New York Employment Lawyer Blog

The U.S. Department of Labor's Wage and Hour Division's ("DOL") ongoing initiative has thus far recovered $2.3 million in back wages for 578 workers employed at pizza and pasta restaurants in Long Island. The restaurant owners were also fined civil penalties amounting to $202,315 for willful and repeat violations.

The investigation found 35 Italian restaurants in violation of the Fair Labor Standards Act. The illegal acts included paying cash wages "off the books" when the employers should have been maintaining the required employment records, paying a fixed salary for all the hours that an employee worked rather than paying minimum wage and applying overtime, and for falsifying time and payroll records.

The Long Island district office used different strategies to track down noncompliance with the wage and hour laws. Investigators visited restaurants to figure out minimum wage patterns, overtime and record keeping violations, and reminded workers of their FLSA rights. They also reviewed payroll records, interviewed employees to assess employer compliance with wage laws, as well as used surveillance to detect violations. Irv Milijoner, director of the DOL's Long Island district office stated "It's becoming increasingly common for us not only finding minimum wage violations and overtime violations but a preponderance of employees being paid off the books."

The DOL's district office is taking a tough stand against noncompliance and aggressively going after employers breaking the law. It is using all available enforcement tools including litigation, administrative subpoenas, and civil monetary penalty assessments and liquidated damages. In fact, the division has engaged in litigation against 26 local restaurants from which it recovered over $1,914,000 in back wages and liquidated damages for over 300 employees. It also assessed the restaurant owners $127,000 in penalties for their willful and/or repeat violations.

Milijoner also stated that the national estimate of the amount of money employers avoid in paying some taxes is about $800 billion. HIs office is now planning to go after the 100 or so diners in Nassau and Suffolk counties for wage and hour violations.

The FLSA requires an employer to pay an employee at least the federal minimum wage of $7.25 an hour and overtime of time and a half for hours worked in excess of 40 per week. It also requires an employer to maintain accurate records of all employees and their wages, hours, and identifying information. Payroll records must be kept for at least three years while records on which wages are determined should be maintained for two years. For example, you should keep an employees time cards, wage rage tables, work and time schedules for at least 2 years.

The DOL is determined to find any restaurant industry employers who violating wage and hour laws. It has also made it know that it intends to go after diners next. If you have a restaurant or a diner, make sure your personnel records and payroll records are in compliance with the FLSA. Our Wage & Hour Attorneys at Villanueva & Sanchala can help you make sure you are in compliance with state and federal labor laws. Call us at (800) 893-9645 to help you avoid costly litigation or fines and penalties.

Continue reading "U.S. DOL Cracking Down on Restaurants Violating Minimum Wage and Overtime Laws" »

The House of Representatives and the Senate recently voted unanimously and passed legislation giving tax credits to businesses that agree to hire veterans. The tax credits are a tiny piece of President Obama's $447 billion jobs bill. After the vote for the bill, Obama stated that "No veteran who fought for our country should have to fight for a job when they come home."

The bill has two types of tax credits for employers who hire unemployed veterans. The "Returning Heroes" tax credit provides employers with a maximum tax break of $5,600 per veteran who has been unemployed for at least 4 weeks while the "Wounded Warrior" gives a maximum credit of $9,600 per veteran. The exact amount of the credit depends on how long the veteran has been unemployed and if he or she has a disability connected to military service.

The bill also contains other provisions to expand education and job training benefits for veterans, improve job counseling prior to leaving the military and gives an additional year of job services for disabled veterans. The legislations also allows service members to apply for federal jobs before they leave military service and allows them to be placed in apprenticeships or on the job training programs with the military or defense contractors while on terminal leave.

The bill is being funded by adjusting ambulance reimbursement rates, adjusting origination fees on veterans home loans, and by reducing pensions for some veterans in nursing homes who are covered by Medicare through 2016

The passage of this bill is a great step towards helping veterans who need more than just thanks for protecting our country. There are almost a million unemployed veterans right now. In fact, the unemployment rate for the Iraq and Afghanistan war veterans is 12.1% while the national unemployment rate is 9.1%. Even more troubling is the 30% unemployment rate last month for veterans who are under 25 years of age.

