.

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Posts by: Joe Liburt

Decades Later, Questions Linger Over Disability Access Online, But ADA Litigation Continues

When the Americans with Disabilities Act (ADA) was enacted in 1990, computers used floppy disks and the “World Wide Web” was still being tested by scientists at CERN.  So while the law’s drafters had a good sense of what access would look like in the physical world, they had no idea what sort of economic and social changes were in store with the birth of the Internet.

Fast forward to 2016, and the law is still murky as to disability access issues online.  But that uncertainty has not stopped the plaintiffs’ bar from filing lawsuits claiming that websites are inaccessible to users with disabilities and thus violate the ADA.

Many disabled individuals access the Internet using assistive technologies.  For example, blind individuals or those with low vision can use screen readers that read website content aloud for them.  Websites that are incompatible with assistive technology can create barriers for users with disabilities and give rise to costly and uncertain litigation.

In December 2014, we issued a client alert that discussed the growing risk of litigation under the ADA and derivative state laws arising from websites or mobile apps that allegedly discriminate against disabled individuals.  As we noted then, despite more than a decade of litigation, basic questions have remained muddled, including whether Title III of the ADA (which requires access to places of public accommodations for disabled individuals) applies to websites.  Businesses were hoping for clarity in the form of proposed regulations by the Department of Justice (DOJ), which had been slated for March 2015.  But more than a year after the fact, we are still waiting on regulations and uncertainty remains (although this has not stopped the groundswell of litigation, particularly in California).

Until recently, courts have generally held that Title III does not apply to online-only services because they do not have a nexus with any physical location.  And while some courts have continued to uphold the nexus requirement, other recent decisions have held that certain websites were public accommodations subject to the ADA even though they had no physical place of public accommodation.  This confusion has even led to the same business (Netflix) being subjected to different standards in different circuits (no “nexus” needed in the First Circuit, while nexus required in the Ninth Circuit).  These different approaches have caused a split between circuits, meaning this question of whether Title III applies to online-only businesses may eventually be headed to the Supreme Court.

As we noted in our client alert, the DOJ looked ready to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA as the standard required for public accommodations for private/non-government websites.

But, in late 2015, the DOJ announced that it would not finalize regulations under Title III until fiscal year 2018 at the earliest.  One reason for the delay was that the DOJ wanted to wait for similar guidelines for government agency and contractor websites under Title II of the ADA, which it stated would “facilitate the creation of an important infrastructure for web accessibility that will be very important” for Title III rulemaking.  At that time, the DOJ expected the Title II guidelines to be finalized by the summer of 2016.

However, in April 2016, the DOJ pushed back the Title II process, seeking further input on questions about the scope of web content (e.g., mobile apps) that would be covered by the guidelines, as well as further questions on which WCAG standard to adopt.  The public comment period for the proposed Title II rules remains open until August 8, 2016.

In the meantime, the plaintiffs’ bar is showing no signs of letting up.  Some firms seem to be setting up a cottage industry in this area.  As the Chicago Tribune reported, one law firm has sent 25 demand letters – just to companies in real estate and homebuilding.  And in March 2016, a California state court became the first in the nation to rule that a retailer violated the ADA due to a website that is not accessible to individuals with vision-related disabilities.  The judge in Davis v. BMI/BNB Travelware, no. CIVDS-1504682 (San Bernardino Superior) (Mar. 21, 2016) granted plaintiff’s motion for summary judgment, holding that the defendant luggage retailer violated the ADA and California’s Unruh Act.  The judge ordered defendant to pay $4,000 in statutory damages and attorneys’ fees and to take steps necessary to make its website “readily accessible to and useable by individuals with visual impairments…”  Troublingly, the court order did not include any details as to the standard by which accessibility/compliance would be measured.

So while this long process continues to unfold, businesses and organizations should take a close look at their websites to determine whether they meet WCAG 2.0 Level AA standards (which every indication from the DOJ has suggested will be the relevant standard).

Managers Beware: Individual Liability Confirmed Under USERRA

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The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military.

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Down The Arbitration Rabbit Hole: Ninth Circuit Refuses To Enforce Employee’s Waiver Of PAGA Claims

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On September 28, 2015, the Ninth Circuit held in Shukri Sakkab v. Luxottica Retail North America, Inc. that the FAA does not preempt the rule that the California Supreme Court enunciated in Iskanian v. CLS Transportation that California law bars the waiver of Private Attorneys General Act (“PAGA”) claims.  As a result, California employers will likely see an increase in the filing of PAGA cases as employees use them as a vehicle for representative actions outside of arbitration.

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California Supreme Court May Limit The Scope Of PAGA Plaintiffs’ Access to Statewide Discovery

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The California Supreme Court is poised to clarify what limits may apply to burdensome discovery demands in litigation under California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”), which allows employees to bring non-class representative actions against employers on behalf of themselves and other “aggrieved employees” for alleged violations of the Labor Code.

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More Headaches: Emeryville Enacts Paid Sick Leave & Minimum Wage Ordinance

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Emeryville will join San Francisco, Oakland and other cities across the nation that have enacted paid sick leave ordinances.  On June 2, 2015, the city of Emeryville adopted its Minimum Wage and Paid Sick Leave Ordinance which goes into effect on July 1, 2015 (with enforcement starting July 2).  Yes, you read that right: it goes into effect only a month after it was adopted! READ MORE

Prognosis Negative: You’re Not Immune to Company Policy Under California Leave Law

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In Richey v. Autonation, Inc., issued January 29, 2015, the California Supreme Court reinstated an arbitration award against the plaintiff and confirmed that employers retain the right to terminate employees who violate company policy even while they are on a leave of absence under the California Family Rights Act (CFRA).

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New Law Puts California Businesses On The Hook For Wage And Workers’ Compensation Claims By Temporary Workers Employed By Staffing Agencies

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On September 28, 2014, Governor Brown signed into law AB 1897, which created California Labor Code § 2810.3.  The new law requires companies who use workers provided by staffing agencies to “share with a labor contractor all civil legal responsibility and civil liability” for (1) the payment of wages and (2) the provision of workers’ compensation insurance.

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Calling All California Employers: You Must Reimburse Employees for Mandatory Use of Their Personal Cell Phones Even if They Have Unlimited Minutes

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A California appellate court recently held that employers are always required to reimburse employees for mandatory use of their personal cell phones, even if they do not incur any additional expense for doing so.  The case is Cochran v. Schwan’s Home Services Inc., Court of Appeal of the State of California, Second Appellate District, Divisions Two, Case No. B247160 (August 12, 2014).  A copy of the opinion can be found here.

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Check This [Box] Out: Ban the Box Legislation Continues to Gain Momentum

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An increasing number of cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background, giving momentum to the “ban the box” movement.  The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions.  Proponents of the movement say that such legislation will help remove unfair employment barriers to job applicants with criminal histories.

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From D-Day to Afghanistan: Honoring Our Veterans by Reemploying Them

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Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge. READ MORE