New York Employment Lawyer Blog

Our New York Department of Labor Audit Attorneys have been seeing more and more employers being investigated by the New York State DOL, Unemployment Insurance Division for non-payment of unemployment insurance benefit taxes. In general, employers must pay 6.1% of each employee's first $8,500.00 in earned wages for the aforementioned taxes. The rise in audits is a result of misclassification penalties issued by the government. In an effort to raise revenue for New York State, the DOL has been scrutinizing companies that use independent contractors who should be treated as employees. It is possible that this classification was proper and legal but many employers are unprepared to defend and fight the audit. In some cases, employers decided to simply pay the alleged back taxes owed for unemployment insurance benefits so that they can spend time running their business. This decision can have disastrous results as the New York State Department of Labor, Unemployment Insurance Division, shares its information with the New York State Worker's Compensation Board. Shortly after these companies decide to pay the unpaid unemployment insurance benefit taxes, which are generally not significant, they are surprised to learn that they are hit with a tremendous bill (in many instances over $50,000.00 in penalties) from the New York State Worker's Compensation Board. Critically, these employers' defenses may be compromised from their earlier admission by paying the New York State Department of Labor taxes. Companies and employers must strategically consider all of its responses to government agencies, especially agencies that could issue penalties in excess of $50,000.00. Furthermore, these companies could be sued by former "employees" for unpaid overtime pay and denial of fringe benefits. The class-action implications of this type of lawsuit are substantial as Microsoft learned in the 1990's. In that case, a Court determined that Microsoft misclassified workers as independent contractors and the former "employees" were awarded fringe benefits, which were tremendous, because they included valuable stock options.

The IRS has issued the following guidance regarding independent contractors:

There are three characteristics to determine the relationship between businesses and workers:

If you have the right to control or direct not only what is to be done, but also how it is to be done, then your workers are most likely employees.

If you can direct or control only the result of the work done -- and not the means and methods of accomplishing the result -- then your workers are probably independent contractors.

Employers who misclassify workers as independent contractors can end up with substantial tax bills. Additionally, they can face penalties for failing to pay employment taxes and for failing to file required tax forms.

Companies are advised to carefully consider anytime they use an independent contractor to determine if that is the proper classification indeed. Moreover, small businesses should seek the advice of experienced employment law counsel if they are audited by the DOL or issued a penalty by the Workers Compensation Penalty. Our New York Lawyers have assisted many small business owners and homeowners and saved them over one million dollars in fines by the WCB. Call now at (800) 893-9645 to speak with one of our employer penalty defense attormeys.

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.

Our New York Business Immigration Lawyers are preparing H-1B applications on behalf of companies and corporate executives, physicians, nurses, software engineers, and other professionals. The United States Citizenship & Immigration Services (USCIS) will start to accept H-1B petitions for the fiscal year 2013 on Monday April 2, 2012. If an application is approved, the H-1B employee can start working for a sponsoring company on October 1, 2012. It is imperative for businesses to analyze their current employment and staffing needs now to determine whether they should file a H1-B application before the visa quota is reached. Contact our NY Immigration Attorneys at (800) 893-9645 to best evaluate your legal options.

Timing is critical because there is a limit of 65,000 on the number of approved H-1B applications. This cap has been met every year sometimes within mere days of when the filings are accepted. Below is a chart which underscores why companies and qualified professionals must act quickly. It is worth noting that companies who try to jump the gun and file before April 1st will have their applications rejected.

Year Cap threshold Date Quota Was Reached

2003 65,000 October 1, 2003
2004 65,000 October 1, 2004
2005 85,000 August 10, 2005
2006 85,000 May 26, 2006
2007 85,000 April 3, 2007
2008 85,000 April 7, 2008
2009 85,000 December 21, 2009
2010 85,000 January 26, 2011
2011 85,000 November 22, 2011
2012 85,000 Will you file your application before
it is too late?

Companies and executives are advised to evaluate the immigration status of their international employees and prospective employees. Employers should consult with experienced labor and employment law counsel to consider their options and learn the maze of administrative regulations affecting H-1B employees such as payment of prevailing wage. There are many unique employment issues affecting H-1B employees which may not be applicable to employees who are US Citizens. If you have any questions regarding your employment or prospective employment of an H-1B employee, contact one of our experienced business immigration attorneys at (800) 893-9645.

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.

Tyson Food, Inc. ("Tyson") recently agreed to pay $35,000 and amend its medical assessment process to settle a disability discrimination lawsuit filed by the EEOC. Tyson is one of the world's largest processors of chicken, beef, and pork and employs over 117,000 people at its 400 facilities and offices throughout the country.

