Blogs

Traub Lieberman Partner Lisa M. Rolle Obtains Pre-Answer Motion to Dismiss in Favor of Defendant

By Lisa Rolle posted 08-03-2021
Traub Lieberman Partner Lisa M. Rolle obtained a motion to dismiss in favor of an international hotel chain. In the case brought before the U.S. District Court, Southern District of New York, the Plaintiff sustained a slip and fall injury in a Portuguese hotel (“Hotel”), which was allegedly caused by violations of building codes and New York and Portuguese negligence laws. The Plaintiff notes that the Hotel utilized the branding affiliated with the international hotel chain, and the named corporate entities are subsidiaries of the parent company of the international hotel chain. Further, Plaintiff alleged that the named corporate entities “owned, operated, maintained, ...

U.S. Department of Labor Touts New Whistleblower Webpage

By Robert Sniffen posted 08-03-2021
In its August 2, 2021, Quicktakes electronic publication, the Occupational Health and Safety Administration touts the U.S. Department of Labor's new "one-stop shopping", whistleblower webpage. The page contains, among other things, a comprehensive listing of the types of retaliation prohibited by each of the laws over which the DOL has jurisdiction, a whistleblower blog site link, a video from the Secretary of Labor welcoming whistleblowers to the new page, a link to a website celebrating "National Whistleblower Appreciation Day," and links that allow individuals to connect with to the various Divisions of the DOL. Now, whistleblowers need not wade through different ...

Eleventh Circuit Holds that the Florida Civil Rights Act Does Not Prohibit Associational Discrimination

By Robert Sniffen posted 07-06-2021
In an important decision for Florida employers, the Eleventh Circuit Court of Appeals has held that the Florida Civil Rights Act (“FCRA”) does not prohibit disability discrimination based on association. Carolina Matamoros, brought suit against her former employer, the Broward County Sherriff’s Office alleging that she was discriminated against because of her association with her son, who suffered from severe asthma. Matamoros took FMLA leave in March 2016. To spend more time caring for her son, Matamoros then applied for a part-time position, to which she was not selected. After being denied additional FMLA leave, Matamoros filed a discrimination charge and ...

Silverware Rollers Unite! DOL Proposes New Rule on Use of Tip Credit for Non-tipped Work

By J. Manuel posted 07-01-2021
As we discussed in April , the Biden administration halted the implementation of some of the Trump administration’s changes to the rules on taking a tip credit for non-tipped work. For those that never have had a server job, employers who have tipped employees (waitstaff, bartenders, etc.) have the option to pay those type of workers $2.13 per hour and take a credit against the tips those workers earn up to the minimum wage of $7.25 per hour. However, there have been a lot of changes back and forth on what to do with work that a tipped employee may also do that does not generate tips (stocking the bar, rolling silverware, cleaning the dining room). How should ...

New EEOC Facts on Getting “Vaxxed” and Getting Back

By Anne Yuengert posted 06-01-2021
This blog post was co-authored by Rachel LaBruyere . The EEOC updated its very clearly titled, “ What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws , ” last week to provide some much needed guidance on COVID-19 vaccine issues. While the EEOC’s guidance is helpful, not surprisingly, it leaves open some questions. Section K of the guidance addresses vaccines, so the references below are to the specific questions and answers in that section. Employers can mandate vaccines. Nothing has changed on this front. You can mandate that employees get vaccinated, but will need a process to consider reasonable accommodations ...

Essential COVID-19 Tips for Those Essentially Essential: DOL Launches New Wage and Hour Program for Essential Workers

By J. Manuel posted 04-28-2021
This blog post was co-authored by Anne Yuengert . The Wage and Hour Division of the Department of Labor unveiled a new program, “Essential Workers—Essential Protections,” that focuses on making sure employers comply with overtime and other wage requirements for workers on the frontline of battling the pandemic. Those positions include workers in grocery stores, healthcare, retail, delivery services and agriculture. The program will provide webinars and other training opportunities to learn about workers’ rights under the Fair Labor Standards Act and the Family Medical Leave Act. The DOL also encourages workers who believe that their rights are being violated ...

Let Your Employees Get the Jab (COVID-19 Vaccination) — You May Get a Tax Credit

By J. Manuel posted 04-22-2021
This blog post was co-authored by Anne Yuengert . If you are an employer with under 500 employees, you may be eligible for a tax credit for paid leave provided to your employees to receive the COVID-19 vaccination or for paid leave they take to recover from any illness or condition as a result of receiving the vaccine. The Biden administration recently announced this benefit that is available under the American Rescue Plan Act of 2021. The tax credits become available for wages paid from April 1, 2021, through September 30, 2021. How Much Can We Get? The credits are applied against an employer’s share of the Medicare tax. The tax credit can be equal ...

