Author: JGL Law

The Commissioners prefer you do not file in the alternative. They want a nice clean case presented. However, you still have a right, and probably an obligation, in some duly contested cases, to file in the alternative.

In occupational disease cases, there must be a showing of industrial loss of use, often evidenced by loss time. One recent case involved a food service worker in a public school system. The worker was extremely dedicated and never wanted to miss work, but she was injured by a repeatedly broken deli slicer, which, on its face, sounds like an insidious onset over time and not one accident.

The issue arose, when unbeknownst to her, she suffered a rotator cuff tear from using the “broken meat slicer” regularly for a year, but continued to work. After seeing a doctor who ordered an MRI, the rotator cuff tear was diagnosed.

Even though she did not miss much time from work, there was an issue of when the time was lost and whether the two year statute of limitations had passed. Later in the year, she had an incident when she attempted to lift a huge pot with no assistance, but due to excruciating pain in that same shoulder, she injured the shoulder more and dropped the pot.

After dropping the pot, she became disabled. Not only did she remain disabled but she was forced to have the rotator cuff repaired.

The issues became: 1) Does she have to file occupational disease because the rotator cuff tear occurred (per the doctor’s expert opinion) from the long standing use of the broken machine, even though she did not have any substantial time off from work; 2) does she have to file an accidental injury and claim pre-existing issues; or 3) can she file both claims?

In general, to prevail on a claim for occupational disease, the claimant is required to produce some evidence, even if minimal, to demonstrate: (1) that the alleged occupational disease is inherent in the nature of the work performed; (2) that her injuries were causally related to her performance of that work; and (3) that as a result, she was incapacitated as of the date of her alleged disablement. Smith v. Howard County, 177 Md. App. 327 (2006).

An accidental injury has different statutory requirements. In Harris v. Board of Education, 375 Md. 21 (2003), the Maryland Court of Appeals ruled that the worker’s injury itself, not the activity giving rise to the injury, must be accidental, and that an injury is accidental as long as it was unexpected or unintended. Additionally, the activity giving rise to the injury need only “arise out of and in the course of employment,” and not be otherwise excluded by the Act (Md. Code Ann., Labor & Employment Article, section 9-101 et seq.).

Interestingly, in this case, the Commission allowed the claimant to file both an occupational disease and an accidental injury claim. The Commissioner ruled that she did not have any occupational disease (probably due to no economic loss or slow down and or the limitations issue), but that she sustained an accidental injury, and granted disability time, the surgery, and necessary medical treatment. This result was excellent because one would usually prefer the ruling to fall under accident over occupational disease.

Ultimately, this claim will have an apportionment issue at the time of determining permanent partial disability, but many claims do. Had the complainant not also filed the occupational disease claim, however, the Commissioner could deny a portion of the medical issues preceding the accident. In that case, there would have been no distinguishing where the injury started or ended. Moreover, had she not sought both remedies, the other side could have requested a continuance on the grounds that it was not an accident, but rather an occupational disease.

But this way, complainants have all your ducks in a row and you let the Commissioner do his or her job – choosing the best option between occupational disease and accidental injury!

 

                   

Well it’s that time of year again.  Yes, it’s time to perfect your strategy, lock yourself in your office, “Hold all my calls” and get this work finished.  No, I’m not talking about that tax return you extended in April or the TPS reports you have yet to complete; I’m talking about the final tweaks to your roster that will finally put you on top of your fantasy football league: can’t you visualize the Championship ring now?

Report your winnings

But, before you plan on how to spend your winnings, don’t forget about your silent partner.  Yes, I am referring to the United States Treasury.  The Internal Revenue Service considers all gambling winnings taxable income, whether you won at a table in Las Vegas, during your weekly poker game with your buddies, or because of your brilliant decision to draft Peyton Manning and LeSean McCoy onto your fantasy team. There is no minimum! So, regardless of the payout for your league, the IRS considers it taxable income; and as a result should be reported on your individual income tax return as “other income.”

Better yet; report your losses

So if this is finally your year to have bragging rights, you may have to report your winnings to the IRS as income. However, if this year is like every preceding year, and you finished 13^th in a 12-team league; you may be entitled to claim your loss on your income tax return.  Internal Revenue Code Section 165(d) allows a taxpayer who itemizes to deduct gambling losses to the extent of winnings earned during that same year.[i]  Note, you cannot just count your losses. Instead, you can only count as much in losses as you have won. In other words, if you spend $100 on lottery tickets and you are lucky enough to win $75, you can only deduct $75.

So while you are choosing who to start on Sunday, don’t forget you are not just playing for that 55-inch television or a gift for that special person in your life, you are also playing for your favorite uncle — Uncle Sam.

