Legal Updates

Federal Court Finds SOX Whistleblower Provisions Cover Employees of Private Firms Acting Under Contract to Public Mutual Funds

By Allen B. Roberts, Douglas Weiner

The U.S. District Court for the District of Massachusetts held in Lawson v. FMR LLC (pdf) that SOX coverage can apply not only to employees of publicly traded companies, but to employees of private management services firms as well.

The typical business model in the financial services industry is that public mutual fund companies generally have no employees of their own, but are managed by private investment advisors. The public company’s investment assets are thus managed by employees of a private employer. 

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Breastfeeding Moms at Work

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year […]

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Connecticut Increases Civil and Criminal Penalties for Misclassifying Employees as Independent Contractors

Joining Nebraska, New Jersey, Maryland, Minnesota, and Illinois, on May 5, 2010, Connecticut Governor Jodi Rell signed into law Public Act 10-12, “An Act Implementing the Recommendations of the Joint Enforcement Commission on Employee Misclassification” (“the Employee Misclassification Act”). The principal impact of the Employee Misclassification Act is to increase criminal and civil penalties on employers for misclassifying employees as independent contractors. Under current law, the civil penalty for misclassifying employees is $300.00 for each violation. The Employee Misclassification Act increases that penalty to $300.00 per day for each violation. Thus, if an employer misclassifies a worker as an independent contractor and continues that misclassification for one year, the civil penalty for this error would rocket from $300.00 to $109,500.00 ($300.00 per day times 365 days), a 36,500 percent increase. In addition, the Employee Misclassification Act makes the misclassification of workers as independent contractors a felony if done with the intent to harm the State with respect to workers compensation insurance payments or the Second Injury Fund.

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Beyond the Administrative Process — Courts Show Receptivity to Arbitration of Certain Whistleblower Claims

Like several other statutes, the Sarbanes-Oxley Act (“SOX”) requires whistleblowers to initiate their complaints by an administrative filing with the Department of Labor’s Occupational Safety and Health Administration. But when a preferred outcome in that designated arena appears unlikely, a whistleblower may be allowed to abandon the administrative process before a final order issues and seek a new opportunity in court.  Faced with the prospect of another round of de novo litigation, employers may turn increasingly to pre-dispute arbitration agreements as an alternative to litigating in court.

As exemplified by Stone v. Instrumentation Laboratory Co.(4th Cir. 2009) (pdf), filing an administrative complaint and participating in the administrative process, as required by SOX, do not foreclose access to a federal court before the issuance of a final administrative order. The court explained that the preclusion doctrine, intended to avoid duplicative litigation, does not bar de novo consideration by a federal district court if a lawsuit is filed at least 180 days after the administrative filing and before the Department of Labor has issued a final decision, even where administrative proceedings have progressed to Administrative Review Board consideration of an administrative law judge’s dismissal of a complaint. 

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New Book Inspires Women Leaders and Helps Support Women’s Organizations

I am excited to bring to your attention an inspirational new book about women leaders, the proceeds of which will support several women’s organizations globally. The book, Goddess Shift: Women Leading for a Change, is an anthology of personal stories written by 43 women in leadership positions about how they have empowered themselves to create change in all walks of life.

I am honored to be one of the contributors to the book. Other contributors include women leaders in many fields, including entertainment (Oprah Winfrey), finance (Suze Orman), government (Sonia Gandhi), sports (Venus & Serena Williams), social change and philanthropy (Angelina Jolie), journalism (Barbara Walters), and literature (Sue Monk Kidd). In my chapter, I discuss the driving forces that have shaped my professional journey from corporate executive to the convent of the Maryknoll Sisters to living and working in Japan to law school and, finally, to a career as a trial lawyer and co-founder of a women’s initiative.

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HEALTH REFORM: CMS Issues Draft Medicare Part D Coverage Gap Discount Program Guidance: Comments Due May 14, 2010

On April 30, 2010, the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum to all Medicare Part D Plan Sponsors outlining its draft guidance to implement the Medicare Coverage Gap Discount Program, beginning in 2011 (“Draft CGDP Guidance”). CMS will be accepting comments on the Draft CGDP Guidance via e-mail through May 14, 2010.

The Draft CGDP Guidance seeks to implement Section 3301 of the Patient Protection and Affordable Care Act (H.R. 3590) enacted on March 23, 2010, as amended by Section 1101 of the Health Care and Education Reconciliation Act of 2010 (H.R. 4872) enacted on March 30, 2010 (collectively, “PPACA”), otherwise known as the “Health Reform” law. The Part D Coverage Gap Discount Program and the Draft CGDP Guidance affect Part D Plans, drug manufacturers of Part D products, pharmacies, PBMs and all other companies and vendors involved in the chain of arrangements required to support the Part D program. We encourage all companies with Part D business and that contract to provide services to, or for the benefit of, Part D Plans to review the Draft CGDP Guidance and consider submitting comments to CMS by the May 14 deadline.

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Clean Power Call Yields Two Additional Project EPA’s

BC Hydro announced today that it will award electricity purchase agreements to two additional projects under its Clean Power Call.  Here is the press release. Two hydro projects are still under consideration (Box Canyon and Castle Mountain).

These projects are:

Long Lake Joint Venture (a JV between Regional Power Inc. and Summit Power Group) – a 31 MW storage hydro project in Stewart, BC. Here is the Terrace Standard’s story on the project.

Pacific Greengen Power – a 45 MW run-of-river hydro project in Harrison Hot Springs, BC

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Untangling the Maze of Disability Laws

The U.S. Department of Labor recently released an online guide to help employers determine which federal disability laws apply to their businesses or organizations.  Called the elaws Disability Nondiscrimination Advisor, it is a series of online questions to direct the user to the appropriate laws and to provide guidance on how they are implemented.  It […]

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New Medical Code Impacts Interactions with Pharmaceutical, Medical Device and Other Health Care Entities

On April 21, 2010, the Council of Medical Specialty Societies (“CMSS“), a not-for-profit association of 32 member Societies[i] created to “provide an independent forum for the discussion by medical specialists of issues of national interest and mutual concern,” announced[ii] the release of the CMSS Code for Interactions with Companies(“Code“).[iii] This voluntary Code was developed by the CMSS Task Force on Professionalism and Conflicts of Interest and adopted by CMSS to “reinforce the core principles that help us maintain actual and perceived independence” and “to ensure that a Society’s transactions with Companies will be for the benefit of patients and members and for the improvement of care in our respective specialty fields.”[iv]

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Class-Action Arbitration Cannot Be Compelled Absent Evidence of Consent

On April 27, 2010, a divided U.S. Supreme Court (5-3, with Sotomayor, J., recused) held that the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”), does not permit forcing unwilling parties to participate in a class arbitration to which they have not consented. This is a case of potentially great significance to entities whose contractual relationships include arbitration provisions and that generally oppose class-action treatment of cases against them—particularly employers of all kinds, but also health care providers and financial services companies, among others. Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp., No. 08-1198, 559 U.S. ____ (2010).

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