15 | Rachelle Golden: Accessibility Law

Today we have another important conversation about accessibility.  Rachelle Golden drops some knowledge on us, and we take immediate action – that’s how important this episode is. 

About Rachel Golden

  • Fresno County Bar Association, Board Member
  • Fresno County Women Lawyers, Member at Large
  • Consultant and educator for the Civil Justice Association of California
  • Associate Member Certified Access Specialist Institute (CASI)
  • Regularly collaborates with and assists elected officials in drafting ADA reform
  • DRI The Voice of the Defense Bar

My whole goal is to make sure that all businesses, small and large, are able to service their clients and to make sure that they get to keep the money that they earn in their own pockets. And not give it away to predatory plaintiff. It drives me nuts.

Rachelle Golden

Show Notes

Jeff: Yep, yeah.

Matt: So, there we are. Let’s, uh, get right into it with our interview with Rachelle Golden.

Matt: Alright, well welcome to the show today Rachelle. Today we have Rachelle Golden. Rachelle works at Hatmacker Law. Is that Rachelle? Did I get that name right?

Rachelle: It’s Hatmaker, but close.

Matt: Alright. Okay. Hatmaker, sorry. Um, so yeah. Rachelle handles Labor and Employment Law but especially um, you know, specializes in ADA Compliance. So that’s what we’re actually going to be talking to her about today. She has extensive experience consulting with private and public entities and actually works on policies as well for federal and state laws regarding ADA compliance. So we’re really excited to talk to you about that today. So welcome to the show!

Rachelle: Thanks! I’m happy to be here.

Matt: Yeah well, um. Yeah I guess we’ll dive deep – dive right into this. We uh, we’ve had a few people on to our, uh, you know this is our first- this is our 15th episode and we’ve definitely addressed this topic a couple times but we haven’t had anybody, um an attorney on the show to speak about accessibility. So, I- maybe we should do this a disclaimer at this point that this is, um. How do you say it? This is not legal advice?

Rachelle: (laughs) This is not intended to be legal advice. It’s for educational purposes only. This is not Attorney-Client privilege. And if you have specific questions or concerns, please contact me directly. (laughs)

Jeff: What she said.

Matt: Perfect, exactly. (laughs) We’ll put that right there at the top of the show notes. So..

Rachelle: (laughs) Okay, fair enough.

Matt: Um, well thank you so much. You know I, I guess we’ll just, yeah, just jump right into it.

Um, yeah why don’t you um, why don’t you just walk us through a typical accessibility case. You know, with regards to a website that’s not accessible to people with disabilities.

Rachelle: Yeah, well there, okay. So, what happens is, is.. Um, and I have allergies. So if I start sneezing or need to blow my nose, just bare with me. Um, got to love Fresno. (laughs) Uh, what happens is typically I’ll get a call from a potential client or, you know, a referral or somebody and they’ll say “Hey. I either got a complaint or I got a demand letter. I don’t even know who to talk to about this. I didn’t even know that website accessibility was a thing. Is it even a law?” You know, that- that’s where the genesis of these conversations start is the person is completely blindsided because they didn’t- like I said, they didn’t even know it was a thing. So then, you know, then I’ll ask them a couple of questions about their business and what type of website they have. Whether it’s just informational or whether they’re actually conducting some sort of transaction through the website. Whether it’s, you know, if it’s a restaurant, it’s just informational. Um that’s, you know, one category. Or if it’s a hotel, um, and you can book rooms through it, that’s a different type of- of problem. Or if it is a restaurant and you’re selling, you know, gift certificates, or you’re making reservations, or, you know. If it’s interactive in some way, and you really.. Then you’re really, um, facing a situation where there could be a potential liability. So, um, the first thing that I do when I get the complaint is I analyze it with a tooth and comb. Um, typically they’re “Canned Complaints” meaning, you know, there’s a handful of lawyers who, who bring these lawsuits across these country, um, and, most of their complaints look exactly the same. So if I’m dealing with a- a law firm that’s actually using a plaintiff- And I say using a plaintiff um, because that’s exactly what happens. What happens is the- the person is working for one particular law firm and filing hundreds of ‘suits, all the time.

Matt: Oh.