Finally, as with most areas of the law, this too is open to interpretation and is fact specific. So, as with any income tax planning, please consult your tax advisor to determine any actual impact on your individual income taxes or before making any tax-related decisions.

24 hour marriages and even quicker divorces – Hollywood is full of them. On June 29, 2012, Katie Holmes filed for divorce and by July 9, 2012, her and her famous ex had hammered out a divorce agreement settling all issues with regards to property, custody and support. A mere two weeks after filing divorce, both Katie and Tom were able to walk the next red carpet solo. So can your divorce be this easy? Well, yes . . . and no.

Many clients first question is how do they obtain their own (kind of) quick and (mostly) hassle-free divorce? First, you have to understand the grounds for divorce in Maryland and the difference between a limited divorce and absolute divorce.

When you envision a divorce what comes to mind is an absolute end to the marriage and a final division of property matters and custody and support issues. In Maryland, we call that an absolute divorce. However, before you even get to an absolute divorce, the Court can award a limited divorce. In a limited divorce, you are legally separated but the marriage has not been terminated and the Court cannot determine all property rights. However, like with an absolute divorce, the Court can make support awards.

Why file for a limited divorce? Well for starters, you may not yet have the grounds for an absolute divorce. In order to succeed on a claim for absolute divorce, you must be able to prove one of the following:   (1) adultery; (2) desertion; (3) 12-month separation; (4) conviction of a felony or misdemeanor; (5) 2-year separation; (6) insanity; (7) cruelty of treatment; or (8) excessively vicious conduct. (See Maryland Family Law Article § 7-103).

As you can see, this can be an extremely tough standard to meet. For instance, what if you and your former spouse decide to amicably end the relationship but have not been separated for 12 months? This is a situation where you may want to file for a limited divorce on the grounds of: (1) cruelty of treatment of the complaining party or of a minor child of the complaining party; (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party; (3)  desertion; or (4) voluntary separation, if the parties are living separate and apart without cohabitation, and there is no reasonable expectation of reconciliation. (See Maryland Family Law Article §7-102).

So while you may not meet the grounds for an absolute divorce, you can file for a limited divorce and obtain relief from the Court, such as alimony or child support, and amend your Complaint at a later date to obtain that absolute divorce.

Katie and Tom also had the benefit of a prenuptial agreement. In Maryland, you may also enter into your own prenuptial (sometimes called antenuptial agreements) which allocates support and property rights to a party. A prenuptial agreement protects the rights of both parties in the event the marriage ends. Like Tom, a party may have a business interest they wish to protect and like Katie, the financially inferior spouse, may wish to insure that their support rights are protected. A prenuptial agreement which resolves property and support issues may save you the time and expense of a costly litigation.

So can your divorce be as hassle free as Tom and Katie’s? Kind of. While we can’t all be celebrities, a clearly outlined prenuptial agreement and knowing your grounds for divorce can have you walking your own red carpet a lot sooner than you think.

 

On October 1, 2013, the Reasonable Accommodations for Pregnant Workers Act (“RAPWA”) became effective and applies to Maryland employers who have fifteen (15) or more employees.  Taking the lead from laws like that Americans with Disabilities Act, the new RAPWA will require employers to provide reasonable accommodations for employees with a disability caused by, or contributed to, by a pregnancy.

Keep tuned-in to the JGL Law Blog for discussions on the development of this law as it gets applied in the workplace.  To learn more about the law, check out these posts by HR Hero and the National Women’s Law Center.

Last week, we discussed the Affordable Care Act’s (ACA) ), commonly known as “Obamacare”, looming October 1, 2013 notice requirement.  Now that you have notified your employees of their options under the ACA, you must explain what it means for them.

Many employers are preparing handouts and scheduling all-hands meetings to answer many of these questions.  Inevitably, at least some of your employees are going to be confused.  Indeed, lawmakers, regulators, and lawyers are scratching their heads as to how to navigate the ACA’s minutiae.  To help, we’ve prepared sample answers to a few of the questions most likely to be asked:

Q:  Why am I receiving this notice?

A:  You have no doubt heard news reports about “Obamacare,” which is also known as “Healthcare Reform” or the “Affordable Care Act”.  Under this new law, employers are required to notify all of their employees of their ability to purchase their own insurance coverage under new “Health Insurance Marketplaces.”  With all that said, you should know, too, that the new Marketplaces do not impact your eligibility for coverage under the Company’s health plan.
Q:  Can I purchase insurance on the Health Insurance Marketplace if I find a cheaper plan than the one that the Company offers?

A:  Yes.  Almost anyone will be eligible to purchase insurance coverage on the Marketplace.  However, in the event that the Company offers to provide insurance coverage for you and your dependants, the ACA will then limit the affordability of any plan you could instead obtain in the Marketplace.

