|By Renee Schenk, ACC St. Louis 2016 President|
to my fellow members! I can’t believe my
year as President is nearly half over. Time flies when we are hosting so many great events! My theme for this
Newsletter is to highlight many of our recent, ongoing and upcoming events so
that you, our members, can see the breadth of opportunities available and
consider which ones may bring value or be of interest to you.
This Spring we
had several successful signature events, including:
· A timely panel discussion at
St. Louis University Law School discussing implicit bias and its
implications in the Ferguson Municipal Court system
· Our annual Street Law program
to bring awareness of the legal profession to high school students from
Cardinal Ritter College Prep
· Last, but not least, our 35th
annual Corporate Counsel Institute program bringing members a full
day of CLE
continue to host a number of ongoing series with different topics for each
installment. If you miss one, you can
always catch the next one!
· I am personally most excited
about the evolution of our In-Transition Committee to the Professional Development Committee, bringing
you monthly luncheon speakers on a wide variety of professional development topics
· Take note of our new International
Labor & Employment Practice Area Networking Group – if this is a
practice area of interest for you, the group is forming to have approximately
quarterly gatherings on topics relevant to the practice
· If you are interested in pro
bono opportunities, volunteer to staff our regular Legal Services of
Eastern Missouri pro bono clinics focused on small businesses and nonprofits –
the training and service are geared toward in-house practitioners and
accessible no matter your practice specialty
· Attention General Counsels: If you are not on our
mailing list for the General Counsel Forum dinners, please let us know and we
will add you – quarterly dinners on a variety of timely topics of interest to
· As always, our monthly
sponsor CLE’s bringing you CLE education credits on a wide variety of
forget to mark your calendars for these upcoming events – some of the most fun
you will have with a bunch of lawyers:
· July 14th - Summer
Social @ O'Fallon Brewery in Westport
· September 16th – Golf,
Spa & CLE @ the Four Seasons/Gateway National golf course
In addition to
our many events, ACC St. Louis worked with the St. Louis Business Journal to
sponsor the Corporate
Counsel Awards – CONGRATULATIONS TO ALL THE WELL-DESERVING WINNERS!
email for event announcements or check out our ACC St. Louis website
for an up-to-date calendar. Of course,
if none of the events I mentioned strike your fancy, please bring us your
suggestions, or even better, join a committee! We would love to have your perspective. Feel free to call or write me any time for more information.
ACC St. Louis
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|2016 Golf Spa is coming, are you ready?|
Mark your calendar for 2016 ACC St. Louis Golf Spa on Friday, September 16th!
your calendar to spend a day away from the office at the 8th Annual ACC St.
Louis Golf/Spa Event at The Four Seasons and Gateway National Golf Links on
September 16, 2016. The morning will include Breakfast, 3 hours of CLE
and Lunch at the Four Seasons, and you can enjoy the afternoon either in the
Spa at The Four Seasons or on the Links at Gateway.
details and registration to follow!!
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|ACC St. Louis Commitment to Diversity and Street Law|
Annual Street Law Program
The St. Louis Chapter Diversity Committee was very
excited to celebrate the sixth year of one of the Committee’s signature events
– the Street Law Program. Street Law is a diversity pipeline program designed to expose high school students to the practice of law in a way that will
encourage them to
legal careers and pursue
higher education. The
Street Law Program has introduced hundreds of students in the St. Louis region
to careers in the legal profession. Our Street Law Program this year gave students from
Cardinal Ritter College Preparatory High School (whose students
include virtually all
racial and ethnic backgrounds underrepresented
legal profession) a positive interaction with lawyers and legal
AT&T partnered with the St. Louis Chapter and
graciously served as the corporate sponsor by hosting the Street Law students and volunteers for
a full day workshop on April 19, 2016. During the workshop the students had the opportunity to negotiate a contract,
depose witnesses in a wrongful termination case, and conduct a trial in a
trademark infringement dispute. The workshop also
a lunch and
career fair where the students had an opportunity to
dine and chat with some of our participating judges and legal professionals. The lunch guests included Missouri
Circuit Court Judge Paula Bryant, Family Court Commissioner Anne-Marie Clarke,
Thompson Coburn partner Booker T. Shaw and Attorney Dorothy White Coleman. The ACC members who volunteer their
time are the key to the success of the Street Law program. The Street Law program activities culminated with a volunteer appreciation happy
hour on May 19th at Truffles in Clayton so that volunteers could mix and network with one another.
Summer Internship Program
This Diversity Summer Internship Program is designed to give
law students from
diverse backgrounds substantive experience and meaningful exposure to in-house practice
with our member companies. The program is intended to be a diversity pipeline to open up opportunities to students. The chapter member companies hosting interns this summer are
AT&T, Bunge, UniGroup, Wells Fargo and Millipore Sigma. Each intern is supported by at
least two program mentors—one from the chapter member company and one from the ACC membership.
Armstrong Teasdale LLP hosted the Diversity Summer
Internship Kick-Off Celebration on June 2, 2016 at its office in Clayton. This event gave the interns the chance to
meet and mingle with both their assigned mentors and other attorneys in the St.
Louis community. In addition to
receiving tasty food and drinks catered by Cantina Laredo, the interns were
also given a surprise first assignment of impromptu public speaking. Each intern was asked to stand before the
assembled group, introduce themselves and provide some details about their
Interns, mentors and host-company representatives
will come together for
a variety of professional development and program activities over the course of the summer. Funding for this program is provided by the participating
chapter member companies,our Chapter and
our generous sponsor, Armstrong Teasdale LLP.
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|2016 Corporate Counsel Institute was a huge success!|
The 35th Annual Corporate Counsel Institute (CCI)
was held on April 27, 2016 at the Ritz-Carlton in Clayton. Attended by more than 150 attorneys, this year’s CCI was jointly
sponsored by ACC St. Louis Chapter and the Bar Association of Metropolitan St.
Louis, and provided attendees with the opportunity to obtain 8.7 Missouri MCLE
credits. In addition to satisfying almost an entire year’s worth of CLE
requirements, attendees were able to visit with vendors and legal service
providers in the large exhibition hall area, reconnect with old friends and
network with other attorneys throughout the day.
This year’s outstanding program included sessions ranging
from an in depth discussion on the Department of Labor’s changes to the FLSA, to
cross border considerations in Canadian law and what to do in a government
investigation to a unique and entertaining presentation of the Rules of
Professional Conduct through musical clips of popular songs. Attendees also enjoyed
a lunchtime update and discussion on the Missouri Commission on Racial and
Ethnic Fairness. The General Counsel panel
discussion on hot topics facing GCs, was moderated by Prof. Hillary Sale of
Washington University School of Law, and included Matt Geekie, Greybar Electric, Edmund
Quatmann, Jr., Capri Casinos and Erika Schenk, World Wide Technologies.
As has become tradition, following the program attendees
were treated to a cocktail reception and drawings for prizes provided by CCI’s wonderful
Thanks to all the CCI sponsors,
planning committee, presenters, exhibitors and all the CCI participants who
made the 35th Corporate Counsel Institute such a success! See you next year!
