Author: JGL Law

Greenbelt, Md – Joseph, Greenwald & Laake is pleased to announce that Matthew E. Kreiser has joined the firm as an associate in the firm’s Labor & Employment Law Practice Group.

“We are very pleased to welcome Matthew to the firm,” said Burt M. Kahn, managing director of Joseph, Greenwald & Laake. “He is an asset to the firm’s Employment Law practice, especially because of his knowledge of the False Claims Act and experience with public policy.”

Before his employment at JGL, Kreiser held a number of positions in public policy development, analysis and advocacy. He has advocated for the interests of hospitals and community-based healthcare providers at both the state and federal levels. He also interned with the United States Sentencing Commission in its office of Education and Sentencing Practice, where he helped analyze issues concerning courts’ use of the Federal Sentencing Guidelines, composing in-depth policy analysis of the problems associated with court-ordered restitution against individuals convicted of possession of child pornography under the Mandatory Victims Restitution Act of 1996.

Kreiser earned his law degree from the University of Miami School of Law and his bachelor’s degree from the Ohio State University.

As a labor and employment attorney, I am often asked by potential clients if they have a viable claim against their employer for being subjected to a “hostile working environment.” And why would they not? Many people feel they are subjected to difficult working conditions, and the word “hostile” is a loaded term, perceived to be attention grabbing and capable of capturing interest. Although it sounds like an all-encompassing claim, the law has very particular requirements to satisfactorily allege that one was, indeed, subjected to an unlawful, hostile working environment.

“Hostile work environment” is not specifically enumerated as a possible claim under Title VII[1] or Maryland’s Fair Employment Practices Act[2], (“FEPA”). Rather, a “hostile working environment” is a legal term of art that both the United States Supreme Court[3] and the Maryland Court of Appeals[4] have held is actionable under Title VII. Title VII makes it unlawful for an employer to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of an individual’s immutable characteristic (e.g., sex, gender, race, color, etc.), which are enumerated in the statute.[5] “Since an employee’s work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.[6]”  However, Title VII does not protect all forms of behavior that may create an unpleasant place for one to work.

Ultimately, the issue boils down to whether they were subjected to conduct and behavior in the workplace that Title VII is designed to protect. This is where the “jerk boss” or “rude coworkers” rule comes in to play.[7] “Title VII was not intended to eliminate every instance of vulgarity, rudeness, or insensitivity”[8] in the workplace, so not all instances of objectionable behavior are actionable under Title VII.  For example, in the Fourth Circuit:

• Rude or callous behavior is not necessarily actionable under Title VII;[9]
• “Condescending” or “belittling behavior” (e.g., tone of voice, facial expressions, mannerisms, etc.) and personality conflicts, standing alone, are not generally actionable under Title VII; and
• Comments concerning one’s personal hygiene, appearance, or the qualities of one’s children premised upon inaccurate assumptions about race (a protected characteristic under Title VII)—although crude and ignorant—are not covered under Title VII.[10]

In order to have an actionable claim for an unlawful hostile working environment under Title VII and Maryland’s FEPA statute, one must demonstrate that the workplace harassment, based on the protected characteristic, was (1) unwelcomed; (2) based on the protected characteristic; (3) subjectively and objectively severe or pervasive enough to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the employer.[11] Generally speaking, prongs one and two are relatively easy to establish, and the courts will also often assume that he or she subjectively perceived their work environment to be abusive.[12] Courts, therefore, often focus on whether the abusive and harassing conduct was objectively and sufficiently severe or pervasive and that the aggrieved conduct was imputable to the employer.

In considering a hostile work environment claim, the Fourth Circuit evaluates all of the circumstances surrounding the conduct, considering: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.[13] The perspective the court takes is that of a “reasonable person” in the potential client’s position.[14] However, the harassment need not be both severe and pervasive; thus, the more severe the conduct, the less pervasive it needs to be.[15] In fact, at least one court in the Fourth Circuit has found that a single incident of harassment that is sufficiently severe can give rise to employer liability.[16]  Additionally, courts in the Fourth Circuit have held that harassing behavior by an employee’s direct supervisor, who has significant authority over the employee’s day-to-day duties and possesses the ability to influence her career, to be objectively more severe than the same behavior by a fellow employee.[17]  

Lastly, a potential employee’s complained of harassment must be imputable to his or her employer to establish liability.[18] An employer is liable for unlawful harassment by the employee’s supervisor or co-worker only “if [the employer] knew or should have known about the harassment and failed to take effective action to stop it.”[19] Once an employer has notice, then it must respond with corrective action designed to end the complained of workplace harassment.[20]

While it may oftentimes be extremely stressful to work in a difficult environment, as can be seen, there is sometimes a divide between common notions of a hostile work environment and whether the courts will deem it to give rise to a cause of action. Because every case is different, careful analysis is necessary to evaluate the merits of whether a case falls under the “jerk boss” rule or is an actionable claim under Title VII.