Q:  Can I qualify for a tax subsidy if I purchase coverage on the Health Insurance Marketplace?

A:  Employees whose employers offer them affordable, minimum value coverage will not qualify for a tax subsidy.  If you are not eligible for coverage from an employer (or you pay more than 9.5% of your income to purchase coverage through your employer) you may qualify for a subsidy, and you should explore your coverage options on the Marketplace.

Q:  Is the health coverage I have through my employer “affordable” and of “minimum value”?

A:  This question is difficult.  The general rule is that employer-provided-coverage is “affordable” if an employee ultimately does not pay more than 9.5% of his or her income for self-only coverage.  Coverage is of “minimum value” if the plan’s share of the total benefit costs covered by the employer is no less than 60% of the total cost – in short, if you pay for only 40% and your employer pays for the remaining 60% of all health care costs.

Q:  Weren’t the individual mandate penalties delayed until 2015?

A:  No.  Although certain penalties for large employers have been delayed until 2015, the individual mandate is scheduled to take effect on January 1, 2014.  After that, individuals who do not obtain coverage may be subject to an annual penalty equivalent to the greater of $95 or 1% of their household income.

Of course, employees are likely to have many more questions in the months following October 1, 2013.  Employers can always refer their employees to various federal government resources, such as www.healthcare.gov, but outside counsel can not only assist in answering these questions, but also in preparing a comprehensive approach to maintaining compliance with the ACA.

While divorce is not what most couples hope for, some couples find that it’s inevitable.  That doesn’t mean that a knock-down drag-out fight is inevitable.  Many couples opt for the “friendly divorce” also known as collaborative law or collaborative practice.

What is collaborative practice?

Collaborative Practice is a fairly new option for divorcing couples to resolve disputes respectfully and equitably without going to court.

The goal of collaborative practice is to help divorcing and separating couples to focus on their most important goals, especially children, throughout the divorce process. The end result is a more efficient, targeted and productive way to resolve disputes.

What distinguishes collaborative practice from other methods of divorce?

Collaborative Practice promotes respect and keeps spouses in control of the process, not judges.

It addresses each couple’s unique concerns, as opposed to litigation, which is driven by the general rule of law meant to apply to all.

Because clients agree not to go to court, the process is more open and less adversarial. The goal is to enhance communication throughout the process and lay the foundation for a healthier relationship after the divorce.

What are the biggest differences between collaborative practice and litigation?

Control

In collaborative, you and your spouse agree not to go to court. This gives you and your spouse control of the process and outcome versus litigation, where a judge makes the final decision.

Collaboration

Instead of the win-lose court setting, the entire collaborative team ensures that both spouses work with each other, not against each other, towards mutually beneficial solutions for critical issues.

Communication

One barrier in litigation is a lack of effective communication between spouses. In the collaborative process, spouses learn a framework for effectively communicating their concerns and goals.

What is the biggest difference between collaborative practice and mediation?

Personalized counsel

Both you and your spouse are represented by your attorney throughout the entire collaborative process.

Team approach

The entire collaborative law team is there to help facilitate communication between the spouses, working towards the best possible solution for all and making sure all issues are addressed.

How does it work?

• Utilizes specialists who leverage their areas of expertise to address children’s needs and the emotional and financial aspects of divorce;

• Creates a safe environment for both parties without the threat of court;

• Provides a structure for communication that considers each person’s needs;

• Shares information that allows good decisions to be made; and

• Focuses on a creative and respectful approach that helps clients reach a mutually agreeable settlement.

Who is Collaborative Practice for?

• People going through a divorce who want a civilized, respectful resolution of the issues and are willing to focus on solutions rather than on blame or revenge;

• People who want to maintain a productive working relationship with their (soon to be ex) spouses;

• People who will be co-parenting and want to keep children’s interests at the forefront, like protecting children from the negative impact associated with bitter litigation;

• People who want to control decision-making over child-rearing and/or financial arrangements rather than turning it over to a stranger (judge);

• People who place as much or more value on the relationship that will exist in the restructured family as on obtaining maximum resources; and

• People who value privacy.

What are the benefits of Collaborative Practice?

Better for children

• Gives children a voice in the process, alleviating the potential of future trauma that sometimes persists for generations

Private

• Keeps problems and assets private

Less stressful

• Improves communication between parties

• Keeps control of process with the spouses

• Promotes respect and healthier long-term communications

Saves time

• The process is more efficient, productive and targeted because of the unique structure of the collaborative team

Learning Effective Communication Skills

• Communication skills acquired during collaborative process may have positive applications outside divorce.