Rachelle: So, and really the person that makes, um, this is um, you know, benefitting is truly the attorney because what I found is um, that the actual settlement itself, only a very small percentage goes to that particular plaintiff. Most of the attorneys fees and costs- or most of the settlement, rather, goes to the attorney.

Matt: Oh, interesting.

Rachelle: Um, so it’s not- It’s not as if, you know, the $4,000 statutory penalty. That- the plaintiff is getting that full $4,000. They usually get maybe $500, maybe $2,000 at most, and then- So then the attorney captures the rest of the $2,000 and plus they get their attorney’s fees on top of it. So it’s really- it’s not balanced. Um, so. If I’m dealing with somebody who’s actually using a plaintiff who has a visual, cognitive- I haven’t seen too many cognitives, um, probably because there’s a capacity issue there. So it’s typically visual or hearing impaired. Um, then I know we’ve got a true communication barrier-type case where then I- I need to make sure that the website is compliant with the website content accessibility guidelines, uh, to point out AA or greater. Um, or if I’m dealing with a person that has a mobility disability like myself, who’s just saying, you know, “Oh, I can’t filter your website based on your accessible features.” That’s an entirely different problem because the ADA has not met the- the communication barrier statutes are not designed and intended to accommodate that type of person because they can see the screen, they can hear the videos, see the pictures, understand and appreciate what’s on the screen. So, that’s a more defensible case in my experience because that’s not what the ADA was set out to do, in that particular instance as far as websites go. So depending on what case I’m dealing with and what kind of plaintiff I have, what the allegations are, then it truly just becomes, okay, do you want to fight this? You know? If we think we have a defense, we try it. Um, especially if it’s personal mobility disability. Um, or if it’s, say, “Well, your website is not compliant and this person has a visual impairment, and you have a transactional website. Um, it’s probably in your best interest and the cheapest route to try and settle this case.

Jeff: Now are you.. Gotcha, got it. It makes sense. Now are you, as far as, you know, when these cases come in, are you then reaching out to, you know, like an independent audit company? Or are you guys just on staff, kind of, you know, up to the regulations in determining whether it’s accessible or not? Or..?

Rachelle: Even if I was sounding that way,..

Matt: Okay.

Rachelle: I wouldn’t- I wouldn’t want to be. Um, the reason is because then I become a witness to my own client’s case.

Matt: Oh, okay.

Rachelle: Okay, so, um. There’s very specific kind of boundaries that need to be in place there. So even if, you know, and I intend to take some coding classes and, and intend to become.. In fact, starting this summer, really kind of diving into this issue so that I have more knowledge and to better serve my clients. Say, well this is required, and this is not required. And so, kind of learn more about it so I understand- Just like with construction related access claims. I know that with California building code and the federal designs standards barrier very, very well. So when I get a “Canned Complaint” I already know more than the plaintiff and the lawyer on the other side. And so in those particular circumstances, it’s really in the client’s best interest because now I know what’s legitimate and what’s not. What they’re claiming is- is truly and barrier and in claiming you- you know, what’s not a barrier. And I- my goal is to become the say way with accessibility for websites of: “No, this is required or this isn’t required.”

Matt: Mmhmm.

Rachelle: Um, but I’d- I used independent auditors to come in, and will look at, um, a clients website if they can afford it because, you know, auditing is very expensive. Um, most of the time the client’s are not willing to spend, you know, the $5,000-$10,000 just to get a thorough audit done, because that doesn’t include the remediation of the website.

Matt: Mmhmm.

Rachelle: So..

Matt: Outside of an audit, what are- what would be good first steps for a company to take?

Rachelle: Well, I always recommend if you are using a template website, you know, GoDaddy, Wix, WordPress, whatever it may be. If that’s your template- SquareSpace- if you’re using a template as a website, call the company and ask them “Hey, is this template WCAD 2.0 AA compliant? 90% of the time, they’re going to ask you “What’s that?” That’s a pretty good indicator that the template that you’re using is not accessible. Okay. I know, um, that WordPress does have a WCAD 2.0 AA template that’s expensive. Um, and it’s limited to what you can do to it, because that’s the problem with- Not the problem. That is how it’s designed in the- the website content availability guidelines. Minimal tweaking because once you start tweaking things, then you’re messing with the code in the background and so then you’ve just destroyed the accessibility component to it. Right?