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|Recognize Anyone You Know?|
2016 Street Law Event
2016 Corporate Counsel Institute
CLE - Coverage Uncovered: A Look Between the Sheets of Your Commercial Insurance Policies
April 13th - SmithAmundsen
MAABA Unity Dinner
2016Summer Intern Kickoff Event
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|Welcome New Chapter Members!|
Please help us welcome the following New Members, who joined since March, 2016.Carrie Branson, Associate Counsel, Aegion Corporation
Darren Goodman, Associate General Counsel, Edward Jones
Cardina F. Johnson, Associate General Counsel, Illinois Education Association
Elizabeth Minogue, Associate General Counsel, Post Holdings, Inc.
Kelly-Ann Radetic, Vice President and General Counsel, Mary R. Wolff Real Estate Management Company
Paul F. Woody, General Counsel, American Poolplayers Association, Inc.
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The St. Louis Chapter offers a variety of programs and events designed for their Members’ unique needs. Keep your eye on the Chapter calendar (www.acc.com/chapters/stlouis) and be sure to mark your calendars to attend a few of the chapter programs and special events coming soon:
July 13th - Labor & Employment Practice Area Networking (PAN)
Global Employment Issues - Roundtable Discussion - UniGroup Offices
July 14th - ACC St. Louis Summer Social
O'Fallon Brewery - Westport Area
July 19th - CLE w Lathrop & Gage
Topic: Whose Brand Is It Anyway?
July 22nd - St. Louis Business Journal - Corporate Counsel Awards Breakfast
The Sheldon Theater
July 26th - LSEM Legal Clinic
July 27th - Professional Development Luncheon
Topic: Facing Hardship & Change and Still Thriving
August 11th - Pop Up Social Event
August 17th - Professional Development Lunch
Topic to be determined
August 24th - CLE w Stinson Leonard Street
Topic to be determined
August 30th - LSEM Legal Clinic
September 16 - Golf - Spa 2016
Four Seasons Hotel and Gateway National
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We missed you! If
you sign up for an ACC St. Louis event (even an event with no cost to members) and
find that you cannot attend, please let the Chapter Office know just as soon as you can. You can email the office at email@example.com.
Sometimes we have members on our waiting list who would love to fill in for
you, or the sponsors can make adjustments to food and beverage
orders. Always, we want to avoid disappointing our sponsors and our members who
are counting on seeing you.
So let us know if you cannot attend, but we hope that you will!
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|The Rewards of Letting Your Law Firm In|
Rewards of Letting Your Law Firm In
Chris LaRose, Partner, Armstrong Teasdale
In a world overwhelmed by emails and text messages, it’s
important to remember the significance of face-to-face interactions and
telephone calls. We are all busy, but investing time in developing more
personal relationships with your outside lawyers – truly letting the “law firm
in” – is an investment on both sides that will pay dividends.
It’s easy to tell when your law firm is simply doing the
work versus when a firm really
understands the ins and outs of your business. It’s that additional depth of knowledge that allows us to work smarter
and more efficiently to solve your problems. In order to get to the point where
your firm is saying “we” instead of “you” when referring to your business, you
have to let it in both physically and figuratively.
The intention is not to bog down the client during intake
process—especially new clients. Instead,
the process should be designed to create a useful foundation in which your
outside firm has a clear understanding about your business, needs and expectations.
This has the added benefit of allowing you and your firm to grow together. So,
while those initial conversations might seem rudimentary, their purpose is to better
position your legal counsel to help you.
Here are a few suggestions that can improve the relationship
between in-house and outside counsel:
1. Have a straightforward talk about expectations:Talking about expectations might sound like a given. Sometimes, however, issues arise when there
is a misunderstanding about expectations by both in-house and outside counsel.
Not only should you openly discuss the
particulars of the representation including the scope and timing of the work
with your law firm, you should also discuss the specifics of the fee
arrangements. Twenty two firms were recently named by corporate counsel as best
at developing and delivering Alternative Fee Arrangements (AFAs) in a recent
BTI Consulting Group report, and I can proudly say that Armstrong Teasdale is
among them. And, according to BTI, AFAs accounted for $21.3 billion of outside
counsel spending in 2015, up from $17.4 billion in 2014.
Many times, when law firms start the
conversation with clients about fee structure and AFAs, generally in terms of
intellectual property, or with an emerging company, it’s most important to
start by discussing the client’s expectations. For example, how many patents do
you anticipate filing this year? What will be the pace of the work over the
course of the year?
While many times you might not end up with an
AFA, the exercise is still worthwhile because you will have explored all options
and found the solution that works best for the individual needs of each client.
After all, we know legal services aren’t one-size-fits-all. When expectations
are clear to everyone, your law firm can focus on the important thing: the
2. Plan Ahead: Make your outside counsel
part of your business planning cycle. Your firm may be able to help you
proactively avoid legal costs if they know where your business is heading and
what new initiatives your company will be implementing.
Cybersecurity issues, for example,
definitely fall into this preventative category. Law firms should counsel clients to
communicate and take steps to be as prepared as possible for when, not if, a
breach happens. And cybersecurity means much more than just passwords and
If your law firm is brought in early, they’ll
have an opportunity to learn, assess and understand your vulnerabilities so
that they can help you ask the important questions, and ultimately put you at
an advantage. We even have attorneys who are Certified Ethical Hackers and can
really put your systems to the test.
3. Let Your Firm Put Itself in Your Shoes: This phrase lives on for a reason…letting your
outside counsel into your business, or your shoes, is worth the time invested.
When we know what wakes you up in the middle of the night, we will think about
those issues too (and be looking for solutions and ideas for you).
Believe it or not, your law firm might even
be able to talk you out of a service. In some instances, clients believe they
have a problem, when in fact they’re already well positioned to tackle a given
obstacle. Or in other situations, clients might think they have one problem,
but their vulnerabilities lie elsewhere, and it’s your firm’s job to seek those
out and address your concerns and take a more integrated approach.
If it makes sense, consider asking your firm
for a secondment arrangement or immersive experience. There’s no better way to
learn the business than sitting down the hall from your clients. That sense of connection
can really help solidify a business relationship and drive trust. For example, several of our attorneys have
been on a ride-along with a UPS driver so we can better understand our UPS
Our Kansas City partner Karrie
Clinkinbeard’s father and grandfather were both Fire Chiefs in the Kansas City
Metro area. She followed in their footsteps in a unique way and now practices
Fire & Explosion Litigation, and often spends her days surveying fire scenes
in a hard hat and steel toe boots. She’s
one of very few attorneys in the U.S. to have received a Certified Fire and
Explosion credential from the National Association of Fire Investigators, and
has taught courses across the country for the Department of Homeland Security's
National Fire Academy.
And, our St. Louis partner Julie
O’Keefe has gone to great lengths for some of her clients due to the nature of
her practice, in which she represents businesses in environmental and
occupational safety and health (OSH) matters. She recently spent time on a 20,000-acre farm with more than 8,000 dairy
cattle to observe operations. She has also visited a leather tanning plant, a
flour and sugar processing facility, a carburetor factory demolition complete
with hard hat and boots, a bottle-making facility, and several railcar
Individual experiences provide attorneys
with unparalleled opportunities to learn your business, and it can make an
incredible, positive impact on work product.
