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Archive for the ‘Uncategorized’ Category

Employers Don’t Have to Report Pay Data on EEO-1 Form

Posted on: August 30th, 2017

By: Paul H. Derrick

As we previously reported, the U.S. House Appropriations Committee put the future of the Equal Employment Opportunity Commission’s revised Form EEO-1 in doubt by inserting a rider into the annual budget proposal that would prohibit the EEOC from spending any funds on its plan to collect pay data from employers on the new form. The Office of Management and Budget now has taken things a step further.

Yesterday, OMB informed the EEOC that all efforts to implement the pay data reporting requirements must immediately cease. The revised EEO-1 would have required all businesses with 100 or more workers to submit pay data by gender, race, and ethnicity on their forms. OMB’s directive to the EEOC to stand down, however, is based on its concern that “some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

The traditional portions of the EEO-1 form that collect data on race, ethnicity, and gender by occupational category will remain in effect. Employers should plan to comply with the reporting requirements by the filing date of March 2018. Instructions are at:
If you have any questions or would like more information, please contact Paul Derrick at [email protected].

Don’t Hand Me No Lines And Keep Your Hands To Yourself.

Posted on: August 17th, 2017

By: Shaun Daugherty

Maybe the Georgia Satellites would consider allowing a cover of their hit “Keep Your Hands to Yourself” for Taylor Swift’s next album. Turns out that the Colorado federal jury believed the victim’s testimony regarding the events that occurred during the photo op in 2013 and unanimously found in her favor Monday, August 14, 2017. David Mueller, the DJ in question, sued the singer, her mother and manager, in 2015 alleging that she provided false information that led to his firing. He claimed that the mother and manager had pressured the radio station for his firing as well. In response, the pop star counterclaimed assault and battery for the unwanted touching of her rear-end during the photo shoot.

Mueller’s case was essentially over at the close of his evidence in his case-in-chief when the motions for directed verdict were granted on all of the DJ’s claims except the claims for contract interference against Swift’s mother and manager. That left Ms. Swift’s counterclaim front and center for the media and public to focus on. Actually, that was essentially the focus before trial according to any news outlet that I saw reporting on the issue. The photo from the encounter was an exhibit at trial as you can imagine, and a picture paints a thousand words, as they say. Above is the photo that is reported to have been shown to the jury.

The case came down to a matter of credibility between Mueller and Swift. Mueller’s contention was that Swift’s claims made no sense as he was posing with his girlfriend, in front of a security team, during a company sponsored backstage VIP event. The theory being, why do something as moronic as physically assault a world-famous singer in front of everyone. Further, he apparently claimed that the photo does not even support the allegation as his hand appeared to be touching her ribs. I am no medical expert, but I am not sure that Gray’s Anatomy Text would support that theory.

In any event, the jury found in favor of the defendant mother and manager and awarded Ms. Swift a symbolic $1 in finding in her favor on the sexual assault claims. Douglas Baldridge, who was apparently not working on contingency, argued in closing “by returning a verdict on Ms. Swift’s counterclaims for a single dollar – a single symbolic dollar, the value of which is immeasurable to all women in this situation.”

Strategic brilliance.

In one sentence of the closing argument, the attorney took the facts of the case and made them a distant second to principle and a universal statement for all women.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

Informed Consent! What Is It Good For? Absolutely Nothing. Say It Again.

Posted on: August 4th, 2017

By: Shaun Daugherty


Ok. That may be a bit extreme. After all, it is in the American Medical Association’s Code of Medical Ethics and the concept is addressed in most medical professional organizations guidelines in one form or another. And let’s not forget that it is mandated by statute and common law in most states. So the bottom line is that it is seen universally as a good idea for a medical provider to obtain informed consent from a patient prior to providing therapy, care, or treatment. While the precise legal requirements differ from state to state, the gist is that a medical provider should provide sufficient information for a patient to make an informed decision as to whether to accept the treatment. Generally speaking, the patient should be informed of the diagnosis, the alternative treatment options, the likelihood of success, the major risk/complications associated, and the consequences of just doing nothing.   Fantastic. You have obtained informed consent from your patient. I ask again, what is it good for?

In the legal context, in most situations, if you do not obtain informed consent, a patient has a cause of action to sue a medical provider for lack of informed consent. The theory being that the patient was not given sufficient information to make an educated decision about their care, and if they had been told “X,” they never would have agreed to the procedure. The “X” is usually one of the risks/complications of the procedure that the patient experienced, unfortunately.

On the defense side of a malpractice action, the informed consent has very limited value unless there is actually a claim of lack of informed consent made by the patient. In that scenario, informed consent is a relevant and target point of contention with the written informed consent form front and center for the jury. Without the specific claim being alleged, many courts are ruling that the informed consent forms that are signed by the patients are inadmissible pieces of evidence and are redacted from the records. They are also ruling that informed consent cannot be discussed in any form or fashion unless for the purpose of impeachment. That is, if the patient denies knowing that a particular risk was possible.

The typical scenario is that a patient suffers one of the known risks or complications of a procedure, let’s say a nerve injury during parathyroid surgery, and then sues the provider for the injury that they suffered. The provider says that it is a known risk of the procedure and it was not caused by negligence. The informed consent form will typically have the specific risk listed as one of the possible complications of the procedure and the defense would like to show the form to the jury to say, “see, we told them this was a risk of the procedure.” The claimant wants to keep the issue of informed consent out of evidence because, as the courts have reasoned, they are afraid that the jury could be misled to believe that the patient consented to the injury itself instead of focusing on whether there was a deviation in the standard of care.