Senate Finance Committee Chairman Max Baucus stated that "This tax credit will help solve the unemployment crisis and help veterans find work. Our veterans return home with unmatched leadership skills and motivation, making them valuable to businesses looking to hire. There's more work to be done cutting red tape and making the process of claiming this credit easier, but this is an important start."

If you're an employer looking to hire, consider hiring a veteran. If you hire a veteran who has been unemployed for more than 6 months and has a disability related to service, the bigger the tax break. JP Chase Morgan, Cisco Systems Inc., Delta Air Lines, AT & T Inc. and several other companies have said they plan to hire about 100,000 service members and military veterans by 2020. If you have recently hired a veteran or are in the process of doing so, call our call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you fill out the proper paperwork to ensure you get the maximum tax credit you are entitled to.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Sources:

Obama Signs Veteran Tax Credits Into Law, MilitarySpot.com

Continue reading "Employers Get Tax Credit for Hiring Unemployed, Disabled Veterans " »

The Department of Justice recently announced a resolution with pharmaceutical giant Merck, Sharp & Dohme ("Merck") to pay $950 million to settle criminal and civil claims for its illegal promotion and marketing of its painkiller drug, Vioxx. As part of the deal, Merck has also agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services to monitor its conduct.

Using its False Claims Act for the first time, New York State had joined in on bringing charges against Merck back in 2007 for Medicaid fraud. The State had alleged that Merck was risking the lives of thousands by inappropriately pushing Vioxx on physicians and patients. Pursuant to its False Claims Act, the State sought damages for the amount spent on Medicaid and other state health care programs to pay for drugs prescribed under false claims. Merck has settled the lawsuit with New York as well as several other states.

The FDA approved Vioxx in 1999 and by 2003, it had become the third largest selling drug, yielding $2.5 billion in sales. After a study found that it cause an increased risk of heart attacks and strokes, it was taken off the market in 2004.

Merck plead guilty to violating the Food Drug and Cosmetic Act ("FDCA") for placing Vioxx into interstate commerce and for its illegal promotional activity of Vioxx. The criminal pleas relates to Merck's off label promotion of Vioxx for treating rheumatoid arthritis ("RA") from 1999 to 2002, before it was approved by the Food and Drug Administration for that use. According to FDCA provisions, a company must specify the intended uses of a product in its new drug application to the FDA. The FDA only approved Vioxx for three uses in May 1999 and did not approve use of it for RA until April 2002. The government charged that Merck was promoting Vioxx for RA for almost three years and was even issued an FDA warning letter in September 2001.

Once the FDA approves the drug, the pharmaceutical company may not market or promote the drug for "off-label" uses, which refers to any use not specified in its application to the FDA. In other words, a drug company cannot take a drug approved by the FDA for treating migraines and then market it for high blood pressure. It is illegal to market a drug for uses other than those approved by the FDA. If you know of any fraudulent activity being committed against the government at your workplace, call our attorneys to help you determine if you have a qui tam whistleblower lawsuit under the False Claims Act.

The civil settlement pertains to allegations that Merck representatives made inaccurate, unsupported or misleading statements about Vioxx's cardiovascular safety in order to increase the drug's sales. This in turn increased the federal government's payments. The government had also charged that Merck made false statements to state Medicaid agencies regarding Vioxx's cardiovascular safety, which these agencies relied on and caused them to cover the drug. The settlement provides for the participating Medicare states to get a share of the recovery.

Off-label marketing by pharmaceutical companies and Medicaid fraud costs the government and taxpayers millions of dollars every year. If you have evidence about fraud being committed against the government, you can bring an action on behalf of the government. Depending on whether or not the government takes over your suit, you may be entitled to 15% to 30% of the recovery. Because of the statute's complexity and strict requirements, call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have a strong case under the False Claims Act.

