New York Employment Lawyer Blog

Mavis Discount Tire Allegedly Engages in Sex Discrimination by Stereotyping Female Applicants

Mon, 06 Feb 2012 10:12:57 -0500

The EEOC recently filed a lawsuit against Mavis Discount Tire alleging that the auto store and service has been engaged in discriminatory hiring practices against women for at least 2 years. The tri-state auto parts store and service provider did not hire a single female between 2008 and 2010.

Mavis Discount Tire is based in Millwood, New York, and also does business as Mavis Tire Supply Corporation and Mavis Tire NY. The company sells tires, automotive parts and services and has about a 110 locations throughout the northeast.

The EEOC's lawsuit alleges that since 2008, Mavis only employed one woman out of about 800 employees. The various positions at the Mavis store and service centers included tire installer, mechanics, assistant managers, managers, as well as other related positions. Furthermore, out of 1,300 hires for these positions between 2008 and 2010, not one woman was hired.

The suit also charges Mavis with failing to maintain applications on file, which is a separate violation. The EEOC also claims that its review of applications that were available showed that Mavis denied offering positions to women with more experience and better credentials and hired less qualified men.

The lawsuit seeks recover back and future pay for all the women applicants who were harmed as well as job that they were denied. Anna M. Pohl, a trial attorney in the EEOC's New York District Office, stated that "Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past."

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against an individual because of their race, color, religion, gender, national origin, age, disability or genetic information regarding any aspect of employment. It applies to employers who have 15 or more employees, as well as to state and local governments. The Act prohibits discrimination based on sex against employees as well as job applicants with regard to hiring, firing, promotion, compensation, job training, or any other term, condition or privilege of employment. It also makes it illegal to based employment decisions on stereotypes and assumptions about abilities, traits, or how an individual will perform because of their sex. For example, it is illegal to not consider a woman for the position of a mechanic because of a generalization that "women can't change tires."

Women have come a long way from the days when they were completely barred from certain professions, but unfortunately, sex discrimination is still a huge problem. The facts in Mavis are absolutely shameful. Not only did the company discriminate in hiring women, it basically engaged in stereotyping all women as incapable of performing any automotive work.

Our attorneys have represented many women who have suffered from gender discrimination at the workplace. If you or someone you know has been discriminated against because of your sex, call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to evaluate your options to help you protect your workplace rights.

Wage and Hour Update: Don't Let Misclassification of Your Employees Cost You Millions

Thu, 02 Feb 2012 09:28:33 -0500

Pharmaceutical giant Novartis received preliminary approval from a New York federal district court judge this week for a $99 million settlement of a lawsuit in which its sales representatives alleged that they were misclassified as "outside sales" under the Fair Labor Standards Act ("FLSA") and denied overtime pay. The class action settlement could affect over 7,000 current and former sales employees.

Over the past few years, pharmaceutical representatives have filed many overtime claims alleging misclassification of sales employees. They have claimed that they do not fall under the "outside sales" exemption and should be paid overtime. The federal court across the country are divided on this issue. This settlement comes at time when the U.S. Supreme Court is considering another case, Chistopher v. SmithKlineBeecham Corp., which involves the same issue of whether the FLSA's outside sales exemption applies to pharmaceutical representatives. The Supreme Court's decision will affect thousands of employees across the country.

The settlement stems from two lawsuits which were filed back in 2006 pursuant to the FLSA and California and New York labor laws. In July, 2010, the U.S. Court of Appeals for the Second Circuit ruled that the FLSA exemption did not apply to the Novartis sales representative, thus finding the sales representatives to be employees under the law. Rather than waiting for the Supreme Court's ruling in the SmithKlineBeecham case, the parties in Novartis decided to settle and not to wait for the Supreme Court's ruling.

The president of Novartis has stated that "We remain confident that sales representatives should continue to be classified as exempt from overtime because their autonomy and incentive compensation are typical of exempt employees as defined by U.S. law."

The FLSA provides an exemption from both minimum wage and overtime pay for employees who are outside sales employees. In order to qualify for the exemption, an employee must meet certain tests regarding their job responsibilities and be paid at least a salary of $455 per week. Your job title along does not give you an exempt status. For example, if your title is that of an outside sales employee, but your primary job duty is to schedule appointments, you are not exempt.

