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Posts Tagged ‘requirements’

Arbitration Agreements in New Jersey Need More Details

Posted on: November 16th, 2018

By: Chris Curci

On November 13, 2018, the Superior Court of New Jersey, Appellate Division, issued an important decision holding that an arbitration agreement between the employer and employee was not enforceable. Flanzman v. Jenny Craig, Inc., Docket No. L-6238-17.  The arbitration agreement read:

Any and all claims or controversies arising out of or relating to [plaintiff’s] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind.

According to the Appellate Division, this agreement was unenforceable because it “failed to identify the general process for selecting an arbitration mechanism.” What exactly does that mean?

In its effort to clarify this standard, the Appellate Division stated that an employer is not required to “detail in the arbitration agreement the exact manner in which the arbitration” will proceed. However, an employer must identify the “forum” for the arbitration and clearly explain how the employee’s judicial rights to a jury trial are being replaced by the arbitration rights.

For example, the Court noted that it would be sufficient for an employer to (1) identify a forum such as the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services (“JAMS”), and (2) adopt that forum’s rules and procedures. The Court opined that this would be sufficient because AAA and JAMS’s rules and procedures address numerous procedural issues, such as: (1) notification requirements, (2) how to initiate proceedings, (3) management conferences, (4) discovery, (5) the location of the hearings, (6) the number of arbitrators, (7) how to communicate with the arbitrator, (8) attendance requirements, (9) dispositive motions, (10) evidence, (11) modification of awards, (12) and applications for fees, expenses and costs.

In other words, while the arbitration agreement is not required to “detail the exact manner in which the arbitration will proceed,” an employer must specifically identify a forum such as AAA or JAMS and incorporate that forum’s rules and procedures. This allows the employee to fully understand how his or her judicial rights to a jury trial are being replaced by arbitration.

Employers should review their employee arbitration agreements to ensure their enforceability. If you need help with this or any other employment related question, Chris Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of Freeman Mathis & Gary’s Labor and Employment Law National Practice Section. He represents employers in litigation and advises clients on all aspects of employment law. He can be reached at [email protected].

Healthcare Act: DOL Extends March 1st Deadline for Employers to Give Notice of Exchanges

Posted on: February 5th, 2013

By: David Cole

The Affordable Care Act requires employers to provide written notice to employees of the availability of insurance through state or federal health exchanges, which are scheduled to begin operation on January 1, 2014.  The written notice must inform employees about the following:

(1)   the existence of an Exchange in their state, including a description of Exchange’s services, and how the employee may contact the Exchange for assistance;

(2)   the employee may be eligible for a premium tax credit or cost sharing reduction for buying qualified insurance through the Exchange if the insurance plan offered by the employer does not pay at least 60 percent of the total allowed costs of benefits; and

(3)   if the employee buys qualified insurance through the Exchange, he may lose the employer’s contribution (if any) to any health benefits plans offered by the employer, which if received, may be tax deductible.

The statute requires that this notice be provided to all new employees at the time of their hire, and to existing employees by no later than March 1, 2013.  With this deadline approaching quickly and no regulations or other guidance provided yet (such as a model notice), the Department of Labor (“DOL”) has officially announced an indefinite extension of the deadline.  The DOL did not announce a new deadline, but only stated that it “expects that the timing for distribution of notices will be the late summer or fall of 2013, which will coordinate with the open enrollment period for Exchanges.”  In addition, the DOL confirmed that it is considering providing model, generic language that employers could use to satisfy the notice requirement.

The complete text of the DOL’s announcement is available here.  Between now and this summer, the DOL is expected to issue regulations providing further guidance on the notice requirement and other aspects of the law, including the automatic enrollment requirement applicable to large employers with 200 or more employees.  In the meantime, employers can breath a little easier knowing that they do not have to scramble to provide notice to their employees by March 1st.


Georgia Supreme Court to Weigh Expert Qualifications in Medical Malpractice Case

Posted on: January 18th, 2013

By: Michael Eshman

At issue in Hankla, et. al. v. Postel is the qualification of a medical doctor to testify as an expert regarding the standard of care owed by a nurse midwife.  Georgia statute sets forth certain requirements a medical expert must satisfy in order to testify as to the standard of care of the medical professional at issue.  To qualify, the expert must be a member of the same profession and either taught or actively practiced in the area of the alleged area of negligence for at least three of the last five years preceding the act or omission at issue. See O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1.

