From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.
Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.
The current over-the-road driver shortage has created increasing pressures for trucking companies of all sizes. As a result, some trucking companies may be reluctant to terminate – or to not hire – drivers who have been accused of sexual harassment. But this reluctance may not be a good idea in light of Title VII.
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation against any employee who complains of sexual harassment to an employer. In addition, Title VII complaints can be filed in any judicial district where: the harassment was alleged to have been committed; the employment records relevant to the harassment claim are maintained and administered; the complainant worked; or if the employer cannot be “found” in one of the first three districts, the complaint can be filed in the district of the employer’s principal place of business.
In today’s world, businesses increasingly rely on the internet, making websites invaluable tools for reaching and expanding a customer base. If you have an interactive website on which you conduct transactions with consumers, it must be accessible by anyone, including those with a hearing or vision impairment. A website that doesn’t adequately support the user experience (“UX”) for those with such impairments creates obstacles to its use and creates potential liability.
Unfortunately, the first notice a company receives about website accessibility issues may come via a lawsuit. Often filed in Federal Courts of states other than the company’s home state (New York and California being the most common), complaints alleging a company’s website is inaccessible or unusable by someone with a particular disability are proliferating. Discrimination in public accommodations is prohibited under Title III of the Americans with Disabilities Act (ADA). Federal Courts are split on whether stand-alone websites (i.e., where the owner of the website does not operate a store, restaurant, hotel, or other physical location) are places of public accommodation to which Title III’s accessibility standards apply.
Most companies would appreciate being notified of website deficiencies preventing a user from utilizing their site and be given the opportunity to correct any accessibility issues. Once a lawsuit is filed, it may be too late to prevent lengthy, expensive litigation over the issue, short of settling. Plaintiffs seek injunctive relief plus attorney’s fees, which may skyrocket if the case is not settled expeditiously. They often also seek compensatory damage awards with state anti-discrimination claims. While these lawsuits are multiplying, the law in this area is still developing , leading to difficulties obtaining a swift resolution as the interpretation of the law evolves, and often splits, among circuits.
Most of these lawsuits are filed by a handful of plaintiffs represented by a handful of law firms alleging that a website does not comply with Web Content Accessibility Guidelines (WCAG). While the exact criteria required to avoid running afoul of the ADA has not been determined, the WCAG addresses accessibility issues such as contrast for those with difficulties differentiating colors, subtitles, or compatibility with screen reader software for those with vision impairment.
Every state has a statute authorizing the counties within it to foreclose on or sell real estate which has delinquent taxes owed on the property. In Missouri, for instance, counties are allowed to conduct sales of such properties once the real estate taxes have been delinquent for three years. The exact procedure may vary from county to county.
The purchaser at a tax sale will likely pay much less than the property is worth. If the previous owner should file a bankruptcy case, can the bankruptcy court set aside the sale as “fraudulent,” in the sense that the property was transferred from the owner for less than the true value of the property?
In 1994, in BFP v. Resolution Trust, 511 U.S. 531, the U.S. Supreme Court ruled that properly conducted mortgage or Deed of Trust foreclosures cannot be fraudulent transfers because, although it is very rare for a foreclosure sale price to be anywhere close to a market price, notice of the sale is published and members of the public can attend the sale and purchase the property if they care to.
However, the fraudulent transfer question is much closer if the transfer is by tax sale. The notice of the sale is narrower than even a mortgage foreclosure, and the chances of the property selling for a fair value is even less.
So, can a sale or foreclosure for delinquent taxes be set aside as constructively fraudulent? This question has given rise to a split among the Circuits. The Sixth Circuit, in the recent case of Lowry v. Southfield Neighborhood Revitalization Initiative (In re Lowry), 20-1712 (6th Cir. Dec. 27, 2021), found that the BFP reasoning did not apply to tax sales. This brought the circuit split even, with three circuits (the Fifth, Ninth and Tenth) finding that BFP does apply to tax sales and three circuits (the Third, Sixth and Seventh), holding that it does not.
Missouri has its first decision on a challenge to a private company’s COVID-19 vaccine mandate. The U.S. District Court of Western Missouri heard a petition for an injunction against Tyson Foods’ COVID-19 vaccine mandate and the company prevailed. In Reese v. Tyson Foods, Inc., Clifton Reese, a Tyson Foods employee, had requested a Temporary Restraining Order and/or Preliminary Injunction against Tyson Foods regarding its COVID-19 vaccine mandate.