Matt: Right.

Jeff: Yeah.

Rachelle: If it’s a website that you’re constantly uploading pictures and feeds and farming people out to different third party um, sites and things like that, chances are it’s not going to be compliant because you are the, the user is manipulating the content on the website. So that is one of the limitations. And from what I learned is, that, yeah. You can use a, you know, a template that’s ADA compliant um, but you’re limited on what you can do with it. So you would really need to go through your IT people to upload it in a- a compliant way. So, then the other thing is, and the other kind of group of people, is if you design your website from scratch and used, you know, a- a very savvy IT company or a website developer or a mobile app developer. Call them and ask them. And unfortunately about 50% of the time even those companies are not up to speed.

Matt: What do you find are the most common, um, problems with websites?

Rachelle: It’s your basic, um, it’s basic. So, like, hotels is a big industry right now with- with the website and accessibility complaints. So what I see often is websites are not- hotel website are not- Not very big chains. Um, it, they caught on. But your smaller mom and pop, maybe a franchise, um, they are not able to be sorted by the accessible features. So they can’t you- you know they’ve got, you’re looking for a queen room with a roll-in shower, right? You can’t sort the rooms by queen bed with a roll-in shower. You can sort by queen but then you have to read in the- the jargon at the bottom to see what the amenities are. Um, and the problem is that the sorting in that particular instance, or you’re looking for a, you know, queen room with auditory alarms, or a TTY telephone, or some sort of communication um, accessibility that you would need. It’s not typically able to be searched for in a website. For restaurants, it’s the pictures of the food is not able to be translated into text. So, um, and the reason that’s important is because, yeah you may have okay, a turkey sandwich as the menu description. But then the picker- picture shows it’s on focaccia bread with havarti cheese and, you know, iceberg, or you know, maybe there’s arugula salad or lettuce. You know, the picture says a lot more than the actual description of the restaurant item. So us as, you know, people who can see without any impairment know that this is a delicious sandwich. Whereas somebody who has a visual impairment is like “Well I want don’t a turkey sandwich. It sounds boring.” They’re not afforded the same access.

Matt: So on the hotel, uh, example you gave, are hotels required on the facility to have this and they’re just not matching on their website experience?

Rachelle: That’s right.

Matt: Okay.

Rachelle: Yep. So, any- So there’s two components really to kind of title three, which is- So there’s five titles of the Americans with Disabilities Act. The first is Employment. We’re not talking about that. The second is um, Government Entities. We’re not talking about that. The third is Places of Public Accommodation who are open to the public. So the publicly owned businesses that have their facilities open to the public. And then, um, the fourth and fifth are Communication Barriers and- not Communication Barriers, um, uh- Shoot, I forgot what Title Four was. They’re not relevant here. The Communication Barriers fall under Title Three and it says the- Title Three says “If you are a privately owned business who are- have your doors open to the public you need to now make your- you need to make all of your services, privileges, facilities, benefits, activities,.. Everything available in an accessible way. So people are taking this communication barrier and- and kind of adding it to that construction related access claim. So not only do you need to have ramps to get into your front door, you need to have, you know, a push button door if your door is too heavy, or inaccessible counter height, or um, accessible tables in your restaurant or accessible rooms. You also need to then put that- the information on your website so people who have communication barriers can understand and appreciate what those accessible features are.

Matt: Gotcha.

Jeff: Got it.

Matt: Now do you see- so, right now as far as like, like restaurants need to have, you know, a bathroom that’s accessible to handicap, but do you, right now like, is it the actual law for, like, all businesses to have websites that are accessible? Or, I mean, I- I believe it’s not but I mean, do you in the even- do you think that it will eventually get there? To a point where, like, all businesses will, if they have a public space, will they need their website to also be accessible? Like, by law?

