Christopher A. Iacono will be presenting at PBI’s Health Law Institute on “The Collateral Consequences of Healthcare Prosecutions” in Philadelphia, PA on March 13-14, 2014. Read More
Daniel J. McGravey and Sarah R. Lavelle will be presenting at PBI’s Health Law Institute on “Current Employment Issues and Developments Facing the Healthcare Provider Community” in Philadelphia, PA on March 13-14, 2014. Read More
Recent pronouncements by the Department of Justice (“DOJ”) illustrate an apparent dichotomy in the Department’s prosecutorial priorities. On one hand, Attorney General Eric Holder has announced several initiatives to move toward more equitable sentencing and to curtail the great number of long prison sentences imposed on those convicted of non-violent drug trafficking crimes. One the other hand, the Department continues to maintain its official stance that white collar prosecutions must reinforce the message that “nobody is above the law.” The Administration’s movement towards a more equitable balance of enforcement effort could have a significant impact on those investigated for financial frauds across several industries, most notably financial and health care. These evolving priorities will also likely impact how counsel advocate on behalf of individuals investigated for these offenses over the next few years.
It is too early to tell how it all will play out, as even those who represent accused drug offenders remain skeptical about how “enlightened” things will be for their clients in the immediate future. Nonetheless, this announced shifting of prosecutorial focus should not be ignored by those representing clients in white collar investigations and prosecutions, particularly when one of DOJ’s major policy changes is based on a concern that too many “non-violent” offenders are spending too much time in jail. At the same time, and as also reflected in DOJ’s priorities, there remains a group of lawmakers and high level policy makers who continue to believe that individuals who commit financial fraud get off too lightly.
DOJ Advocates for More Equitable Sentencing in Certain Drug Offenses
As widely reported, DOJ recently released an initial package of criminal justice reforms, entitled “Smart on Crime,” as its initial step to “shift away from [an] over-reliance on incarceration” and refocus its resources. “Smart on Crime” identifies five areas of focus: (1) prioritize prosecutions to focus on the most serious cases; (2) reform sentencing to eliminate unfair disparities and reduce overburdened prisons; (3) pursue alternatives to incarceration for low-level, non-violent crimes; (4) improve re-entry to curb repeat offenders and re-victimization; and (5) surge resources to violence prevention and protecting the most vulnerable populations. Read More
Despite a strong dissent and a number of amici briefs, the Federal Circuit, in a 6-4 en bancdecision, refused to overturn the de novo patent claim construction review standard. In Lighting Ballast Control LLC v. Phillips Electronics North America Corporation, (Fed. Cir. February 21, 2014), the United States Court of Appeals for the Federal Circuit decided not to reverse its 1998 decision in Cybor Corp v. FAS Technologies, Inc., which held that patent claim construction receives de novo review on appeal. In short, the standard remains that the district court’s decision is given no deference by the appellate court.
As the dissent argued, many in the legal community thought that Cybor was wrongly decided. Further, the standard is inconsistent with the Federal Rules, which require a deferential review of district court decisions. Finally, one of the driving reasons for Cybor has been marginalized, if not eliminated – reversal rate. While there was a high rate of reversal in the early years of Cybor, as consistency evolved and experience grew, rates of reversal for patent claim construction came to match the norms on other grounds. Several groups advocated for a hybrid approach, where factual aspects of the claim construction are afforded a clearly erroneous standard, while the district court’s final conclusion is afforded de novo review.
The majority, however, rejected these arguments and based its decision on the doctrine of stare decisis, finding that there was no compelling reason to depart from the precedent set by Cybor. The majority also found that it could not identify reasoning from the Supreme Court, Congress, or district courts that called Cybor into question. Finally, the court was unconvinced that a hybrid approach would serve as a workable replacement of Cybor.
The court’s decision does little to change the reality for litigants; claim construction will continue to be a battle at both the district court and federal circuit levels. Read More
As the topics of workplace bullying, gossip, and harassment have garnered attention, employers must be precise in enacting protective policies. In Laurus Technical Institute and Joslyn Henderson, a National Labor Relations Board Judge rejected a “No Gossip Policy” that prohibited discussing a person’s personal life when they were not present, discussing a person’s professional life without their supervisor present, negative or untrue comments about a person, injuring a person’s reputation, or sharing a rumor about the person.
The ALJ held that the policy would reasonably tend to chill employees in the exercise of their protected rights. Specifically, the ALJ noted that the policy was vague and overly broad, as it precluded both negative and positive comments about managers and the company. The ALJ compared the “No Gossip Policy” to prior Board decisions that invalidated employer policies banning “false and profane statements,” “disrespectful conduct,” “negative conversations,” and “disparaging comments.”
Despite this decision, a carefully drafted anti-gossip or anti-bullying policy can withstand scrutiny. Applying principles previously upheld by the Board, an employer should include the following when drafting a policy:
A preamble to the policy that states its purpose, i.e. eliminating bullying in the workplace.
Clear definitions of any term that may be subject to multiple meanings.
Examples of the activities the policy is designed to prevent. For instance, an anti-bullying policy should include language prohibiting inflammatory comments about an individual’s height, weight, voice, or intelligence level.
Examples of the workplace harm bullying may cause, i.e. lower morale, absenteeism, and creating an unsafe working environment.