The EEOC filed this lawsuit back in May, 2010 charging Tyson with refusing to hire Mark White, a former employee, for a maintenance position because he had epilepsy. If you have been discriminated against because of a disability regarding any aspect of employment, our attorneys can help you evaluate your claims to ensure that you are not denied your workplace rights.

The EEOC alleged that Tyson's actions violated the Americans with Disabilities Act ("ADA") because White's epilepsy had been controlled by medication for twelve years, during which time he had been previously employed by Tyson on two occasions. Since White was last hired, Tyson had put in place a new medical assessment procedure and refused to hire him because he did not pass a medical evaluation required for applicants with epilepsy to determine if he could perform the job safely. The EEOC charged that the doctor, who made this evaluation for Tyson, did not examine White, but made his determination based on outdated medical research in deciding that White could not perform this job safely. Meanwhile, Tyson employed several other individuals, having epilepsy, at the same time, who had been grandfathered in.

The consent decree, which must be approved by the district court judge, requires Tyson to pay White $35,000 in back wages and compensatory damages as well as implement a new assessment procedure for similar cases. For example, if an applicant who is disqualified from being hired because of Tyson's required medical assessment, he or she has the right to a second medical assessment at his or her expense. Additionally, it requires an independent and determinative third medical assessment to be made for any applicant not hired after the second assessment. The decree also requires Tyson to train its employees who are involved in the assessment procedure, to post notification to its employees, and report its compliance to the EEOC.

The ADA makes it illegal for private employers as well as state and local governments to discriminate against qualified individuals with disabilities with respect to hiring, firing, promotion, compensation, training and other term or condition of employment. If you are a private employer with 15 or more employers, you are covered by the ADA.

Under the ADA, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of the impairment; or is regarded as having the impairment. A qualified employee with a disability is someone who with or without reasonable accommodation can perform the essential functions of the job. If you are an employer, you are required to make reasonable accommodations to an employee or applicant's known disability if it would not impose an "undue hardship" on your business operations. For example, some reasonable accommodations can include making an existing facility accessible to a person with a disability, modifying work schedules, or job restructuring. However, you do not have to provide an accommodation if it poses an "undue hardship" such as significant difficulty or expense given your company's size, financial resources, and business structure.

It is a waste of talent and resources when disabled persons are denied employment opportunities or discriminated against because of a disability when they are otherwise qualified to perform the essential requirements of a job. If you have suffered from discrimination because of a disability, call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your workplace rights.

Continue reading "Americans with Disabilities Act Update: Tyson Foods Agrees to Pay Back Wages and Amend its Medical Assessment Policy to Settle Disability Discrimination Lawsuit" »

2012 EMPLOYMENT LAW UPDATE: Since January 1, 2012, hundreds of small businesses and homeowners, who employed workers or nannys, respectively, have received penalities or judgments for failing to carry workers' compensation insurance. While it is reasonable to penalize employers for failing to carry the required coverage to protect if a worker gets injured on the job, the penalty levels are draconian and do not seem reasoanble under the circumstances. For example, if a small business did not a carry worker's compensation insurance policy which is typically approximately $500.00, New York State may have fined that same small business employer over $50,000.00 for this violation. Among the businesses issued a penalty or judgment were celebrities Jay-Z, music superstar, and Al Franken, former Star of Saturday Night Live and current Minnesota Senator. While there is an important policy reason for employers to carry worker's compensation insurance to protect employees and so that the costs are proportionately spread among all employers, these level of draconian penalties are causing employers to close their operations and terminate any employees they may have had. In the end, employees are losing their jobs, small businesses are closing and New York State is stuck referring the judgments to debt collectors to collect these improbable amounts. If you have received a notice of penalty or notice of judgment, contact one of our experienced New York attorneys to learn how to protect your assets. Our NYS Workers Compensation Board Penalty Defense Lawyers have saved small businesses and homeowners over $1,000,000.00 in penalties and fines and can help you.

Under the Law, employers (and homeowners who employ a nanny in under circumstances) are required to carry insurance for employees for work-related accidents or injuries. If an employer has one or more employees, the Company is required to obtain a workers' compensation insurance policy. There are only a few limited circumstances where coverage is not required - generally, the following employers are exempt from coverage:

The company is owned by one person and said person holds all corporate office titles and is the only employee; and
The company is owned by a husband and wife and they hold all of the corporate office titles and are the only employees.

In a particularly problematic provision for companies and homeowners, if a well-intentioned family member (including a spouse or adult child) works for the business and even if that relative does not collect a salary, that family member is considered an employee by the Workers Compensation Board. Furthermore, in recent years, the Workers Compensation Board has increased its scrutinizes small businesses that utilize independent contractors and may consider them employees depending on the circumstances. Simply calling an individual an independent contractor is not a sufficient basis for not carrying worker's compensation insurance coverage.