One of the practical problems from a defense standpoint is the juries’ expectations with regard to their own common experiences. That is, the average juror of a medical negligence case will be very familiar with informed consent forms and will often look for them in the records during deliberations to either confirm or refute whether something is or is not a known risk/complication. If it is absent from the records, this could become a problem for the defense as the juror may believe that informed consent was not obtained and become a reason to find fault, even though it was not an issue in the case. An otherwise non-existent burden of proof has been created for the defense to disprove an issue that was never part of the case. Defending a medical negligence case can be difficult enough without having to chase phantoms.

We will keep looking for the legal trends and implications to govern ourselves accordingly while medical providers need to keep getting written informed consent as often as possible. After all, informed consent is ultimately good for something, perhaps the most important thing, patient information and decision making.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

NJ Supreme Court Revives Nurse’s Disability Discrimination Case

Posted on: August 3rd, 2017

By: Jennifer L. Ward

A recent NJ Supreme Court ruling made this month will cause all employers to think twice before denying a disabled employee’s request to return to work.

The New Jersey Supreme Court successful resuscitated nurse Maryanne Grande’s New Jersey Law Against Discrimination (NJ LAD) claim that was previously dismissed by the trial court on summary judgment in favor of Saint Clare’s Health System.  Grande appealed the dismissal.  A divided Appellate Division panel reversed the dismissal in favor of Grande because the record contained several material facts in dispute. The NJ Supreme Court affirmed the judgement of the Appellate Division and remanded the matter back to the trial court.

Who got it right? Trial court or the Appellate/Supreme Court?

Here is the short story. Grande underwent a workplace injury (requiring surgery of the cervical spine) that impacted her ability to lift heavy loads.  Upon returning to work, she was required to undergo a Functional Capacity Evaluation (FCE) which restricted her ability to lift no more than sixteen pounds.  Saint Clare’s written job description for a nurse specifically stated that one essential function of the job was to lift fifty pounds from waist to chest frequently. Shortly after the FCE, Grande was re-examined by her treating doctor who agreed with the restrictions in the FCE. The following day, Grande was terminated as a result of the objective evidence (FCE report and her treating doctor’s confirmation) which clearly states that she would be not be able to perform the essential functions of a nurse. Subsequent to her termination, Grande was re-examined by her treating doctor and cleared for her full range of duties with no restrictions, but Saint Clare’s opted not to rehire her.  In its ruling, the NJ Supreme Court concluded that Grande had met the standards to establish a case for disability discrimination under NJ LAD. She had also, the court said, created multiple questions of fact, including disputes as to whether lifting loads was part of her job, whether her prior absences from workplace injuries were “chronic,” and whether she would put herself or her patients at risk by returning to work. In a concurring opinion, Justice Jaynee LaVecchia added that she wished to “underscore that, in order for a disability discrimination claim to survive a summary judgment motion, the showing required of a terminated plaintiff regarding her ability to perform the essential functions of her job is a modest one.”

Despite the existence of a written job description that specifically states the lifting fifty pounds is an essential function of the job, an objective FCE report stating that Grande is unable to lift no more than sixteen pounds, which by the way was confirmed by her treating doctor—this is still not enough.  Moral of the story is the law is stacked against the employer.

If you have any questions or would like more information, please contact Jennifer L. Ward at [email protected]


Are We Seeing An Expansion of Whistleblower Litigation?

Posted on: August 2nd, 2017

By: Mark C. Stephenson

Whistleblower recoveries are on the rise in regulatory and judicial proceedings. On the regulatory front, the Occupational Safety and Health Administration (OSHA) Whistleblower Program was launched in 2011 and had jurisdiction over claims made under the whistleblower protection provisions of 17 federal statutes, now grown to 22 statutes. The other major regulatory program, the Securities and Exchange Commission (SEC) Whistleblower Program, was launched in 2011. In total to date, the SEC has awarded over $154 million to 44 whistleblowers since 2011. Of that, in 2016, the SEC awarded $26 million to ten individuals and $22.5 million to a recipient who aided in uncovering accounting fraud at Monsanto. In 2017, the SEC has already awarded nearly $18 million to a number of individuals.

The OSHA Whistleblower Program has been active as well and, in April 2017, ordered Wells Fargo to pay $5.4 million to a former branch manager, who claimed that he had been fired immediately after he reported alleged misconduct to his supervisors and the bank’s ethics. OSHA found that the whistleblower’s reports were protected under the Sarbanes-Oxley Act and the Consumer Financial Protection Act of 2010 and were “at least a contributing factor in her termination.” Wells Fargo has announced that it will fight OSHA’s order. This award is the largest OSHA has made and includes a substantial amount for compensatory damages.

These results rival those reported in recent court verdicts and settlements. New Jersey’s Conscientious Employee Protection Act, commonly called CEPA, is one of the country’s most liberal whistleblower protection statutes and allows a CEPA plaintiff to seek compensatory and bad faith damages. A recent survey of available CEPA verdicts and settlements from 2005 to the present determined that for the 26 matters reported, there was a total award of just over $44 million and an average award of about $1.7 million.

This history of growing success by whistleblower plaintiffs suggests that we can expect these claims only to rise, to involve significant litigation costs and present a substantial risk of a significant award if the result is unfavorable. Additional complications under the OSHA Whistleblower Program can complicate a defendant company’s operations, In the Wells Fargo matter, OSHA ordered the bank to immediately rehire its whistleblower plaintiff. The bank’s appeal from OSHA’s findings does not stay the reinstatement order. As a result, Wells Fargo faces new exposure to post-reinstatement claims of retaliation even as it defends against those that make up OSHA’s case. Whistleblower complaints are a very serious matter that needs to be brought to senior management’s attention immediately, who in turn should make retaining competent counsel a first step in planning how best to respond.

If you have any questions or would like more information, please contact Mark C. Stephenson at [email protected].