Race and National Origin Discrimination Claims Cover Discrimination Based on All Races or National Origins

By Anne Yuengert posted 04-15-2021
This blog post was co-authored by Bradley attorney, J. William Manuel . Employers seeking to diversify their workforces need to remember that Title VII’s prohibition on class-based discrimination still applies — even if your motives are pure. The EEOC announced that it settled a lawsuit in which it alleged that a company was discriminating in favor of Hispanic job applicants over black, white, and Asian applicants. The Facts Helados La Tapatia, Inc., a California-based company that produces Mexican-style desserts, will pay $200,000 and “furnish comprehensive injunctive relief” to settle a lawsuit the EEOC filed in the Eastern District of California. ...

Traub Lieberman Obtains Summary Judgment in Favor of Defendant

By Lisa Rolle posted 04-02-2021
Traub Lieberman Partner Lisa M. Rolle obtained summary judgment in favor of defendant SRI Fire Sprinkler, LLC, a family-owned and operated fire sprinkler company which generally provides fire sprinkler installation, inspection, and maintenance services throughout the Northeast and New England. The judgment was determined pursuant to CPLR 3211(a)(5) on the grounds that Philadelphia Indemnity Insurance Company’s (Plaintiff) negligent construction claim accrued on the date when work was completed at the premises, not on the date of the incident as alleged in the Plaintiff’s complaint. In the underlying subrogation action, the Plaintiff commenced the action in subrogation ...

Coming Back (or Staying Gone) for More: ARPA Extends Tax Credits for Providing COVID-19 Leave

By Anne Yuengert posted 04-01-2021
This blog post was co-authored by Sarahanne Vaughan . Just when you had your COVID-19 leave policies in place, Congress goes and passes new legislation: the American Rescue Plan Act (ARPA). Remember, as we outlined in a previous blog post , the Families First Coronavirus Response Act (FFCRA) was passed in March of last year and provided that employers with fewer than 500 employees had to give emergency paid sick leave (EPSL) and emergency family medical leave (EFMLA) to employees for certain reasons related to COVID-19. The FFCRA was set to expire on December 31, 2020, but just a few days beforehand along came the Consolidated Appropriations Acts (CCA) ...

DOJ HEALTHCARE FRAUD SECTION 2020 REVIEW: ACTION ON OPIOID EPIDEMIC, TELEMEDICINE, AND COVID-19

By James Kraus posted 03-21-2021
In a narrative that seems likely to be repeated in the coming year, the DOJ Healthcare Fraud Unit’s (HCF Unit) contribution to the Fraud Section’s 2020 Year in Review emphasized its enforcement action in three areas: Opioid epidemic Telemedicine COVID-19 With an entire year of healthcare delivery during a pandemic now behind us, and a new administration assessing its priorities, it is likely that the focus on each of these subjects will be broader and deeper in the coming year. Two Focuses of the Take-Down Were Telemedicine and Substance Abuse Treatment Facilities By the overall numbers, the HCF Unit touted 167 individuals charged, with $3.77 ...

Should I Stay or Should I Go? Ninth Circuit Finds Gender Discrimination in Retention Raise

By J. Manuel posted 03-17-2021
This blog post was co-authored by Anne Yuengert . An Equal Pay Act plaintiff must show that employees of the opposite sex were paid different wages for equal work. Pretty simple — right? However, there are many factors that go into deciding what is “equal work” or whether the difference in wages is really tied to sex. In J ennifer Joy Freyd vs. University of Oregon , the Ninth Circuit recently explained just how complicated some of those questions can be. Differences in the Psychology Department? Dr. Jennifer Freyd was a well-recognized expert on trauma at the University of Oregon. She was the editor of an academic journal, an investigator at a ...

THIRD CIRCUIT REJECTS CLAIMS OF BRADY VIOLATION AND AFFIRMS SECURITIES FRAUD CONVICTION

By James Kraus posted 03-15-2021
On February 17, 2021, the Third Circuit affirmed the conviction of Christopher Rad of securities fraud, rejecting his claims that the prosecution had withheld evidence regarding one of its key witnesses at his trial. The Court’s non-precedential decision affirms the District Court of New Jersey’s denial of Rad’s motion to vacate his conviction and sentence under 28 U.S.C. §2255. Although the Court initially granted Rad’s application for a certificate of appealability, it ultimately found that even if the government had failed to disclose prior statements by one of its key witnesses, the evidence was not material. The decision reinforces the basic but strict ...