PENALTIES FOR FAILING TO CARRY WORKERS' COMPENSATION INSURANCE
Under Section 52 of the Law, if a business with more than five employees fails to carry a required workers' compensation policy, its owners could be subject to a class E felony. If an employer with fewer than five (5) workers fails to carry a required workers' compensation policy, such failure shall constitute a misdemeanor. Critically, if an employer does not have worker's compensation insurance and an employee suffers a work-related injury, the employer shall be responsible for all of the costs of the worker's compensation claim including but not limited to the employee's medical bills and compensation payments. These costs are in addition to the fines and penalties issued by the New York State Workers Compensation Board. Non-compliant employers are issued a penalty in the sum of $2,000.00 for each ten-day period it lacks coverage in 2012. See Section 52(5).

Employers who have received a "Notice of Penalty" or Judgment from the New York State Workers' Compensation Board should immediately seek advice from experienced legal counsel. Our attorneys know the intricacies of the Workers' Compensation Law and the Workers' Compensation Board's procedures and can assist you. We have saved our clients over $1,000,000 in penalties and fines. Call now to speak with one of our New York Workers Compensation Penalty Defense Attorneys at (800) 893-9645.

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.

Citigroup just settled a whistleblower lawsuit with the U.S. Justice Department this week for alleged violations of the False Claims Act. Sherry Hunt, a quality assurance manager in Citigroup's Missouri office, filed the whistleblower suit last year in the U.S. District Court in the Southern District of New York. Citigroup has agreed to pay the government $158.3 million to settle, of which Hunt will receive $31 million. If you know of any fraud being committed against the government at your place of employment, call our Whistleblower Attorneys to figure out if you have an action under the False Claims Act.

Hunt's complaint alleged that Citigroup "defrauded, falsified information or misled federal government entities" by misleading it into insuring thousands of risky home loans that it knew did not qualify for insurance from the Federal Housing Agency ("FHA"). Hunt charged New York based Citigroup with vouching for many mortgages which had many defects. For example, some of these defects included deficient income documentation, incomplete borrower job histories, improper appraisals, closing paperwork errors, missing credit reports, and miscalculated maximum mortgage amounts.

The governments' allegations also charged Citgroup with not complying with FHA requirements such as failing to report underwriting flaws and other problems. This resulted in costing taxpayers about $200 million in claims.

In settling, Citigroup has accepted responsibility for its alleged conduct of improperly certifying loans for insurance and failing to comply with disclosure rules which dates back to 2004. Citigroup may also be forced to buy back the substandard mortgages that it sold to government controlled Fannie and Freddie. The Justice Department has also reserved the right to seek criminal and other charges.

The whistleblower in this case, Hunt, began working at Citigroup in 2004. As she noticed the problems getting worse, she complained to human resources. However, nothing was done. In fact, she alleged in her complaint that senior bank personnel tried to pressure quality control manager to keep the number of defects in the mortgages down. Hunt has stated that she "came forward out of passion for what I do, and what I chose for a career, and I did it for my children, my grandchildren . . . hoping that they can have the same opportunities that I had when I bought my first house and started my family."

This case is a perfect example of why the qui tam whistleblower statute is one of this country's most effective tools in fighting fraud. Even though Hunt complained, nothing was done until her lawsuit was filed. The whistleblower statute allows a private individual with knowledge of fraud being committed against the government to bring an action on behalf of the government. Depending on whether the government intervenes in the action, the whistleblower can receive between 15% to 30% of the government's recovery.

It is a shame that Citigroup was engaging in such fraudulent conduct, even in 2011, given the country's recent housing crisis and the government's bailout using taxpayer monies. Hunt is a great example of how one person observing fraud can make a difference. If you have noticed fraud against the government at your place of work, remember that it's your taxpayer monies that are being stolen. Call our Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have an action under the False Claims Act.

Continue reading "Citigroup Whistleblower Exposes Mortgage Fraud Against Government Entities and Recovers Huge Payoff" »

The EEOC recently settled a religious discrimination lawsuit with Convergys Customers Management Group ("Convergys"), which is a subsidiary of Cincinnati based Convergys Group, and a global provider of customer management services. The EEOC had charged Convergs with not hiring a job applicant who could not work on Saturdays because of his religious beliefs. If you have suffered from religious discrimination at your place of employment, call our attorneys to help you evaluate your rights. Our attorneys have recovered monetary compensation and obtained reasonable accommodations for many of our clients who have been discriminated against because of their religion

The EEOC alleged that Shannon Fantroy responded to an online advertisement for the position of customer service representative at Convergys' call center in Hazelwood, Missouri. During Fantroy's interview, the recruiter told him that he would have to work weekends. Fantroy told the recruiter that he could not work on Saturdays because of his religious beliefs. Fantroy was a Hebrew Israelite who observed Sabbath from sunup until sundown on Saturday. The recruiter told Fantroy that the interview was over if he could not work Saturdays and ended the interview.