4. Acknowledge Each Individual’s Background:
Acknowledging that attorneys have diverse professional and personal backgrounds
can help you find the right firm to work on your needs. If you’re able to let
your firm in on your background and expectations, they will more than likely
able to find someone with that same specialized experience.
For example, prior to merging with
Armstrong Teasdale, Denver managing attorney Chuck Steese worked in house for a
few years and owned his own law firm for 13 years. Because he thinks like a business owner,
Chuck understands business owners’ risks and concerns, and litigates disputes
from a businessman’s perspective.
Partner Tim Gearin leads the firm’s
award-winning Tort & Catastrophic Events practice group and his background
as a registered nurse working in intensive care, surgical and cardiac areas
sets him apart. This experience gives him the ability to understand how the
body works, as well as medical terminology and procedures. Because of this, he
is better able to defend clients against medical malpractice, catastrophic
injury, and wrongful death claims.
Agriculture and biotech attorney
Darryl Chatman is the former deputy director for the Missouri Department of
Agriculture. His relationships with regulatory bodies and others in the industry
are instrumental and critical to understanding the complex needs of our
Intellectual Property attorney
Donna Schmitt formerly served as senior trademark counsel for Energizer. She
built its trademark and copyright department as the company evolved from a
battery and lighting company to a household products and personal care company.
Donna was responsible for global trademark clearance and prosecution for a
10,000-plus trademark portfolio.
5. Help Us Constantly Improve: When your
firm sends you an email, or calls asking for feedback on the performance of
your counsel or the firm as a whole: tell us the truth. We consider each client
relationship a two-way street and we want and need regular feedback to improve
and exceed your expectations.
In some ways, customer feedback can be the
biggest return on your investment in your law firm because when attorneys better
understand how they’re meeting (or maybe not meeting) your needs, it opens a
dialogue and creates room to grow together. A discussion can be a catalyst for
change, and certainly, praise (when appropriate) will motivate the attorneys
working for you.
And maybe one of the most important benefits
to in-house counsel is related to time saving. Having that element of feedback
and the opportunity to learn from mistakes right off the bat will help your
firm work like a well-oiled machine moving forward.
When you’re open with your law firm,
your counsel will be able to better understand where you’re coming from, what
your needs are, and ultimately, you’ll end up with the best work product
possible…and a few new friends, too.
Chris LaRose is
partner at Armstrong Teasdale and a member of the Commercial Litigation
practice group. Mr. LaRose can be reached at firstname.lastname@example.org or 314-259-4779.
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|The Great Restroom Debate: What Employers Should Know|
The Great Restroom Debate: What Employers
By Lauren B. Harris, Greensfelder, Hemker & Gale, P.C.
People of all shapes, sizes and genders have
been using restrooms at work for years without issue, so why is this now such a
topic of conversation and legislation? The answers and resulting political and
social debate are for another day and likely another publication. Instead, this
article will provide information about current agency guidance, trends and
practical tips for approaching restroom access for transgender employees.
To take it down to the basics, how is transgender
defined? According to the EEOC, the word transgender “refers to people whose
gender identity and/or expression is different from the sex assigned to them at
birth (e.g. the sex listed on an original birth certificate).” Gender identity
is the sense of whether a person is male or female — or both or neither. Gender
expression refers to the ways in which a person demonstrates that identity,
such as the way the person looks, acts or dresses. A transgender man is someone
who was born biologically female but identifies as male. A transgender woman is
someone who was born biologically male but identifies as female. A person does
not need to undergo any medical procedure to be considered transgender and need
not provide any medical or legal documentation to establish gender identity. There
is no concrete census data, but researchers have estimated that less than ½ of 1
percent of the American population considers themselves to be transgender.
Federal guidance on restroom
In June 2015, OSHA published A Guide to Restroom Access for Transgender
Workers, which explained that workplaces with gender-assigned restrooms can
create questions for transgender employees regarding which restroom to use. OSHA
advised that restroom access is a health and safety matter, reasoning that
restricting employees’ access to a restroom that is not consistent with their
gender identity or requiring individuals to use specific gender-neutral
restrooms singles out transgender employees and “may make them fear for their physical
safety.” OSHA also noted that restroom restrictions can result in an employee avoiding
the restroom, which can lead to serious physical injury or illness. Under
OSHA’s guidance, employees should each determine which restroom is the most appropriate
and safest option for them and should be permitted to use the restroom that
corresponds with their gender identity. OSHA also set forth model practices for
restroom access for employers, including providing single gender-neutral
restrooms or multi-occupant gender-neutral restrooms with lockable single-occupancy
In May 2016, the EEOC published its Fact Sheet: Bathroom Access Rights for
Transgender Employees Under Title VII of the Civil Rights Act of 1964. For
the past several years, the EEOC has been enforcing Title VII, 42 U.S.C.
§2000e, et seq., to include sex discrimination based on transgender status. With
respect to restroom access, the agency explained in Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL
1607756 (Mar. 27, 2015), that:
· denying an
employee equal access to a common restroom corresponding to the employee's
gender identity is sex discrimination;
· an employer
cannot condition this right on the employee undergoing or providing proof of
surgery or any other medical procedure; and
· an employer
cannot avoid the requirement to provide equal access to a common restroom by
restricting a transgender employee to a single-user restroom instead (although
the employer can make a single-user restroom available to all employees who may
choose to use it).
While the Lusardi
opinion stems from an administrative appeal and is not necessarily binding on
private employers, it is instructive of how the EEOC will likely approach
restroom access issues across the board.
Importantly, the EEOC clarified that contrary
state law is not a defense to Title VII claims of sex discrimination
based on transgender status. Thus, employers in states or municipalities with laws
that deny transgender employees’ access to the restroom that corresponds with their
gender identity must choose whether to violate state or local law or risk the
EEOC determining that they violated Title VII.
The EEOC asserts that it is not
expanding the identified protected classes under Title VII, but merely using
Supreme Court and federal case law to support the agency’s interpretation. Specifically,
the Supreme Court in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) recognized that employment discrimination
based on sex stereotypes is unlawful sex discrimination under Title VII. Since Price Waterhouse, several courts of
appeals and district courts have applied Title VII’s prohibition of discrimination
based on sex stereotypes to claims of sex discrimination based on sexual
orientation and transgender status centered on the following reasoning:
Waterhouse ... does
not make Title VII protection against sex stereotyping conditional or provide
any reason to exclude Title VII coverage for non sex-stereotypical behavior
simply because the person is a transsexual. As such, discrimination against a
plaintiff who is a transsexual — and therefore fails to act and/or identify
with his or her gender — is no different from the discrimination directed
against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did
not act like a woman. Sex stereotyping based on a person’s gender nonconforming
behavior is impermissible discrimination, irrespective of the cause of that
behavior; a label, such as “transsexual,” is not fatal to a sex discrimination
claim where the victim has suffered discrimination because of his or her gender
That reasoning is cited in Finkle v. Howard Cty., Md., 12 F. Supp.