Continue reading "New York State and Others Use False Claims Act to Fight Medicaid Fraud" »

The Securities and Exchange Commission ("SEC") just announced this week that it reached a settlement with Maynard L. Jenkins, the former chief executive officer and chairman of CSK Auto Corporation, for violating the Sarbanes-Oxley Act ("SOX"). Jenkins has agreed to give back $2.8 million he received from the company in bonus compensation and stock profits while the company was engaged in accounting fraud.

The accounting fraud occurred during fiscal years 2002 through 2004, during which time CSK filed two restatements pertaining to its accounts receivables. Thereafter, the SEC brought charges against 4 former CSK executives for accounting fraud and against the company for submitting false financial statements. The company settled the charges but the litigation against the four executives is still pending. The SEC never brought any charges against Jenkins for the accounting fraud or alleged that he even knew about it.

Pursuant to Section 304 of the SOX, the SEC brought suit in 2009 against Jenkins compelling him to return his bonuses, incentive based compensation and stock sale profits to the company. Their charge against him was that he had not returned any bonus compensation he had received during the time period that the fraudulent conduct occurred. The SEC alleged that he had violated the "clawback" provision of the SOX by not reimbursing the company. The "clawback" provision allows the SEC to recover the money

Section 304 of SOX provides the following:

If any issuer is required to prepare an accounting restatement due to material noncompliance of the issuer, as a result of misconduct, with any financial reporting requirement under the securities laws, the chief executive officer and chief financial officer shall reimburse the issuer for:

1. any bonus or other incentive-based or equity based compensation received by that officer form the issuer during the 12 month period following the first public issuance or filing with the Commission (whichever first occurs) of the financial document embodying such financial reporting requirement; and
2. any profits from the sale of the issuer's securities by that officer during this 12 month period.

15 U.S.C. § 7243(a).

The Director of the SEC's Division of Enforcement, Robert Khuzami, stated that "CEO's should know that they can be deprived of bonuses or stock profits they received while accounting fraud was occurring on their watch."

This outcome of this case is significant for all chairmen, CEO's and senior officers because it's the first SEC clawback case where the CEO was not charged with any wrongdoing. Even if you are not charged or even if you didn't know that your company engaged in material noncompliance regarding its financial reporting requirements and is found to be guilty of fraud or wrongdoing, you may be required to reimburse the company for any bonuses and stock profits you might have gained during the accounting period in question. If you think you might be a victim under the clawback provision, call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine your best course of action.

Continue reading "Accounting Fraud and Legal Consequences of the Sarbanes-Oxley Act "Clawback" Provision " »

The U.S. EEOC recently settled a lawsuit for $125,000 which alleged national origin harassment against Simon Property Group, Inc. ("Simon") at its Forum Shops at Caesars Palace in Las Vegas. The suit charged with allowing Hispanic janitors who worked for the company to be verbally attacked on a daily basis because of their national origin.

Simon is the nation's largest real estate company which owns and manages shopping malls throughout the country. It is an S&P 500 company that has either ownership or property interest in 392 properties throughout North America, Europe and Asia and generates annual retail sales of over $60 billion in the U.S.

The lawsuit charged that the housekeeping shift leader, who was white, harassed a group of Hispanic janitors beginning in 2005 which then continued on daily basis. He subjected them to verbal abuse and slurs. Although a dozen Hispanic janitors complained with a written petition the same year the harassment began, they felt nothing was being done to stop the discriminatory behavior. The harassment continued for another year until the supervisor was terminated, which was for different reasons.

The EEOC charged that the alleged conduct violated Title VII of the Civil Rights Act of 1964. The parties settled with a two year consent decree which provides monetary relief for least five of the victims who were harassed. The decree also calls for Simon to retain a consultant to monitor and track complaints in Nevada, provide anti-harassment and anti-discrimination training for staff, and report its compliance efforts to the EEOC.

Anna Y. Park, the regional attorney for the EEOC's Los Angeles District Office, stated that "National origin discrimination issues are on the rise and we are committed to vigorously enforcing federal laws to ensure workplaces free of harassment and discrimination." The acting director at the EEOC's Las Vegas Local Office stated that "We encourage workers to report harassment as they did here in this case" and "equally encourage employers to take proactive steps to stop harassment and to take swift action when it does occur."