Source:  International Academy of Collaborative Professionals

If you are considering divorce and especially if you have children together, you may want to consider a different way to approach getting divorced.  Call us at 301-220-2200 and learn how a team of skilled professionals can help manage the many aspects of divorce — the legal issues, the emotional turmoil, the concerns for the children, and the financial and property questions. The collaborative process encourages mutual respect, emphasizes the needs of the children, keeps the control of the process with the individuals, utilizes a problem-solving approach, and identifies and addresses the interests and concerns of all.

 

I spent a good deal of my childhood vacations sitting with my brother and cousins sans seatbelt in the way way backseat of my parent’s Volvo station wagon or the way way back in my uncle’s simulated wood-paneled Mercury Grand Marquis Colony Park (commonly known as the Woodie).

Playing cards or taunting drivers who faced the wrath of crayon-scribbled signs, drawings, and jokes authored by my cousins, brother, and me, while sitting in traffic or on a long car ride to Toronto or Lexington, Kentucky, are experiences few children of the new millennium will understand (Mercury discontinued the Colony Park in 1992). Causing trouble together in the way way back was something we reveled in until we were too big to fit in the way way back together. The charms of sitting in the way way back and seatbelt-free zone disappeared when my cousin Chat and I, the oldest, graduated our antics to the backseat, or fought over who got to sit in the front. Seatbelts were then, of course, expected.

Thinking back, I realized our parents probably enjoyed the relief and distance from our constant chatter, particularly once we were old enough to care what was playing on the radio; so, letting us ride seatbelt free in the way way back was to everyone’s benefit.

Only now am I surprised to learn that new a Maryland law redefines the age at which an adult sitting in the backseat is required to be secured by a seatbelt.  This law will also make back-seat seatbelt use for adults enforceable as a mere secondary violation for adults.

Maryland has been a primary front-seat seatbelt enforcing state since 1986 for passengers over 16 years of age. Effective October 1, 2013, Maryland law will expand the age of adult passengers required to be secured by a seatbelt while seated in any position in a car to as young as 16 years old. This means that everyone riding in a car will have to be secured with a seatbelt.

This is surprising, since seatbelt use seems to be common sense. Still, under the new law, violation of the seatbelt law for passengers seated in the back seat will be a secondary violation, meaning it will be enforceable only when the driver is detained for a suspected violation of another law.

Under the same law, passed by the General Assembly as SB 87 (2013) and signed into law on May 2, 2013 as Chapter 197), penalties associated with violations of the seat belt (and child safety seat) laws increase from $25 to $50. The bill also removes the “floater exemption” that allowed a driver to transport more children in a vehicle than the number of proper securing locations.

In addition, new Maryland law passed as HB753/ SB 339 prohibits all drivers from using a cell phone without a hands-free device while driving effective October 1, 2013. The exceptions are for calls placed to 911, hospitals, ambulances, fire and other emergency first responder and law enforcement agencies.  Certain emergency first responders and law enforcement officers are exempt from using a hands-free device if they place a call while driving and within in the scope of their official duties.

Maryland joins 11 other states and DC by changing enforcement of the hands-free cell phone use law to a primary violation this October 1, meaning drivers need not be detained for another violation in order to be cited. Fines for first time offenders increase to not more than $75; second offenses carry a fine of not more than $125; third and subsequent offenses carry a fine of not greater than $175. Drivers cannot be fined points for the violation unless use of a cell phone while driving contributes to an accident.

While Maryland need not be applauded for these sensible updates to the Transportation Article, this is as good an occasion as any to remind everyone about driving hands-free while on your cell phone and about seatbelt safety, no matter where you or others are seated in the car. Buckle up out there and drive safe.

*   *    *

Puja Gupta is an associate in the Litigation group at Joseph Greenwald & Laake, P.A. She focuses on all aspects of civil ligation, including employment litigation, commercial and business litigation, constitution law and civil rights cases, administrative law, and appeals. You can find her on LinkedIn or email her at pgupta@jgllaw.com

 

Beginning on January 1, 2014, individuals and employees of small businesses will be able to access health insurance coverage through the Health Insurance Marketplace created by the Affordable Care Act (ACA), commonly known as “Obamacare”.  Among other things, the ACA requires that employers provide a notice to employees with information regarding their coverage options, including those available in the Marketplace, by October 1, 2013.  Importantly, this notice requirement is separate from the universal mandate pushed back a year by the Administration this past summer.

Under this requirement, found in the newly-minted Section 18B of the Fair Labor Standards Act (FLSA), employers are required to provide current employees with written notice about the Marketplace and new employees hired after October 1, 2013 must receive such notice within 14 days of their start date.