Barbary A. Seely, the regional attorney for the EEOC's St. Louis District Office, stated that "Mr. Fantroy never had a chance to discuss accommodation options because the recruiter simply cut him off once he stated that because of his religious beliefs he could not work on Saturdays." She added that "Giving an employee an alternate schedule where hundreds of employees are available to cover the shift was not an unreasonable request . . . Other call center employers around the country should take note of these requirements."

The two year consent decree provides that Convergys must train its recruiters on religious discrimination and accommodation law. Convergys must put in place a new company procedure which allows job applicants who have been offered a position to request religious accommodation. The decree also requires the recruiters to finish each interview application process even if the applicant states that he or she may need a schedule adjustment. The decree also requires Convergys to give written notice to all job applicants in the next two years that they may be entitled to an accommodation.

Title VII of the Civil Rights Acts of 1964 makes it illegal to discriminate against a person because of their religious beliefs regarding any aspect of employment, including hiring, firing, job assignments, pay, layoffs, promotions, training, or any other term or condition of employment. If you are a business or a private employer with 15 or more employees who have worked for you at least twenty calendar weeks in the current or past year, you are a covered employer under the law and you must reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on your company's operations. Some examples of religious accommodation include flexible scheduling, job reassignments, and modifications to workplace practices.

However, you do not have to accommodate an employee's religious beliefs if doing so would cause your business an undue hardship. For example, an undue hardship is one that is costly, compromises workplace safety, decreases workplace efficiency, affects other employee's rights, or requires other employees to do more than their share of hazardous or burdensome work.

If you are a covered employer under the Title VII, make sure your employees and recruiters are trained in religious discrimination law. Our attorneys have conducted hundreds of training seminars for managers, supervisors and recruiters to help them understand the law and prevent unnecessary litigation. Call our Religious Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help your company avoid potential lawsuits.

Continue reading "Failure to Accommodate Religious Beliefs Leads to Settlement Involving Employment Policy Changes" »

Dava Pharmaceuticals ("Dava"), a global pharmaceutical company, agreed this week to pay the U.S. government $11 million to settle allegations that it violated the False Claims Act. The government had charged Dava with violating its obligations under the Medicaid Prescription Drug Rebate Program ("Rebate Program"). A whistleblower brought the alleged fraud to the governments attention. If you are know of fraud being committed against the government at your workplace, call our Whistleblower Attorneys to help you determine if you have an action under the False Claims Act.

Pharmaceutical companies must enter into the Rebate Program if they want their products to be available to Medicaid beneficiaries under the Medicaid program. Under the Rebate Program, if you are a participating drug company, you must pay quarterly rebates to the state Medicaid programs, which are based in part on whether a drug is a "generic" or "branded" product and the difference between what the health care program paid for the drug and what other purchasers paid for it.

The settlement involves alleged conduct that occurred between October 2005 and September 2009. The government alleged that Dava, in order to lower its Medicaid rebate payments, incorrectly labeled its version of the drugs, cefdinir, clarithromycin, and methotrexate as "generic" drugs instead of accurately calling them "branded" products, which in effect lowered its overall percentage rebate that it owed to Medicaid. Dava also incorrectly figured out the average manufacturer prices for its versions of these drugs and thereby further reducing its Medicaid rebate obligation. In effect, Dava did not pay the full amount due to the Medicaid program and overcharged certain public health services for these products.

Of the $11 million settlement, the federal government will receive about $5 to $7 million while the Medicaid participating states will receive over $5 million. Dava will pay about $200,000 to certain public health services entities who overpaid for the drugs at issue.

Tony West, the Assistant Attorney General for the Civil Division of the Department of Justice, stated that "Pharmaceutical companies that participate in Medicaid must accurately report drug prices and pay their fair share of rebates to the federal and state governments." He added that "Settlements like this one help maintain important programs on which so many depend for needed health care."

The qui tam whistleblower statute is probably one the governments' most important weapons in combating fraud against the government. It allows private citizens with knowledge of fraud being committed against the government to bring an action on behalf of the government. Under these statutes, government can recover three times the amount it was defrauded as well as charge civil penalties of $5,500 to $11,000 per false claim. Depending on whether the government intervenes in the action or not, a whistleblower can receive between 15% to 30% of the government's recovery. Jim Conrad, the whistleblower in this case, will receive 15% of the government's recovery as his share for bringing Dava's fraud to the government's attentions.