It is illegal to discriminate against an employee because of their national origin with respect to any aspect of employment including hiring, firing, promotion, benefits, or terms or conditions. This means that an employer cannot discriminate against a worker because of their birthplace, ancestry, culture, and linguistic characteristic related to a specific ethnic group, or accent. For example, you cannot refuse to promote a competent, qualified worker just because his ancestors are from Iraq or because a worker has an Indian accent which does not materially interfere with job performance. Title VII also prohibits conduct that creates a hostile environment such as using ethnic slurs.

It is outrageous that the workers were subjected to national origin harassment for two years and that even after they complained, nothing was done. Whether you are a small company employing 15 or more employees or as big as Simon Properties, it is imperative to promptly investigate any complaints of national origin discrimination. If your business does not have an employment discrimination policy, call our Attorneys at Villanueva & Sanchala at (800) 893-9645. Our attorneys have held many anti-harassment and anti-discrimination training seminars and set up policy and procedures to effectively handle any complaints of discrimination.

Continue reading "Six Figure Settlement of National Origin Harassment Complaint by Hispanic Employees at Simon Properties Group" »

The EEOC recently settled a lawsuit alleging religion discrimination with Dresser Rand, a manufacturer of custom turbines, compressors and other industrial products. Dresser Rand also has contracts with the U.S. government and the Navy. The consent decree provides for Dresser Rand to pay $110,000 as well amend its equal employment opportunity policy, which includes holding anti-discrimination training and putting up notices regarding discrimination laws.

The lawsuit alleged that Harry Davis, an employee at Dresser Rand's location in Painted Post, New York, was not accommodated for his religious beliefs. Davis, a Jehovah's Witness and a skilled machine tool operator worked at Dresser Rand for over 20 years. As a Jehovah Witness, his religious belief was that he did not work on any part of product that could be used as weapon of war. For many years, he refused to work on projects that involved orders from any of the Armed Services. Accordingly, these projects were reassigned to other machine operators. Davis' supervisors were aware of his beliefs and provided him with reasonable accommodation over the years.

In 2002, Davis was asked to work on a part which was going to be used on a United States naval submarine. Just like he did in the past, Davis refused to work on it. However, this time he was cited for insubordination and then fired after he refused to accept an alternate assignment in the shipping department.

The EEOC's lawsuit charged Rand with violating Title VII of the Civil Rights Act of 1964 which prohibits discrimination based on religion. Title VII makes it illegal to discriminate based on religion with respect to any aspect of employment. This includes hiring, firing, promotions, layoff, training, fringe benefits, pay, and any other term of employment.

Once an employee points out that he has a religious belief or practice that conflicts with his working terms or conditions, an employer must reasonably accommodate the employee's religious beliefs unless doing so would cause more than a minimal burden on the employer's business operations. In other words, the employer must accommodate the worker unless it would cause an undue hardship. An undue hardship could be something that is costly, compromises workplace safety, decreases efficiency, or interferes with the rights of other employees. For example, if an employee's religious beliefs prevent him from working Friday nights and as long as switching schedules with another employee doe not cause undue hardship, the employer must try to accommodate the religious belief. When the employer does make accommodations, the employee must then accept it. For example, if the employer accommodated the worker by giving him the Saturday night shift, he or she then cannot refuse because they don't want to work on a Saturday night.

Religious claims, regarding reasonable accommodation and discrimination, have been rising in the post 9 11 era. If you feel your religious beliefs and practices are not being reasonably accommodated at your place of employment, call our Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help evaluate your claim. Our attorneys have helped many people obtain reasonable accommodations while retaining their jobs.

Continue reading "Failure to Accommodate Employee's Religious Beliefs Leads to $110,000 Settlement" »

Oracle Corp. recently entered into a settlement to pay $35 million to end a class action lawsuit that charged it with violating wage and hour laws. The suit was filed in 2007 and alleged that Oracle misclassified the workers as exempt workers to avoid paying overtime and meal breaks.