In order to qualify for the outside sales employee exemption, you must meet the following criteria:

-your primary duty must be making sales, or obtaining orders or contracts for services or for the use of facililites for which your client or customer will pay consideration; and
-you must be customarily and regularly engaged away from your employer's place of business.

Make sure your company is properly classifying your workers according to the guidelines under the FSLA. Misclassification can cost your company thousands in litigation costs as well as fines, penalties, and back taxes. Our attorneys have helped many businesses review the job functions of their workers to ensure that they are in compliance with the FLSA. Our attorneys have also helped companies determine if the Voluntary Classification Settlement Program is their best option. Call our Misclassification Attorneys at Villanueva & Sanchala at (800) 893-9645 if you think you might be misclassifying your employees.

Workplace Update: Be Careful of Using Your Company's Computer or Blackberry for Personal E-mails

Tue, 31 Jan 2012 09:35:15 -0500

A group of scientists and doctors filed a lawsuit against the Food and Drug Administration ("FDA") this week alleging that the FDA was secretly monitoring their personal e-mails accessed through FDA computers because of their whistleblower activity. The allegations also charge the FDA with retaliation against the employees for warning Congress and the media that the FDA was approving medical devices that they thought presented unacceptable risks to patients.

Back in 2007, the FDA scientists and doctors, who worked at the agency's Office of Device Evaluation, first complained internally that the agency was approving or was about to approve about a dozen radiological devices which were not yet proven to be effective and that posed risks to millions of patients. When their internal complaints went unheard, the group reported the risks to Congress, the White House and the Health and Human Services inspector general.

The group warned of three devices which risked missing signs of breast cancer, another device which falsely diagnosed osteoporosis, and an ultrasound device which could malfunction while being used to monitor women in labor and risk harm to the fetus. They also complained of several colon cancer screening devices which used excessive doses of radiation and risked causing cancer.

The scientists and doctors allege that the FDA thereafter, for a period of 2 years, began intercepting email they sent to congressional staff using government computers through their private Google and Yahoo e-mails. The lawsuit also charges the FDA with using spyware to capture electronic snapshots of staff computer screens which allowed it to get privately stored whistleblower reports and figure out who was involved in whistleblower activities.

The lawsuit alleges that the FDA used this information to harass, retaliate against and terminate the group of employees. The suit charges the FDA with violating their constititional right to privacy by going through their personal e-mails in order to monitor their activity which they claim was legal.

The FDA computers have a warning which is visible to users logging in which states "You have no reasonable expectation of privacy" with respect to any "communications or data" passing through or stored in the system. It also states that the government "may monitor, intercept, and search and seize any communication or data transiting or stored" on the system.

The important lesson to take away from this is that don't use your company's computer, blackberry, or any other electrical device to communicate personal information. The group of doctors and scientists here used their personal Yahoo and Google e-mails but they used the government's computer to convey the information. The FDA's computers clearly warned them when logging on that they did not and should not have any expectations of privacy.

It is also important to consider the FDA's actions and their chilling effect on whistleblower activities. After all, the FDA employees' activities were based on their concern of the health risk posed by the dozen or so devices which were about to be approved by the FDA. The whistleblower statute is one of the government's most powerful and effective tools to fight fraud, abuse and corruption.

If you have any questions about your rights to privacy at the workplace, call our Employment Law Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your workplace rights.

Health Care Providers: Watch out for Illegal Physician Employment Agreements

Mon, 30 Jan 2012 09:01:09 -0500

The New York State Attorney General's Office recently settled a qui tam whistleblower case with Cayuga Medical Center ("Cayuga") for $3,576,056. The allegations charged Cayuga with violating the federal Stark Act and the state's False Claims Act by entering into illegal physician recruitment agreements with various medical practices.

In 2007, Dr. Daniel Jorgenson, a plastic surgeon with admitting privileges at Cayuga, filed this whistleblower lawsuit. Jorgenson alleged that Cayuga recruited physicians into the local area under a recruitment agreement and paid for expenses, which violated federal law. Cayuga then submitted claims for payment under Medicaid and Medicare, which were not in compliance with federal law.