Rachelle: Well, so, I think eventually the answer that question is yes. I think it will be um, I think eventually some, in some fashion it’ll either be codified statute that, in a state or federal statute, that it you- you know, here’s- here’s what the standard is. Just as we’ve done with the construction related access guide. Guidelines of, we’re saying “Here’s the standard for federal law. It must meet, at a minimum, the Americans with Disabilities Act design standards from 2010.” That’s the threshold. Okay, and then if you’re states want to impose a stricter standard, like California uses the two- California uses the California Building Code that changes every 18 months, um. California says “Yeah, you need to meet the federal guidelines but you also need to meet the California guidelines.” So now, the California guidelines meet and exceed the federal guidelines. So, if you’ve met California Building Code, you have met or exceeded the requirements in the federal standards. I presume that we will be dealing with the same sort of issue, um, as it relates to websites in the future. But right now, um, there’s a split in jurisdictions about whether every website needs to be accessible or not. So, if you’re looking at um, Floria or, um, really Florida’s the big state that talks about any website needs to be accessible if it’s dealing with the place of public accommodation, whether you can conduct transactions on it, or not. California, on the other hand, surprisingly is actually more cons- is more liberal than that. Um, no, rather than more conservative than that, they’re saying “No it’s not every website that needs to be accessible. It’s only if there’s a true nexus to the brick and mortar of the building. So, if you’re having a blog site that anybody can read, and you may have- it may be tied to your business in some way. Like, you know, a legal article or, you know, a food blog, or, you know, whatever. And you can’t conduct any business on it. There’s not nexus to the brick and mortar. It’s not as if you’re making reservations, buying gift certificates, and ordering online food. Okay, but if you can’t do those things through your website, then it need- it does have to have access to the brick and mortar and it does need to be WCAD 2.0 AA compliant.

Jeff: Okay.

Rachelle: Does that make sense?

Jeff: Yes, definitely.

Matt: Yeah and it sounds, you know, in- in the- the tradition of California, it sounds like, that, they’re going to, you know, a- a lawmaker is going to address this, and put something in- in place for businesses conducting- businesses in California that have websites. I’m sure this is, you know, in the near future and it should be addressed soon for companies.

Rachelle: Well- well, so here’s what’s really interesting about California right now. Um, I have talked to both, uh, Republican and Democratic legislators throughout the entire state, in several different jurisdictions. Um, and when I’m doing a presentation I, uh, on construction related access claims I always talk about websites, and typically the presentations that I do are sponsored by an elected official. 100% of them that I have spoken with are, like, “This is ridiculous. When is this going to stop?” Meaning, we’ve gone too far to allow litigation over inaccessible websites. How can this possibly be? So, it surprised me, because..

Jeff Yeah.

Rachelle: I have been told from construction related access claims from various legislative officials “I am not going to stick my neck out and take the rights away from people with disabilities. I’m not going to say you can’t- you can’t, um, litigate over construction related access claims because I want to provide the most amount of access.” And I- I agree with that. I’m- I’m disabled myself. I use a wheelchair. So I agree with that, 100%. But at the same time, I don’t agree that you should be able to be a serial litigant over this issue. And as these- as the construction-related cases keep coming and are not slowing down, I think legislators are now more aware of, yes, we need to provide accessible websites so people with visual, hearing and cognitive impairments can use the website and access the business. It helps the businesses bottom line, number one, because now you’re excluding no one from your- from your facility and your services that you provide. But, two, we’ve got to stop this litigious soc- society. It’s gonna get abused. It is being abused and they’re giving the people who actually have a need, like myself for construction-related access claims, I need accessible hotel rooms. Okay, but now when I go to a hotel, the hotel patron’s looking at me like “Shoot, I’m going to get sued.” And the same is happening to people with visual, hearing and auditory impairments. Uh, they need those services but now these, like, you know, heavy hitters are really, um, furthering discriminatory animus towards people with disabilities, rather than eradicating barriers. It’s really unfortunate.

Jeff Oh.

Matt: Yeah, the bad ones ruin everything.

Rachelle: It’s true. The squeaky wheel gets the grease.

Matt: Yeah, that’s crazy. It’s, uh, they’re doing- They think that they’re- they’re presenting themselves on the side of justice, but they’re doing a complete disservice to the people that it’s affecting.

Rachelle: 100%.

Jeff: Yeah.