Committing fraud against the government is the same as stealing from taxpayers. If the whistleblower in this case had not brought this action, Dava's fraudulent practices would probably have gone undetected, costing taxpayers million. If you know of fraud being committed against the government at your workplace, call our qui tam Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have an action under the False Claims Act..

Continue reading "False Claims Act: Whistleblower Gets Huge Payoff by Exposing Medicaid Fraud" »

A federal judge in Houston recently ruled that it was not sex discrimination where a woman was fired because she asked for a place to pump her breast milk. The Judge's ruling stated that "lactation is not pregnancy, childbirth, or a related medical condition." Other district courts in the country have also issued similar rulings. However, this issue has not been ruled on by any higher level appeals courts.

The woman who was fired over this issue, Donnicia Venters, worked for Houston Funding as an account representative for about 3 years and had even earned a promotion. Venters took maternity leave in December 2008 and gave birth to her now 3 year old daughter. According to cell phone records and her former supervisors' statements, Venters kept in close touch with her employer during her 10 week maternity leave. While she was on leave, she told her direct supervisor at least twice, that she wanted to pump milk while on her break, and asked him to get permission from their boss, Vice President Harry Cagle.

Venters' supervisor, Fleming, stated in an affidavit that when he told Cagle about Venters request, he responded "No. Maybe she needs to stay home longer." Ventors stated that when she told Cagle she wanted to pump breast milk in a back room during breaks, his "demeanor changed. He paused for a few seconds and said, 'I'm sorry. We've laid you off."

Houston Funding argued during the lawsuit that it fired Venters because she did not keep in contact with the company and didn't come back to work as scheduled. The EEOC argued that Venters spoke to her supervisor at least once a week during her maternity leave and that Houston Funding's allegation that she was fired for "job abandonment" was a "pretext for unlawful discrimination."

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, makes it illegal for an employer to discriminate against employees because of their sex, including pregnancy, childbirth or related medical conditions.

President Obama's health care law talks about breast feeding and requires employers to give mothers a break to nurse. However, if a woman asks to pump breast milk, it does not specifically protect her from getting fired. The laws intent was to get nursing mothers back to work and allow them to continue nursing for its health benefits. The law gives you break time to nurse, but it does not protect you from getting fired when you take that break to pump breast milk.

According to several federal district court rulings, lactation discrimination is not illegal. Obama's health care law is quite useless if it provides you with a break to pump breast milk but doesn't protect you from getting fired for doing so. The EEOC has not yet decided whether it will appeal the Court's decision. Clearly, the health care law on this issue needs to be amended or the courts need to interpret the law using common sense. If its illegal to discriminate based on pregnancy, then discrimination based on lactation should follow. Lactation is a "related medical condition" to pregnancy.

Although lactation discrimination is not currently prohibited, discrimination based on pregnancy is illegal. If you or anyone you know has suffered from discrimination based on pregnancy or a related issue, call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your workplace rights.

Continue reading "Court Rules Request to Pump Breast Milk at Place of Employment Not Pregnancy or Sex Discrimination" »

Snacks and beverage PepsiCo recently announced restructuring plans to cut about 8,700 jobs in order to save about $1.5 billion in costs. The company stated that it will cut jobs in 30 countries and that less than 2,000 of the layoffs will take place in the U.S. PepsiCo, which is based in Purchase, New York, employs about 100,000 workers in the U.S. The Company has stated it plans to layoff 145 employees in Westchester County (80 positions in Purchase; 50 at the bottling facility in Somers; and 15 at the R&D operations in Valhalla). If you are one of these laid off employees in the U.S., call our experienced Severance Attorneys to discuss your rights and options and to help you negotiate a better compensation package.

The job cuts represent less than 3% of PepsiCo's 300,000 global workforce. Although it is planning cuts, it plans to increase its advertising and marketing spending on its other brands by $500 to $600 million this year "with particular focus on North America."

This news from PepsiCo comes at a time when its Chief Executive Indra Nooyi said that the company had an 8% annual growth in earnings per share over the last five years and shareholders received about $30 billion back in dividends and share repurchases.

PepsiCo is the 6th largest employer in Westchester, employing about 3,000 employees. PepsiCo has a bottling operation in Somers, a beverage research and development center in Valhalla and its global headquarters in Purchase. Just last week, it helped launch the Hudson Valley Food and Beverage Alliance which will unite local companies in a joint effort to market their products worldwide.

