June 29, 2016
President's Letter
By Renee Schenk, ACC St. Louis 2016 President

Happy Summer 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

We also 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 the community

·        As always, our monthly sponsor CLE’s bringing you CLE education credits on a wide variety of legal topics

Last, don’t 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 16thGolf, 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!

Watch your 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.


Renee Schenk
ACC St. Louis Chapter President
314-694-4328 (office)

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Chapter News
2016 Golf Spa is coming, are you ready?

Mark your calendar for 2016 ACC St. Louis Golf Spa on Friday, September 16th!

Mark 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. 

More details and registration to follow!!


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ACC St. Louis Commitment to Diversity and Street Law

6th 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 consider 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 in the legal profession) a positive interaction with lawyers and legal concepts.

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 included 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.  


Diversity 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 respective backgrounds.

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 sponsors.

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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Recent Event Photos
Recognize Anyone You Know?

2016 Street Law Event
April 19th

2016 Corporate Counsel Institute

April 27th 




CLE - Coverage Uncovered:  A Look Between the Sheets of Your Commercial Insurance Policies
April 13th - SmithAmundsen

MAABA Unity Dinner
April 28th


2016Summer Intern Kickoff Event

June 2nd




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Member News
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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Save these Dates

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
Cooking Class

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!

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 accstl@qabs.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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ACC Resources
The Rewards of Letting Your Law Firm In


The Rewards of Letting Your Law Firm In

By 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 work.

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 two-step authentication.

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 client’s work.

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 manufacturing facilities.   

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 clients.

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 clarose@armstrongteasdale.com or 314-259-4779.

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The Great Restroom Debate: What Employers Should Know


The Great Restroom Debate: What Employers Should Know

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 access

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 stalls.

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:

Price 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 non-conformity.

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.


  1. 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.
  2. Employers should not ask transgender employees for any documentation regarding their gender identity.
  3. 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 and different.
  4. 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.
  5. 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.
  6. 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.

Lauren B. 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 lharris@greensfelder.com or 314-335-6839.

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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.


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 breaches.

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.           


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 and information. 

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.

DEPARTMENT MANAGERS 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.

EMPLOYEES 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.


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, inexpensive reach:

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 apparent risk.

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. 

With 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.


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 to ignore.

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 records program.

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 regular basis. 

 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 defensible practices.

 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


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December 1st Is This Date on Your Employment Law Compliance Radar Screen?!


December 1st – Is This Date on Your Employment Law Compliance Radar Screen?!

James M. Paul, Ogletree Deakins Law Firm, St. Louis, Missouri

On May 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”

First 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

The 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.

Although 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.

In the 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.

Other 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

In 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.

The 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 regulations.

The 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 professional exemptions.

Inclusion of Bonuses and Incentive Pay When Calculating Salary

For 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.

From a 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.

The 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.

The 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.

Employers 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 employee exemption.

Indexing Every Three Years Starting January 1, 2020

As was 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.

The 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 projection.

Crucial Next Steps and Transition Options for Employers

In 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. 

Employers 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 following actions/decisions:

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 organization.

(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 legal perspective.      

(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.

If an 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 james.paul@ogletreedeakins.com

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/. 

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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 accessibility?

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 common examples.

The ADA Title III

Title III of the ADA protects individuals with disabilities in “places of public accommodation” provided by private entities. It reads:

“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 level.

WCAG 2.0

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 in 2008.

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 correcting mistakes.

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.

Litigating Web Accessibility

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 fees.

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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December 1st Is This Date on Your Employment Law Compliance Radar Screen?!
Adapting to the Web: Preparing Your Business for Web Accessibility Litigation
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