Rachelle: 100%. It’s really sad. I mean, and the- and the website guidelines kind of make sense. I mean, yeah, high contrasting colors for somebody that is not able to decipher between different shades of blue because their vision is going. Or, um, you know, a picture turning into text so somebody who can’t see it all has the ability to understand what’s being offered on a website. Or somebody that, um, is completely blind and has a screen reader and needs the screen to be read aloud to them. Or somebody with a cognitive impairment who is trying to buy tickets on an online ticket service and you only have three minutes to fill out the form. Maybe it takes them three minutes to appreciate ‘first name’ means. And so then they’ve been timed out of that form before they even have the opportunity to type their first name.

Jeff: Oh geez.

Rachelle: You know what I mean? So it’s very important, it’s- you know, it’s gone the litigation has just gone too far.

Jeff: Mmhmm.

Rachelle: And now people are digging their heels in, are like “I’m not going to change my website. I’m just going to take it down. And I don’t care. I don’t want people with disabilities accessing my business. I have no interest in serving that population because they’re going to sue me.” That’s the mentality that’s being perpetrated.

Jeff: Ah, oh. Uhhh.

Rachelle: Yeah. It sucks!

Jeff: Yeah.

Rachelle: (laughs)

Jeff: Yeah.

Rachelle: So when it’s sore-

Jeff: Yeah.

Matt: So, uh, what uh- So- other specific industries decides hotels and restaurants uh, are you seeing anything? Any other industries that are getting hit hard by the litigation?

Rachelle: Education. Education, so that would fall under Title Two. Uh, so federal agencies. Anybody that receives federal funds must comply with the rehabilitation action 508, which talks about providing accessible, um, educational curriculum to all of it’s students. And so the first real cases that we saw come down from the court system dealt with, like, MIT and Harvard about their online education system. Um, so, uh, that edu- you know, private and public education alike, are really getting hit hard. Um, government agencies are also becoming a target um, because the Department of Justice has said if you are a government agency, you need to have your website accessible. Oh and by the way, the order to comply was two years ago so if you haven’t updated your website, you’re late. Um, so, it- no, no public or private industry is exempt. So if you have a business you are exposed. Period. End of story.

Jeff: (unintelligible)

Rachelle: You know, Netflix got hit. Scrib, which is an on- like, audible, it’s an online book service. They got hit. Um, so any business is at risk unfortunately.

Jeff: Yeah. Now was there, um, some type of grace period, as far as, you know, once the lawsuit’s been made, does the company have, like, a certain amount of time? And- And does that vary, as far as, you know, fixing the items and..?

Rachelle: I wish there was. And so, actually the legislation that I’m- I had drafted a year ago. It never went anywhere, unfortunately. Um, it provided for 120 day grace period. I would argue that that’s still not long enough because if you’re dealing with a complicated website and you’ve got to completely rebuild it. Basically you got to so- you know, pull down all of your inactive pages and say “We’re working on this. Please come back at a later time.” Or completely scrap your website and start over. Um, and it costs money, as everybody likely that’s listening to this podcast knows, that building a website from scratch is not cheap or easy. (laughs) Um-

Jeff: Yeah.

Rachelle: Especially if there’s really a lot of individualized content. Um, so as it stands right now, no. Um, the- the plaintiffs will tell you that the communications barriers statutes were inactive for federal regulations 20 years ago and, so, if you have built a website in the last 20 years, then you have been required, even though the WCAD guidelines didn’t even become on anyone’s radar until about 2008. So, uh, my approach personally for how I handle my ADA cases, my website cases, is if you’ve built a brand new website. I’m sorry, it sucks to be you. And it’s not compliant. If you have been dealing with a website for the last, you know, 15 years and it’s evolved over time, then you need to do what’s right and achievable to make those- at least those transactional pages, the ones where you can conduct some sort of business to be WCAD compliant and if it’s possible to code it, just those pages that way. Sometimes it is possible, and sometimes it isn’t, depending upon, you know, how pages feed into it. So, um, so that’s- that’s really my approach. Um, and that- that seems to have worked well with plaintiffs. Especially the older websites. But if you have built a brand new website in the last couple of years and you have not given any thought to how it’s accessible or not, um, my recommendation is to figure that out quickly and, uh, work on coding the pages that require transactions. Registering that code first. Fixing that code first.

Matt: Now, do you have resources that you send people, uh, to get those types of website corrections done?

