Joseph D. Mancano will present at the 22nd Annual National Seminar on the Federal Sentencing Guidelines in Orlando, FL on May 22-24, 2013.
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The Third Circuit recently established the standard for deciding whether a corporate officer can bring a Title VII action.
In Mariotti v. Mariotti Building Products, Inc., No. 11-3148 (3d Cir. April 29, 2013), Robert A. Mariotti, Sr., a founder of the company, its Vice-President and Secretary, a member of the Board of Directors and a Manager of one of the company’s divisions, filed a Title VII claim. According to Mariotti, he was harassed by other officers, directors and employees of the company due to his religious beliefs and, ultimately, terminated. Nevertheless, he continued to receive payments as an owner of the business and served for a time on the Board of Directors. The United States District Court for the Middle District of Pennsylvania dismissed Mariotti’s suit, holding that he could not bring a Title VII action because he was not an employee.
On appeal, the Third Circuit held that the analysis turns on the extent of the person’s control over the business and the source of the person’s authority to exercise control. Among the factors to be considered in this analysis are:
Whether the organization can hire or fire the individual or set rules and regulations of the individual’s work;
Whether, and to what extent, the organization supervises the individual’s work;
Whether the individual reports to someone higher in the organization;
Whether, and to what extent, the individual is able to influence the organization;
Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and
Whether the individual shares in the profits, losses and liabilities of the organization.
Therefore, in determining whether a plaintiff is an employee or an employer for purposes of Title VII, the focus is on the authority that the individual wields in the organization and whether that individual exercises such authority by right or at the pleasure of others. Read More
A California jury recently awarded a doctor $3.8 million compensatory damages after they determined that Anthem Blue Cross (“Blue Cross”) violated his right to a fair procedure after denying his application into its provider network. The case settled before the punitive damage claim was presented to the jury. See, Nordella v. Anthem Blue Cross, No. BC 444364 (Cal. Super. Ct. filed Dec. 15, 2010)
California law requires a fair procedure when a health insurer “possesses power so substantial that the exclusion significantly impairs the ability of an ordinary, competent physician to practice medicine or a medical specialty in a particular geographic area, thereby affecting an important, substantial economic interest.” In this case, Blue Cross contended that Nordella lacked board certification in Blue Cross’ approved specialties. Nordella averred that Blue Cross denied his application in retaliation for his outspoken advocacy in favor of patient care and against health insurers’ overzealous denial of coverage for services deemed “not medically necessary.”
This case highlights the importance of establishing and implementing objective standards for consideration of providers; and of memorializing the reasons supporting the decision to deny or terminate a provider’s network membership. Although Nordella may be confined to California, Pennsylvania health insurers should take heed of its lessons. Indeed, Pennsylvania State House Representative Anthony M. DeLuca intends on re-introducing HB1965 of 2011 (“Any Willing Provider”) to “ensure that private practitioners and facilities remain ‘in network’ if they are qualified and willing to accept the terms of the contract.” Time will tell if Pennsylvania adopts the “Any Willing Provider” law, affording providers with legal remedies should insurers refuse access to their networks or terminate provider participation.
Medical providers should always understand the credentialing process that may be due and owing to them, i.e. notice, an opportunity to be heard and a fair and impartial tribunal. Read More
Gaetan J. Alfano will be presenting at the Pennsylvania Bar Institute’s 17th Annual Insurance Institute on May 8, 2013. He will present on the topic of “New Commonwealth Court Rules for Insurance Insolvency.” Don’t miss the valuable insights shared by the Commonwealth Court Judge, Deputy Judicial Clerk and Chief Clerk and by counsel for the Pennsylvania Insurance Department and private practitioners on how the new rules impact every aspect of court proceedings for insurance rehabilitations and liquidations.
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PBI’s 17th Annual Insurance Institute Brochure Read More
Michael A. Morse will be presenting at the 2013 Healthcare Fraud and Abuse Bootcamp Webinar Series, Part IV: False Claims Act on May 8, 2013.
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Summary Of Amendments To Clery Act, As Set Forth In The
“Violence Against Women Reauthorization Act Of 2013”
Effective Date – All amendments to 20 U.S.C. §1092(f)(1) are effective one year from the enactment date (March 7, 2013). Therefore, amendments are effective for Annual Security Reports distributed on or by October 1, 2014. However, many of the mandated policy statements in the Annual Security Reports require that Title IX investigation and discipline procedures also be adopted, and that should be done timely.
Amendments codify some aspects of the Dear Colleague letter; require modifying policy statements in Annual Security Reports to include:
Possible sanctions and protective measures following a final determination regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault or stalking.