Because this aspect of the ACA is promulgated under the FLSA, all employers who are subject to the FLSA are required to send this notice – NOT just those that employ the commonly known minimum of fifty employees for the ACA’s general mandate.  Covered employers must provide a notice of coverage options to all employees, regardless of whether or not they are eligible for or enrolled in coverage under an employer-sponsored health plan.  This notice requirement even extends to part-time, seasonal and temporary employees.

As for the notice itself, it must be in writing and be written in a manner calculated to be understood by the average employee.  At a minimum, the notice must contain the following information:

• The existence of the Marketplace (referred to in the statute as the “Exchange”), including a description of the services provided by the Marketplace, and the manner in which the employee may contact the Marketplace to request assistance;

• The possibility that employees may lose the employer contribution to any employer-provided health plan if they purchase a qualified health plan through the Marketplace;

• The possibility that employees may lose the ability to exclude employer and employee contributions from their income for federal income tax purposes if they purchase a qualified health plan through a Marketplace; and

• The possibility that the employee may be eligible for a premium tax credit if the employee purchases a qualified health plan through the Marketplace.

To assist employers with their notice obligations, the Department of Labor (DOL) has promulgated two model notices, one for employers who do not offer a health plan and another model for employers who do offer a health plan to some or all employees.  Employers can use one of these models or create their own so long as the notice meets the above content requirements.

As to delivery, employers may deliver the notice via first-class mail, but they can also distribute the notice electronically, per Department of Labor Regulations, 29 CFR 2520.104b-1(c), so long as the recipient is either (a) an employee who uses a computer as part of his or her normal job function, or (b) an employee who has consented to electronic delivery in a manner that demonstrates they can effectively receive the electronic delivery.

What about penalties for non-compliance?  Although there are no specific fines or penalties for failure to give proper notice, we encourage employers to comply with this requirement because failing to do so could expose employers to FLSA liability from employees who suffer damages as a result of such failure.  Although the government is working hard to provide employers and employees with updated compliance information, outside counsel can assist in developing a step-by-step, deadline-by-deadline plan to ensure that employers do not run afoul of the ACA.

 

Maryland Recognizes Constitutional Right to Counsel at Initial Appearance Hearings

Anyone who has ever watched an episode of “Law & Order” can tell you that as a criminal defendant, you have the right to an attorney, and if you cannot afford an attorney, one will be provided for you by the state.

These are the rights as outlined by the Supreme Court in Miranda v. Arizona.[1] However prior to today, September 25, 2013, that right did not extend to a defendant’s initial hearing after being arrested in the state of Maryland.

In a 4-3 decision, the Maryland Court of Appeals held in DeWolfe v. Richmond, No. 34, September Term, 2011 (decided September 25, 2013) that Article 24 of the Maryland Declaration of Rights guarantees an indigent defendant the right to state-furnished counsel at an initial appearance before a District Court Commissioner.[2]

The case initially came before the Court of Appeals in 2011. On January 24, 2012 the Court determined on statutory grounds that, under the State Public Defender Act,[3] defendants were entitled to representation at an initial appearance before a Commissioner. In response to this decision, amid concerns about the cost of having attorneys on call 24/7, the General Assembly passed, and the Governor signed into law, emergency measures on May 22, 2012 which specifically noted that “Representation is not required to be provided to an indigent individuals at an initial appearance before a District Court Commissioner.”[4] The Court’s opinion today held that there was a constitutional right – not just a statutory right – to state-furnished counsel at an initial appearance before a Commissioner, effectively overriding the 2012 emergency measures.

What is an initial appearance?

 After someone is arrested and processed at the police station, they are then brought before a judicial officer for an initial appearance. Most people assume this means they are brought before a judge. Although a first appearance may be before a judge, the general practice throughout Maryland is that District Court Commissioners preside over initial appearances. Commissioners are judicial officers, appointed by the Chief Judge of the District Court of Maryland. Although often well-versed in the law, there is no requirement that a Commissioner be a lawyer or have any familiarity with Maryland law.[5] There are more than 240 District Court commissioners around the state, available 24 hours a day, 365 days a year.

At an initial appearance, the Commissioner determines whether there is probable cause for the defendant’s arrest if the arrest occurred without a warrant. If there is no probable cause – for the arrest or for any of the charges listed – the defendant is released with no limiting conditions. If the Commissioner finds there is probable cause, they then must determine whether a person is eligible for pretrial release or should remain incarcerated.

The Commissioner may decide to release a defendant on their own recognizance,[6] or they may impose a bail amount that the defendant must pay before they are released, to ensure there is some incentive for them to appear at later court dates. The Commissioner may also determine that the defendant should have “no bail,” and remain incarcerated until a further bail hearing before a judge. If the Commissioner decides not to release the defendant, the defendant must be presented to a Judge immediately. If Court is not in session, the defendant must be presented to a Judge at the next opportunity when Court is in session. More often than not, the Judge upholds the bail set by the Commissioner at this later bail review hearing.