The $35 million settlement will be shared by 1,725 employees who will each get on average a little over $13,000. Our attorneys have helped many misclassified workers recover their rightful wages. If you think you are being misclassified as an exempt employee or an independent contractor, call our attorneys to help you evaluate your claims.

The three groups of workers involved in the class action were quality assurance workers, who test Oracle software, technical analysts, who provide customer support and answer questions, and project managers, who coordinate tasks for other employees. Oracle argued that these employees were either administrators or computer professionals and thus were exempt from state overtime laws and not subject to time and a half pay for hours worked in excess of 40 hours a week. The workers argued that each group worked long hours with repetitive tasks at modest salaries.

The FLSA provides that employees be paid both minimum wage and overtime pay at time and a half for hours worked in excess of 40 hours a week. In order to meet the exemption requirements, employees must meet certain tests pertaining to their job duties and be paid a salary of at least $455 per week. An employee's job title alone does not qualify him or her for an exemption. For example, an employee may have title "executive vice-president" but if his or her sole job function is to make photocopies, the employee does not qualify for an exemption. Federal law provides an exception only for employees who are executives, administrative, computer, professional and outside sales representatives.

In order to be exempt as a computer employee, one must meet the following criteria:

• be compensated either at a rate of at least $455 per week or, if compensated on an hourly basis, then at a rate not less than $27.63 per hour;

• the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties set forth below;

• his or her primary duties must include the following:

1) application of systems analysis techniques and procedures, including consulting with others, to figure out hardware, software or system functional specifications;

2) the design development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

4) a combination of the aforementioned duties, the performance of which requires the same level of skills.

Misclassification of employees is a common problem that affects not just the underpaid employees but also taxpayers and the economy. When employees are not compensated their correct wages, this in turn affects their spending and the amount of taxes they pay which in turn affects the entire economy. If you are not properly classifying your workers and are audited by the IRS or the Department of Labor, the penalties, interest, and back taxes can be devastating to your business. Call our Misclassification Attorneys at Villanueva & Sanchala at (800) 893-9645 to ensure that your company is in compliance with all state and federal laws.

Continue reading "The High Cost of Misclassifying Non-Exempt Employees Regarding Overtime Pay" »

U.S. broker dealer MF Global recently fired over 1,000 employees after its parent company MF Global Holdings Ltd. Declared bankruptcy on October 31st under Chapter 11 of the U.S. Bankruptcy Code. Employees in the New York and Chicago offices may have strong claims under the WARN Act (Worker Adjustment and Retraining Notification) since MF Global has not filed notice of the layoff with state agencies nor given employees the required notice.

Since MF Global is not eligible to be reorganized, the bankruptcy trustee is liquidating the company. The employees who were fired were helping in the investigation of missing customer funds which is estimated to be about $600 million. The Department of Justice and the Commodity Futures Trading Commission are investigating the missing money. The bankruptcy trustee decided which employees to terminate without consulting MF Global's parent company.

According to the trustee's office, none of the terminated employees will receive severance pay, deferred compensation, or bonuses. They will receive health coverage through the end of November and salaries through November 15th.

The terminated employees can file claims against MF Global's assets for severance, unused vacation days, benefits, and any other money owed to them. However, they will only get paid a portion after customers are paid and administrative fees are paid off.

Under the WARN Act, large companies must provide 90 days notice when closing down or ordering massive layoffs. The purpose of the Act is to give employees time to look for another job and plan for health insurance before their employment ends. Under New York state law, the Act applies to all private businesses with 50 or more full time workers and covers the following situations:

- closings which affect 25 or more workers
- mass layoffs involving 25 or more full time workers, if the 25 or more workers make up at 33% of all workers at the site
- mass layoffs involving 250 or more full time workers
- other relocations and covered reductions in work force.