TWO FORMER MUNICIPAL OFFICIALS PLEAD GUILTY IN ASBESTOS ABATEMENT MATTER

By James Kraus posted 03-10-2021
On February 18, two former officials of the town of New Windsor, New York, pleaded guilty to charges of negligently causing the release of asbestos during the 2015 demolition of former Army barracks at Stewart International Airport. The convictions of both men in the S.D.N.Y. under the Clean Air Act, 42 U.S.C. §7413(c)(4), arise out of their work on soliciting bids for demolition work without disclosing that the property contained asbestos. The pleas of guilty and convictions point to the significant consequences that both government officials and construction contractors can face when performing construction work without adherence to federal and state environmental ...

HOSPITALS BEWARE: EXPECT INCREASED GOVERNMENT SCRUTINY REGARDING BILLING PRACTICES

By James Kraus posted 03-04-2021
Key Take-aways: Hospitals that bill a high percentage of stays at the highest severity level, and those that have a high percentage of high severity stays based on a single diagnosis, should expect a higher level of scrutiny regarding their billing practices. It is expected that the OIG will continue to recommend that CMS conduct targeted reviews to identify stays involving upcoding and hospitals with patterns of upcoding. The Office of the Inspector General (OIG) has issued a report finding that hospitals are increasingly billing for in-patient stays at the highest severity (most expensive) level. The report found that the number of stays at the ...

Do You Have a Conflict with a Former or Prospective Client Under Rules 1.9 or 1.18 - A New ABA Opinion Provides Much Needed Guidance

By Jennifer Naber posted 02-25-2021
In its Formal Opinion 497, issued on February 10, 2021, the ABA addresses what it means to be “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter under ABA Model Rules 1.9 and 1.18. ABA_Formal_OPinion_497_Material_Conflicts_of_Interest.pdf This opinion provides helpful guidance to navigate those thorny potential conflict issues that arise in all our practices regardless of practice area, including obtaining waivers of conflicts. As succinctly summed up in the conclusion of the Opinion: "Material adverseness” under Rule 1.9(a) and Rule 1.18(c) exists where a lawyer is negotiating or ...

ABA Opinions Addressing Remote Working and Responding to On-Line Criticism

By Jennifer Naber posted 02-24-2021
The American Bar Association recently issued two Formal Opinions to address two fast growing situations impacting the legal profession. Links- aba-formal-opinion-495.pdf ; aba-formal-opinion-496.pdf First, in recognition of the recent necessity for remote working, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, entitled “Lawyers Working Remotely,” relating to ABA Model Rule 5.5, which stated purpose is “to protect the public from unlicensed and unqualified practitioners of law.” The Formal Opinion concluded "[t]hat purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction ...

Tell Me Again — Do We Have to Give FFCRA Leave in 2021?

By Anne Yuengert posted 01-05-2021
This blog post was co-authored by Bradley attorney, J. William Manuel . 2020 is in the rearview mirror. Whew! Unfortunately, COVID-19 is not gone and certainly not forgotten. The latest hot topic has been what to do with employees who think they should get paid leave for COVID-19 reasons that were provided under the Families First Coronavirus Response Act (FFCRA.) (In case you need a refresher on this leave, we blogged on it every other day in the spring .) If you have fewer than 500 employees and an employee reports that he has tested positive for COVID-19 on January 1, 2021, do you have to give him 80 hours of paid leave like you would have given ...

Good Riddance, 2020! Don’t Let the Door Hit Ya’ On the Way Out…

By J. Manuel posted 12-28-2020
This blog post was co-authored by Bradley attorney Anne R. Yuengert . It was a mess of times. It was the masked of times. We all probably agree that 2020 presented unexpected and unwanted challenges to employers. It certainly made all of us address unprecedented issues. Let’s look back at some of the things we had to learn during the last 12 tumultuous months and see what perspective we may have on them now: Remember pre-COVID-19? It’s almost too difficult to do. Back in January, we were looking at ordinary law changes such as the DOL issuing a rule clarifying how you calculated a regular rate of pay . Or how the new, scary California Consumer Privacy ...

I’m So Confused! Just How Long Does Your COVID-19-Exposed Employee Have to Quarantine?

By Anne Yuengert posted 12-09-2020
This blog post was co-authored by Bradley attorney J. William Manuel . Just when you thought you had the rules down for when and how long an employee has to quarantine, the CDC changes the rules. Or has it? In its guidance, When You Can Be Around Others After You Had or Likely Had COVID-19 (updated on December 1, 2020), the CDC hasn’t really changed its tune. As we read it, 14 days is still the gold standard: Anyone who has had close contact with someone with COVID-19 should stay home for 14 days after their last exposure to that person. . . The best way to protect yourself and others is to stay home for 14 days if you think you’ve been exposed ...