3d 780, 787 (D. Md. 2014), quoting Smith
v. City of Salem, 378 F.3d 566, 574-575 (6th Cir. 2004).
Proponents of LGBTQ rights have
been attempting to amend Title VII to include sexual orientation and gender
identity as protected classes for the past 20 years. In fact, almost half of
the states have enacted anti-discrimination laws that prohibit discrimination
on the basis of sexual orientation, some including gender identity. The
Illinois Human Rights Act was amended in 2006 to prohibit discrimination in
employment based on sexual orientation, which includes gender identity.
Missouri has not expanded the Missouri Human Rights Act to include sexual
orientation or gender identity, but several bills have recently been introduced
proposing changes to the act. Additionally, several municipalities, including
St. Louis city, prohibit discrimination on the basis of sexual orientation. But
restroom access is an entirely new arena and a touchier subject in practical
application, as evidenced by the recent debate regarding restroom access for
transgender students in public schools.
Additionally, for employers that are also
subject to public accommodations laws, the restroom access issue for the public
is completely open for debate, as federal law does not prohibit discrimination
based on sex, sexual orientation or gender identity in public accommodations. Similarly,
even though a number of state laws prohibit discrimination on the basis of
sexual orientation and gender identity in public accommodations, many state
agencies are mum on the practical application of the laws in public restrooms.
Practical tips for employers
With all of this uncertainty, what should
employers do? Even though Title VII has not been formally amended, expect that
the EEOC and courts will continue to treat sexual orientation and transgender status
as a basis for sex discrimination regarding employee restroom access and that OSHA
will require companies to permit employees to use the restroom that corresponds
with their gender identity. The best way to protect your company from complaints
is to approach each situation with an open mind. Here are six practical tips for
handling the restroom access for transgender employees.
- Employers should not ask a transgender
employee to use an individual unisex restroom. Employers can provide
unisex restrooms for use by any employee who so chooses.
- Employers should not ask transgender
employees for any documentation regarding their gender identity.
- Do not be afraid to talk with
transgender employees about the safest and most appropriate restroom
options for their individual situations. You may find, for example, that an
employee transitioning from male to female may not feel comfortable using
the women’s restroom until the transition is complete. Or the transgender
employee may prefer to use an individual unisex restroom, even though the
employee is not required to do so. Every situation will be individualized
- Recognize that some employees who are
not transgender may feel uncomfortable. Be prepared to respond to employee
inquiries about restroom use. This can be as simple as explaining that an
uncomfortable employee can use an available unisex restroom or wait until
the gender-specific restroom is vacant.
- Be open to creative solutions that
accommodate all employees. For example, according to a report in Small Business Trends, in one
workplace the employees recommended and implemented a system where they
would knock before entering the main door to a two-stall restroom. Depending
on the response, the employee would either enter the restroom or wait
until it was vacant. This system gave added privacy to all employees,
including transgender employees. As long as transgender employees do not
feel singled out or segregated, these types of solutions should be well-received.
- Recognize that this is an ever-changing
realm of the law and that employers should give thought to plans for
future construction projects. Per OSHA’s guidance, the most inclusive and best
practice is to provide single gender-neutral restrooms or multi-occupant
gender-neutral restrooms with lockable single-occupancy stalls.
Regardless of the status of local, state and
federal law, employers should approach these issues with an understanding of
all employee feelings, safety and concerns.
Harris is an associate attorney in the Employment & Labor Group at
Greensfelder, Hemker, Gale, P.C. She focuses her practice on assisting
employers with developing practical solutions to employment problems. She has a
strong background in litigation and has managed multifaceted cases with complex
discovery issues before federal and state agencies and in state and federal
court. Ms. Harris can be reached at email@example.com
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|Cybersecurity & Breach Avoidance|
Cybersecurity & Breach Avoidance
By Rebecca Perry, CIPP/US/G, Director of Professional
Services with Jordan Lawrence
Three Common Risk Factors are
Non-Technical, Generally Overlooked & Reasonable.
The costs and risks associated with privacy breaches are huge
and potentially devastating. While
technology and legal executives seek software and other technical solutions,
the most threatening issues are often overlooked and ripe for disaster.
When a breach occurs, law enforcement will ask, “What was
breached?” The answer should be well
informed and documented.
But regulators will ask another question. “What have you done to prevent this from happening?” You need a sufficient answer and repeatable
processes in place to back it up.
We help organizations avoid unnecessary cyber breaches and be
better prepared to answer law enforcement and regulators in more informed and
defensible ways. Our clients have invested
in technological risk avoidance efforts, but many have experienced breaches or
near-breaches that technology would not have saved them from.
Today’s most common and costly risks are predictable. There are reliable and defensible processes
available to minimize risks and enable better answers for law enforcement and regulators. The end result is better protection of
corporate, director and executive legal and financial interests.
THREE BIG ISSUES
EMPLOYEE OVERSIGHT AND
NEGLIGENCE are the leading cause of non-technical breaches. Depending on the research source and
industry, this accounts for over one-third of all breaches. While companies put technical solutions in
place, write polices and conduct periodic employee training, the “disconnect”
between intentions and actions is the leading preventable cause of nearly all privacy
THIRD PARTY VENDORS
introduce a host of risks and opportunities for imposters to get inside
corporate firewalls. Due to lack of
internal resources and the high cost of most solutions, companies do not
perform baseline risk assessments for all vendors and limit themselves
to assessing only new vendors or periodic review of selected vendors.
OVER-RETENTION OF EMAIL AND
OTHER CORPORATE RECORDS is widely known as the self-inflicted
killer of litigation outcomes. The cost
of collecting and reviewing unnecessary legacy records is untenable. Old records provide far less value than the
collateral and consequential damage they cause.
And in privacy breaches, they cause unnecessary danger, cost and damage.
If (and when) a breach occurs, the last thing you want is 9X
more corporate information available to the enemy that should not have been
retained in the first place. Legacy and
obsolete personnel and customer files, intellectual property, cost accounting
records and other sensitive information should never be available to a hacker.
Resolving these “three big issues” will immediately reduce the
risk of breach and the “risk pool” of available information that can be
extracted. They are worth understanding
better and addressing soon.
HUMAN RISK FACTORS
Our experience supports the recent “The State of Cyber Security Report” published by the ACC
Foundation with the assistance of Ballard Spahr. Companies should have approximately a dozen
policies in place to document their corporate intentions and employee
responsibilities in areas relating to the protection and management of records
All information governance policies (social media, records
retention, internet privacy, etc.) are important to have in place. But published policies are far less important
than how the “policy knowledge and clear cut expectations” are disseminated,
compliance verified and routinely audited.
Research shows that there is a massive disconnect between the
policies created, the levels of management commitment to training and enforcing
compliance and what employees are doing in their day-to-day work (knowingly or
erroneously circumventing the actual intentions of the policies).