Considering PepsiCo's involvement in Westchester and that the company has been doing so well over the past several years, it's layoff announcement is especially shocking to its employees who thought they were secure in their employment working for a solid company. No matter who you work for or how strong you think your company is, you should always be prepared for such news. The following are just a few tips to keep in mind in case you are laid off or you think you might lose your job:

• In the event your employer offers you a severance package, don't rush to sign it. Often times, companies offer these severance agreements to prevent former employees from bringing any employment claims that might have occurred during their employment. Make sure you are not signing away any claims you may have for discrimination based on age, gender, national origin, race, or retaliation. Consult with one of our experienced attorneys to ensure that you are getting the best possible severance package.
• Don't sign any non-competition, non-solicitation clauses, or non-disclosure statements without consulting our experienced attorneys. Ask for time to review and think about any documents they want you to sign. For example, if you're in sales, you don't want to limit yourself geographically or be forced to relocate your family. If you have any special skills or a client list, you want to be able to use it when you are searching for your next job or to help you negotiate a better severance agreement.
• Keep up to date in your area of employment and current with any training your field may have. For example, if you are IT worker, may sure you know the latest computer programs and news developments in this area. If you work for a hospital, make sure you know what is going on in the health profession. You can make yourself much more marketable by maintaining your expertise and knowledge of what is happening in your industry.
• Most importantly, stay calm and professional if you lose your job. You may need references from your old supervisor who may also be able to refer you to any job openings he hears of.

If you have recently lost your job, call our Severance Package Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you negotiate the best possible agreement for your needs. Our attorneys have helped many laid off employees get better financial packages and ensure that they were not signing away any rights.

Continue reading "Severance Package Lawyer Update: PepsiCo to Layoff Thousands of Employees" »

Fourteen hospitals settled allegations this week of violating the False Claims Act by agreeing to pay over $12 million to the U.S. government. All the hospitals, located in New York, Mississippi, North Carolina, Washington, Indiana, Missouri and Florida, had submitted false claims to Medicare. Among the New York hospitals, North Shore Syosset Hospital will pay $192,735 while Plainview Hospital has settled for $2,307,265. If you work in a hospital or a health care facility and know of fraudulent claims being filed against the government, call our Medicare Fraud Attorneys to help you determine if you have an action under the False Claims Act.

This lawsuit was brought by two qui tam whistleblowers, Craig Patrick and Charles Bates, under the False Claims Act. The Act allows individuals with knowledge of fraud being committed against the government to bring an action on behalf of the government and to receive a percentage of the recovery. Patrick was employed as a reimbursement manager at Kyphon and Bates was employed as a regional sales manager for Kyphon. For bringing the lawsuit on behalf of the government, the two individuals will receive a total of about $2.1 million of the recovery.

The lawsuit charged the hospitals with overcharging Medicare between 2000 and 2008 when kyphoplastys were performed. Kyphoplasty is a procedure performed to treat certain spinal fractures caused by osteoporosis. It is minimally invasive and can be done as an out-patient safely and at a much reduced cost. The government alleged that these hospitals performed the procedure on an inpatient basis to increase their Medicare billings.

The allegations in these settlements all case stem from the government's settlement with Medtronic Spine LLC, the corporate successor to Kyphon, Inc., in 2008. The $75 million settlement resolved allegations that Medtronic committed Medicare fraud by counseling hospital providers to admit patients for inpatient hospital stays to perform kyphoplasty procedures in order to increase their Medicare reimbursement although the procedure could have been done on an outpatient basis in many cases. Thereafter, the government aggressively began going after health care providers who billed for inpatient stays following a kyphoplasty. The government's initiative has resulted in settlements with over 40 hospitals with a recovery of over $39 million.

If you're a healthcare provider, make sure you have not over billed Medicare. In light of the government's crack down on Medicare fraud, it is not unwise to conduct an internal audit of your Medicare billing and reimbursements to ensure that you're not submitting any false claims. If you have received any over payments, you must pay the money back within 60 days. Failure to do so could result in triple damages and penalties of $5,500 to $11,000 per claim. Our attorneys have helped many healthcare providers examine their billing as well as referral relationships to ensure that they are not violating the False Claims Act.

Tony West, Assistant Attorney General for the Justice Department, stated that "Patients want reassurance that their health care provider is making treatment decisions based on the patient's best interests, not an interest in maximizing profits. When healthcare providers submit false claims to increase their Medicare reimbursement, it not only takes a toll on the country's cost of health care, health care is compromised."

If you know of fraud being committed against the government, call our Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss if you have a possible cause of action under the False Claims Act.

Continue reading "Qui Tam Whistleblowers Expose Medicare Fraud and Obtain Big Payoff" »

The New Jersey Appellate Division recently ruled that a Starbucks employee who reported workplace violations was not a whistleblower because it was her job to report and address such violations. The New Jersey Supreme Court has been asked to review this ruling which could have far reaching implications on NJ's whistleblower statute.