Rachelle: Yeah, so, um, I use Regularly Accessible 360 with Michele Landis, who I understand that you guys spoke with, which is awesome.

Jeff: Yeah.

Matt: Yeah.

Rachelle: Um, she’s become a friend of mine and she’s one of the smartest, savviest, as I’m sure you understood when you spoke with her. People in the business. She’s been doing this a long time. So, Accessible 360 is a very reputable grade company. And then I also use the the Bureau of Internet Accessibility, the OAI- or, the OIA. Uh, Sarah Dawes, the sales manager,

Jeff: Yes. Yes, Sarah’s great. Uh.

Rachelle: She’s awesome.

Jeff: Yeah I’ve spoken with her a couple times and she’s super knowledgeable.

Rachelle: Totally.

Jeff: Yeah.

Rachelle: Um, and then, as you’ve spoken with Tom Reynolds also, um, Tom was another great resource. He’s more local. He, um, he’s really- he doesn’t do audits, um, but he will certainly will be able to recode or reprogram a website if, like, ones that you’ve done, like, one of those download, automated scans and you’ve got issues popping up- I don’t recommended those to rely on them. Like, let’s say you do a scan, and then you fix your website, and then you do another scan. It’s going to give you a false positive. Um, so they’re not good to determine whether you are accessible, but they are good to determine where your holes are in your inaccessibility. And, so, Tom’s really good and taking those kind of problem areas and then fixing the website to bring it- bring it up to code. But, um, b-o-i-i-a it’s a- a company- or, you know, company affiliation and then Rachelle’s company will actually do one of these audits. Um, and- and they do a banged up job of it.

Matt: Alright. Yeah I got to ask this question, because Jeff and I both run (laughs) a web agency and we build websites. Are the companies that build the websites ever, uh, you know brought into these lawsuits? Or-

Rachelle: Well it all depends on what’s in your contract. Um, so, I- the argument will go like this, okay. When you have a construction related access claim, the tenant and the landlord are jointly and separately liable. So whether the tenant has access over the common areas or not, like the parking lot, if somebody comes in and says “You have an inaccessible parking to your gas station” but they don’t own the land and they’ve only rented the four corners of the actual building, it doesn’t matter. The plaintiff will sue both the landlord and the tenant, and then the courts say “You two need to figure out who’s responsible.” Unless you have specifically allocated ADA responsibility in your contract in your lease. So if you say “Landlord will assume all responsibility for ADA vi- violations in the common area.” Then the tenant just tenders their defense to the landlord and the landlord takes- takes it all. They identi- they identify the tenant and it’s the landlords responsibility. The same argument will apply to website developers. The ports will say, ‘cause the user is gonna look at the company and say “I- You’re the expert. You created this website. It’s not accessible. I hired you to do a job and it wasn’t done properly. Or access- not properly- wasn’t done in an accessible format.” The courts will say “Well there’s liability against the both of you, company and user. It’s up to you guys to figure out how you’re going to figure this out.”

Matt: Yeah, and we brought this up with Michele Landis, is that, um, you know, the- most company’s, what they’re doing is they’re saying “If you are, you know, here’s the issue with accessibility summarized.” and saying “If you want the accessibility package on top of that, it’s an upcharge. And-

Rachelle: Absolutely.

Matt: It has to be. And, you know, ‘cause, all this stuff it- even though it shouldn’t be- you know, we’re talking about it should be uh, you know, best practice and assumed but it’s- it’s not. And in our industry we have to outline that, and say, you know, your- your $10,000 website is going to be a $15,000 website if we have to go through the extra steps of making sure that it’s completely accessible.