In our research and business service model, we address the
internal “human risk factors” of cybersecurity by collecting data from three
distinct groups: Subject Matter Experts, Department Managers and Employees. Our question sets are tightly structured and
our processes are automated (not “interviews”), eliminating the need for
expensive and time-consuming face-to-face meetings, so the work is done faster
and more accurately.
SUBJECT MATTER EXPERTS
provide information about current policies and expectations that are currently
in place. These are the safeguards and
controls that senior executives and boards are counting on. The goal of these surveys is to ascertain
what’s currently in place, what the goals are and how each Subject Matter Expert
believes expectations are being met.
Every Subject Matter Expert answers questions specific to
their areas of expertise such as Access Control, Email Administration, Mobile
Devices, Incident Response and others.
provide information about their understanding of each policy, how and when
employees are trained and what they believe their employees are/or are not
doing within each risk area.
Every Department Manager answers questions that tie directly
to what Subject Matter Experts report and also tie to what Employees report.
The goal is to identify immediate and obvious areas of
misunderstanding and lack of follow through on corporate expectations and risk
avoidance. If managers don’t know what
is expected and aren’t doing things properly, you can be certain employees
aren’t doing what’s expected of them either.
provide information about their understanding of each policy (underlying
expectations and responsibilities) and what they are actually doing in their
daily work. This is where programs break
down and where risks are most likely to occur.
Every employee answers questions that tie back directly to
what Subject Matter Experts have reported to be in place and to what their own Department
Manager has reported.
Companies need to avoid unnecessary, self-inflicted
breaches. That’s why it’s critical to
have a spotlight that illuminates these obviously dangerous disconnects. It’s essential to demonstrate a repeatable
and consistent effort to uncover these gaps. That’s what the regulators (and perhaps the
courts) will be looking for. It’s the
defensible and sensible approach.
VENDOR RISK ASSESSMENTS
It never would have occurred to any company that they should
conduct a vendor risk assessment on their HVAC vendors. But it would have helped prevent one of the
most costly, publicly and personally damaging cybersecurity breaches ever. You probably read about it. Your board has certainly talked about it.
There are two reasons to conduct vendor risk assessments on a
recurring basis. The first is to
identify and address areas where vendors are doing things that are not
sufficient to protect your company. The
second is to be able to demonstrate a diligent and defensible process has been
responsibly undertaken to mitigate related risks.
Most companies conduct some assessments, but on a time/cost
availability basis. Usually surveys are
sent to vendors via email with a spreadsheet questionnaire attached. This is time-consuming, tedious and
spreadsheet responses are virtually impossible to reconcile and report on
well. This process does not meet the
requirements for avoiding risks or for being defensible.
There is a better way that meets both criteria. It’s structured, automated and has unlimited,
BASELINE ASSESSMENTS. Conduct ad-hoc risk assessments on vendors to
uncover any surprise vulnerabilities. Even
if you don’t find any, it’s a highly mature and defensible approach to take.
CATEGORIZE VENDORS. Segment vendors by their levels of access or
SET ASSESSMENT FREQUENCIES. Some vendors are low risk, but you still need
to conduct occasional risk assessments on them for program diligence and
defensibility. Others should be put on a
regular cycle to ensure you catch changes in their practices and to put the
onus on them for reporting practices accurately.
no limits on distribution and reporting, it’s wise to assess more – not less –
frequently. You’ll catch potential
problems before they become disasters and have more defensible answers for
regulators and law enforcement if a breach occurs.
DEFENSIBLE DELETION OF LEGACY INFORMATION
Law enforcement will need to know what information was
breached. And it can cause major
problems if you don’t know for sure or if 10X more information was breached
than ever should have been retained. The
regulators won’t care if you have records retention schedules in place if they are
routinely ignored or circumvented in the normal course of business.
In the old days, allowing employee discretion in following or
not following corporate retention rules resulted in a few thousand extra boxes
of records being stored. Now it results
in tens of millions of unnecessary and dangerous emails and electronic files
being retained on file shares, flash drives, mobile devices and personal email
accounts. The risks are simply too large
You need to ensure you have the records you need, know where
they are if needed and dispose of them appropriately (timely and in the right
manner) when retention requirements have been met. For companies that do business
internationally, these are hard and fast requirements, with punitive
consequences when lapses occur.
The components for an effective and defensible records
program are straightforward. Except for
the retention rules themselves, the components are universal for nearly any
company and include:
RECORD TYPE & APPLICATION INVENTORY. Collect and profile the record types and
applications used by each department.
Most companies have less than 350 unique record types. But it’s important to know what media they
are stored on (email, paper, PST files and so on), how they are moving in and
out of the company and other valuation and risk elements.
SENSITIVE CONTENT. Depending on the industry, up to 80% of
record types contain either “corporate sensitive” (unregulated) content or
“personally identifiable” (regulated) content.
This matters for access and management reasons, as well as the proper
disposal methods when retention periods are met.
RETENTION RULES. Best practices should be used because the
costs and complexity of detailed research is a waste of time and money, but more
importantly, cannot be deployed and enforced.
Consistent enforcement of best practice retention rules is the key to a defensible
VOLUME CORRECTION. Although email is typically the most
problematic, it is not the only media that poses privacy risks. Many law firms report that paper records
containing sensitive information are also breached at alarming rates. When a simple, defensible volume correction
process is put in place, most companies will be able to immediately and
appropriately dispose of most of their email, most of their offsite paper
records and most of their ESI. Handled
properly, the risk pool for a cyber breach can drop dramatically.
We understand that one primary way to attack cybersecurity
risks is through technological efforts.
But that’s just part of the equation.
The law enforcement (and board of directors’) question, “What
was breached?” can be answered informatively and favorably when your records
inventory is accurate and you have appropriately and defensibly disposed of the
80% or more email and records that you shouldn’t have had in the first
place. You’ll have good answers, a
smaller risk pool and minimized impact.
The regulators (and also the board of directors) will ask “What
has been done to have prevented this from happening in the first place?” This can be better and
more defensibly answered if you’re conducting and addressing internal human
risk factors and external vendor risk issues proactively on a consistent and
The first goal, of course, is to prevent a breach from
happening. The second is to have sound
and defensible practices in place to protect your legal and financial
interests. You need sensible and
Rebecca Perry advises
in-house counsel, compliance and privacy professionals in the areas of records
management, data privacy and e-discovery and the confluence of technology in
these areas. She has 20 years of
experience and plays a key role in the success and oversight of developing and enforcing effective,
defensible and cost effective information governance programs that address
information across all platforms and media.
She is a Certified Information Privacy Professional (CIPP/US/G) and
frequent contributor and speaker in the legal and privacy communities.
Rebecca Perry, CIPP/US/G, Director of Professional Services
Jordan Lawrence – St. Louis
|Return to Top|
|December 1st – Is This Date on Your Employment Law Compliance Radar Screen?!|
1st – Is This Date on Your Employment Law Compliance Radar Screen?!