Joseph, Greenwald & Laake principal, Brian Markovitz, was quoted in Law360 discussing the Sixth Circuit judges unanimous decision on April 20 not to re-hear en banc a three-judge panel’s decision to revive a federal False Claims Act case accusing a Tennessee hospital of overbilling Medicare and Medicaid for unnecessary medial procedures. Joseph, Greenwald & Laake is representing whistleblower Robert Whipple. The article quotes Markovitz as stating, “the ruling made clear ‘the entire Sixth Circuit felt that the decision made by the panel was correct and that this case should go forward on the merits.’”

As parents, we are concerned about the safety, health and welfare of our children.  We will do almost anything in order to protect them and provide for their best interests.  We seek the best neighborhoods with the lowest crime rates in order to ensure that our children will obtain the best education possible in a safe environment.  We also select the best doctors to care for our children in times of illness, take financial measures to ensure future success and wealth for our children by maintaining bank accounts on their behalf, or perhaps establishing college savings plans and obtaining a life insurance policy for their benefit in our absence.  However, what is often left out of the equation is the importance of obtaining a will in order to designate who will take care of our children in the future if we are no longer around. 

A last will and testament does not simply serve as a vehicle for the disposal of one’s estate, but it is also the instrument for designating a legal guardian for minor children.  The natural parents of a child are automatically deemed to be the guardians of their minor children.   Therefore, if the mother of the child passes away, typically the father of the child will be granted legal guardianship of the minor child, and vice versa.  However, if the other natural parent is not alive, is simply unwilling to serve, or is proven to be unfit to act as guardian of the minor child, then the court will appoint someone else to serve as the minor child’s guardian. 

If you designate a guardian for your minor children in your will, then the court will give deference to your designation. However, it is important to note your designation is not foolproof.  When you designate a guardian in your legal will you are stating your preference as to who you  would like to care for your child upon your (and presumably your spouse’s) passing, but your preferential designation is ultimately subject to the court’s approval. 

Why doesn’t the court always comply with one’s guardian designation? Practically speaking, people, as well as their circumstances, are always subject to change.   Consider the circumstance where a young couple prepares a will when their child is a newborn and they designate their trusty college roommate as the guardian.   However, a decade later, the trusty college roommate is now a raging alcoholic, leading a life that is less than desirable for raising a child, or is even imprisoned.  If this is the case, and this information is brought to light in the guardianship proceeding, then the Court will make a determination as to the fitness of the designated guardian in the will and does not have to comply with your designation.

Even though the designation is not foolproof, it is well worth the effort to have an estate planning attorney draft your will so that you have peace of mind knowing that you have done everything in your power to identify who you believe to be a proper guardian to care for your children– as opposed to leaving this major decision up to the courts, who are the least familiar with you, your children and your values.

Amendments to False Claims Act expanded remedies for retaliation against contractors and others.

Hillary Clinton came in for criticism when word emerged that she’d bypassed her government email account while running the State Department in favor of her private account. But Corporate America is in no position to criticize, we learn in this special section—mixing of private and company email is rampant, and dangerous. We also investigate the difficulties liberal marijuana laws raise for employers and changes in federal whistleblower-protection laws.

On May 29, 2009, Congress enacted the Fraud Enforcement and Recovery Act of 2009 to expand the reach of the Civil False Claims Act, 31 U.S.C. 3730, et. seq., and safeguard taxpayer funds. In doing so, Congress amended Section 3730(h) of the Civil False Claims Act (FCA), the anti-retaliation provision, to broaden protections for whistleblowers who alert their employers and/or the government about the misuse of taxpayer funds. Following these amendments, Congress sharpened the FCA’s enforcement teeth to not only recoup taxpayer money but also to further encourage the reporting of fraudulent conduct in an effort to help the government combat fraud and abuse in the administration of its programs.

The U.S. government is one of the world’s largest consumers and the single largest purchaser of goods and services within the United States. The FCA authorizes the government to recover monetary damages from parties who file fraudulent claims for payment when supplying it with goods or services. Actions under the FCA can be initiated either by the government or via a qui tam action. See 31 U.S.C. 3730(b)-(d); see also Mann v. Heckler & Koch Defense (4th Cir. 2010) (a qui tam action is brought by a private party “in the name of the United States”).

Qui tam actions are brought by whistleblowers, referred to as “relators,” on behalf of the government, and are the most common enforcement mechanism of the FCA. Those cases are filed under seal and served on the attorney general and the U.S. attorney in the jurisdiction in which the case is filed. At the conclusion of an investigation, the government may elect to “intervene” in the case and take the lead in litigating, settle it or choose to “decline” to intervene, in which case the relator may bring the case on behalf of the government. In a qui tam action, whether intervened or not, it is the government’s damages at issue; not the relator’s.

