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FMG Law Blog Line

Archive for September, 2013

Drawing the Battle Lines: Federal Court Permits Department of Justice to Intervene in Texas Voting Case

Posted on: September 27th, 2013

By: Peter Munk

As discussed here, the Department of Justice has signaled an effort to use Section 3 of the Voting Rights Act to “bail-in” jurisdictions that previously required “preclearance” pursuant to the VRA’s now-defunct Section 4. This week, a three judge panel in the Western District of Texas allowed the government to intervene in an ongoing Texas lawsuit over redistricting, thus teeing up a legal fight over the meaning and application of Sec. 3(c). The order is here. The district court recognized that “after Shelby County, circumstances changed significantly, since Sec. 3(c) became an issue for the first time,” and that “the proper construction and application of Sec. 3(c) are unsettled and highly disputed.”

The meaning of the previously-untested Sec. 3(c) is shaping up to be the next major fight in the voting rights arena.

A Balancing Act-Compliance with the ADA And Use of Medical Examinations of Employees

Posted on: September 18th, 2013

By: Joyce Mocek

The Eleventh Circuit has held that an employer can lawfully require psychiatric/psychological fitness-for-duty evaluations if it has sufficient objective information to believe an employee is unstable and may pose a danger to others in the workplace.  In Owusu-Ansah v. Coca-Cola Co., No. 11-13663 (11th Cir.), an employee during a meeting banged his hand on a table and stated that someone was “going to pay for this.”  The employer was concerned by the employee’s actions and statement and conducted an investigation, which required the employee to meet with a consulting psychologist, psychiatrist and management.  The employer also required the employee to undergo a psychiatric fitness-for-duty evaluation based on the recommendations.

The ADA provides that any medical examination must be “job-related” and “consistent with business necessity.” 42 U.S.C. Section 12112(d)(4)(A).  The employee sued his employer under this provision of the ADA.  The Eleventh Circuit held that the psychiatric evaluation ordered by the employer in Owusu-Ansah did not violate the ADA because there was sufficient objective evidence to justify the evaluation.

Employers must balance the requirements of the ADA with the need to maintain a safe working environment.  This is often a difficult balancing act.  The court’s instruction in Owusu-Ansah confirms that a psychiatric fitness-for-duty examination may be acceptable; however, the employer must have sufficient objective evidence and justification before requiring such an examination so as to avoid violating the ADA.

The Reach of Georgia Apportionment Statute Continues to Expand

Posted on: September 13th, 2013

By: Stephanie Stewart

Georgia’s apportionment statute, O.C.G.A. § 51-12-33, has been making waves in the Georgia Court of Appeals and Georgia Supreme Court as new opinions are being issued interpreting the game-changing statute.  Previous cases have already held that the statute effectively abolished joint and several liability and contribution in Georgia.  In the recent case of District Owners Association, Inc. v. AMEC Environmental & Infrastructure, Inc., the Georgia Court of Appeals found that the statute has also abolished common-law claims for apportionment.

In District Owners, the Plaintiff was injured when he jumped over a wall and down to a parking deck at Atlantic Station.  He brought a premises liability action against the owner of the property.  Subsequently, the owner filed a third-party complaint against the designers and the builders of the wall and parking deck at issue, claiming that the third-party defendants were liable for common law indemnification and common law apportionment.  The court dismissed the owner’s third-party complaint holding that the apportionment statute displaced the common law concerning claims for indemnity and apportionment.

This case provides further proof of the sweeping effect the apportionment statute has on the common law in Georgia.  No longer are defendants permitted to bring joint tortfeasors into the lawsuit and make them parties.  Instead, absent a claim for contractual indemnity or vicarious liability, plaintiffs alone will determine who will be defendants in a suit.  Other persons or entities who may be liable to the plaintiff will remain non-parties and defendants must rely upon the non-party fault procedure outlined in the apportionment statute in their efforts to reduce their potential liability to a plaintiff.  This puts an increased burden on plaintiffs to bring all potentially liable parties into the suit if the plaintiff wants to recover the full value of their claim.  Whether this result was intended by the legislature is unclear, but at present, it is a procedural reality.

E-Verify Ramps Up Enforcement

Posted on: September 13th, 2013

By: Kelly Eisenlohr-Moul

With E-Verify participation now mandatory for Georgia businesses with eleven or more employees, related federal enforcement activity has increased significantly.

Below are some of the enforcement trends that we have seen with regards to E-Verify usage:

  • E-Verify “Desk Audits” by the Department of Labor (DOL): these usually target employers with heavy E-Verify traffic (i.e. staffing agencies or employers with heavy turnover, such as chain restaurants)
    • These audits are usually conducted by phone and attempt to assess whether the employer is correctly administering E-Verify;
    • If the DOL identifies issues, they may “refer” the employer to Immigrations and Customer Enforcement (ICE) or the Department of Justice (DOJ) for further enforcement action, including investigations and audits.
  • E-Verify “Discrimination” Charges by the DOJ’s Office of Special Counsel:
    • These investigations usually stem from allegations that E-Verify was administered incorrectly;
    • Like I-9 audits, these investigations are costly and time-consuming.
  • Third Party Contracting Problems: utilizing payroll services to facilitate E-Verify requirements
    • Many third-party contractors are not sufficiently familiar with E-Verify and make errors in handling tentative non-confirmations or I-9 issues;
    • ICE and the DOJ have taken the position that the employer ultimately is responsible for these third-party errors.

E-Verify is rapidly becoming a mine field for employer liability.  The federal agencies take these issues very seriously and are pursuing claims in an aggressive manner.

As a result, Georgia employers would be wise to consider the following:

  • Instituting comprehensive immigration and E-Verify policies and procedures;
  • Conducting training for the person(s) responsible for administration of E-Verify.

Patients Not Following Medical Advice Can Lead To Medical Malpractice Liability

Posted on: September 6th, 2013

By: Scott Rees

Informed consent, or lack thereof, has long been a basis for medical malpractice claims.  A new twist on that liability theory, “informed refusal,” is now starting to gain popularity in malpractice claims.  Examples include a physician who recommends a cardiac cath procedure, the patient decides against it, then goes home and dies from a heart attack.  Another example we have seen are paramedics responding to a 911 call, recommending to the patient that he/she be taken to the hospital for additional monitoring, the patient declines, and subsequently dies at home.  In both cases, the lawsuits hinged on the provider’s failure to document that the patient had been informed of the risks of not following the provider’s advice.  Informing the patient of the risks and documenting that communication could have prevented both lawsuits.  At the end of the day, informed refusal is really no different than informed consent – medical professionals must be diligent when it comes to informing patients of the various risks involved in any decision they make, and then documenting that such communication took place.