The Act provides that prior to a plant closing, mass layoff, relocation, or other covered reduction in work hours, covered businesses must provide all employees with 90 days notice before terminating their employment. If a business fails to provide a WARN notice, it may be required to pay back wages and benefits as well as a civil penalty.

If MF Global did not give the employees adequate notice and has not filed WARN notices with the state agencies, the employees may be able to take legal action. The employees can sue for eight weeks of pay and benefits. Since they were terminated after MF Global filed for bankruptcy, their WARN claims would be grouped with the administrative expenses which means that they would get paid as the same time as the attorneys handling the bankruptcy. In other words, their claims stand a much better chance of getting paid compared to other non-administrative claims.

Not complying with the notice requirement of the WARN Act can lead to hefty fines as well as payment of back wages and benefits. If your business is considering laying off a substantial number employees, call our WARN Attorneys at Villanueva & Sanchala at (800) 893-9645 to ensure that your company is in compliance with all state and federal laws. Our attorneys have helped many companies strategize and file the proper notices to ensure legal compliance.

Continue reading "Employer Update: Make Sure You Are In Compliance With WARN Notice Requirements Before Plant Closings or Mass Layoffs" »

The EEOC recently settled a lawsuit that charged one of the country's largest retailers, Sears Roebuck & Co with race, age, sex discrimination and retaliation against Mary Johnson, an African-American female employee. The settlement provides for Sears to pay $100,000 as well as take action to prevent and handle future instances of discrimination.

The EEOC filed suit in September 2010, alleging that Johnson was passed over for a promotion to supervisor several times beginning in 2007 while less experienced, younger, white males were promoted. Johnson worked in loss prevention at several Sears stores in Oklahoma City from 1982 until she was terminated in March of 2010. The EEOC also alleged that Sears retaliated against Johnson for filing an EEOC discrimination charge and participating in the EEOC's investigation by worsening her working conditions.

In a consent decree with the EEOC, Sears has agreed to pay Johnson $100,000 and take specific action to prevent future discrimination. It will have to post anti-discrimination notices to all employees, hand out its anti-discrimination policy and provide training on the subject to its employees. Barbara Seely, the regional attorney at the EEOC's St. Louis District Office, stated "Corporate America must be more vigilant in guarding against discrimination and retaliation or risk action and exposure by the EEOC."

The Age Discrimination in Employment Act (ADEA) makes it illegal for an employer to discriminate against employees who are at least 40 years old. The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion and national origin. Both acts cover discriminatory practices in all aspect of employment including but not limited to hiring, firing, compensation, recruitment, training, pay, retirement plans, disability leave, terms and conditions of employment as well as health care benefits. Under both laws, it is also illegal to retaliate against an individual for filing a discrimination charge or participating in an investigation.

The EEOC reported that in 2010, 36% of all discrimination claims filed also alleged some type of retaliation by the employer. Retaliation at the workplace is when you take adverse action against an employee for engaging in "protected activity." Protected activity includes but is not limited to filing a discrimination claim with the EEOC or a state or local agency, filing a discrimination complaint with the employer, or supporting a co-worker's complaint.

Although discrimination based on age, sex, and race are illegal at the workplace, it is a major problem in both small and large companies. If one of your employees complains or files an EEOC charge alleging discrimination, make sure he or she is not retaliated against. In this day and age, take every complaint seriously and promptly investigate the matter. It is essential to have an employee handbook with your company's policy and complaint mechanism for discrimination. Make sure every employee has a copy and signs a statement that they have read it and understood it. It is not enough just to have a company policy. It is also crucial to train your managers and supervisors on how to follow and carry out your company's policy on discrimination. Our Discrimination Attorneys have prepared policies and handbooks for many companies as well as conducted training seminars to teach supervisors and managers on how to deal with discrimination. If your company doesn't have a discrimination policy or handbook call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you avoid and minimize the potential cost of employment discrimination.

Continue reading "Six Figure Settlement of Age, Sex, and Race Discrimination Complaint by African American Female Employee at Sears" »

The New Milford Hospital, which is a part of the Western Connecticut Health Network, settled allegations this week with the government that it had violated the federal False Claims Act by over billing Medicare. The Hospital has agreed to pay $471,933 to settle the charges.