What are the arguments against counsel at the initial appearance?

 The dissenting judges, including newly-appointed Chief Judge Mary Ellen Barbera, made several valid points against declaring the right to counsel at an initial appearance before a Commissioner a constitutional right. The Court noted that pursuant to Maryland Rule 4-216(c), there is a presumption at the hearing before the Commissioner that a defendant will be released on personal recognizance or bail unless the Commissioner determines that there are absolutely no conditions of release that can be imposed that will ensure the appearance of the defendant at a later proceeding, the safety of the victim, or community at large. This means that, unless there is a solid showing that there is no way the defendant will appear later on, or is a danger to himself or others, the Commissioner should release the Defendant with minimal conditions.

Importantly, and a focus of the dissenting opinion, the initial hearing before a Commissioner is just that – initial. There is ample opportunity for judicial review of the Commissioner’s decision, and the initial appearance does not result in a final determination of incarceration: “The very fact of speedy review of the Commissioner’s preliminary determination, by a judge at a formal court proceeding where defense counsel can argue against the Commissioner’s initial bail decision, negates any realistic concern about unfair procedural process.” DeWolfe v. Richmond, No. 34, September Term, 2011 (decided September 25, 2013) (Barbera, C.J. dissenting).

What is the effect of this ruling?

             It will be intriguing to see what the practical effect of this ruling is, given that over half of the bail review hearings before a judge—where defendants were already afforded the right to counsel—uphold the Commissioner’s decision. Certainly, it will have a huge effect on the already short-handed Public Defender’s Office in terms of staffing and scheduling needs to cover the additional 177,000 annual hearings they are now required to attend.[7] As for the ultimate cost of this holding to the taxpayers, estimates range from $28 million to hundreds of millions of dollars that will be needed to fund additional coverage at initial appearance hearings by State’s Attorneys, Public Defenders, and other court personnel.

Kathy:  Jeremy, I know a large part of your practice involves whistleblower law.  Do you have any thoughts or advice to pass along on this topic to our readers?

Jeremy:  The federal government takes the issue of fraud very seriously.  The federal False Claims Act (FCA) and its state law counterparts are one way the government curbs the theft of our tax dollars.  In short, the FCA is a bounty program where persons who blow the whistle on fraud get to keep a percentage of the money that the government ultimately recovers – usually between 10% and 25% of the funds obtained.

If a company receives money through government contracts or government programs like Medicare and Medicaid, then they have potential FCA exposure.  And because FCA complaints are filed under seal, the government investigates the claims in secret without the company’s knowledge.  Normally, the government will ask for records under the guise of a Medicare audit or a DOL investigation and a company may not know that they have potentially crippling FCA exposure.  Because of the potential for massive liability, companies need to work with counsel to quickly identify any potential fraud, eliminate it, and fully comply with the government’s investigation even if the investigation is seemingly innocuous.  Similarly, employees who discover fraud should immediately seek the advice of an attorney whose practice focuses on FCA prosecution.  The FCA has numerous provisions which can entirely eviscerate otherwise viable claims if they are not carefully complied with.

Kathy:  Similarly, I know your practice has focused on employee handbooks and company policies.  You must have some wisdom for employers on best practices in this area of employee relations and policy.

Jeremy:  The best advice I have for employers can be expressed in a single sentence – draft and implement clearly articulated policies and consistently follow them.  I have seen so many instances where employers either don’t have written policies at all or simply don’t follow the ones that they have.  This creates problems for employers involved in discrimination actions because state and federal courts in Virginia, Maryland, and the District have almost uniformly held that failure to follow established procedures creates a strong inference of pretext.  In short, courts can assume that if an employer doesn’t follow its own policies, that they are doing so for some wrongful reason.  On the other hand, when employers can point to a clear policy that was followed to the letter, courts put the burden on the employee to overcome the non-discriminatory reasons stated for taking adverse action.  For these reasons, employers must draft clear, concise, and consistently followed employment manuals.

Kathy:  Jeremy, I have seen a tremendous increase in complaints and concerns about workplace bullying.  What are your thoughts on this trend?  Any thoughts on mitigation or prevention?

Jeremy:  Bullying of any kind, whether in schools or the workplace, is an issue that Americans are becoming increasingly sensitive to.  People are simply no longer tolerating this type of behavior and employers should do the same.  Now, although state and federal law has not yet caught up with public opinion, it soon will.  As such, employers should be proactive by amending their policies to include no-tolerance bullying and harassment provisions.  Like I said earlier, employers who have clearly articulated policies that they consistently follow are far less likely to find themselves involved in lengthy and expensive litigation.  It makes my job easier and far less costly for my clients when I can point to a specific policy that an employee was aware of, violated, and was promptly terminated for violating.