In Reese, Tyson announced a vaccine mandate that all employees nationwide to be fully vaccinated by specified dates. The policy stated that employees seeking religious or medical accommodations should contact Tyson human resources “immediately.” Clifton Reese waited a month before making his request for religious accommodation. He refused the company’s accommodation of unpaid leave, but Tyson formally notified Reese that his religious accommodation was granted with the following stipulations:
The accommodation status could change at any time.
Because his accommodation of unpaid leave of absence was not job-protected, the position could be filled if necessary.
If providing the accommodation was an undue hardship to the employer, the accommodation could be revoked. The employee would then have to comply with the mandate or be subject to termination.
Reese filed a complaint with the Missouri Human Rights Commission and sent a demand letter to Tyson to continue his employment under existing COVID-19 restrictions to receive his full bonus, salary, and benefits. During the hearing, the Reese admitted he did not understand benefits he would receive during unpaid leave, such as continuation of health benefits, the ability to look for new employment within or outside of the company, and keeping earned bonuses. Continue reading »
Recently, Clifton Reese, an employee of Tyson Foods, requested a Temporary Restraining Order and/or Preliminary Injunction against his employer regarding its COVID-19 vaccine mandate in Reese v. Tyson Foods, Inc.
On August 3, 2021, Tyson Foods announced a vaccine mandate which required all employees nationwide to be fully vaccinated by specified dates. Moreover, the policy requested that employees seeking religious or medical accommodations contact human resources “immediately” to allow Tyson time to consider each employee’s request to meet company deadlines. Despite the notification to contact human resources immediately, Reese waited a month before contacting human resources seeking a religious exemption.
In response to his request, Tyson offered Reese an accommodation of an unpaid leave of absence, which he rejected. Tyson then confirmed Reese’s request for a religious exemption from the company vaccine mandate had been granted, the status of the accommodation was subject to change, and if the accommodation was an unpaid leave of absence that was not job-protected, “it may be necessary to fill your position.” Tyson also explained that if providing the accommodation was an undue hardship to the company, the accommodation could be revoked, and Reese would have to either comply with the mandate or be subject to termination.
In response to Tyson’s confirmation of the accommodation, Reese filed a complaint with the Missouri Commission of Human Rights. Reese hired an attorney and sent a demand letter to Tyson demanding that Tyson continue Reese’s employment “with the already existing COVID-19 restrictions in place,” and that he receive his full bonus, salary, and benefits. Tyson said they would review the demand. Continue reading »
Recently, a group of healthcare workers in Kentucky requested a Temporary Restraining Order and/or a Preliminary Injunction from the U.S. District Court of Eastern Kentucky against an employer’s COVID-19 vaccination mandate in Beckerich, et al. v. St. Elizabeth Medical Center, et al. At question was whether a private employer is allowed to modify its employment conditions to require employees to be vaccinated in response to the unprecedented global pandemic known as COVID-19.
In Beckerich, St. Elizabeth’s Medical Center and physicians group implemented a mandatory COVID-19 vaccination policy for its employees. Under the policy, employees could avoid the mandatory vaccination by submitting a request for a medical exemption or sincerely held religious beliefs before October 1, 2021. The policy also indicated that failure of an employee to comply without an accepted exemption could result in termination. The employees argued that the policy violated their constitutional rights and claimed St. Elizabeth’s had not approved religious and medical exemptions to the vaccination policy in compliance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
Regarding the ADA claims, U.S. District Court Judge David Bunning noted private employers are required to offer medical and religious accommodations but the employees in Beckerich failed to show that St. Elizabeth had not complied with the ADA reasonable accommodations. The evidence revealed St. Elizabeth granted medical exemptions 13% of the time and granted deferments 61% of the time. Only 14% were denied with 10% pending. Judge Bunning noted St. Elizabeth had granted more medical accommodations than there were plaintiffs in the case. No evidence was provided showing that over 5,000 medical and religious exemptions had been requested. The judge determined the employees had very little chance at success on the merits because they failed to meet the key elements to prove an ADA claim.
Regarding Title VII claims, Judge Bunning noted the employees failed to suggest they could raise a preliminary case of religious discrimination. None of the named plaintiffs had been denied a religious exemption with only one marked pending but St. Elizabeth’s noted that request was approved. Because no religious exemptions were denied, the employees were not able to prove any religious discrimination. Continue reading »
In response to the COVID-19 pandemic, many states have modified licensure requirements and renewal policies for medical providers to respond to the pandemic, including out-of-state license requirements for telemedicine.
Nationwide, the U.S. Department of Health & Human Services (HHS) is authorized to make declarations during certain emergencies regarding immunity from liability under the 2005 Public Readiness and Emergency Preparedness Act (PREP Act). In 2020 and 2021, HHS added several amendments to the PREP Act including countermeasures for treatment and prevention of COVID-19, interstate telehealth expansion related to COVID-19, and liability protection for medical providers of COVID-19 related services and products.