The FCA also contains anti-retaliation protections for whistleblowers. When Congress passed the major provisions of the FCA encouraging whistleblowers to report fraud, there was common-sense recognition that whistleblowers—and in particular employees of government contractors—would be at great risk of retaliatory actions if and when their employers learned they blew that whistle. The anti-retaliation provisions of the FCA are intended to provide full relief to the whistleblower for his or her damages resulting from the retaliatory acts of their employer for reporting fraud. So the relator’s damages are at issue, not the government’s.

Following the passage of the Fraud Enforcement and Recovery Act of 2009 (FERA), Congress broadened the scope of the FCA’s anti-retaliation protections by expanding the list of protected persons and activity covered, and created a uniform three-year statute of limitations from the date of the retaliation. Previously, the anti-retaliation protections only applied when the whistleblower was engaged in conduct (e.g., investigating) directly in furtherance of an actual action under the FCA, the employer knew about the employee’s investigation, and then retaliated against the employee as a result.

EXPANDED COVERAGE
While the prior iteration covered only employees and only acts in furtherance of filed or to be filed FCA claims, the FERA amendments expanded the scope of covered persons to “employees, contractors, agents or associated others,” and expanded the protected conduct to “lawful acts … in furtherance of an action under this section or other efforts to stop one or more violations of th[e statute].”

So if there was any doubt before as to whether internal reporting to company officials to stop a violation suffices as protected activity under the act, the FERA amendments dispensed with the issue. The FERA amendments also included a specific prohibition against retaliation against persons based on their association with a whistleblower.

As a result of the FERA amendments, a retaliation action can be initiated on multiple types of relationships outside of the traditional employer-employee context. Significantly, independent contractors, who make up a significant portion of the government contractor workforce, are protected from retaliation under the FERA amendments. Moreover, recently a number of courts have found that the amendments now permit individual liability against those who retaliate against a whistleblower by removing the reference to retaliation “by [an] employer.” See e.g., Huang v. Rector (W.D. Va. 2013); Aryai v. Forfeiture Support Associates LLC, (S.D.N.Y 2012).

Overall, most courts that have had the opportunity to review FERA’s amendments to Section 3730(h) have made clear that they view the amendments as having increased the scope of the protections afforded to whistleblowers. But some courts have maintained deference to pre-FERA amendments precedents when deciding whether an individual has taken “steps in furtherance” of an action under the FCA.

For example, district courts in the Fourth and Fifth circuits acknowledged that the FERA amendments to Section 3730(h) were, indeed, intended to broaden the scope of protected activity by whistleblowers. Yet courts in these circuits have taken a narrow approach and relied on pre-FERA precedent in holding that relators must show they engaged in some form of conduct (e.g. investigations, inquiries, etc.) that could lead to the “distinct possibility” of a viable FCA qui tam claim. See e.g., Layman v. MET Labs., (D. Md. 2013); United States ex. rel. George v. 
Boston Scientific Corp., (S.D. Texas 2012).

These decisions appear to ignore the intent behind the FERA amendments by tying protected activity to bringing a qui tam case, when FERA plainly disposed of that requirement. However, for cases in those jurisdictions there appears to be a higher burden for a whistleblower to succeed on a retaliation claim.

The retaliation provisions of the amended Section 3730(h) include significant remedies for prevailing plaintiffs and entitle employees to recover damages for retaliatory acts taken by the employer after the employee has engaged in protected activity. Recoverable damages include reinstatement, two times back pay plus interest and “compensation for any ‘special damages’ sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.” The remedies provision is intended to be a particularly powerful deterrent to unlawful retaliation. United States ex rel. Chandler v. Hektoen Inst. for Med. Research, (N.D. Ill. 1999).

It is now well-settled that the term “special damages” includes an award of pain and suffering. For example, in Hammond v. Northland Counseling Center Inc., (8th Cir. 2000), the court held that not only were pain and suffering damages recoverable under Section 3730(h), but that those damages were recoverable even without a showing of economic loss. Similarly, in Neal v.Honeywell, (7th Cir. 1999), the court held that the employee was able to recover compensation for emotional distress caused by an employer’s retaliatory conduct as “special damages.”

HIGHER AWARDS IN OFFING?
Because of the broadened scope of retaliation claims under the FCA post-FERA, higher awards may be in the offing for an employer’s retaliatory conduct—especially if accompanied by expert testimony—for emotional distress as “special damages” under the FCA. Looking toward the future, it is quite likely that more FCA retaliation cases will be brought (both with and without qui tam claims). Those cases could see significant emotional distress damages recovered as a result of the retaliation—especially since there is no cap on these damages, unlike the cap for noneconomic damages under Title VII of the Civil Rights Act.

