Monthly Archives: April 2017

Compliance Enforcement Pressure is Increasing for Directors

Both the Department of Justice and the Department of Health and Human Services Inspector General have long urged (and in many cases, mandated through settlements that include Corporate Integrity Agreements and through court judgments) that health care organizations have “top-down” compliance programs with vigorous board of directors implementation and oversight. Governmental reach only increased with the publication by DoJ of the so-called Yates Memorandum, which focused government enforcers on potential individual liability for corporate management and directors in fraud cases. Thus, if it isn’t the case already, compliance officers should assure that senior management and directors are aware of their oversight responsibilities and the possible consequences if they are found not to have fulfilled them.

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Week of April 24, 2017 on ILNToday – A Roundup!

roundupWe’re bringing you another great roundup of posts this week here on Zen, and I can tell you that these are not to be missed – so grab your cup of coffee and read through these during your next break!

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Accessible Medical Diagnostic Equipment Update: The U.S. Department of Veteran Affairs Will Adopt the Proposed New Standards

Earlier this month, the U.S. Access Board announced that the U.S. Department of Veteran Affairs (“VA”) will adopt the new Accessibility Standards for Medical Diagnostic Equipment.

As mentioned in our January 31, 2017, blog post, “The U.S. Access-Board Releases Long-Awaited Final Accessible Medical Diagnostic Equipment Standards,” the Access Board released its new Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”) at the beginning of the year, with an effective date of February 8, 2017.

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Another California Court Confirms There Is No Right To A Jury On Private Attorneys General Act Claims

Persons who live and work outside of California, including employment attorneys and the most seasoned of human resources personnel, are often confounded when they first learn about California’s Private Attorneys General Act (“PAGA”).  And, for many, the first they learn about PAGA is when a PAGA lawsuit has been filed against their company.

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ILN Today Post

Enforcing Restrictive Covenants Against Employees Discharged Without Cause

Can an employer enforce post-employment restrictive covenants (including agreements not to compete and not to solicit customers and employees) against an employee discharged without cause? According to two recent court decisions: yes and no.

The traditional view had been that employers could not enforce post-employment restrictive covenants against employees discharged without cause. In 2012, however, the U.S. Court of Appeals for the Second Circuit in Hyde v. KLS Prof’l Advisors Group, LLC suggested that even when an employer discharged an employee without cause, the enforceability of a restrictive covenant should be analyzed under BDO Seidman’s reasonableness test which courts apply in determining the enforceability of restrictive covenants against employees who voluntarily resigned or were terminated for cause.

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ILN Today Post

California: San Francisco seeks local income tax increase

For the last 50 years, California law has prohibited cities, counties, and governmental subdivisions from levying and collecting any income tax on any person, whether or not a California state resident. This puts a strain on these entities in times of fiscal uncertainty, which are upon us now, according to one state assembly member, Phil Ting, who represents San Francisco.

In a December 2016 press release, Ting pointed to a number of threats that jeopardize the state’s fiscal health. These include the uncertainty of the Affordable Care Act, the repeal of which could cost California over $20 billion in federal funds, and a trade war with China, which could cost California 730,000 jobs. In addition, budget shortfalls in jurisdictions that have adopted Sanctuary City policies, like San Francisco, may be exacerbated by a withdrawal of federal funding.

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EEOC Suit Alleges Luxury Hotel Discriminated Against Haitian Employees and Used Staffing Agency as a Conduit to Discriminate

On April 18, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed a putative class action against the SLS Hotel South Beach in Miami, Florida (“Hotel”), alleging that the Hotel violated Title VII by firing black Haitian dishwashers who worked in the kitchen and serviced several restaurants in the Hotel – including the Bazaar by Jose Andres, Katsuya and Hyde Beach – and replacing them with white and Hispanic workers, who were supplied by a staffing agency, National Service Group (“NSG”).

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ILN Today Post

North Carolina: Tax Foundation characterizes the state as a model for tax reform

The Tax Foundation, whose singular vision is “a world where the tax code doesn’t stand in the way of success,” has become bullish on North Carolina’s tax reform success, going so far as to characterize it as a “model for tax reform” in a speech last week at an event.

In its 2017 State Business Tax Climate Index the Tax Foundation swooned over the Tar Heel State’s “most dramatic improvement in the Index’s history—from 41st to 11th in one year.” The index considers how well states structure their tax systems relative to each other, rather than how much state governments collect in taxes, in part because “even in our global economy, states’ stiffest competition often comes from other states.” Indeed, tax competition is an “effective restraint on state and local taxes…states with more competitive tax systems score well in the Index, because they are best suited to generate economic growth.”

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ILN Today Post

Ohio: Challenge to imposition of the CAT on out-of-state retailers settles

The Buckeye State imposes a commercial activity tax (CAT) for the privilege of doing business in the state, as measured by a company’s gross receipts from Ohio consumers. All businesses with $500,000 or more in annual sales to Ohio consumers are subject to the CAT.

In the case Crutchfield Corp. v. Testa, internet retailers Crutchfield, Newegg, and Mason Companies all challenged the CAT under the dormant Commerce Clause doctrine and Due Process Clause of the U.S. Constitution; at issue was the collective sum of more than $200,000 in taxes, interest and penalties. Their position was that they should not be subject to the CAT because they have no physical presence in Ohio.

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Talking Tax – Issue 75

Case law

Full Federal Court dismisses Chevron transfer pricing appeal

On 21 April 2017 the Full Federal Court case of Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62 unanimously dismissed Chevron Australia Holdings Pty Ltd’s (CAHPL) appeal against the decision of the Federal Court. The Federal Court decision was previously discussed in Talking Tax – Issue 12.

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