Legal Updates

Employers in California Can Tone Down Their Celebrations about the U.S. Supreme Court Decisions In Wal-Mart and Concepcion

By Michael Kun

Understandably, employers have celebrated the U.S. Supreme Court decisions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. —,  — S.Ct. —, 180 L. Ed. 2d 374 (2011) and AT&T Mobility v. Concepcion, 563 U.S. —, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).  At the very least, those cases would seem to suggest that the wage-hour class actions and collective actions that have besieged employers might be curtailed significantly, along with the costly settlements triggered by the in terrorem effect of such lawsuits.

California employers can stop celebrating, or at least tone down those celebrations.

Unlike other states, California law provides for a mechanism by which employees can file suit on behalf of other employees without bringing such claims as class actions – the Private Attorneys General Act (“PAGA”).  PAGA, often referred to as “The Bounty Hunter Law,” generally allows an employee to file suit against an employer on behalf of all “aggrieved employees” for alleged violations of the California Labor Code.  The potential recovery in a PAGA claim can be staggering – while the limitations period is only one year, each “aggrieved employee” can recover up to $100 for the first pay period in which a violation occurs, and up to $200 for each subsequent pay period in which a violation occurs.  PAGA also provides for the recovery of costs and attorney’s fees.

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Ohio House Bill 286 follows Arizona’s lead as to employment of unauthorized aliens

On May 26, 2011, the United States Supreme Court upheld an Arizona statute regarding the employment of unauthorized aliens.  The Arizona law requires employers within the state to use the federal government’s E-Verify program to check the work authorization status of employees and imposes licensing sanctions against employers that “knowingly or intentionally” employ unauthorized aliens.  In upholding the Arizona law, the Court determined that states were free to act in this area under the terms of the federal Immigration Reform and Control Act (IRCA).

On June 29, 2011, in the wake of the Supreme Court’s decision, House Bill 286 was introduced in the Ohio House of Representatives.  The bill, which was sponsored by 14 lawmakers, seeks to amend Ohio law to include provisions similar to those included in the Arizona statute.

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Elizabeth Sullivan was featured in "CMS Proposed Rule Expands Multiple Procedure Payment Reductions to Professional Component…," published by RBMA

Elizabeth Sullivan was featured in “CMS Proposed Rule Expands Multiple Procedure Payment Reductions to Professional Component…,” published by RBMA

CMS Proposed Rule Expands Multiple Procedure Payment Reductions to Professional Component of Advanced Imaging Services
By: Elizabeth Sullivan

On July 1, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released a proposed rule addressing modifications to physician payment policies and rates for 2012. Included in the rule is a proposal to expand the Multiple Procedure Payment Reduction policy (“MPPR”) to the professional component of certain imaging procedures. Currently, the MPPR only applies to the technical component of such imaging services.

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George Asimou was featured in "EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries," published by RBMA

George Asimou was featured in “EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries,” published by RBMA

EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries
By: George Asimou

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C. The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

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Miriam Rosen was featured in "Employers Beware: With New Round of Audits, ICE Seeks to Chill Illegal Hiring," published by RBMA

Miriam Rosen was featured in “Employers Beware: With New Round of Audits, ICE Seeks to Chill Illegal Hiring,” published by RBMA

Employers Beware: With New Round of Audits, ICE Seeks to Chill Illegal Hiring
By: Miriam Rosen

On Wednesday, June 15, 2011, the Department of Homeland Security launched a wide-scale audit of employers’ hiring records to assess compliance with employment eligibility verification laws. For the second time this year, Homeland Security’s Immigration and Customs Enforcement Office (“ICE”) delivered Notices of Inspection to 1,000 employers advising that ICE will audit those employers’ I-9 Forms. In addition, as part of the audits, ICE will also review employers’ payroll records, lists of employees and former employees, articles of incorporation, and other employment-related documents.

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Rachel Yaffe was featured in "Business Opportunity for Radiologists: On-Site Employee Health Clinics," published by RBMA

Rachel Yaffe was featured in “Business Opportunity for Radiologists: On-Site Employee Health Clinics,” published by RBMA

Business Opportunity for Radiologists: On-Site Employee Health Clinics
By: Rachel Yaffe

Wouldn’t it be nice if employees could receive MRI scans on-site at their places of work? In fact, an increasing number of large, mid-size and small companies across the United States are offering various levels of on-site primary care and specialty services to their employees (some even offering healthcare services to dependants as well). According to a 2010 survey conducted by Mercer consulting firm, 15% of employers with 500 or more employees provided health clinics on-location. An additional 10% of employers with more than 500 employees stated that they were considering offering on-site health clinics for their employees in the upcoming year. It is anticipated that employer-sponsored, on-location healthcare will be commonplace for companies of all sizes and industries over the next ten years.

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Rachel Yaffe was featured in "HIPAA Audits Are Coming: Are You Prepared?," published by RBMA

Rachel Yaffe was featured in “HIPAA Audits Are Coming: Are You Prepared?,” published by RBMA

HIPAA Audits Are Coming: Are You Prepared?
By: Rachel Yaffe

In recent months, the Department of Health and Human Services (HHS) and the Office of Civil Rights (OCR) have revved up their efforts in enforcing the Privacy and Security Rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH Act) through plans to conduct audits of covered entities (health care providers, health plans and health care clearinghouses) and business associates (persons or entities that perform certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, covered entities).

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Ohio Statehouse Update: Week in Review – July 15, 2011 — Our top "5" subjects you should know

Week in Review

July 15, 2011 — Our top “5” subjects you should know

1. JobsOhio Board members named

Governor Kasich this week appointed eight directors to the JobsOhio Board, the state’s newly created private economic development agency. The nonprofit corporation met for its inaugural meeting on July 11 and named Mark Kvamme, Kasich’s top economic development official as interim chief investment officer. JobsOhio will provide job training grants, invest in start-up companies and coordinate local and state-level economic development activities.

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California Supreme Court Rules That Non-Resident Employees Who Travel to California To Perform Work Are Governed By California Wage Hour Laws

By Michael Kun and Betsy Johnson

In a much-anticipated decision, the California Supreme Court has expanded the scope of California’s complex wage-hour laws to non-resident employees who perform work in California.  While the decision leaves more than a few questions unanswered, it will require a great many employers to review their overtime and other payroll practices.  Perhaps just as importantly, it will likely open the door to lawsuits, including class actions, regarding  prior overtime and payroll practices. This issue is of particular importance to hospitality employers, who often have employees travel to other states to help open new facilities or provide other services. 

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Sullivan v. Oracle Corporation: Non-Residents Who Perform Work in California Are Governed By California Wage Hour Laws – Including Daily Overtime Rules

By Michael Kun and Betsy Johnson

In a much-anticipated decision, the California Supreme Court has expanded the scope of California’s complex wage-hour laws to non-resident employees who perform work in California.  While the decision leaves more than a few questions unanswered, it will require a great many employers to review their overtime and other payroll practices.  Perhaps just as importantly, it will likely open the door to lawsuits, including class actions, regarding  prior overtime and payroll practices.

The case, Sullivan v. Oracle, has had a tortured history.  In the case, several Arizona and Colorado residents who were employed as instructors by Oracle, which is headquartered in California, filed suit alleging that they were entitled to overtime under California law on those occasions when they performed services in California.   Oracle had treated the instructors as exempt employees and did not pay them overtime.  Because the issue was a novel one involving interpretation of California state laws, the federal Ninth Circuit Court of Appeal certified issues for the California State Supreme Court to decide.

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