Cayuga used to offer loans to new physicians to help them start their private practice and to recruit them into the Ithaca area. However, a regulatory change in 2004 made it so that these loans to the physicians joining an existing practice could no longer include any portion of that practice's overhead, unless new staff or space was added. All contracts entered into before 2004 had to be changed, as the regulation did not "grandfather" prior recruitment contracts. In 2007, Cayuga discovered that 4 recruitment contracts signed prior to 2004 had not been corrected due to oversight and reported this to the Office of the Inspector General. During the investigation, Dr. Jorgenson filed his whistleblower lawsuit alleging that 2 additional contracts were in violation of the Stark Act. Although Cayuga disagreed that these 2 contracts were in violation, it settled the matter to avoid the high cost of lengthy litigation.

Of the settlement amount, New York State will receive over $426,000 and $3.1 million will go the federal health care programs. As the whistleblower for reporting the fraud and for cooperating with the investigation, Dr. Jorgenson will receive 18% of the settlement which is $567,000.

The Stark Act makes it illegal for a doctor to refer patients to a hospital or other provider of health care with which it has a financial relationship. It also prohibits hospitals from billing Medicaid for a referral if that referral was in violation of the law. The Stark Act is one of the most important laws affecting the compensation relationship between hospitals and its employed physicians. What makes it difficult to accept is that it is a strict liability statute so that your intent does not matter. In other words, even if you didn't intend or mean to violate the law, you will still be held liable. There was no finding of fraud or abuse by Cayuga but just plain old administrative oversight which has now cost it millions.

If you are a physician or a health care provider, make sure you are in compliance with all state and federal laws regarding physician compensation. The Stark Act is easily implicated if you are using referrals with some type of financial compensation unless you fall under an exception. If you're in doubt, call our Physician Employment Agreement Attorneys at Villanueva & Sanchala at (800) 893-9645 to help review your system and policy of referrals to ensure that you are not violating any state or federal laws.

New York Wage Theft Protection Act Update: Notice Deadline for Compliance Fast Approaching

Thu, 26 Jan 2012 09:21:50 -0500

The New York Wage Theft Prevention Act ('WTPA"), which was passed last December, 2011, becomes effective April 9th of this year. If you're an employer with a business and employees in New York, make sure you are in compliance with the Act's strict notice requirements. Before the end of this month, you must give out your first pay notices to all your employees regarding their pay status.

The New York Department of Labor ("DOL") recently issued sample notices, guidelines and FAQ's regarding its application. The timing of the notices and the information you distribute in the notice is crucial. You must give out your first notices regarding your employees pay status at the time of hiring, every year on or before February 1st of each year of employment, and within 7 days of a change in compensation if the change is not set forth in the employee's pay stub in the next pay period.

The Act also provides that you must give notice in the employee's primary language. One thing to watch out for here is make sure you don't ask a potential hire what his or her primary language is before you offer them a job. The DOL has issued form notices in Spanish, Korean, and Chinese and is planning to issue them in Haitian-Creole, Russian, and Polish. However, if your employee's primary language is not one of the above, the NY DOL has opined that you do not need to translate the notice into that language.

Whether payroll company issues your companies paychecks or you do your own payroll, you must provide your employees with the following information in each paycheck:

your main address and telephone number;

the employee's rate of pay;

the employee's gross wages;

any wage deductions;

net wages;

the dates covered;

the basis for the rate of pay (whether it is hourly, daily, weekly, salary, shift, or commission);

any allowances claimed as part of the employee's minimum wage such as tips or a meal allowance; and

the regular and overtime pay rate and the number of regular and overtime hours worked for non-exempt employees;

The Act also has increased penalties and fines for violations. If you don't give a notice containing the above information to a new hire within 10 days of their starting employment, he or she can sue you for $50 for each week of violation and collect up to a maximum of $2,500. Your current employees who don't get a notice can sue you for up to $100 per week of violation and recover up to $2,500. Keep in mind that the notice must contain all the information set forth above. The Act also allows new hires and current employees who successfully sue to recover costs such as attorneys' fees from the employer. Although some of the fines and penalties are the same under the WTPA as they were under the New York Labor Law, the WTPA has upped the potential liquidated damages to 4 times the prior amount. In other works, if you fail to pay your employee in violation of the Labor Law, you could be liable to that employee for 100% of the wages you owe.

The Act contains many pay and notice requirements that you must incorporate into your business practice in a very short amount of time. Our attorneys have helped many companies review and correct their wage notices to avoid being hit with huge fines and penalties. Call our experienced attorneys at Villanueva & Sanchala at (800) 893-9645 to help review your policies and make sure your business is in compliance with the new requirements.