M. Paul, Ogletree Deakins Law Firm, St. Louis, Missouri
18, 2016, the U.S. Department of Labor (DOL) issued its Final Part 541
Regulations pursuant to the Fair Labor Standards Act (FLSA).[i] The DOL more than doubled the salary level that
must be paid to overtime-exempt employees, effective December 1st. The minimum salary threshold to qualify for
the FLSA’s executive, administrative, and professional exemptions will increase
from $23,660 per year to $47,476 per year. Another noteworthy provision in the new
Part 541 rule is one to automatically adjust this salary amount every three
years beginning on January 1, 2020.
No Changes to the “Duties Tests”
the good news: the DOL did not make
changes to the duties tests for any of the exemptions in the Final Rule. In the
proposed regulations, the DOL had solicited comments as to whether a percent of
time test should have been added into the regulations similar to the test that
exists in California. Nonetheless, this might be a very good opportunity for
employers to audit questionable exempt employee classifications and address
those at the same time they adjust salaries or re-classify positions due to the
new salary level requirement.
Salary Threshold Now Set at $47,476
new minimum salary for the executive, administrative, and professional
exemptions will increase from $455 per week (or $23,660 per year) to $913 per
week (or $47,476 per year). This means that employees who do not receive the
new minimum salary level when the final regulations become effective on
December 1st will not qualify for any of these three exemptions from
the FLSA’s overtime compensation requirements, regardless of their job duties. Because non-exempt employees must be paid
overtime compensation when they work more than 40 hours in a workweek the Obama
administration estimates that the new salary threshold will make 4.2 million
more employees eligible for overtime compensation if their salaries are not
increased to meet the new minimum.
this new salary threshold is slightly more than double the current minimum
salary level, the new standard actually is lower than the $970 per week figure
that had been projected when the DOL’s Wage and Hour Division (WHD) issued its
proposed Part 541 regulations in 2015. The WHD stated in the proposed
regulations that it planned to set the new threshold to correspond to the 40th
percentile of weekly earnings for full-time salaried workers in the United
States based on statistics maintained by the U.S. Bureau of Labor Statistics
(BLS). That proposed approach was the subject of much criticism, including the
fact that it did not take into account pay differentials among various regions
of the country.
final rule, the WHD tied the salary figure to the 40th percentile of
all salaried employees in the lowest-wage U.S. Census region, which is the
South. This was intended to mute criticism that the proposed salary level would
render too many bona fide exempt executive, administrative, and professional
employees eligible for overtime. However, the bottom line for employers is that
it still increases the threshold twofold. Furthermore, while some businesses
may be able to adjust to the changes by raising prices, other
businesses—particularly many small businesses, retailers and non-profit
organizations—will face financial challenges with this situation.
than a temporary carve-out for providers of Medicaid-funded services for
individuals with intellectual or developmental disabilities in residential
homes and facilities with 15 or fewer beds, all other employers covered by the
FLSA must comply with the new salary requirement.
Highly-Compensated Employees Must Be
Paid at Least $134,004
addition to the executive, administrative, and professional exemptions, another
exemption in Part 541 is the highly compensated employee (HCE) exemption.
Besides meeting the “duties test,” an HCE’s total annual compensation under the
current (i.e., 2004) regulations must be at least $100,000, of which at least
$455 per week must be in the form of a salary. Under the final regulations, the
new minimum total compensation threshold is $134,004, of which at least $913
per week must be in the form of a salary.
DOL based the $134,004 figure on the 90th percentile of all salaried
employees nationally and did not make any distinctions based on any U.S. Census
region. This is exactly what the DOL had proposed doing in the final
final rule also indexes the total compensation and salary level requirements
for the HCE exemption every three years, consistent with the timing of the
indexing of the minimum salary level for the executive, administrative, and
Inclusion of Bonuses and Incentive Pay
When Calculating Salary
the first time, employers will be able to use nondiscretionary bonuses and
incentive payments (including commissions) to satisfy the minimum salary level
– but only up to 10 percent and only if those payments are made on a quarterly
or more frequent basis.
practical standpoint, employers will need to become comfortable with how this
new provision will work. Since it applies to 10 percent of the salary level,
this means that up to $91.30 in nondiscretionary bonus and incentive payments
per week (or $4,747.60 per year, paid at least on a quarterly basis) can count
toward meeting the $47,476 threshold. This also means that even if the employer
can make use of the full 10 percent, the employee still will need to receive a
salary of at least $821.70 per week, or $42,728.40 per year.
regulations also allow employers to make a catch-up payment at the end of a
quarter to make up any shortfall in the nondiscretionary 10 percent portion of
the salary amount. If, by the last pay
period of the quarter, the sum of the employee’s actual weekly salary, plus
received nondiscretionary bonus, incentive, and commission payments, does not
equal $11,869 (i.e., 13 times the weekly minimum of $913), an employer may make
one final payment to reach the $11,869 level no later than the next pay period
after the end of the quarter. Any such final payment made after the end of the
13-week period may count only toward the prior quarter’s salary amount and not
toward the salary amount in the quarter it was paid.
regulations do not define “incentive pay,” but it is clear that incentive pay
does not include the value of medical benefits, retirement benefits, or board
and lodging paid by an employer. The DOL
expressly declined to consider including payments for medical, disability, or
life insurance, or contributions to retirement plans or other fringe benefits
and emphasized that such forms of compensation remain excluded from the salary
level test calculation.
should note that although these limited nondiscretionary bonuses, commissions,
and other incentive payments still will count toward the total compensation
requirements for the highly compensated employee exemption, they cannot count
such payments toward the minimum salary requirements for the highly compensated
Indexing Every Three Years Starting
January 1, 2020
noted previously, the minimum salary threshold for the executive,
administrative, and professional exemptions will be indexed every three years,
with the first change resulting from indexing to occur on January 1, 2020. The
new salary threshold will be indexed to the 40th percentile of all
salaried workers in whatever is the lowest-wage Census region. The DOL will
post this figure and publish it in the Federal Register at least 150 days prior
to the effective date, which means that employers will have approximately five
months’ notice of the new minimum salary threshold.
White House has stated in a fact sheet that it expects the new salary level to
rise to more than $51,000 per year when the first update occurs in January 1,
2020. If, however, this projection does not take into account the artificial
increase in salary levels that will be forced onto employers as a result of the
final regulations (i.e., employers will increase some employees’ salaries to
meet the new threshold and will convert many of its other lower salaried
employees to hourly employees, thus removing them from the sample), then the
new 40th percentile figure could be much higher than this
Crucial Next Steps and Transition
Options for Employers
conjunction with the release of the final regulations, the DOL has created a helpful
final rule webpage, which includes a number of fact sheets and guidance papers.[ii] Likely in anticipation of a harsh
pushback by certain groups of employers that will be hardest hit by the
dramatic increase in the salary level, the DOL has included specific fact
sheets and guidance for non-profit organizations, higher education
institutions, and state and local governments.
need to start developing and finalizing their compliance and communications
plans now, with implementation occurring no later than December 1st. Depending on an organization’s payroll administration
and pay period schedule, the changes may need to be implemented during the last
full pay period in November to avoid partially activating the changes in the
pay period that includes Thursday, December 1, 2016.