The government's allegations relate to Medicare billing for the drug Lupron or Lupron Depot which is an injectible medication used to treat prostate cancer in men as well as endometriosis and fibroids in women. However, different doses are used to treat male and female patients and the billing code for treating women has a higher reimbursement rate than that for men. While conducting an internal audit, the government discovered that the hospital regularly submitted charges for the male patients as if they were for females. The government's news release stated that in effect, the hospital received "substantially higher reimbursement from Medicare than it should have received," in violation of the False Claims Act. Although the Hospital discovered that it was using the wrong billing code and conducted and internal audit to figure out how much it was overpaid, it did not report the error or make any attempts to return the money.

The False Claims Act, as amended by Congress in 2009 and 2010, provides that health care providers who learn that Medicare has overpaid them must notify officials and return any overpayments within 60 days or be subject to liability. Although New Milford did not pay triple damages here, the government can recover triple damages and civil penalties. If you have know of any physicians or hospitals engaged in Medicaid, Medicare, or any type of billing fraud against the government, or attorneys can help you bring a qui tam whistleblower lawsuit to expose the fraud and provide you with a monetary reward.

Spending on healthcare is a huge government expense in this country. Millions of Americans rely on state or federal funds for health insurance coverage. In fact, Medicare and Medicaid are the largest government sponsored healthcare plans and provide coverage for over 95 million Americans. In addition, other government plans also provide coverage for millions of federal and state government employees. Since these plans are funded with taxpayer monies, healthcare fraud in violation of the False Claims Act costs the government and taxpayers millions every year.

Given the voluminous number of healthcare claims submitted by American across the country, the government can not possible detect every instance of fraud. The qui tam whistleblower statute is a great tool that any individual with knowledge of fraud can use to help the government detect and expose healthcare fraud. Under the qui tam provisions of the False Claims Act, you can bring an action on behalf of the government if you have evidence of fraud being committed against the government. Depending on whether the government takes over you lawsuit or not, you may be entitled to recover anywhere from 15% to 30% of the government's recovery.

Fraud in the healthcare industry is a national problem occurring in many hospitals and private practices throughout the country. In fact, two other Connecticut hospitals also settled similar cases. If you have knowledge or evidence of healthcare fraud being committed against the government, call our Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you figure out how to proceed.

Continue reading "Hospitals, Medicare, and Medicaid Providers: Make Sure Your Billing Practices Don't Violate The False Claims Act" »

Republican front runner Herman Cain is on the hot seat this week for allegations that he engaged in sexual harassment with one to possibly three female employees who worked for him while he was head of the National Restaurant Association. Cain has stated that in his "40 years of business experience," he has "never sexually harassed anyone." Cain has also responded that he has been falsely accused. One of the women signed a non-disclosure agreement ("NDA")where she agreed to keep all the facts and details regarding the settlement confidential.

Confidentiality Agreements or NDAs are often used during settlements as well as mediation to resolve disputes between employees and employers. Both parties basically agree not to speak or disclose to any person any of the terms used in making the agreement or the facts or circumstances related to any asserted or potential claims against the employer. In exchange for the employee not bringing a lawsuit against the employer and not speaking about the charges, the employer usually agrees to a monetary payment. For example, if an employee had alleged that he was discriminated against because of his race, he would be agreeing to never file a lawsuit based on those allegations. Our attorneys have reviewed and drafted many such agreements to ensure that our clients' rights are protected and that they received the highest possible settlement.

Most agreements will also prohibit both the employee and the employer from speaking about the charges and in the event that either party breaches the confidentiality clause, a well drafted agreement will contain a liquidated damages clause imposing penalties for violating the agreement. In other words, if the employee tells a friend, a co-worker, or the media about the circumstances pertaining to the confidentiality agreement, the employee would in breach of the contract and have to pay the amount called for in the contract.