Although other provisions of the FERA amendments apply retroactively for qui tam cases, the recent amendments to the anti-retaliation protections of Section 3730(h) do not apply retroactively prior to the date of the FERA enactments. See Pub. L. No. 111-21, 4(f) (2009).

Congress’ recent amendments to Section 3730(h) were enacted to expand the protections afforded to whistleblowers. While a minority of courts have chosen to align with pre-FERA precedent, most have not and rule consistent with Congress’ clear intent to broaden the scope of protected activity and afford whistleblowers more protection under the anti-retaliation provisions. Good news for whistleblowers and bad news for those who retaliate in violation of the FCA.

Reprinted with permission from the April 13, 2015 issue of The National Law Journal. Copyright 2015 ALM Media Properties LLC. Further duplication without permission is prohibited. All rights reserved.

Maryland State Bar Association’s Litigation Section presents:

TROs and Injunctions in Federal and State Court: Practice Tips and Pitfalls to Avoid

Presenters:
The Honorable Benson E. Legg (U.S. District Court) (ret.)
The Honorable Michael D. Mason (Circuit Court for Montgomery County)
Matthew Fader, Esq. (Deputy Chief, Civil Litigation, Maryland Attorney General’s Office)
Timothy F. Maloney, Esq. (Principal, Joseph, Greenwald & Laake, P.A.)

Temporary Restraining Orders and Preliminary Injunctions are increasingly used litigation tools to protect the rights of parties pending the outcome of litigation.  This program will offer attendees a “nuts and bolts” primer on seeking and defending TROs and PIs in both State and Federal Courts.  Our panelists have both the experience and perspective to make this a meaningful and valuable event for our attendees.

Date:
Monday, May 18, 2015

Location:
Columbia Sheraton Hotel 10207 Wincopin Circle, Columbia, MD 21044

Cost:
$25.00 for members of Litigation, Labor & Employment and Young Lawyers Sections
$35.00 for all other MSBA Members

Time:
6:00 – 7:00 p.m. Reception (Appetizers and Cash Bar)
7:00 – 9:00 p.m. Program

Registration Deadline:
Wednesday, May 13, 2015

Co-Sponsored by:
MSBA, Labor and Employment and
Young Lawyers Sections

TO REGISTER, THIS FORM AND CHECK MUST BE RECEIVED BY THE MSBA NO LATER THAN MAY 13, 2015:

OR REGISTER ONLINE NO LATER THAN MAY 13, 2015
http://www.msba.org/sections/litigation/TRO-InjunctionProgram.aspx

Program Chair:
Jonathan P. Kagan, 410-216-7900
Kagan@kaganlawgroup.com

Program Committee:
Hon. Michael A. DiPietro
Jeffrey P. Bowman
Michael S. Steadman, Jr.

            Last week the Institute for Women’s Policy Research released a report[1] about the employment and earning status of women in the U.S. The report noted that at the current rate of progress, from 1960 to today, the wage gap between men and women will finally close in … 2058! That’s right, wage equality is a mere 43 years away. The pressing nature of the wage equality issue was also raised last month at the 87th Annual Academy Awards, when Patricia Arquette[2], who, after winning for Best Supporting Actress, said, “It’s our time to have wage equality once and for all and equal rights for women in the United States of America.” The speech was met with rousing applause and support not just from Hollywooders, but also from Hillary Clinton[3] and Nancy Pelosi[4], who echoed the actress’s words. 

            Not everyone shared Ms. Arquette’s sentiments about equal pay for women. Fox News contributor and actress Stacey Dash, responded[5] to the speech with “In 1963, Kennedy passed an equal pay law. It’s still in effect. I didn’t get the memo that I didn’t have any rights.” While Ms. Dash is correct that a law was passed in 1963, her comments ignore the significance of the current gender wage gap and the issue’s urgency.

            It is true that the Fair Labor Standards Act (FLSA)[6] was amended in 1963 to include the Equal Pay Act [7]. At that time, women were earning 59 cents[8] for every dollar earned by a man. Today, women earn about 77 cents[9] to the dollar compared to men. This shows that while there has been some progress since 1963, a substantial gender pay gap still exists. Closing this 23 cent gap has been a focus of the Obama Administration, and was again mentioned in the State of the Union[10] address a couple of months ago. In June 2013, the Administration’s National Equal Pay Task Force released its report[11] on the effects of the Equal Pay Act and the issues to confront in reducing the 23 cent gap. While the report acknowledges the broad array of issues contributing to wage inequality, it focuses on underlying employer bias and the need for pay data transparency. 

