Legal Updates

Government contractor to pay more than $540,000 to settle discriminatory hiring case with OFCCP

By: Dean R. Singewald II

A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.

Such tracking should include documenting the gender and race/ethnicity of each applicant, the stages of the selection process at which each applicant meeting the minimum qualifications for the position is considered, and the reason(s) why such applicant is not hired. Records obtained and generated during the hiring process, including resumes, applications and interview notes, also need to be kept to support each hiring decision.

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Florida Unemployment Compensation Law Has Become More “Employer Friendly”

Arnstein & Lehr attorney E. Jason Tremblay

E. Jason Tremblay

On June 27, 2001, Florida Governor Rick Scott signed a new law implementing several significant reforms to the Florida Unemployment Compensation Program. The new law is meant to save the state money, reduce taxes on employers and help get Floridians back to work. Among other reforms, the definition of “misconduct” under the new law has been expanded making it easier for employers to successfully defend unemployment insurance benefit claims. Specifically, under the new law, misconduct is defined as “any action that demonstrates conscious disregard of an employer’s interests and is found to be a deliberate disregard or violation of reasonable standards of behavior” and may include activities that do not occur at the workplace or during working hours. Therefore, this broader definition not only extends misconduct to activities that occur outside of the workplace, it also includes such events such as chronic absenteeism and tardiness, which may not have been deemed misconduct under the old definition.

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My property litigation partner, Alison Mould, has raised an interesting point. She tells me that permission may be required for attaching art to surfaces in premises that are let to the occupant.  Substantial works will require substantial hangings.  Anything more than the odd drawing pin may involve interacting with the fabric of the building and require a landlord’s licence to alter.  Licences can take two or three months to obtain and so, if anticipating an exhibition or gallery, this is something that will need to be factored into the timetable.
There’s good reason for landlords to be concerned.  One of our construction litigation partners, Frances Alderson, has a case where a building owner innocently hung several heavily framed paintings on a wall.  What he failed to check was whether the wall had been designed to take either the weight of the pictures or the movement in the wall caused by the weight.  In the event, the movement caused cracks, giving rise to a dispute as to who was to blame – the owner, the architect or the builders.
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HIPAA audits are coming: The time to prepare is now

Hospitals, physician practices, and other healthcare entities have long been subject to a variety of sometimes random audits. For example, IRS audits, payer audits by Medicare or private insurance companies, state Workers’ Compensation audits, federal Department of Labor audits can occur. To this list will shortly be added HIPAA audits. The United States Department of Health and Human Services (HHS) has announced that it has retained a contractor to begin doing random audits for HIPAA compliance in 2012. In June KPMG, LLP was awarded a $9.2 million contract to administer the audits. The audits are presently scheduled to commence prior to the end of 2011, with the first audit phase scheduled to end by December 31, 2012.

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HHS Publishes Health Insurance Premium Rate Review Final Rule Effective September 1st and List of States with Effective Rate Review Programs

EBG Introduces Interactive National Rate Review Scorecard

by Jesse M. Caplan and Lynn Shapiro Snyder

On May 23, 2011, the Center for Consumer Information & Insurance Oversight (CCIIO), in the Centers for Medicare & Medicaid Services (CMS) of the United States Department of Health and Human Services (HHS) published its Final Rule implementing Section 2794 of the Public Health Service Act (PHSA).  This Section requires HHS to establish a process for the review of “unreasonable” health insurance premium rate increases in the individual and small group markets.  The Final Rule remains largely unchanged from the Proposed Rule, with important exceptions.  The Final Rule, and the key changes, are summarized in this Client Alert.

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NLRB GC outlines federal protections for employee social media activity

Report addresses what employers can and can’t do when an employee goes all @normarae

By George AsimouVictor Geraci and Todd Sarver

The Office of General Counsel of the National Labor Relations Board (“NLRB”) issued a sprawling Report of the General Counsel (“Report”) on the interaction of employee social media activity and the National Labor Relations Act yesterday.   The Report summarizes the Office of General Counsel’s findings in a wide array of cases submitted for its review and provides some useful guidance for employers grappling with employee social media activity.  As a reminder, the NLRB has jurisdiction over union and non-union workplaces.

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Ohio Statehouse Update: Week in review: August 19, 2011 — Our top "5" subjects you should know

Week in review

August 19, 2011 — Our top “5” subjects you should know

1. GOP leaders approach public union leaders for compromise

Governor John Kasich, House Speaker William Batchelder (R-Medina), and Senate President Tom Niehaus (R-New Richmond) held a press conference Wednesday, August 17, 2011, asking for union leaders to come to the table to negotiate a compromise on Issue 2– the referendum on Senate Bill 5, the controversial collective bargaining law. During the press conference Governor Kasich confirmed having knowledge of meetings that took place with his confidants and union leadership focused on the potential for a compromise.

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Alleged employee theft highlights continued need for employers to protect themselves

As reported in Employment Law360 just recently (, allegations of employee theft of confidential and trade secret data require that employers ensure that adequate safeguards (i.e., restrictive covenants, confidentiality agreements, technology controls) are in place to prevent the loss of this valuable property.TradeSecretLock.jpg

For example, Citigroup Global Markets, Inc. just sued its former Vice President in New York, claiming that she sent at least 11 emails to her personal e-mail account that contained the company’s strategic initiatives, financial projections for projects, and details of marketing strategies and campaigns.  These e-mails, according to the filing, were sent just days before the Vice President’s resignation from the company.

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Managing Certifications & Intermittent Leave – Todd Sarver

Managing Certifications & Intermittent Leave – Todd Sarver (Webinar)
Date: Tuesday, August 16, 2011

Are workplace absences affecting your business?
Best practices for FMLA Administration.

The management of workplace absences is an important aspect of bottomline business for employers. The cost of absenteeism is greater than the direct payment of wages and benefits paid during an absence. Indirect costs of staffng replacement, re-training, lost productivity and diminished employee morale often exceed the direct costs of absenteeism.

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A troll is at your PR doorstep with a patent-infringement claim – Michael Lasky

There are two reasons for the sharp uptick in the number of patent claims against PR firms. First, there has been a significantly increased amount of digital-based work that PR firms are doing for their clients. Second, there has been an increase in the number of companies aggressively using patents in the digital age. If an infringement claim has yet to happen to your firm, consider yourself lucky. In fact, this author has handled no fewer than 10 such claims for PR firms in the last six months alone.

A patent typically protects a new invention and grants a 20-year monopoly to its owner, preventing others from using or exploiting it. There are also business method and software patents. These protect methods of doing business or software processes. Sometimes such patents extend to what PR agencies consider basic website functionalities.In many cases, PR firms have been targeted because their communications work typically includes building digital channels for clients, such as websites and social media platforms. PR firms may unwittingly be infringing on one or more software or businessmethod patents when they perform these digital services for clients.

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