(1) Identify all currently-exempt positions paying between $23,660 and $47,476. These positions will all require one of the
a. Convert that position/employee to hourly, non-exempt status (which will
require overtime pay when more than 40 hours are worked in a workweek); or
b. Increase the salary for that position/employee to meet or exceed the new
minimum salary requirement.
(2) If the decision is made to convert a previously salaried, exempt employee
to hourly, non-exempt status, then the hourly rate will need to be
determined. This can be done in a
variety of ways, but the most logical would be either:
a. to simply take the employee’s current annual salary and divide it by
2080 hours (the rough equivalent of 40 hours per week) to arrive at the
corresponding hourly rate; or
b. if the exempt employee traditionally worked more than 40 hours per week,
to algebraically calculate the lower hourly rate that would result in the
employee earning approximately the same annual compensation when considering
the extra overtime pay (at time and one-half) that the non-exempt employee will
now receive throughout the year.
(3) If some employees receive salary increases, tough decisions will also
need to be made by the employer regarding potential raises for those employees already
earning a salary above the $47,476 level. This could be necessary to preserve good employee morale in the
(4) Additionally, if some currently exempt employees do not receive a salary
increase and are then converted to hourly, non-exempt status, the result may be
that some job classifications in the organization will have both exempt and
non-exempt employees within the same job title. While this could potentially cause confusion and administrative
difficulties, there would be nothing inherently wrong with this approach from a
(5) Finally, as indicated above, fixing other known or identified
misclassification issues now (along with the changes directly caused by the new
salary requirement) might be a good strategic decision.
employer has not begun this process yet, now is the time to initiate the audit,
discussion, and budgeting processes necessary to accomplish any necessary
changes in salary levels or classification status prior to December 1st.
James (Jim) M. Paul | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
can be reached at 314-802-3950 or firstname.lastname@example.org
Jim Paul has extensive experience in handling labor and employment law litigation in federal and state courts, and before the Equal Employment Opportunity Commission, Department of Labor, National Labor Relations Board, Department of Justice, and several state agencies. He also regularly advises employers on all labor and human resource management issues in an effort to prevent or resolve employee issues before they escalate into legal disputes. Best Lawyers recently named him the "Lawyer of the Year" for Labor and Employment Litigation in St. Louis for 2016.
Prior to his private practice of law, Jim served as judicial law clerk to the Honorable Ray Price, Jr. of the Missouri Supreme Court and then as a Missouri Assistant Attorney General. As Assistant Attorney General, he represented the Missouri Department of Labor and Industrial Relations, the Missouri Division of Labor Standards, and the Missouri Commission on Human Rights by enforcing state wage and hour laws, and discrimination laws. He also worked in Washington DC on legislative issues for the late Missouri Governor Carnahan and has taught Trial Advocacy at St. Louis University as an Adjunct Professor.
[i] Final Rule was officially published
on May 23, 2016 at 81 FR 32391.
[ii] The WHD’s information webpage can be
accessed at: https://www.dol.gov/whd/overtime/final2016/.
|Return to Top|
|Adapting to the Web: Preparing Your Business for Web Accessibility Litigation|
Michael A. Clithero
Joshua L. Loevy
Adapting to the Web: Preparing Your Business for Web Accessibility Litigation
By Michael A Clithero, Partner and Joshua L. Loevy, Associate, Lathrop & Gage LLP
The world of
web accessibility is a wild western frontier of which any business with an
Internet presence should be aware. With more business being conducted online,
an increasingly persistent question has arisen; how does pre-internet
legislation like the Americans with Disabilities Act (“ADA”) fit into the
modern wired world? As in so many other areas, the law has been slow to answer.
The original ADA was passed in 1990, before the first web page was online.
Twenty-six years later, the world is a different place, with the internet and
its content a centerpiece of modern life.
There is a gap between existing legislation like the ADA,
designed to insure equal access to everyday life for people with disabilities,
and the practical reality that modern commerce is frequently electronic,
presenting a whole new set of challenges to access. The Department of Justice
(“DOJ”) has repeatedly taken the position that the ADA applies to websites,
just as it applies to brick and mortar structures. For years, the DOJ has
promised regulations that will formally adopt this position. In theory, the
regulations will resolve the gap by providing guidance for web content
providers as to what steps they are legally required to take to produce
accessible content. In the meantime, the plaintiffs’ bar has rushed into the
breach. Businesses of any size and in any industry, including non-profits, have
received letters threatening litigation for a web page’s failure to be
accessible at a sufficient level. We are well and truly in the Wild West. This
article is designed to give you a quick and dirty outline of the potential
risks you face if you publish web content and give you a sense of how to
respond to the threat of litigation.
What is web
If you will excuse the cliché, it makes sense to start
this discussion with the ADA’s definition of disability. This article is
operating under the premise that Title III of the ADA does indeed apply to
websites. As we will discuss below, this is not a settled question, but at this
stage let’s proceed as though it is. The ADA defines individual disability as:
“[A] physical or mental impairment that substantially limits one or more major
life activities of such individual...” In the context of web accessibility, a
wide range of disabilities can impact an individual’s ability to access web
content. Perhaps the most common group of potential plaintiffs are the visually
impaired, but those with hearing loss, mobility impairments and reading
comprehension challenges also face access issues.
Another concept you should be familiar with is adaptive
technology. This is the software and hardware aiding disabled users to access
web content in spite of their particular challenge. For example, I am writing
this article with the aid of a screen reader called Jaws. Jaws is the industry
standard “screen reader” for PC’s. It reads the text content of web pages in a
synthesized voice for blind users. It is also capable of interacting with many
applications and can be used to manipulate web elements like links and form
fields. There are other screen readers, including an Apple application called
Voiceover, built into every Apple device. Other forms of adaptive technology
help disabled users overcome their respective challenges. Low vision users take
advantage of screen magnifiers to enlarge text and graphics. Users with a
physical handicap that does not allow them to use a keyboard and mouse can
utilize speech to text technology, enabling them to speak commands into a
microphone. Adaptive technology is wide-ranging, but these are some of the more
The ADA Title III
Title III of the ADA protects individuals with
disabilities in “places of public accommodation” provided by private entities.
“No individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages or accommodations of any place of public accommodation
by any person who owns, leases (or leases to) or operates a place
of public accommodation.” (Emphasis added).
The statute provides a list of covered “places of public
accommodation,” for example restaurants and stadiums. The ADA permits
plaintiffs to seek injunctive relief and attorney fees, but no other
compensatory or punitive damages. When applied to physical structures, the law
is relatively straight forward. However, as we now know it failed to consider
the ramifications of an internet-based culture.
To date, no supplementary legislation addresses the
shortcoming. In recent years, the DOJ has made it clear it believes the ADA
applies to web pages. Since at least 2010, it has promised regulations that
will set out the standards for web pages to comply with the ADA. We are still
waiting for those regulations. At last check, the DOJ indicated it will not
promulgate regulations until at least 2018. In the interim, the DOJ has
indicated web pages should be compliant with the WCAG 2.0 guidelines at the AA
The Web Content Accessibility Guidelines (“WCAG”) are a
voluminous set of technical standards. They were promulgated by the World Wide
Web Consortium (“W3C”). The current incarnation, WCAG 2.0 was published by W3C
The guidelines address many aspects of a web page’s
development and set standards that maximize the accessibility of web content to
adaptive technology. The Guidelines create three different categories of
compliance; A, AA and AAA.
