North America

New California Laws Increase Penalties for Employee Misclassification and Wage Theft

by Michael S. Kun, Eric A. Cook, and Jennifer A. Goldman

California Governor Jerry Brown has signed two employment-related bills into law, raising the stakes for employers doing business in California. The two laws, which increase the penalties for employers that wrongly classify employees as independent contractors or engage in “wage theft,” both go into effect on January 1, 2012.

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Home Health Providers Face Additional Cuts and Scrutiny for Therapy Services, but Gain Some Flexibility in Face-to-Face Encounter Requirements

In a final rule published in the Federal Register on November 4, 2011,[1] the Centers for Medicare & Medicaid Services (“CMS”) announced it will decrease payments to home health agencies (“HHAs”) by $430 million in 2012. The home health prospective payment system (“HH PPS”) final rule also revises case-mix weights in response to concerns that HHAs are overcompensated for therapy services and incentivized to provide unnecessary therapy services, and adds flexibility to the face-to-face encounter requirement for patients discharged to home health from hospitals or post-acute facilities.

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Ohio Statehouse Update: Week in Review — November 4, 2011

November 4, 2011 — Our top “3” subjects you should know

1.  Congressional map in limbo

Ohio Democratic Party Chairman Chris Redfern said efforts are underway to place a Republican-drawn Congressional district map on the 2012 ballot. House Bill 319, which establishes Congressional district boundaries for the state based on 2010 decennial census data, was approved largely by Republican legislators in September. Due to slow population growth, the new map reduced Ohio’s Congressional representation from its current 18 seats down to 16. Twelve seats would favor Republican candidates, while four would favor Democrats.

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Large Corporations Increasingly Agree to Send All EEOC Charges to Mediation

by Christina J. Fletcher

The Equal Employment Opportunity Commission (“EEOC”) has increased its efforts to encourage large corporations to enter into Nationwide Universal Agreements to Mediate (UAM).  To date, more than 200 private-sector employers, including several Fortune 500 companies, have entered into UAM agreements with the EEOC at the national level.  Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local level.

The EEOC’s focus on UAMs, which apply to individual-charges of discrimination, but not to class and systemic charges, is aligned with the EEOC’s publicly stated priority of combating systemic discrimination.  If more individual charges can be resolved through mediation, then the agency can focus its limited litigation resources on larger-scale, systemic pattern and practice cases.

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This past June, New York State Attorney General Eric Schneiderman went to court to shut down the “Coalition Against Breast Cancer,” which he characterized as a “sham charity that fraudulently raised millions of dollars under the guise of fighting breast cancer, only to funnel the money to organization insiders and fundraisers.”

The Attorney General contended that David and Mindy Winston, the husband and wife who operated the Coalition, had “deceive[d] donors” into believing that their donations would help eradicate breast cancer through research, mammogram screening, and other programs but that in reality the Coalition had “squandered and misused” virtually all of the $9.1 million it had raised in the name of breast cancer. Although the status of the guilty pleas entered by the defendants is in some doubt, the significance of the Attorney General’s action against the couple should be noted by all cause marketers.

Click here to read the full alert >>

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HEALTH REFORM: Health Care Innovation in the Medicare Program: Value-Based Initiatives Beyond Accountable Care Organizations

As the health care industry analyzes the recently released final rule and related guidance regarding the Medicare Shared Savings Program (“MSSP”) for accountable care organizations (“ACOs”) (see Epstein Becker Green’s Implementing Health and Insurance Reform alert of October 27, 2011, here), it is important for the industry to also pay attention to key deadlines related to initiatives being implemented by the Center for Medicare and Medicare Innovation (“CMMI” or “Innovation Center”) within the Centers for Medicare & Medicaid Services (“CMS”).

By way of background, the MSSP is being implemented under the Center for Medicare within CMS. The Innovation Center is a new center organized under CMS, and has a different mission, organizational structure, and leadership than the Center for Medicare. The Innovation Center was created under the 2010 Patient Protection and Affordable Care Act (“ACA”) to test innovative payment and service delivery models to reduce program costs, while also preserving the quality of care for Medicare, Medicaid, and CHIP beneficiaries. Funding in the amount of $10 billion already was provided to the Innovation Center through fiscal year 2019.

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Vanessa Cohn receives leadership award from Hispanic Business Initiative Fund

Arnstein & Lehr Attorney Vanessa Negron Cohn

Vanessa Negron Cohn

Tampa Partner Vanessa Negron Cohn received an award on October 26 from the Hispanic Business Initiative Fund of Florida (HBIF) in appreciation of her “vision, leadership and dedication” as one of its founders. HBIF, celebrating its 20 Year Anniversary, is the leading Hispanic economic development, nonprofit organization in Florida that specializes in providing bilingual assistance to Hispanic entrepreneurs trying to establish or expand their business in Florida. The event was held at the Tampa Marriot (Waterside) and was attended by several hundred people. Vanessa was involved in many aspects of the concern, from the original design and organization of the entity, to fundraising at the state and local levels, both from government and private sources. She served as a leader of HBIF for many years, at times as president (day-to-day), and as chair of the board.

For more information on HBIF, please click here.

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Samuel H. Levine appointed as commission committee member, ACREL liaison

Arnstein & Lehr Attorney Smauel H. Levine

Smauel H. Levine

Chicago Partner Samuel H. Levine was recently appointed as a participant on the National Uniform Law Commission Study Committee to examine desirability and feasibility of drafting a uniform law on the Appointment and Powers of Real Estate Receivers. Mr. Levine was also appointed by the American College of Real Estate Lawyers as a liaison to the study committee.

Coverage from the Chicago Tribune regarding Mr. Levine’s appointments to the National Uniform Law Commission and American College of Real Estate Lawyers study committees can be seen by clicking here.

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Miami Herald article features Arnstein & Lehr’s morale-boosting efforts

The  Miami Herald featured an article entitled “The holiday season push” on October 31st that addressed South Florida businesses’ efforts to ensure a successful fourth quarter, motivate employees and increase teamwork. Florida Managing Partner Jeffrey B. Shapiro and Arnstein & Lehr were featured prominently in the article.  In it Mr. Shapiro discusses the firm’s initiatives to encourage attorneys to collect fees and for staff to better serve clients. He used the Miami offices annual Halloween party and our internal Clients First campaign as examples of the firm’s efforts. To read the complete article, please click here.
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Court holds that arbitration agreement fails for lack of consideration

Agreements requiring employees to arbitrate any claims they may have against their employers arising from their employment can save both time and money.  Courts, however, will review such agreements very carefully to ensure that they do not unfairly disadvantage employees by, among other things, denying them remedies or procedural tools that would be available to them in traditional litigation before a court.  As a recent case demonstrates, courts will also review arbitration agreements to be sure they satisfy basic principles of contract law.

In Domin v. River Oaks, Inc.pdf, the employee signed an arbitration agreement that stated, in part:

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