A procedure for victims of bullying to seek assistance, including management contacts.
These suggestions are merely a few that should be implemented in an anti-bullying or anti-gossip policy. A company planning to enact or renew a policy should have a thorough understanding of the problems facing its workplace in order to draft a precise policy addressing its specific needs. Read More
Brett C. Shear will be presenting presenting on accountant malpractice at the PBI panel entitled, “Uncovering and Proving Financial Fraud” in Pittsburgh on February 20, 2014. Read More
In Sandifer v. U.S. Steel Corp., the Supreme Court held that time spent donning and doffing workplace gear by a class of U.S. Steel unionized employees was not compensable under the terms of the parties’ collective bargaining agreement.
Sandifer and others filed a collective action under the Fair Labor Standards Act (“FLSA”), seeking backpay for time spent donning and doffing required protective gear. U.S. Steel argued that this activity, which would otherwise be compensable under the FLSA, was non-compensable pursuant to a collective bargaining provision that time spent changing in and out of “clothes” was non-compensable.
The Court held that “clothes” denotes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Further, time spent “changing clothes” includes time spent altering dress. The Court ruled that gear, including a flame-retardant jacket, pants, and gloves constituted clothes as they are designed and used to cover the body, while glasses, earplugs, and respirators failed to qualify. When changing clothes and non-clothes are involved, the Court directed that the inquiry should be whether, “on the whole,” the activity is fairly characterized as time spent “changing clothes.” If so, then the entire period is governed by the collective bargaining arrangement.
Sandifer is a substantial victory for unionized employers who have either expressly negotiated for or established a practice of not compensating for donning and doffing time. For those employers not impacted by the decision, the traditional FLSA rule applies – donning and doffing is compensable if it is “integral and indispensable” to a principal work activity. Read More
Proving the adage “no good deed goes unpunished,” the Sixth Circuit recently held that a voluntary transfer can be an adverse employment action.
In Deleon v. Kalamazoo County Road Commission, et al., No. 12-2377 (6th Cir. Jan. 14, 2014), a superintendent of road maintenance with twenty-eight years of experience, applied for a vacant office position. Although not initially selected for the position, the Commission laterally transferred the Plaintiff into the job the next time that it became available.
After the transfer, Plaintiff took medical leave claiming that the diesel fumes from an adjacent garage made him ill. The Commission eventually terminated his employment after he exhausted all his available leave. Plaintiff brought suit for national origin and age discrimination – citing a pervasive atmosphere of racial insensitivity and derogatory comments. The district court found in favor of the Commission as Plaintiff had failed to show that the transfer was an adverse employment action.
The Sixth Circuit Court of Appeals, however, reversed. It held that the transfer of an employee can constitute an adverse employment action, even when it does not involve a demotion or reduction in pay, and regardless of whether the employee had requested the transfer, if the work environment was “objectively intolerable.” The Court found the transfer was involuntary even though Plaintiff had previously applied for it.
This decision underscores that employers are not insulated from litigation risks simply because they granted an employee’s request for a transfer. It is also a stark reminder that some courts may be sympathetic to employees, such as this one, with substantial tenure and may be more likely to allow them their “day-in-court.” Read More
A recent report by the Department of Health and Human Services (HHS) Office of Inspector General (OIG) found that the HHS Office for Civil Rights (OCR) has not met certain requirements critical to the oversight and enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule. The OIG report and recommendations will likely result in an increase in enforcement activity and OCR Security Rule audits of HIPAA Covered Entities.
HIPAA required the HHS to develop national standards for the use and dissemination of health care information, including standards to protect electronic protected health information (ePHI). To satisfy that requirement, HHS published the HIPAA Security Rule, which describes the administrative, physical, and technical safeguards necessary to ensure the confidentiality, integrity, and availability of ePHI. The Health Information Technology for Economic and Clinical Health Act (HITECH) requires OCR to provide for periodic audits to ensure covered entities and their business associates comply with Security Rule requirements.
According to the OIG report, although OCR made available guidance that promoted compliance with the Security Rule, it had not “assessed the risks, established priorities, or implemented controls for its HITECH requirement to provide for periodic audits.” Instead, OCR continued to follow the complaint-driven approach to Security Rule investigations.
OIG found that because OCR did not perform the compliance audits mandated by HITECH, it had limited information about the status of Security Rule compliance at covered entities, and lacked the necessary information about which ePHI was vulnerable.
Further, OIG found that while OCR had established an investigation process for responding to reported violations of the Security Rule, OCR’s Security Rule investigation files did not contain required documentation supporting key decisions made. According to the report, management had not implemented sufficient controls, including supervisory review and documentation retention, to ensure investigators follow investigation policies and procedures for properly initiating, processing, and closing investigations. Read More
Articles contained in this issue of the CLE:
Only Certain Tier Subcontractors Can Successfully File Mechanics’ Liens In Pennsylvania
Pay-If-Paid Contracts: The Power Of A Subordinating Conjunction
OSHA Whistleblowers Can Now Submit Complaints Online
Owners And Contractors Should Require Disclosure Of Self-Insured Retentions
Preserving Mechanics’ And Materialmen’s Liens In OH, PA & WV
No Intent Required: Environmental Enforcement Under The Solid Waste Management Act
Related Information:
Construction Legal Edge Winter Newsletter 2013 Read More