Former Marine Whistleblower Uses False Claims Act to Expose Fraudulent Billing Against U.S. Department of Defense

Tue, 24 Jan 2012 09:11:46 -0500

The government recently settled a claim with The Boeing Company ("Boeing") for violating the False Claims Act by allegedly engaging in improper billing practices pertaining to Army contracts to make and modify Chinook helicopters. Boeing is the world's leading aerospace company and the largest manufacturer of commercial jetliners and military aircraft. It provides major services to NASA as well as numerous military services.

Beginning in 2003, the U.S. Department of Defense awarded Boeing contracts to manufacture and modify Chinook helicopters to enable the Army to modernize its fleet of heavy lift helicopters. The Chinook helicopters, which date back to the Vietnam era, are used today for combat operations and civil and humanitarian missions around the world. The government ordered over 100 helicopters and Boeing had agreed to "remanufacture" several hundred older Chinook helicopters by overhauling their airframes and putting in upgrades.

According to the contracts, the government had paid for most of the remanufacturing work with a pre-negotiated price. However, its investigation revealed that several Boeing managers had told their mechanics who were working on the Chinook program to perform other, nonbillable work while separately billing the government for their time. This resulted in the government being charged for work that it had already paid for.

The settlement provides for Boeing to pay the U.S. about $4.4 million and also requires it to implement several measures to ensure that this does not occur again. This includes training its employees and improving the software it uses to track billing. Boeing will also, over the next few years, implement a new labor tracking computer system for its defense manufacturing facilities across the country to make sure that the same problem that occurred at its Ridley plant does not happen at its other facilities.

This case was brought to light by a whistleblower, Vincent A. DiMezza Jr., a production manager at Boeing's plant in Ridley. DiMezza, a former U.S. Marine, filed the lawsuit in February 2010 in conjunction with the government. For his part, DiMezza will receive between 15 to 25 percent of the government's recovery.

Under the qui tam provision of the False Claims Act, if you have knowledge of fraud being committed against the government, you may bring an action on behalf of the government. Depending on whether or not the government intervenes and takes over your lawsuit, you may recover anywhere from 15% to 30% of the government's recovery.

It's important to remember that if you do observe fraud being committed against the government, it is your taxpayer dollars that are being stolen. Although, Boeing cooperated with the government's investigation, this fraudulent billing practice would have continued had DiMezza not blown the whistle. If you observe fraud being committed against the government, don't just stand by and watch. Although the False Claims Act is a complicated statute with strict requirements, your monetary recovery and knowing that you are stopping fraud can be worth the effort. Do the right thing and call our experienced qui tam Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have a case under the False Claims Act.

African American Detectives File EEOC Complaint Against the New York Police Department for Race Discrimination

Mon, 23 Jan 2012 09:08:55 -0500

The New York Police Department ("NYPD") is under scrutiny for allegedly discriminating against African American detectives. The New York Civil Liberties Union ("NYCLU") recently filed a complaint on behalf of African American detectives in the NYPD's Intelligence Division with the Equal Employment Opportunity Commission claiming that the NYPD racially discriminates in it hiring and promotional practices.

The complaint alleges that the Intelligence Division uses a "secretive and standardless promotions policy" which promotes white officers before more qualified African American officers. The complaint states that "the NYPD has chosen to cloak promotions in secrecy and give the all-white high level supervisors who run the Intelligence Division unfettered discretion to handpick white detectives for promotions over more qualified African American detectives." The complaint also alleges the existence of a "secret list" containing mostly white officers who are to be promoted.

Denying the allegations, NYPD Deputy Commissioner Paul Browne stated that "There's no 'secret' list. There's a formal review process that measures job performance, years in rank, etc. in which minorities department-wide have fared better than at any other time, in recognition of their meritorious performance."

According the NYCLU, African Americans make up 18% of all NYPD officers but only 6% of the officers in the Intelligence Division. Of the 600 people in the Intelligence Division, only 35 are African Americans. The NYCLU's complaint also claims that while most African Americans hold the position of third grade detective, which is one rank above a regular police officer, not one African American holds a rank above sergeant. Even out of the 161 sergeants, only 8 are African American. This difference in ranking amounts to a $30,000 difference in pay between a third grade detective and a higher first grade detective. This also means a $15,000 per year difference in the amount of pension received.