            Although employer bias may certainly contribute to the pay gap between genders, a more recent study from the American Bar Association Journal of Labor and Employment Law suggests that factors involved may be much more difficult to assess. In the study, The Pay Gap, the Glass Ceiling, and Pay Bias[12], it explains that the 23 cent gender gap is based on average income of all men and women, which may not be a proxy for employer bias as the sole contributor. The study states that the pay gap does not reveal gender disparities within specific professions/positions, or account for education, experience and work patterns[13]. The study does emphasize that the latter factors may involve deeper-seated biases and discrimination that forces women into decisions that lead to lower wages than men. For example, as noted in the study, women may be assigned more unpaid work than their male counterparts, and have to endure increased work interruptions, which may leave men in a more advantageous position for promotions[14].

            Another factor that may contribute to the gender pay gap involves salary negotiations. In a recent New Yorker article, Lean Out: The Dangers for Women who Negotiate[15], it points out that women are viewed more harshly for attempting to negotiate the terms of their employment, especially with respect to salary, than men. In some cases, the article notes that women have been penalized or had their job offer retracted.[16]  The article suggests that fewer women negotiate their salaries today, not because of reticence, but because they justifiably anticipate real attitudes, reactions and perceptions about their requests. 

            While there is no panacea to closing the existing pay gap, there have been efforts aimed at narrowing the wage disparity between men and women. The Equal Pay Act[17] does prohibit discrimination “on the basis of sex by paying wages to employees … at a rate less than the rate at which [it] pays wages to employees of the opposite sex …,” but the Equal Pay Act is limited to jobs that require “equal skill, effort, and responsibility, and which are performed under similar working conditions … ” For broader protection, Title VII of the Civil Rights Act of 1964[18] provides that compensation discrimination need not necessarily involve the same or similar skills, effort, responsibility, or working conditions. Rather, it states that “[i]t shall be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees … ”  

            Over the past several years, there has also been an effort to pass the Paycheck Fairness Act[19], designed to augment the Equal Pay Act by making wages more transparent to employees and by prohibiting employers from retaliating against employees who raise concerns about gender-based pay disparities. Attempts to pass the bill in Congress have failed[20], most recently in April 2014. The Equal Employment Opportunity Commission (EEOC)[21] has also made equal pay for women a primary focus for 2015, as it now is the agency to enforce the Equal Pay Act over the Department of Labor. In fact, the Budget Report of the Chairperson of the EEOC describes the Equal Pay Act as one of its fiscal year 2015 priorities.[22] And a review of pay disparity charges before the EEOC from 2008-2014 reveals an uptick[23] in the number of Equal Pay Act cases, resolutions, and monetary benefits over the past 3 years.        

            In sum, are there rights for women facing wage disparities? Yes. Are existing laws sufficient to close the pay gap between men and women? No. Is the solution to narrow the gender-based pay gap a simple one that does not involve a confluence of complex factors? No. Are efforts currently being made to address the pay gap? Yes. Is more dialogue, research and advocacy needed to address this issue adequately? Absolutely. Otherwise, it may be another 43 years before wage equality becomes a reality.          

The DC Office of Human Rights (OHR) reaffirmed that the Willard InterContinental Hotel forced a gay assistant chef out of his job after he complained that he was repeatedly subjected to anti-gay harassment by co-workers and supervisors.

After reviewing more than 50 pages of briefing by the Willard Hotel, the OHC reaffirmed their December 17 Determination of Probable cause, finding that DC resident Alberto Vega, 43, was subjected to a hostile work environment because of his sexual orientation and was terminated from his job in August 2013.

The OHR finding says the hotel’s alleged actions against Vega violated the DC Human Rights Act, which, among other things, bans employment discrimination based on sexual orientation.

Joseph, Greenwald & Laake attorney Brian Markovitz represents Vega and says, “It is very disappointing that hotel management failed to properly investigate Vega’s reports of harassment on the job. I hope that the hotel will finally admit what happened and take the proper steps to make amends. But frankly given their prior actions, I’m not overly optimistic.”

Investigators at the Office of Human Rights quickly substantiated Mr. Vega’s claims through interviewing multiple witnesses—witnesses that the hotel did not contact.

The InterContinental Hotels Group, which owns the Willard and dozens of other hotels in the U.S. and abroad, received a perfect score of 100 in the Human Rights Campaign Foundation’s Corporate Equality Index, which rates Fortune 500 companies on their personnel policies affecting LGBT employees.

“Possibly the worst thing for Mr. Vega wasn’t the terrible treatment he received from the lower-level workers,” Markovitz said. “It was the Willard’s response. Management was supposed to protect Mr. Vega for bravely coming forward. I certainly hope that it’s not that they don’t care about the LGBT community, but the longer this goes on, the more you have to wonder.”

