Legal Updates

Thomas S. Fitzpatrick Co-Chairs MCLE’s 15th Annual Business Litigation Conference

On January 22, Davis Malm shareholder Thomas S. Fitzpatrick co-chaired the Massachusetts Continuing Legal Education’s (MCLE) 15th Annual Business Litigation Conference. Mr. Fitzpatrick’s presentation, “Year-in-Review: Top 10 Cases,” analyzed how the top cases of 2015 impact litigation practices. He also moderated a panel of judges from the Business Litigation Session, who discussed recent trends and addressed questions regarding the judicial panel sessions.

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The Wage Hour Division Issues an Interpretation on Joint Employment Relationships

Joint EmploymentAs part of the Wage Hour Division’s continuing focus on defining the employment relationships covered by the FLSA, the Division’s Administrator has issued an Administrators’ Interpretation (as well as a Fact Sheet) addressing joint employment relationships.  At the very least, the Interpretation suggests that the Division will be seeking to use the “joint employer” doctrine to pursue multiple entities – and “deeper pockets” – to address wage issues.

“Larger and More Established” Employers

The Administrator’s Interpretation notes that joint employment often involves one “larger and more established” employer “with a greater ability to implement policy or systemic changes to ensure compliance.”  In those cases, the Administrator suggests that the Wage Hour Division may hold the larger company responsible for “financial recovery” and “future compliance.”

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Call drops menace – Trai’s role and whether a rupee compensation is the answer to the problem

India’s mobile phone subscribers recently crossed the one billion mark. With the cheapest call tariffs in the world, India’s mobile user base is expected to contribute to massive growth in data usage and internet accessibility through mobile phones in the near future. However, the Telecom Regulatory Authority of India (TRAI) has a bigger problem on its hands. Although India definitely seems to be shining (it may also outstrip the United States in smartphone users), it cannot be denied that this shining comes with a considerable amount of whining from mobile phone users about the rapidly increasing phenomenon of “call drops”. 

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McDonald Hopkins Government Strategies Advisory: This Week in Washington — January 29, 2016

The future of criminal justice reform

Bipartisan criminal justice reform, which once seemed likely, is facing longer and longer odds. This week, Senate Majority Leader John Cornyn (R-TX), a key sponsor of the effort, admitted that the measure may not move at all this year.

“I am hopeful, but I don’t think it’s critical we do it this year,” Cornyn told the Associated Press. “I have been involved in a lot of fights around here that have taken us years to get things done.”

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Don’t Give Your Zip Code and Other Massachusetts Credit Card Laws You Should Know

“No, thanks” is a smart response when cashiers ask for your Boston ZIP code at checkout. That information isn’t required to process your credit card transaction, so the merchant doesn’t actually need it.

Massachusetts credit card laws offer consumers some of the toughest consumer privacy data and protection in the nation, including safeguards against aggressive harvesting of your personal information for intrusive marketing. Keep reading to find out how the laws help protect your privacy and rights when you use your Boston credit card.

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Executors: it’s time to turn detective or risk a penalty

An essential part of any executor’s job is to work out the assets and liabilities of the estate that they are administering.  An executor also owes a statutory duty to HMRC to correctly report the value of the estate to it so that, if any Inheritance Tax is due on the estate, the right amount is paid. 

The job of the executor is made more difficult because the Inheritance Tax rules require gifts made in the seven years prior to death to be brought back into account.  However it’s not uncommon for an executor to know next to nothing about the deceased’s personal finances, let alone what gifts the deceased has been making and to whom.  This can be a real problem for executors because if the executor reports to HMRC that there have been no gifts but HMRC is able to produce evidence of gifts having been made, the executor may receive a tax geared penalty, calculated with reference to the potential tax forgone if the gift had remained undiscovered, which the executor is personally liable for.  So how much detective work does an executor have to do to avoid any risk of getting a penalty for undeclared gifts?

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The NRF Urges D.C. to Toss Scheduling Law – Employment Law This Week

Employment Law This Week – Epstein Becker Green’s new video program – has a story about an effort to unite retailers against a restrictive scheduling law in Washington, D.C.

The National Retail Federation issued a letter urging the city council in D.C. to abandon new scheduling legislation for retailers and restaurants. The proposed law would require businesses to post schedules three weeks in advance, with heavy penalties if they make any changes to the posted schedule. The NRF argues that this legislation removes the benefit of flexibility for employees, and that it places businesses at a competitive disadvantage against similar companies in surrounding states.

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New DOJ/DOL Initiative Criminalizes Worker Safety Violations – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is that in a year when OSHA penalties are already set to increase, a new enforcement initiative is putting pressure on companies to make sure they’re compliant.

The Department of Justice and the Department of Labor have teamed up to encourage federal prosecutors to pursue OSHA and other worker safety violations as environmental crimes. These crimes can be charged as felonies, while OSHA violations are considered misdemeanors. The initiative will facilitate the sharing of information and files between the DOJ and DOL to pursue criminal actions.

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The SEC Awards $700,000 to External Whistleblower – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is the SEC reminder that their bounty program applies to external whistleblowers.

The U.S. Securities and Exchange Commission has awarded $700,000 to a whistleblower who was not employed by the company he exposed. The external whistleblower discovered the issue when he ran a detailed analysis on the company. The agency explained that analysis from “industry experts” is as valuable as insider information. The whistleblower program began after the Dodd-Frank Act was passed and has now yielded $55 million in awards. This latest award raises new questions, including how the SEC will define “industry experts.”

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The Eleventh Circuit Carves Out an Exception to the Supervisory Misconduct Defense

To establish that an OSHA regulation has been violated, the Secretary must prove that: (1) the regulation applied; (2) it was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer knowingly disregarded the OSH Act’s requirements.  The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.

The Court of Appeals for the Eleventh Circuit in Comtran Group, Inc. v. U.S. Dept. of Labor, 722 F.3d 1304 (11th Cir. 2013) held that there is an exception to the general rule: when a supervisor is acting independently and knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not necessarily imputed to his employer.  The Comtran court found that in such instances the Secretary must prove something more than the supervisor’s own knowledge of his own wrongful conduct to establish the employer knowledge element of a violation.  Specifically, the Secretary must show that the employer had reason to foresee the unsafe conduct of the supervisor. 

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