Kathy:  And finally, Jeremy, can you fill us in on any updates on some of the key regulatory agencies.  What is the climate at the Deportment of Labor and some of the other employment related government agencies? Is there a lot of investment in compliance oversight? Will this have any impact on local employers?

Jeremy:  Employment-centric government agencies are understaffed and underfunded.  These agencies, like many private employers in today’s economic climate are forced to do more with less.  Complaints brought before the EEOC and the DOL are taking longer to be investigated and resolved than ever before.  Unfortunately, this means that local businesses can find themselves involved in a single administrative proceeding for many months or years.  Employers need to implement a wholesale approach – evaluate the allegations, investigate their merit, vigorously defend, provide all necessary assistance to the investigators, and use the situation as a way to prevent future compliance issues.

But, as I said earlier, employers have to remember that an administrative investigation could be a harbinger of things to come.  For example, a DOL investigation for unpaid wages on a federal construction contract could be a front for all FCA action.  And, of course, EEOC charges ultimately lead, if not resolved to court.  Indeed, court is vastly more expensive and risky for employers than an administrative proceeding, which can typically be settled for pennies on the dollar for what the first few months of heavy litigation will cost.

Kathy:  Thank you so much, Jeremy, for all the great information and mid-year employment law update!

*This interview was conducted by Kathy Long and originally published in the Fall, 2013 edition of the Belmont News, the Belmont County Club Community Association Magazine.

 

This past term, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar held that retaliation claims under Title VII are required to be decided by what is known as the “But For” causation standard.[1]  So, if an employee reports illegal discrimination or harassment based on race, sex, or other Title VII protected conduct and suffers retaliation, the Supreme Court held that the employee must show that “but for” engaging in protected activity (reporting the illegal conduct), the employee would not have suffered the adverse action (such as termination).[2]

It is not good enough that the retaliation for engaging in the protected activity was one of several “motivating factors” for the adverse action.

In a direct claim for discrimination or harassment under Title VII, the courts have held, that a plaintiff need only prove that illegal discrimination or harassment was a “motivating factor” for an adverse action against the employee.[3]  This is commonly known as the “mixed motive” causation standard.  For example, under the mixed motive standard, if an employee suffers discrimination in the work place that results in a demotion (i.e., a “tangible employment action”), and the employer claims the demotion was the result of poor work performance, the employee ultimately needs to prove that illegal discrimination was just one motivating factor, even if the employer also had legitimate non-discriminatory reasons for the demotion.[4]

As a practical matter, the standard applied to a claim is extraordinarily important.  It is much easier to show that illegal motivation may have been one of many factors contributing to the adverse job action, as opposed to the “but for” cause, to the exclusion of other causes.

So, if the “but for” standard applies to retaliation claims under Title VII, what standard applies to retaliation claims under the False Claims Act?[5]  At least one court has now held that the “but for” standard applies to retaliation claims under the False Claims Act because the causation language in § 3730(h) of the FCA is very similar to that used in Title VII.[6]

In United States ex rel. Schweizer v. Océ N. Am., Inc., Judge Lamberth acknowledged the DC Circuit has “endorsed the mixed-motive interpretation, finding that the plaintiff may succeed by showing that the adverse action was ‘motivated, at least in part, by the employee’s engaging in that protected activity.’”[7]  Yet, Judge Lamberth did not apply the standard explicitly adopted by the DC Circuit.[8] The court’s rationale was that the Supreme Court decided Nassar after the DC Circuit decided both Schweizer and United States ex rel. Yesudian v. Howard University.[9] And as the language of the retaliation provision in the FCA closely resembles the language of the retaliation provision in Title VII, the court opined that the DC Circuit, faced with the same question now, would apply the “but for standard” to retaliation claims under the FCA.[10]  In the court’s eye, both the Title VII retaliation provisions, and the FCA retaliation provision should be interpreted to use the same standard because both state that the employer cannot retaliate against the employee “because of” engaging in protected activity.   The court explains as follows:

“The combined lesson of Nassar and Gross is clear: where Congress has given plaintiffs the right to sue employers for adverse actions taken against them by their employers because of X, plaintiffs may succeed only by showing that X was a but-for cause of the adverse action, not merely one of several motivating factors. Notwithstanding the circuit’s statements to the contrary in this case, because the False Claims Act’s retaliation provision includes the same key language as the Title VII retaliation provision recently interpreted by the Supreme Court in Nassar, and the ADEA discrimination provision interpreted in Gross, the Court must apply the same heightened causation standard here. To succeed on her claim, a plaintiff must show that retaliation for protected activities was a but-for cause of the adverse action.”[11]

Does this mean a plaintiff will never be able to prove retaliation under this standard?   NO.  We know this because in this case, despite adopting the tougher standard, Judge Lamberth allowed the retaliation claim to go forward and denied summary judgment.  In the court’s view there were genuine disputes of material fact as to whether the plaintiff’s reports of fraud led to her termination.[12]   Further, the court analyzed the standard under the earlier version of Section (h).   Although the new version uses the same “because of” language as the prior version, the scope and intent of the provision was certainly expanded in the amended version. Also, this is just the beginning of what will undoubtedly be a developing area of case law.  Other district courts and circuits may differ in their views as to the proper standard to be applied in future cases.