The Leadership Qualities Captain America Taught My Seven-Year-Old

            There’s a wonderful scene in the first Avengers superhero movie that made a huge impact on my seven-year-old son.  Aliens are invading NYC.  It’s a total mess. Iron Man turns to Captain America and says, “Call it Cap.”  Cap starts telling each Avenger what their roles are, and they get to it.  The last guy is the Hulk, who isn’t exactly known for following orders.  Cap’s final instruction, “And Hulk  . . . smash.”  The Hulk smiles a big, toothy grin because going on a rampage is what he does best. At that moment, you know Cap’s team is clicking, and the aliens don’t have a chance.  

            It was this “Hulk smash” instruction that caught my son’s attention.  After the movie, he said to me, “Captain America is the best Avenger.”  He explained that Cap isn’t the fastest or strongest, and he can’t fly.  Yet, he further clarified (and I’m paraphrasing of course) that Cap is a great leader because he puts his team members into positions where they can succeed.  “Hulk is good at smashing so he told Hulk to smash,” my son said. 

Like any good manager, Captain America alters the system he has in place to maximize talent – not the other way around.  One of the biggest mistakes managers make is they rigidly adhere to whatever their management system is while trying to alter personnel to fit into it.  The leadership skill my son learned was that if Captain America had tried to force the Hulk in to the wrong place in the plan, instead of giving him the freedom to “smash” so well, the team likely would have failed.

Effective leaders have flexible business management systems that allow them to put personnel in places where their talents can thrive.  Duke basketball coach Mike Krzyzewski, the only Division I men’s basketball coach to win over 1000 college games, does this.  As he explains, “A common mistake among those who work in sports is spending a disproportional amount of time on ‘x’s and o’s’ as compared to time spent learning about people.  . . .   People have to be given the freedom to show the heart they possess. I think it’s a leader’s responsibility to provide that type of freedom.” 

Abraham Lincoln got this too.  Instead of just rewarding political allies with cabinet positions, he modified the selection process by putting political rivals into cabinet positions if they were best suited for them.  As Leonard Swett, one of Lincoln’s advisors, wrote:

He never judged men by his like, or dislike for them. If any given act was to be performed, he could understand that his enemy could do it just as well as any one. If a man had maligned him, or been guilty of personal ill-treatment and abuse, and was the fittest man for the place, he would put him in his Cabinet just as soon as he would his friend. 

In fact, there are studies that touch on management skills.  As the National Institutes of Health concluded, “Ideally, leaders use their power to steer groups toward desired outcomes.”  But poor leaders are rigid and do not provide the freedom for people to do well.  Instead, the study found that poor leaders “excluded a highly skilled group member, and prevented a proficient group member from having any influence over a group task.” 

Your boss can’t be Captain America.  Yet, having a boss with the people skills and flexibility to properly assign team members toward their strengths is not too much to expect.  Is your boss tasking you and others to perform in areas where you aren’t well-suited because you have to follow “the plan?” Is your team failing as a result? If so, maybe your boss doesn’t understand the team building lesson my seven-year-old learned from Captain America about management styles.  And maybe it’s time to go somewhere else – somewhere where they will let you “smash.”

Joseph, Greenwald & Laake secured a major victory for its whistleblower client in a False Claims Act (FCA) case against a Chattanooga, Tenn., hospital system involving millions of dollars in allegedly fraudulent Medicare and Medicaid claims.

The U.S. Court of Appeals for the Sixth Circuit Wednesday reversed a ruling by the U.S. District Court for the Middle District of Tennessee in Nashville, Tenn., and allowed the case to proceed against defendant Chattanooga-Hamilton Hospital Authority, which operates the Erlanger Medical Center and Erlander Health System. The District Court previously ruled that Robert Whipple, the firm’s client and relator in this qui tam action, was prevented from making his claims under the FCA’s public-disclosure bar.

“We are very pleased with the Appellate Court’s ruling and now that the technicalities are out of the way, the real merits of this case can be considered,” said Brian J. Markovitz, a partner with Joseph, Greenwald & Laake and the attorney for the relator in this case. “We are very confident that our client’s allegations will be found to be true and that the hospital did, in fact, illegally upcode and fraudulently bill Medicare and Medicaid for millions of dollars.”

According to Markovitz, the key to the District Court’s ruling against Mr. Whipple was that a government audit of some fraudulent billing claims by Erlanger triggered a bar to the suit known as the public disclosure bar. But, as Markovitz explained, the appeals court disagreed with the District Court by ruling that the audit was never actually “public” so the bar did not apply. Congress overhauled the FCA in 1986, replacing a previous government-knowledge bar with the current public-disclosure bar.