Covered Persons
Under the PREP Act, covered persons include “manufacturers, distributors, program planners, and qualified persons, and their officials, agents, and employees, and the United States.” To increase access to vaccines, Amendments 5 through 8 expand the categories of covered persons who may “prescribe, dispense, and administer COVID-19 vaccines” to include: Continue reading »
09/27/21 3:06 PM
Health Care, Litigation | Comments Off on Modifications of Telehealth and Interstate License Compacts Due to COVID-19 |
In spite of the uncertainties caused by the pandemic, your lease remains critical to your business. Commercial leases are complex transactions and should be undertaken with great care.
Following these basic points will make the lease renewal or new lease go smoothly. Continue reading »
A change in the statute of limitations on actions for personal injury is working its way through the Missouri Senate. Senate Bill 3 (SB 3), introduced by Senator Dan Hegeman, was approved by the Senate Judiciary Committee and is waiting full consideration of the Senate. SB 3 states that any personal injury actions have a statute of limitation of two years from the time of injury.
The current law in Missouri says that actions for personal injury must be brought within five years of the injury occurring. If passed, the change in the statute of limitations applies only to causes of action for personal injury that accrue on or after August 28, 2021. Continue reading »
07/26/21 7:44 AM
Business Law, Litigation | Comments Off on Is a Two-Year Statute of Limitations on Personal Injury Claims Coming Soon to Missouri? |
Authored by Katherine M. Flett with assistance from Haley E. Gassel, contributor
The Missouri House is considering a bill that would modify the determination of when evidence of collateral source payments in civil actions is admissible. Sponsored by Representative Alex Riley, Missouri House Bill 577 (HB 577) seeks to amend the Missouri Collateral Source Rule 9 (Section 490.715, RSMo.) and clarifies that the rule applies only to parties named in the plaintiff’s case. Approved by the House Committee and placed back on the formal perfection calendar in May, the bill is waiting to be placed on the House Formal Calendar for floor debate.
Proposed Changes to the Missouri Collateral Source Rule
HB 577 states that “in any action wherein a plaintiff seeks to recover for personal injury, bodily injury, or death, any party may introduce evidence of the actual cost of the medical care or treatment rendered to a plaintiff, or to the person for whose injury or death plaintiff seeks to recover.” It goes on to explain that “actual cost of the medical care or treatment shall be reasonable, necessary, and a proximate result of the negligence or fault of any party.”
The exception to this rule is Subsection 2. Under the bill, any part or all of a plaintiff’s special damages paid for by the defendant, the insurer, and/or authorized representative, (or any combination of these) are not recoverable from the defendant in the plaintiff’s claims for special damages.
Another change to the rule involves which amounts billed can be submitted as evidence. Evidence of any amount billed for medical care or treatment that has been “discounted, written off, or satisfied by payment of an amount less than the amount billed” may be not be admitted. However, the actual cost of medical care or treatment provided and any contracted discounts, price reductions or write offs may be admitted as “evidence relevant to the potential cost of future treatment.”
Potential Effects of Changes to the Missouri Collateral Source RuleContinue reading »
07/22/21 10:35 AM
Litigation | Comments Off on Potential Changes to the Collateral Source Rule in Missouri |
The current over-the-road driver shortage has created increasing pressures for trucking companies of all sizes. As a result, some trucking companies may be reluctant to terminate – or to not hire – drivers who have been accused of sexual harassment. But this reluctance may not be a good idea in light of Title VII.
In today’s world, businesses increasingly rely on the internet, making websites invaluable tools for reaching and expanding a customer base. If you have an interactive website on which you conduct transactions with consumers, it must be accessible by anyone, including those with a hearing or vision impairment. A website that doesn’t adequately support the user experience (“UX”) for those with such impairments creates obstacles to its use and creates potential liability.
Every state has a statute authorizing the counties within it to foreclose on or sell real estate which has delinquent taxes owed on the property. In Missouri, for instance, counties are allowed to conduct sales of such properties once the real estate taxes have been delinquent for three years. The exact procedure may vary from county to county.
Missouri has its first decision on a challenge to a private company’s COVID-19 vaccine mandate. The U.S. District Court of Western Missouri heard a petition for an injunction against Tyson Foods’ COVID-19 vaccine mandate and the company prevailed. In 
Recently, a group of healthcare workers in Kentucky requested a Temporary Restraining Order and/or a Preliminary Injunction from the U.S. District Court of Eastern Kentucky against an employer’s COVID-19 vaccination mandate in 