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against an employee or job applicant because of race or color with respect to hiring, firing, promotion, compensation, or any other term, condition or privilege of employment. For example, if your employment policy, which applies to everyone, has a negative impact on a particular race or color and is not related to the job or the operation of the business, it may be illegal. It also prohibits making employment decisions based on stereotypes or assumptions regarding abilities or traits of certain racial groups. For example, you can not exclude a qualified individual from a job promotion just because you have heard that all people of that individual's race/color cheat on their spouses.

In a city as diverse as New York, it is a shame that New York's Finest may be involved in discriminating against African Americans. The numbers alone raise the question of whether discrimination exists. We will be tracking this case to see what the EEOC comes up with.

Our Attorneys have counseled many individuals on their rights at the workplace. If you feel you have been discriminated against at your workplace with respect to any aspect of employment including benefits or compensation, call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine the strength of your claim and figure out your best options.

Make Sure Your Company's Criminal Background Check Policy Doesn't Discriminate Against African Americans

Wed, 18 Jan 2012 09:46:43 -0500

In a recent settlement with the EEOC, PepsiCo Inc.'s biggest bottling unit, Pepsi Beverages ("Pepsi") has agreed to pay $3.13 million and offer jobs and training to resolve allegations that it engaged in nationwide hiring discrimination against African Americans. This investigation and settlement comes as a result of the EEOC's crackdown on corporate policies that discriminate against African Americans and Hispanics.

The government's investigation found that Pepsi's policy on conducting criminal background checks discriminated against over 300 African Americans in violation of the Civil Rights Act. Pepsi's policy adversely affected African American applicants when it used a criminal background check which disproportionately excluded African Americans form being hired. The former policy did not hire any job applicants who had been arrested pending prosecution even if they had never been convicted of any offense.

The same policy also excluded from employment any applicants who had been arrested or convicted of certain minor offenses. Title VII of the Civil Rights Act of 1974 makes it illegal to use arrest and conviction records to discriminate in hiring when it is not relevant to the job.

While being investigated by the EEOC, Pepsi changed its criminal background check policy to avoid discrimination. Dave DeCecco, Pepsi's spokesperson, has stated that Pepsi's new policy aims to take a more "individualized approach" and will consider the applicant's history with respect to the job being applied for.

Along with monetary compensation, Pepsi will also give job opportunities to persons who were denied employment under the former criminal background check policy and still want a job and are qualified. Pepsi will also have to provide the EEOC with reports on its hiring practices under its new policy as well as have its hiring personnel and managers undergo Title VII training.

Julie Schmid, Acting Director of the EEOC's Minneapolis Area Office stated that when "employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or contemplation of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact on race in violation of Title VII."

It is a shame that a company as large and well-known as Pepsi was engaging in such a discriminatory practice. Although the EEOC did not find any intentional discrimination on Pepsi's behalf, Pepsi's policy was still discriminatory and adversely impacted over 300 African Americans. It was basically trying and convicting applicants who in fact had never been convicted of any offense and excluding them from consideration for employment.

Even if you think your corporate employment policies are not discriminatory, you need to evaluate them and make sure they don't have a discriminatory impact on any minorities. Make sure you have a well thought out, reasonable criminal background check policy related to the job for which you are hiring. For example, it may be reasonable not to hire an individual with a recent history of violent crimes for the position of a door-to-door salesman. However, it may not be reasonable to deny employment to a qualified individual for the position of receptionist because she was arrested for disorderly conduct 15 years ago and never convicted.

Our attorneys have helped many companies evaluate their hiring polices to ensure that they are not discriminatory. Our attorneys have also conducted hundreds of seminars and training sessions for managers and supervisors on how to avoid and deal with discrimination at the workplace. Call our Discrimination Agreement Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you avoid any potential litigation.

Terminating Your Employee's Physician Employment Contract: Beware of the Non-Solicitation Clause

Tue, 17 Jan 2012 09:41:56 -0500

After careful consideration, negotiation, and expense, your practice hired a new physician who you thought was going to work out perfect. Your practice spent considerable time and resources getting him admitting privileges to your hospitals, introduced him or her to your network of physicians, and your practice may even have sent all its new patients to him or her. It turns out that after evaluating your new recruits performance, your practice realized that he or she is not the right fit. For whatever reason, his or her one year employment agreement ends this summer and you need to discuss termination.