Rachelle: And in that type of situation then I would- If I were representing you as the website developer, I would say “No, I gave them the option to provide that service and they declined it. Therefore, they are assuming the liability for not being compliant.” I would take that to the bank all day long. Um, so it really comes down to the language of your contract with your clients. It really will hinge on that. Um, especially if your contract addresses accessibility and WCAD guidelines, and the client initials next to the paragraph saying “I decline” then you as the website developer could don’t do that, do it, you as the website developer are then saying “Cool. Hands off. You’re assuming the risk for this. You want the cheaper- cheaper and easier version. That’s your choice. But I am absolved of liability for your making that- for you making that decision.” So your- your contract language really needs to be tighter. Absolutely. If- if regard- I mean, I’m glad that you guys are already doing that but I know, um, a lot of the contracts that I have seen with website developers. Especially if they’re in like a, you know, a shared workspace and they’re just getting started, and they’re just using a, you know, a canned contract for those kind of smaller, less- less experienced business owners. Um,they’re- they’re gonna be left holding the bag along with the user. If there’s- if there’s not language there. So, it’s really important for your listeners to make sure that as web developers they’re able to be in a thriving business and protect themselves from liability with that contract language.

Jeff: Yeah, that’s great advice. And it- it goes right along with what Michele Landis was telling us, as well, is that, if- as long as we give the- the customer the opportunity to opt in or opt out then that, you know, obviously it’s got to be word- worded correctly but we can, you know, have that passed off to the customer that they declined.

Rachelle: Absolutely.

Jeff: And it’s defensible in court if there’s a complaint.

Rachelle: And I wouldn’t mind- the structure, if I, if I’m giving my recommendations as to how, kind of, a contract should be laid out, think of it like an arbitration agreement. Okay, so, arbitration agreements have to be conspicuous. Um, California- they need to be kind of standalone. They can’t be buried in a handbook somewhere. Like an employee handbook. They need to be expressed language. You know, very, very detailed. Very specific. Um, you know, you need to cite the law that you’re following. Whether it’s the federal law or the state arbitration guidelines. It’s a big- it’s a standalone contract. What I would do if I were creating a contract for a website developer is, have it either be in the beginning. Right when you’re talking about the price of, here’s the option of this is what it would cost for WCAD compliance. Okay, let’s say it is a $10,000 contract and it’s going to cost $5,000 more. The cost of WCAD, um, coding compliance will be an additional a$5,000. You are declining to pay that fee and you are declining to make your website WCAD compliant. Yes or no. Check a box, yes. Okay, they’re declining it. Initial, date. Right there. Right in the beginning. So there’s not chance of that user saying “I didn’t see that.”

Jeff: Hmm.

Rachelle: You know, don’t bury it in your language. Make it- This is a really- From a liability standpoint, I would hate in court trying to defend a contract that you drafted because that’s going to cost more money than- So now you’re gonna have to, you know, be alone with your user and fight the plaintiffs in the lawsuit. But then you’re gonna be in a counter-suit, suing each other over breach of contract. I mean your- your, the cost of your case just exploded. So it’s really important to make sure that it’s a stand out unambiguous “You are declining. We are absolved of all liability. You are shoulding the liability for any accessibility website.” And any- any person that says that this website isn’t accessible.

Jeff: Well, now I’m scheduling an appointment with my lawyer.

Matt: (laughs)

Rachelle: (laughs)

Jeff: Update the, uh, terms of service in, uh, the master service agreement.

Matt: Yes.

Rachelle: That’s the other thing, too. And I- I got this question the other day actually from somebody on the East Coast. They were dealing with a standard terms and conditions on a mobile app. Uh, they were defending the mobile- mobile app developer. And they were asking the question of “What if- How can I enforce the arbitration agreement that’s in my standard terms and conditions?” And my response was- And- And the reason this is applicable. Bare with the legal jargon here for a minute. In- with arbitration agreements, it says that it can’t be an unconscionable agreement. Meaning, it has to be fair to both sides. You know, it- it can’t be an adhesion contract which take it or leave it. Um, there- There’s like six or seven different things that the arbitration agreement must have in order to be determined to be fair. If you’re burying that in your standard terms and conditions of “I accept all terms, click here” and then keep going, it’s not enough.

Jeff: It’s not enough. Yeah.

Rachelle: You’re gonna have an unconscionability argument on your hands. Okay. I would argue the same as going to be for your, um, inaccessibility. If you bury it in your standard terms and conditions- maybe it’s own pop-up screen, if you do it electronically. You know, maybe it’s- so that way- you know, and you can’t- you can’t click on the bottom. And I know a lot of people do this. You can’t click on the bottom “I accept” until you scroll through it, to where it’s like, at least the person had to have looked at the rolling screen before they click on that- before they’re allowed to click on that “I- I accept.”