“The purpose of the FCA’s public-disclosure bar is to prevent someone from hearing or reading about alleged fraud from news reports or other public material and then making a claim to collect a finder’s fee,” Markovitz explained. “That’s not Mr. Whipple. He found out about the activities on his own accord so this non-public audit shouldn’t have been applied to his case.”

Whipple discovered the alleged fraud in early 2006 while working at Erlanger and analyzing past billing data, reviewing patient records, and observing operations in each of the revenue cycle departments. He also learned of the fraudulent practices from supervising patient admissions, planning discharges, and reviewing the submission of claims for payment.

Markovitz explained that the hospital system allegedly overbilled Medicare and Medicaid by upcoding hospital stays so that rates higher than what was allowed were billed.

Preparation for Custody Hearings (Part 1)

A Maryland family court making child custody decisions makes two mutually exclusive determinations:  1) legal custody (a determination of which parent may make decisions regarding the health, education, religion and welfare of the child); and 2) physical custody (who the child will reside with).

The trial judge has the authority to determine custody, regardless of whether “joint custody has existed in the past, or award custody to one of the parents, or to a third person, depending upon what is in the best interests of the child.” Taylor v. Taylor, 306 Md. 290, 301, 508 A.2d 964 (1986).

The Court of Appeals in Taylor, 306 Md. at 296, 508 A.2d 964, stated:

Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.

In Taylor, the Court went on to state that “joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.” In determining the propriety of joint custody, the Court opined that “joint custody is not appropriate in every case. Indeed, it has been suggested that it is appropriate only in a small minority of cases.” Taylor, 306 Md. at 302–03, 508 A.2d 964.  The most important factor in determining whether an award of joint legal custody is appropriate is the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare. According to the Taylor Court:

[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

Taylor, 306 Md. at 304, 508 A.2d 964.

While most matters reviewed and adjudicated in a divorce proceeding are reviewed as a matter of equity,[1] child custody is based on the “best interests” of the minor child and not a consideration of the parent’s rights.  See Md. Ann. Code, Family Law Article § 1-201(a); Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978); Wagner v. Wagner, 109 Md. App. 1, 37, 41, 674 A.2d 1 (1996).  In other words, while a parent may say, “I have a right to see my child” (an equity argument), that is not consistent with child custody law in Maryland. 

One judge has stated that “[t]he bottom line in any custody dispute is: what is in the ‘best interests’ of the children?; and a judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders. The agony is complicated even more when both parties are dedicated and devoted… .” Leary v. Leary, 97 Md. App. 26, 37, 627 A.2d 30, 35 (1993) (internal citation omitted).  In any divorce or custody action where the custody of a child or children is being disputed, the court has a myriad of factors that it must consider in determining child custody. 

The following is a list of factors that the Court may take into consideration in determining the best interest of minor children to determine custody and access. (There is some repetition in cases where a factor is relevant to different areas of inquiry.)  Of course, each family is different and each custody case is different as well.  An experienced family law attorney will discuss these factors set forth in Maryland case law [2] with you and any application the factors may have upon your case:

1.  Fitness of Parents

Involvement of children in divorce process
Denigration of other parent
Parental alienation of child from other parent
Exposure of children to adulterous behavior
Time requirements of employment
Travel requirements of employment
Inability to hold a job
Frequent job changes
Lack of stability
Frequent changes of address
Irresponsibility – financial and otherwise
Excessive use of alcohol
Use of illegal drugs (CDS)
Abuse of prescription drugs
Violence toward spouse or children
Quick temper
Profanity
Poor housekeeping
Age, infirmity, and disability
History of mental or emotional illness
Suicide threats or attempts
General level of maturity
Educational achievements 
        
2.  Role to Date of Each Parent in Nurturing and Raising The Child

Who shops for food, cooks, cleans, does laundry?
Who makes and takes child to dental and medical appointments?
Who transports the child to school, activities, etc.?
Who attends school and extra-curricular activities?
Who puts child to bed?
Who reads to the child?
Who assists with homework?
Who takes the child shopping for clothing?
Who disciplines the child?
Who participates in religious activities with the child?
Who takes care of the home?

3.  The Relationship of the Child to Each Parent

Is the child fearful of the parent?
Does the child confide in the parent?
Does the child respect the parent?
Does the parent respect the child?
What is the level and extent of communication between parent and child?
How does the child react to discipline from the parent?
    
4.  The Child’s Preference

How old is the child?
Has the child been pressured into a “preference”?
To whom and under what circumstances has the preference been expressed?

5.  The Home, School and Community Environment

Will the child be involved in school activities where he or she will be living?
Little League, ballet, soccer?
Are there kids their age in the community?
Will school or parents be able to meet special needs?
Is the child involved in clubs, e.g. Boy Scouts?
Is the location of the home suitable for children?
What is the location of school child will attend?
Does the school provide special programs?
Are there concerns for safety of the child in the neighborhood or at school?