The A level of conformance provides limited access to
users in certain situations. It represents the minimum level of WCAG compliance.
The AA level is the level of compliance recommended by the DOJ. It allows more
complete access to a web page’s content and functionality. The AAA level is the
highest level of WCAG 2.0 compliance. While it is robust, it is not always
achievable based on the specific web page. Each of these echelons of access
contain myriad technical requirements for a web page to comply. The guidelines
are structured by four organizing principles.
The First WCAG Organizing Principle is Perceivability; or the ability
of a disabled user to see or hear web content. For example, webpages often
include graphics and other non-text imagery. The guidelines require this
content to be perceivable to disabled users by providing a text alternative to
the imagery. Some other WCAG 2.0 requirements that deal with perceivability
include: transcripts of audio only content, captioning of video content and
audio described video content.
The Second WCAG Organizing Principle is Operability meaning
disabled users can utilize a web page’s functionality. This encompasses several
aspects of a web page; for example, all functionality is available to a user
only using a keyboard. Some other examples of guideline requirements for
operability include a disabled user having enough time to read and use content,
the web page not using content that causes seizures, and the web page providing
help for users to find and navigate content.
The Third WCAG Organizing Principle is Understandability. To be
understandable, content appears and operates in predictable ways; text is
readable and understandable, and the web page assists users in avoiding or
The Fourth, and Final, WCAG Organizing Principle is Robustness. Put
simply, this principle means a web page maximizes compatibility with current
and future user tools, i.e., adaptive technology.
This is a broad strokes overview of the guidelines. They
are written by and for engineers, but it is helpful to have a working
understanding of these four overarching objectives.
The plaintiffs bar has surged into the gap between
legislation and the reality of modem internet-based commerce. Organizations
ranging from Fortune 100 companies to non-profits have faced the threat of
litigation over the alleged inaccessibility of their web pages. These threats
are almost universal in form. X Company will receive a letter from Y law firm,
claiming that X Company’s web page does not comply with the WCAG 2.0
guidelines. The letter may or may not identify the party Y represents.
From there, the letter will allege numerous technical
violations of the guidelines. Several free tools are available online through
the W3C to evaluate the technical accessibility of a given web page. The letter
will then make several demands of X Company.
First, Y firm will demand the webpage be made WCAG
compliant at the 2.0 level. It will likely demand that it be able to choose the
consultant who will adapt the webpage, as well as the firm that will conduct
future audits of the page, and it will demand frequent and regular audits to
insure continued compliance. It will also, unsurprisingly, demand attorney
At this date, there are very few reported decisions
addressing the merits of a Title III ADA claim based on an inaccessible web
page. Frequently, corporations either ignore one of these letters (which may,
of course, lead to litigation) or enter into settlement negotiations. If a
court holds the ADA does apply to web pages, the parties often settle. Court
decisions on whether the ADA applies to web pages represent a mixed bag. Some
circuits have concluded the definition of public accommodation is exclusive to
the locations specifically enumerated in the ADA; See Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3rd Cir. 1998)
(the list of public accommodations in the ADA were not ambiguous and did not
refer to non-physical access); Parker v.
Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997) (en banc)
(“a public accommodation is a physical place” so an insurance benefit plan
offered by an employer is not a good offered by a place of public
accommodation). Other circuits have held that, for a webpage to be covered by
the ADA, there must be a nexus between the web page and a brick and mortar
location. See Cullen v. Netflix, Inc.,
600 Fed. Appx. 508 (9th Cir. 2015); Rendon
v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002).
Still other circuits have concluded web pages are covered under the ADA without
regard to whether they have a brick and mortar location. Carparts Distrib. Ctr., Inc., v. Auto Wholesaler’s Ass’n of New England,
37 F.3d 12, 19 (1st Cir. 1994) (public accommodations are not limited to
physical structures); Morgan v. Joint
Admin. Bd., Ret. Plan of the Pillsbury Co., and Am. Fed’n of Grain Millers,
AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001).
So, what do you do?
Whether you have been threatened with litigation or not,
it is in your organization’s best interests to take stock of your web page’s
accessibility. If you have received a letter claiming your web page is
inaccessible, then your time table is accelerated. Either way, to comply with
expected regulations or respond to demand letters web pages should be
evaluated, either formally or informally. Going forward, you should discuss the
WCAG 2.0 guidelines with your in-house web developers or any contracted third
party. You should strive to make your web content accessible at the AA level
for now, as the DOJ has indicated it expects this level of compliance. You can
also consult with an attorney familiar with the guidelines and this type of
litigation to address specific accessibility issues.
Whether you are facing litigation or not, if you operate
on the web you must be aware of this new potential conflict area. Ecommerce is
here to stay and, until the government provides more clear guidance, you should
be prepared to address the dynamic webpage access issues it poses.
Michael A. Clithero
Michael represents clients in a variety of industries,
including banking and finance, construction, manufacturing and retail. He has
successfully handled jury trials, bench trials, arbitrations and related
appeals in many areas of civil litigation, including loan enforcement and
defense, other financial services industry disputes, breach of warranty and
other commercial contractual disputes and tort claims, non-competition and
trade secret enforcement, broker-dealer litigation, lien enforcement and
priority disputes, intellectual property disputes, products liability and trust
and estate litigation. His practice also includes real estate litigation,
including condemnation and zoning matters, landlord/tenant issues and
receiverships. In addition, Michael frequently represents property owners in
real estate and personal property tax appeals. Michael earned his Juris Doctor
OD) from the University of Missouri - Columbia School of Law and was awarded
the Order of the Coif: He completed his undergraduate work with summa cud laude
honors at Culver-Stockton College.
Joshua L. Loevy
Joshua Loevy is an associate in Lathrop & Gage’s
Business Litigation department. He represents clients in litigated and
non-litigated business-to-business disputes such as breach of contract matters,
media matters, loan enforcement actions, construction matters, insurance
disputes, regulatory matters, business torts and professional liability
matters. Joshua has specific experience working with clients on Americans with
Disabilities Act (ADA) accessibility-based lawsuits as well as a variety of
municipal matters. He earned his Juris Doctor (JD) at the University of Iowa
College of Law, and completed his Bachelor of Arts (B.A.), with cum laude
honors, at Illinois Wesleyan University.
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|2016 ACC St. Louis Sponsors||
Armstrong Teasdale, LLP
Greensfelder, Hemker & Gale, PC
Ogletree Deakins Nash Smoak & Stewart, P.C.
Thompson Coburn LLP
Evans & Dixon, LLC
Lathrop & Gage LLP
Littler Mendelson, P.C.
Stinson Leonard Street LLP
Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.
Constangy, Brooks, Smith & Prophete, LLP
Willams, Venker & Sanders, LLP
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