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Jay P. Holland, Esq.

 

Jay Holland is a Shareholder in the Firm, and heads the Firm’s Labor, Employment and Whistleblower practice.

 

 

(AP Photo/Ben Margot)

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit ruled in Bland v. Roberts that clicking the “Like” button on Facebook®[1] qualifies as constitutionally protected speech.[2] This ruling extended First Amendment protection to the “Like” button.

The Fourth Circuit reasoned that when a Facebook user clicks the “Like” button, Facebook is publishing a substantive statement about the user. The court determined that there is no distinction for constitutional purposes between physically writing out a message and simply clicking a button which results in the publication of a message.

The Fourth Circuit in Bland was not delving into the inner workings of a seventh grade social feud, but was ruling on the use of Facebook as protected political speech. Six former employees of the Hampton, Virginia Sheriff’s Office brought suit against Sheriff B.J. Roberts, arguing that they were not reappointed because they had supported Roberts’ opponent during the November 2009 election. During the course of the campaign, two of the former employees “liked” Adams’ campaign Facebook page and posted messages of support on the page.

The court ruled that not only is clicking the “Like” button considered pure speech, but doing so is symbolic expression. The thumbs-up “liking” symbol conveys to others on Facebook the user’s support for the page that was “liked.” In this way, the “Like” button is the 21^st-century equivalent to displaying a political sign in one’s yard, which the Supreme Court has held is protected speech.[3]

Though Facebook has been around since 2004,[4] the Fourth Circuit is the first federal court to hold that Facebook “Likes” are protected constitutional speech. The ruling overturns an April 24, 2012 decision by the Eastern District of Virginia, which had held that “[s]imply liking a Facebook page is insufficient” and that “liking” a Facebook page “is not the kind of substantive statement that has previously warranted constitutional protection.”[5]

It has been reported that some 1.11 billion people use Facebook.[6] For those who continue to withstand the allure, the “Like” button on Facebook, represented by an easily clickable thumbs-up icon, allows Facebook users to inform other users that they like a post, article, page, or picture posted on the site. Businesses, organizations, and campaigns, as was the case here, can also have their own Facebook pages, which users can “like.” For instance, when one of the former employees “liked” Adams’ campaign Facebook page, a link to the Adams’ campaign page appeared on the former employee’s personal Facebook profile. The employee’s profile was also listed on the campaign page’s “People [Who] Like This” list, which all Facebook users can access. This simple click is constitutionally protected speech in this Circuit.

While the Bland ruling expands the type of speech that is protected by the First Amendment, it’s worth noting that not all speech is constitutionally protected. The classic example is falsely yelling “Fire!” in a crowded theater, which has been held to be speech that can be limited because the circumstance of the speech creates a clear and present danger[7] Other types of speech that do not typically receive First Amendment protection include: defamation,[8] perjury,[9] obscenity,[10] child pornography,[11] blackmail,[12] inciting imminent lawless action,[13] true threats,[14] and solicitation to commit crimes.[15] Schools also have broad powers to limit students’ speech, which includes restricting what can be published in student newspapers[16] and prohibiting speech that causes substantial disruptions.[17]

The Fourth Circuit’s decision has important implications, as many individuals today choose to express their political opinions on social media websites, often doing so by simply “liking” Facebook pages, “endorsing” users on LinkedIn®[18] or “re-tweeting” another’s speech on Twitter. The Supreme Court has held that the First Amendment provides broad protection to political expression, and the Fourth Circuit in Bland makes clear that government employers cannot retaliate against employees for political expression conveyed simply by clicking the “Like” button.

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Alyse Prawde is a law clerk at Joseph, Greenwald & Laake, P.A. She is currently a third-year law student at the University of Maryland Carey School of Law, where she serves as the Executive Articles Editor of the Maryland Journal of International Law. Email: aprawde@jgllaw.com

Veronica Nannis is a partner and the litigation practice group manager at Joseph, Greenwald & Laake, P.A. She focuses on complex, civil litigation, including business disputes, employment litigation and False Claim Act cases. You can “endorse” her on LinkedIn or email her at: vnannis@jgllaw.com