The case, White v. Starbucks, involved an employee, Kari White who was a former district manager. White began working for Starbucks in 2006 and was forced to resign in March of 2007. White claimed that she was fired for reporting workplace activities that were in violation of company policy and law. Some of these included complaints of reporting missing store merchandise, unsanitary conditions at one of the branches, employees drinking alcohol while on the job, after hour sex parties, employees e-mailing pornographic images, and complaints about leaving space between tables and chairs for wheelchair accessibility. Starbucks claimed that she was fired for her aggressive managerial style.

White brought suit under New Jerseys's whistleblower statute, Conscientious Employee Protection Act ("CEPA"), which prevents employers from retaliating against an employee for reporting illegal or fraudulent activities. CEPA's intent is to protect and encourage employees to report illegal and unethical workplace activities as well as discourage public and private sector employees from engaging in such conduct.

The Court found that White's job duties as a District Manager required her to "regularly and customarily exercise discretion in managing the overall operation of the stores within her district including overseeing the district's store management workforce, making management staffing decisions, ensuring district-wide customer satisfaction and product quality, and managing safety and security within the district." Since it was White's job to tell her superiors about any violations she observed at the stores in her charge and make sure that they were corrected, the Court held that she could not bring suit under CEPA. In other words, as a district store manager, it was White's job to perform whistleblowing activities.

Considered to be a very broad statute, the NJ Appellate Court's decision here substantially limits CEPA's scope and reach. You are only entitled to file a CEPA claim and have its protection if you are a true whistleblower. If your job duties involve reporting violations of law, you cannot bring a CEPA claim. Although White's job duties involved whistleblowing activities, the problem here is that she reported the improper and illegal conduct and tried to correct. Contrary to CEPA's intent, in the end, she was terminated. The problem with the Court's decision is that it doesn't protect you from retaliation when you are trying to do what is right.

Our experienced Whistleblower Attorneys have helped many employees evaluate and determine the strength of their whistleblower claims. If you have observed illegal or fraudulent activity at your workplace, don't let the Starbucks ruling discourage you from reporting illegal activity. Call our Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible options and determine if you have a whistleblower claim under CEPA or under the federal False Claims Act.

Continue reading "New Jersey's CEPA Held Inapplicable to Employee Whose Job Involved Whistleblower Activity" »

Pharmaceutical companies have recently announced thousands of planned layoffs. Pharmaceutical giant Novartis announced last month that it plans to cut 1,960 jobs in the U.S. as part of its restructuring. Novartis plans to cut 1,630 sales positions in the field and about 330 positions at its New Jersey headquarters. The job cuts are part of its restructuring due to the expiration of its patent for its hypertension drug Diovan and the failure of a clinical study into another hypertension drug, Tekturna. Novartis expects the job cuts to save it $450 million a year from 2013 after an initial charge of $160 million which will be booked in the first quarter of 2012.

Drug maker AstraZeneca has also recently announced that it plans to cut 7,300 jobs over the next three years. AstraZeneca's cuts also come as a result of restructuring because it is anticipating its revenues to decline as some of drugs, which are about to lose their patent protection, will face competition from generic drugs

Not knowing when you will find your next job or how you will pay your bills can be terrifying and leave you angry. If you have been laid off or are about to be laid off, stay professional and don't say anything that you might regret. Remember that you are not the only person being laid off. By staying calm, you can you can have a better handle on your options and your rights. The following are few tips to keep in mind when you are being laid off or about to be laid off:

• The most important thing to remember is that you don't want to burn your bridges. You will need references when looking for your next job. Your old supervisor may even be able to refer you to job openings at another company. Stay in touch with your colleagues who also might be able to help you once they have found a job.
• You are not entitled to a severance agreement but many employers today are providing separation packages. Most companies offer these packages in order to prevent employees from suing for any employment claims that might have risen during their employment. In the event you are offered a severance package, make sure you are not signing away any potential claims you might have based on age, gender, race, national origin, or retaliation. Our attorneys have helped negotiate better severance packages for many laid off employees. Consult with one of our experienced severance attorneys to ensure that your rights are protected.
• If you have a specialized skill or you're in sales, beware of signing any non-compete or non-disclosure clauses. For example, if you're in sales, your client list is your greatest asset when searching for that next job. Be careful of any clauses in a severance package limiting where you can work or which clients you can contact.

If you have recently been laid off, call our Severance Package Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your rights and options during this difficult time. Our attorneys can help you evaluate your severance package to ensure that you are not signing away any rights and getting the best severance package possible.

Continue reading "Amid Layoffs & Restructuring, Make Sure You Carefully Evaluate Your Severance Package" »

The EEOC recently filed a lawsuit against Mavis Discount Tire alleging that the auto store and service has been engaged in discriminatory hiring practices against women for at least 2 years. The tri-state auto parts store and service provider did not hire a single female between 2008 and 2010.

