Legal Updates

Two for One: Noel Canning and D.R. Horton Continue to Generate Waves at the NLRB

By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry

In case you were hoping that the Supreme Court’s recent decision in Noel Canning would finally put to bed any questions regarding President Obama’s recess appointments to the NLRB, or that the Fifth Circuit’s rejection of the Board’s decision in  D.R. Horton might alter the NLRB’s position on the right of employers to require employees to abide by mandatory arbitration agreements , think again.

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California Employers Must Revisit Exempt Status of Commissioned Employees In Light of Supreme Court Ruling

By: Amy B. Messigian

In a major blow to California employers who utilize a monthly commission scheme but pay biweekly or semimonthly salary to their commission sales employees, the California Supreme Court ruled earlier this week in Peabody v. Time Warner Cable, Inc. that a commission payment may be applied only to the pay period in which it is paid for the purposes of determining whether an employee is exempt from overtime.  Employers may not divide the commission payment across multiple pay periods in order to satisfy the minimum compensation threshold for meeting the exemption in any earlier pay period.  California employers who classify their commission sales employees as exempt should immediately take action to ensure compliance with the law.

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Hirst’s Bombay Mix-up

There was an interesting article in The Telegraph last week about a work called Bombay Mix, by Damien Hirst, and the dispute between his certification company, Science Ltd, and a Mr and Mrs Simpson who possess the work.

According to the article, in 1988, Hirst was commissioned to paint Bombay Mix, an early spot painting, on some wallpaper in a house owned by Mr and Mrs Ritblat.  Science claims that, before the house was sold, it was agreed with the Ritblats that in return for the painting being destroyed they would be given an alternative portable painting.  The wall painting was not destroyed and was still on the wall when the house was bought by the Simpsons in 2005.  In 2007, the Simpsons employed specialists to have the painting removed from the wall and mounted on backing board.  The Simpsons now want to sell it.
In the circumstances, Science has refused to issue a certificate of authentication, has claimed ownership and demanded the painting’s return for destruction.
This case raises several issues but, before commenting, I must make two assumptions: that the facts in the article are correct and there are no other relevant facts.  As a lawyer who has had cases reported in the press, I know just how big those assumptions are.
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California Meal and Rest Break Laws Ensnare Trucking Industry

As if traffic in California was not bad enough by itself, employers in the trucking industry have one more thing to worry about – whether they are complying with California’s meal and rest break laws.  In  Dilts v. Penske Logistics, LLC, the plaintiffs represent a class of delivery drivers and installers.  Defendants had hoped to avoid the claim that they had violated California’s meal and rest break laws by arguing that as “motor carriers” the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) preempts California’s meal and rest break laws.  The trial court agreed and granted the defendants’ motion for summary judgment.  However,  the Ninth Circuit reversed finding that California’s meal and rest break laws are not the type of laws related to prices, routes, or services that Congress intended to preempt.

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Stock option plans – What does the employer owe when terminating a key executive?

Stock option plans are a familiar and valued part of the remuneration package of senior executives. When carefully drafted, they incentivize key employees to identify personally with the Company’s success and development, and maintain loyalty and discourage turnover. The Quebec Court of Appeal, in IBM Canada Ltée c. D.C., a decision released on July 7, 2014, has clarified the circumstances when they are (and are not) to be taken account of in calculating what is owed to the departing executive terminated without cause.

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Benefits Litigation Update: Hobby Lobby, Amara, Tibble, and More

Epstein Becker Green and The ERISA Industry Committee (ERIC) have released a new issue of the Benefits Litigation Update.

Featured articles include:

Recent Supreme Court Decisions Revise Rules for Stock Drop Cases
By: Debra Davis, The ERISA Industry Committee

Hobby Lobby and the Questions Left Unanswered
By: John Houston Pope

Post-Amara Landscape Continues to Evolve
By: Scott J. Macey, The ERISA Industry Committee

Supreme Court to Decide Whether A Failed Class Action May Extend
Deadline to Bring Follow-on Claims By Individual Plaintiffs
By: John Houston Pope and Debra Davis

Supreme Court Indicates That It Will Review “Tibble
By: Kenneth J. Kelly

Challenges Could Threaten Individual Subsidies and Employer
Mandate Penalties in States with Federal Exchanges
By: Adam C. Solander

Read more about the Update here or download the full issue in PDF format.

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WA Certificate of Need Waiver for Psych Beds

The Washington Certificate of Need (“CN”) Program recently announced a temporary change in the CN requirements for acute care hospitals to change the use of existing licensed beds to psychiatric care beds.  Acute care hospitals choosing to convert some of their acute care beds to psychiatric beds will not have to undergo the CN review process. […]

The post WA Certificate of Need Waiver for Psych Beds appeared first on OMW Health Law.

For more information please visit www.omwhealthlaw.com or click on the headline above.

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Revoking a Will – Destruction of a True Copy Not Sufficient

In Morton v Christian, 2014 BCSC 1303, the British Columbia Supreme Court (the “Court”) grappled with the issue of proper revocation of a Will.  It was determined that the destruction of a true copy of a Will does not satisfy the requirements for revocation when the original is known to be safely kept elsewhere.

In 1989, Mr. Christian and Ms. Morton became romantically involved.  The couple married in Quebec sometime before 1991 and moved to British Columbia, where they lived together until separating in 2009.  Before leaving Quebec, Mr. Christian executed a notarial Will naming Ms. Morton as the sole beneficiary and executrix.

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Healthcare Alert: Deadline is fast approaching for business associate agreements to comply with HIPAA’s Omnibus Rule

Many organizations, whether business associates, covered entities, or contractors/vendors of business associates, have updated their business associate agreements to comply with the Omnibus Rule. However, many others have not. All business associate agreements must be brought into compliance with the Omnibus Rule by Sept. 23, 2014.

Whether you are a covered entity who deals with business associates or a business associate who provides services to covered entities, you should review all of your business associate arrangements to confirm that you have written business associate agreements in place that comply with the HIPAA Privacy and Security Rules as updated by the Omnibus Rule. Start this process by identifying all of your business associate and contractor/vendor relationships.

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Healthcare Alert: Questionable laboratory billing practices lead to increased scrutiny

The Department of Health and Human Services Office of Inspector General (OIG) recently issued findings from its study, Questionable Billing for Medicare Part B Clinical Laboratory Services,” which provides recommendations for the Centers for Medicare & Medicaid Services (CMS) to prevent fraudulent billing practices.

The purpose of the study was to look into questionable billing patterns for laboratory testing because Medicare payments for Part B laboratory services were $8.2 billion in 2010. Part B laboratory services are performed by independent laboratories, laboratories in physician offices, hospital reference laboratories for outpatient services, or other institutional laboratories. In order to be “reasonable or necessary” for purposes of billing Medicare, the laboratory services must be ordered by the treating physician or qualified practitioner.

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