6.  The Availability of Support Systems of Each Parent

Friends
Religious groups
New spouse and step-children
Grandparents
Other family members
Mental health professionals
Neighbors

7.  The Lifestyle of Each Parent as a Role Model

Occupation and work habits (such as balance between good worker and workaholic)
Involvement in the community
Involvement in church
Abuse or excessive use of alcohol, drugs
Responsibility – who made decisions in marriage?
Social life (hours kept)
Exposure of child to new love interests
Personal cleanliness
Cleanliness of home
        
8.  Accessibility to Extended Family in Each Living Situation

Where are grandparents, aunts, uncles, cousins geographically?
Historical involvement of extended family members

9.  Attitude of Each Parent Towards Visitation

Which parent is more likely to allow child continued contact with the other parent?
Has a party interfered with visitation with the child in the past?
Is there a history of visitation disputes?
Have there been any issues with telephonic visitation or access?

10.  The Age and Sex of Each Child

Boy/Girl
Age
Level of maturity
Relative ages of all children

11.  Stability and Mental Health of Each Parent

Responsibility
Suicide threats or attempts
Depression
Indications of mental or emotional illness
Alcohol or drug abuse

12.  Stability and Mental Health of Each Child

Any special needs of child
Willingness to recognize special needs of child
How can each parent meet special needs

13.  Preservation of Status-Quo

What are the present living arrangement?
How long has this arrangement been in place?
How was the living arrangement created, e.g., agreement between the parties, Court Order, desertion by one party, etc.

14.  Each Parent’s Plans for Day-to-Day Child Care    

Child care arrangements (babysitters)
Daily living patterns (work hours, work-related travel)

15.  Each Parents Goals and Values

Career goals/rehabilitation
Educational goals
Personal goals
Family goals
Priorities 
Church attendance
Involvement in civic activities, charities, etc. 

16.  Willingness & Cooperation to Include Other
        
Is the parent involved in the lives of the children?
Does the parent assist in making decisions (before separation and after)?
Does the parent keep the other informed on activities, failures, achievements?

17.  Potential for Maintaining Natural Family Relations

With grandparents
With brothers & sisters (split custody)
How far apart will the parents be living from each other?

18.  Willingness to Provide Support & Maintenance of Child

Incomes of the parties
Assets of the parties
Which parent can meet special financial needs?
Has other parent been providing support?
Has litigation been necessary to obtain support?
Arrearages incurred due to withholding or non-payment of support?

19.  Prior Voluntary Abandonment or Surrender

Did a parent leave the home without the children?
How often does the parent visit/contact children?

20.  Desire for Cooperative Parenting Agreement Between Parties

Ability, willingness of parents to negotiate outside of court
Ability to be reasonable/fair
Antagonistic attitude 
        
21.  Character & Reputation of Parties/Witnesses

Grandparents, friends, relatives
Teachers, school personnel
Coaches
Neighbors
Parents of child’s friends
Babysitters
Clergymen
    
22.  Involvement of Each Parent in the Child’s Life

23.  Which Parent Is Best Able to Meet Non- Financial Special Needs Of Children

24. Professional Opinions re: Custody

Psychologists previously involved or post-separation
Psychiatrists
Social Workers
To whom is the child most “bonded” psychologically?
Is parent emotionally dependent on the child?
Is child emotionally dependent on the parent?

The Maryland State Legislature is currently considering a bill that would significantly broaden the state’s limited False Claims Act to allow prosecution of cases of non-medical fraud. The bill, if passed, would provide an important and necessary tool to curb fraud committed by private contractors and others who try to cheat the government no matter the type of contract defrauded, according to a leading practitioner representing whistleblowers under the federal False Claims Act.

“There is no reasonable justification for not expanding this law to cover all types of fraud in the state,” said Brian J. Markovitz who will testify on the matter before the state’s House and Senate Judiciary Committees on Feb. 25. “In particular, the new law would allow the government to recover money from non-medical contractors who wrongly bill the government for work that was not performed or was obtained through fraudulent means.”

The state’s current False Claims Act includes only Medicaid and other healthcare related claims. The proposed Maryland False Claims Act (Senate Bill 374) would bring the law in Maryland in line with 20 other states that have similar False Claims laws with the larger scope. The bill also is Attorney General Brian E. Frosh’s top priority for the 2015 legislative session.

The new law would allow anyone with knowledge of fraudulent billing submissions to file lawsuits on behalf of the state. If the case is successful, whistleblowers would receive a portion of funds recovered through the litigation they initiate.  

“This new law could help recoup millions of dollars for the state each year,” Markovitz added. “But, more importantly, it helps bring justice to an often-abused state contracts system and rewards individuals for having the courage to call out the cheaters.”