Jeff: Yeah.

Rachelle: And then they can go use the app or the website.

Jeff: Yeah and to be absolutely sure make it a separate opt in.  

Rachelle: Yeah. uh-huh. Yep.

Matt: Alright, well Jeff and I have our- have some to-do’s to work on. (laughs)

Jeff: Yeah.

Rachelle: (laughs) Well good! Then it’s been helpful. At least for the two of you obviously.\

Jeff: I know, I know. This has been great.

Rachelle: Yeah.

Jeff: Well, um. Thank you so much Rachelle. Um, I guess, do you have any parting words for our audience today?

Matt: Anything to applaud?

Jeff: Where, um, where do people find you?

Rachelle: Um, uh, yeah. People can find me at hatmakerlaw.com It’s m-a-t-m-a-k-e-r law dot com. Uh, again my name is Rachelle. R-a-c-h-e-l-l-e. Golden. G-o-l-d-e-n. You can email me at rachellehatmakerlaw.com Um, what I would suggest to every person who’s listening is, if you’ve listened to this podcast and you have questions, either contact somebody that you know that knows more about this, or contact me and I will be thrilled to talk to you if you want to learn more about it. Just so that way, your business can continue to thrive. Because that’s my whole goal. Is to make sure that all businesses, small and large, are able to service their clients and to make sure that they get to keep the money that they earn in their own pockets. And not give it away to predatory plaintiff. It drives me nuts.

Jeff: Yeah. That’s- that’s great advice and a great offer and, uh, yeah I already sent one of my clients your way. And, uh

Rachelle: Aw! Thanks!

Jeff: (laughs) So, uh, yeah and more are coming after this conversation.

Rachelle: Awesome.

Jeff: (laughs)

Matt: (laughs) It’s so great.

Jeff: Well it was very nice to meet you. Thank you so much for your time.

Rachelle: Yeah.

Jeff: For coming on to the show with us. This is a very important that we have discussed, you know, three or four times now and, uh, and we want to keep professionals like you with- with this sage advice and- and, you know, honest, valuable offers. Uh, we want to bring this out to the open and make sure that everybody’s in line and participating in the- the accessibility of all the products that they- that they provide. So-

Rachelle: Well yeah, I think the challenge is for any business is: challenge yourself. Like, yeah, I don’t know what WCAD is. Go out and learn it and master it. And now you’re like, the jam. Now you’re the master of “Hey if you want an accessible website, I’ve got this down hot. And I’m the quickest and cheapest on the market” Use it as a marketing tool to have people funnel into your business. So, you know, don’t shy away from it. Like “Oh this is hard. I don’t want to get into it.” Like, no. Let’s do this! Let’s go all in and figure this out and then market yourself as “I’m a guru of WCAD coding” you know? I mean, that’s- that would be an amazing market- I would funnel people to that type of business if someone was using that as their tagline.

Jeff: There you go Matt. Team it up. Let’s do it. (laughs)

Matt: (laughs) Let’s do it.

Rachelle: Seriously. I, absolutely. Anybody who needs a website, you know. I’ll be like, “Hey, talk to these guys. Not only are the good, they’re affordable and they’re compliant.” Boom.

Matt: Nice. I like it. I like it. Great, well thank you so much Rachelle.

Rachelle: Thank you so much. Have a good one guys.

Matt: Alright. Thank you so much.

Rachelle: Bye!


(music plays)

Speaker: For show notes and information, go to DigitalRace.fm Follow us on Twitter and Instagram at digitalracefm and please, give us a raving review. We sincerely appreciate it.

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Host, Web Designer, SEO
About the Author
Jeff Byer has been designing identities and building websites since 1995. He is the CEO and co-founder of Print Fellas LLC, and the President at Byer Company, a division of Jeff Byer Inc, a web design company in Los Angeles. Jeff has a Bachelor of Arts Degree from the Annenberg School for Communication at the University of Southern California. He is a certified Project Manager by Franklin-Covey and has qualifications in Photoshop, Illustrator, HTML, PHP, JavaScript, MySQL, SEO, Bing Ads, and Google Ads. Jeff Byer is a co-author on 5 US Patents related to content management systems he has created on the internet.

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