The agreement will also contain a non-disparagement or non-interference clause which provides that both parties will not make any written or oral statements or remarks which are disparaging or damaging to the integrity, reputation or good will of the other. For example, if an employee had alleged that her supervisor had sexually harassed her, this clause would prohibit the employee from making any negative comments about the supervisor. The employee cannot sign this document and than tell her friends that her supervisor is a pervert who wouldn't promote her because she didn't sleep with him. Once you sign this, you cannot bad mouth or make any negative comments about your employer.

Cain first denied knowledge of the settlement, then admitted that there was an agreement which included payment, and also talked about one of the woman's work performance as being "not up to par." He has commented that these women made up the charges and that they were baseless. By speaking about the sexual harassment and the settlement payment, Cain may have violated the terms of the non-disclosure agreement. On the other hand, one of the women who claimed that Cain had sexually harassed her has not said anything. In fact, her attorney has stated that the NDA she signed is stopping her from speaking and has asked the Restaurant Association to waive the agreement so that she can tell her side of the story.

It is crucial to have an attorney represent you if you have suffered from any type of employment discrimination or sexual harassment and your employer is trying to settle the charges with you. Before you sign a settlement or a confidentiality agreement, you need to know what rights you are giving up. For example, it might be important for you tell a prospective employer why you left your old job, which an NDA might prevent you from doing. Before you limit your rights, call our attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your rights.

Continue reading "Avoid Violating Confidentiality Agreements and Non-Disclosure Agreements by Knowing What Rights You're Giving Up" »

The Family and Medical Leave Act ("Act") makes it illegal for an employer to deny an eligible employee his or her right to take leave. The Act also prohibits employers from retaliating against an employee who takes time off under the Act. In a recent case, Shaffer v. American Medical Association, the federal court sent the case back to have a jury decide if an employer terminated the employee's position because he was going to take a four to six week leave of absence for a knee replacement surgery under the FMLA. Our attorneys have helped many companies train their personnel to avoid such claims.

William Shaffer worked at the American Medical Association ("AMA") as Director of Leadership Communications. Back in 2008, various positions were going to be eliminated because of budget cuts and the economy. Michael Lynch, the head of the communications department and Shaffer's boss, had already picked a position to terminate which was in Shaffer's department because that employee's duties had changed. On October 28th, Lynch had stated that he didn't think Shaffer's position needed to be cut.

However, upon learning of Shaffer's FMLA' request, Lynch changed his mind. Shaffer put in his request under the Act to take off four to six weeks for knee replacement surgery on November 20th. On November 30th, Lynch decided to terminate Shaffer's position and specifically in an e-mail to his boss, said that he apologized for his "11th hour change of heart" and stated that "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."

If you're an eligible employee, the Act protects you from losing your job and health insurance benefits for up to 12 weeks. The Act applies to all public agencies, state, local and federal employers, and private sector employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Under the Act, an employee may take up to 12 weeks of unpaid leave for any of the following reasons:

• to give birth and care for a newborn

• to care for an immediate family member, such as a spouse, child, or parent with a serious health condition

• medical leave when the employee cannot work due to a serious health condition

• for adoption or foster care placement with the employee

In order to be eligible to take leave, an employee must meet the following conditions:

• work for a covered employer;

• have worked for the employer for a total of 12 months;

• have worked for at least 1,250 hours over the past 12 months; and

• work at a location or within 75 miles of a location where the employer has at least employed 50 employees.

If you are an eligible employer under the Act, make sure your supervisors and managers are trained and familiar with the Act's policies. A simple, unintended slip of the pen can cost your company thousands in litigation. Even if Shaffer's termination was not related to his leave request, the e-mail's specific reference to the leave casted a negative shadow on whether his firing was due to his FMLA request. If you decide to fire or eliminate an employee's position days after he or she gives notice of leave for any of the reasons set forth in the Act, make sure that you document your reasoning and thought process.

Our attorneys can help you protect your business from unnecessary claims and litigation. Call our experienced FMLA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you train you supervisory staff and deal with FLMA claims.

Resources:
Fact Sheet #28, Department of Labor

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