Procedures that victims should follow if a sex offense, domestic violence, dating violence, sexual assault or stalking occurred, including:
The importance of preserving evidence;
To whom the offense should be reported;
Options about reporting to law enforcement or campus police, including assisting the victim in notifying law enforcement and giving the victim the option to decline to notify such authorities;
Rights of victims to obtain, and institutional responsibilities concerning, orders of protection, no contact orders, restraining orders, and other legal orders from civil or criminal courts.
Procedures for institutional disciplinary action in cases of domestic violence, dating violence, sexual assault or stalking, which include clear statements about:
Proceedings providing prompt, fair and impartial investigations and resolutions, conducted by officials with training on issues related to domestic violence, dating violence, sexual assault, and stalking;
The accused and accuser’s equal opportunity to have a support person/adviser present at any institutional proceeding or related meeting;
Notice of the disciplinary results, appeal procedures, and changes to the results prior to the results being finalized.
Information about confidentiality for victims, and how it will be protected and maintained. Read More
On April 29, 2013, citing an increase of fatal workplace incidents involving temporary workers, the Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor announced a new initiative to better protect those workers. Temporary workers are defined as those workers who are paid by temporary agencies and supplied to a host employer. OSHA found that post-accident inspections often exposed situations where temporary workers were insufficiently trained in language and vocabulary that they could understand and lacked the necessary knowledge of workplace hazards and protective equipment.
OSHA’s director of enforcement programs has directed regional administrators to track this “vulnerable population” during inspections and created a new OIS code for temporary workers. If an inspector determines that any temporary employees are exposed to a violative condition, the inspector must enter the newly created code “TEMPWORKERS” in their information system.
In addition, when encountering temporary workers during the scope of an inspection, inspectors will document the name of the temporary workers’ staffing agency, the agency’s location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).
Workplace injuries to temporary workers often involve accidents that occur on the first day the temporary worker is on the jobsite, as occurred in Bacardi Bottling Corp., 584358 (2/8/2013), cited by OSHA in its press release. The use of temporary workers may also lead to situations where the host employer loses immunity for civil liability for workplace injuries. See also Black v. Labor Ready, 995 A.2d 875 (Pa.Super. 2010), in which the Superior Court of Pennsylvania held that a host employer was estopped from claiming immunity as an employer of a temporary worker who lost a hand in a press machine, after denying employer status in the workers compensation pleading. Read More
WESTERN DISTRICT PILOT
PATENT COURT ATTRACTS ATTENTION
Big verdicts in patent cases mean big attention by the media, but is there a way to turn all the attention into something positive? The U.S. District Court for the Western District of Pennsylvania is trying to do just that.
High-profile patent cases tend to draw a lot of attention, especially when they result in a verdict in the hundreds of millions of dollars or more. One can imagine, then, the kind of attention that a billion-dollar verdict can attract. In late 2012, a Pittsburgh jury held that Marvell Technology Group should have to pay $1.17 billion in damages to Carnegie Mellon University in a patent infringement verdict based on data storage and retrieval technology. This award was based on a finding of direct literal infringement of the claims of two patents owned by CMU. As it happens, this may be just the sort of attention that the Western District is looking for.
Pilot Patent Program
In 2011, the Western District became one of 14 district courts selected to participate in a 10-year pilot patent program, as selected by the Administrative Office of the U.S. Courts. The program included courts in New York, New Jersey, Maryland, Illinois, Florida, Nevada, Texas, Tennessee and California, in addition to the Western District of Pennsylvania.
The program allows the selected district courts to study the differences in reversal rates and the period of time that elapses between the filing of a patent case and the beginning of a trial for both patent and non-patent judges. The program is designed to enhance efficiency and expertise in patent cases in participating districts.
One of the mechanisms the program enacts is a designation of a number of judges within the district as “designated patent judges.” Under the program, when a patent case is newly filed, the case is randomly assigned to an Article III judge, as usual, but if the judge is not a designated patent judge, he or she may decline the assignment, at which point the case is assigned randomly to one of the designated patent judges. Read More
Louis C. Long will be presenting at “Litigating Insurance Coverage Claims: From Start to Finish,” a seminar hosted by the National Busniess Institute along with co-presenters James C. Heneghan, Alexander J. Jamiolkowski, Joseph N. Kravec Jr. and Kathleen A. Segmiller.
Time:
9:00 AM – 4:30 PM
Location:
Hilton Garden Inn Pittsburgh Southpointe
1000 Corporate Dr
Canonsburg, PA 15317
For more information and to register, please click here. Read More
Marc S. Raspanti will serve on the panel, “Negotiating False Claims Act Settlements and Corporate Integrity Agreements,” at the HCCA Compliance Institute on April 24, 2013 in Washington, DC.
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