However, the statute allows for an exception to the “same profession” requirement to allow physicians to testify as to the standard of care for nurses and other allied health professionals.  In order to do so, the physician must have supervised, taught, or instructed such professionals regarding the “circumstances at issue” for three of the last five years preceding the act or omission at issue.

In Postel, the plaintiff claimed that the nurse midwife breached the standard of care during delivery of a baby, resulting in permanent brachial plexus injury. The trial court allowed the defense to present the expert testimony of a medical doctor specializing in obstetrics and gynecology, but who did not supervise, teach or instruct nurse midwives for three of the five years immediately preceding the delivery.  The medical doctor testified that the nurse midwife did not breach the standard of care owed to the patient.  After a defense verdict, the court of appeals reversed the judgment, finding that the medical doctor was not qualified under the Georgia statute to testify as an expert regarding the actions of a nurse midwife, because she was not in the same profession as the nurse midwife nor had she supervised, taught, or instructed nurse midwives in three of the five years preceding the delivery.

The Georgia Supreme Court granted certiorari to address the question of whether a doctor actively engaged in the area of practice at issue, gynecology and obstetrics, may be qualified to testify regarding the conduct of a nurse midwife, even if the doctor has not supervised, taught, or instructed nurse midwives in three of the last five years immediately preceding the alleged act or omission.  While there is certainly overlap in the treatment an OB/GYN doctor and a nurse midwife are authorized to provide a patient, a plain reading of the statute suggests that the court of appeals will be affirmed, and a best practice in retaining experts is to make certain that they satisfy the explicit requirements of O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1.  The Georgia Supreme Court will hear oral argument on this issue in April of this year, with a definitive decision expected later this year.

Recent Study Finds Physician Burnout Prevalent; Impacts Malpractice and Patient Care

Posted on: October 29th, 2012

By: Mary Ellen Lighthiser

A recent New York Times article discussed a troubling study that indicates a high number of physicians are experiencing burnout.  The recent study described burnout as “emotional exhaustion, detachment and a low sense of accomplishment.”  The study suggests that more than half of doctors practicing a specialty with “front-line access to care,” such as family medicine, emergency medicine, and general internal medicine, have experienced burnout.  Such high rates of physician burnout may have substantial implications for our healthcare system.  As the article suggests, doctors suffering from burnout are more prone to errors, less empathetic and more likely to treat patients like diagnoses or objects. They are also more likely to quit practicing altogether, a trend that has serious repercussions in a system already facing a severe doctor shortage as it attempts to expand coverage to 30 million or more currently uninsured Americans.

The prevalence of physician burnout is seemingly tied to the increasing limitations and requirements placed on their profession.  These physicians feel thwarted by the limited time they are allowed to spend with patients, stymied by the ever-changing rules set by insurers and other payers on what they can prescribe or offer as treatment, and frustrated by the fact that any gains in efficiency offered by electronic medical records are so soon offset by numerous, newly devised administrative tasks that must also be completed on the computer.

These concerns and issues are nothing new since the advent of managed care.  However, based on this study, the problem appears to be worsening.  One of the physicians involved with the study said one solution to the problem is for hospitals to restructure its clinics so that doctors could spend more time with patients and less time on administrative and insurance-related tasks.  These structural solutions may also work to reduce medical malpractice liability in general, as one article has observed, “the primary cause of lawsuits is not negligence but ineffective communication among patients, physicians and consultants, and families of patients.”

Let us know your thoughts on physician burnout, its impact, and solutions to the problem.

New Jersey Imposes Another Posting Requirement on Employers

Posted on: October 5th, 2012

By: Brad Adler

In addition to a record keeping requirement notice, a family leave insurance notice and others, New Jersey employers now will be required to post and distribute to employees a notice of their right to work in an environment free from gender-based pay discrimination.  The new law applies to organizations with 50 or more employees and goes into effect on November 21, 2012, although it remains to be seen whether the New Jersey Department of Labor will have a form notice ready by that time.

When the law does go into effect (and the form is available), covered employers will be required to initially distribute a copy of the notice to all employees within 30 days after the Department of Labor publishes the notice.  Thereafter, an employer must provide the notice to all employees annually or sooner if an employee requests a copy of the notice.