Mavis Discount Tire is based in Millwood, New York, and also does business as Mavis Tire Supply Corporation and Mavis Tire NY. The company sells tires, automotive parts and services and has about a 110 locations throughout the northeast.

The EEOC's lawsuit alleges that since 2008, Mavis only employed one woman out of about 800 employees. The various positions at the Mavis store and service centers included tire installer, mechanics, assistant managers, managers, as well as other related positions. Furthermore, out of 1,300 hires for these positions between 2008 and 2010, not one woman was hired.

The suit also charges Mavis with failing to maintain applications on file, which is a separate violation. The EEOC also claims that its review of applications that were available showed that Mavis denied offering positions to women with more experience and better credentials and hired less qualified men.

The lawsuit seeks recover back and future pay for all the women applicants who were harmed as well as job that they were denied. Anna M. Pohl, a trial attorney in the EEOC's New York District Office, stated that "Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past."

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against an individual because of their race, color, religion, gender, national origin, age, disability or genetic information regarding any aspect of employment. It applies to employers who have 15 or more employees, as well as to state and local governments. The Act prohibits discrimination based on sex against employees as well as job applicants with regard to hiring, firing, promotion, compensation, job training, or any other term, condition or privilege of employment. It also makes it illegal to based employment decisions on stereotypes and assumptions about abilities, traits, or how an individual will perform because of their sex. For example, it is illegal to not consider a woman for the position of a mechanic because of a generalization that "women can't change tires."

Women have come a long way from the days when they were completely barred from certain professions, but unfortunately, sex discrimination is still a huge problem. The facts in Mavis are absolutely shameful. Not only did the company discriminate in hiring women, it basically engaged in stereotyping all women as incapable of performing any automotive work.

Our attorneys have represented many women who have suffered from gender discrimination at the workplace. If you or someone you know has been discriminated against because of your sex, call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to evaluate your options to help you protect your workplace rights.

Continue reading "Mavis Discount Tire Allegedly Engages in Sex Discrimination by Stereotyping Female Applicants" »

Pharmaceutical giant Novartis received preliminary approval from a New York federal district court judge this week for a $99 million settlement of a lawsuit in which its sales representatives alleged that they were misclassified as "outside sales" under the Fair Labor Standards Act ("FLSA") and denied overtime pay. The class action settlement could affect over 7,000 current and former sales employees.

Over the past few years, pharmaceutical representatives have filed many overtime claims alleging misclassification of sales employees. They have claimed that they do not fall under the "outside sales" exemption and should be paid overtime. The federal court across the country are divided on this issue. This settlement comes at time when the U.S. Supreme Court is considering another case, Chistopher v. SmithKlineBeecham Corp., which involves the same issue of whether the FLSA's outside sales exemption applies to pharmaceutical representatives. The Supreme Court's decision will affect thousands of employees across the country.

The settlement stems from two lawsuits which were filed back in 2006 pursuant to the FLSA and California and New York labor laws. In July, 2010, the U.S. Court of Appeals for the Second Circuit ruled that the FLSA exemption did not apply to the Novartis sales representative, thus finding the sales representatives to be employees under the law. Rather than waiting for the Supreme Court's ruling in the SmithKlineBeecham case, the parties in Novartis decided to settle and not to wait for the Supreme Court's ruling.

The president of Novartis has stated that "We remain confident that sales representatives should continue to be classified as exempt from overtime because their autonomy and incentive compensation are typical of exempt employees as defined by U.S. law."

The FLSA provides an exemption from both minimum wage and overtime pay for employees who are outside sales employees. In order to qualify for the exemption, an employee must meet certain tests regarding their job responsibilities and be paid at least a salary of $455 per week. Your job title along does not give you an exempt status. For example, if your title is that of an outside sales employee, but your primary job duty is to schedule appointments, you are not exempt.

In order to qualify for the outside sales employee exemption, you must meet the following criteria:

-your primary duty must be making sales, or obtaining orders or contracts for services or for the use of facililites for which your client or customer will pay consideration; and
-you must be customarily and regularly engaged away from your employer's place of business.

Make sure your company is properly classifying your workers according to the guidelines under the FSLA. Misclassification can cost your company thousands in litigation costs as well as fines, penalties, and back taxes. Our attorneys have helped many businesses review the job functions of their workers to ensure that they are in compliance with the FLSA. Our attorneys have also helped companies determine if the Voluntary Classification Settlement Program is their best option. Call our Misclassification Attorneys at Villanueva & Sanchala at (800) 893-9645 if you think you might be misclassifying your employees.

Continue reading "Wage and Hour Update: Don't Let Misclassification of Your Employees Cost You Millions" »