Terminating a physician's employment contract can get as ugly as a divorce. As much time and effort as you may have spent, remember that your departing physician may also have made significant changes in his or her life when joining your practice. The departing physician may not be too happy having to search for new employment again. He or she may have started establishing roots in the community, purchased a home, and joined various organizations.

The employment contract is the best place to start. Refer back to the employment agreement and discuss what responsibilities each party must carry out to fulfill their contractual obligations. Most importantly, stay professional and keep it honest. Keep in mind that your patients' medical care has to come first. Also keep in mind your practice's reputation. A departing physician with an axe to grind can cause a lot of damage. Our attorneys can help you interpret the employment contract and make sure that its terms are complied with in a professional manner.

The non-solicitation provision in a physician employment agreement is one of the most important clauses which will impact the terminating physician's future practice. The non-solicitation provision is put in by the basically to stop the leaving physician from taking any patients with him or her to the new practice. It's purpose is to stop the physician form persuading, coercing, or influencing a patient to leave the current practice to obtain similar services from a competing practice.

A non-solicitation clause will not be enforced if it stops a doctor from soliciting any patient in any manner that he or she has seen in the practice. For example, it is solicitation where a physician knows that he is going to be leaving his current practice in 4 months and begins persuading every patient he sees in those last 4 months that he is leaving this practice because it doesn't have state of the art equipment but his new practice located at Z Town in 4 months will have everything there as well as much better treatment there. However, it is not solicitation if a departing physician places an advertisement in the local paper advertising his new practice or sends out a mailing to a certain town.

Our attorneys have helped many practices minimize conflict and ensure a smooth and professional transition when they have decided to terminate their physician employment contract within a year. If things have not worked out the way you anticipated with your recent physician hire, call our Physician Employment Agreement Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you discuss your options.

Call to White-Collar Workers: Make Sure You Are Not Being Misclassified as Exempt

Thu, 12 Jan 2012 09:16:33 -0500

New York federal court judge recently conditionally certified a national collective class action lawsuit alleging that KPMG violated the Fair Labor Standards Act ("FLSA") and the New York Labor Law by misclassifying its Audit Associates as exempt and not paying them overtime wages. KPMG is one of the Big Four Accounting Firms which has over 80 offices and 23,000 employees in the U.S. Audit associates working at such public accounting firms are known for putting in grueling overtime hours which range anywhere from 40 to 80 plus hours a week.

In conditionally certifying the FLSA collection action, the court found that the Audit employees were subject to the same policies and procedures concerning their job duties, had the same training, and worked under the same job description. Moreover, they all had to adhere to the same strict professional and regulatory rules and standards governing the accounting profession. The court did not decide the ultimate issue in the case of whether the audit associates job duties renders them as non-exempt employees. The class certification now allows audit associates across the country who are within the 3 year statute of limitations to join in the lawsuit. Our attorneys have helped many employees figure out their proper classification and recover their rightful overtime wages.

Regardless of where you work or what your job title is, your actual job duties determine whether you are a non-exempt employee and entitled to overtime pay. For example, even if you have the job title of Manager but you are basically performing routine, clerical work which is equivalent to the job duties of a secretary, you are a non-exempt employee under the law and entitled to overtime for all hours worked in excess of 40 hours a week.

The FLSA provides an exemption for employees working as bona fide executive, administrative, professional, and outside sales employees, and certain computer related occupations from both minimum wage and overtime pay protection. In order for the exemptions to apply, the employee must meet certain criteria regarding their job duties and be paid a base salary of at least $455 per week. If you think you fall into one of the above catergories, our attorneys can help you figure out if you meet all criteria to be a non-exempt employee.

Misclassification occurs in all areas of industry and affects all types of workers including white-collar workers. By giving employees a great job title and classifying them as exempt, employers reap huge savings by not paying overtime wages. It not only costs the misclassified worker his lost wage in overtime pay but also affects the amount of taxes collected by the government.

The outcome in this case may have wide ranging ramifications for white-collar workers as well as for major accounting and financial companies. If you are an exempt white-collar employee, think about whether your job duties really involve significant, independent judgment. Do you have the power the hire and fire employees? Does your supervisor control every aspect of your job? Do your job duties involve routine, clerical work? These are just a few questions to consider. If you think you are misclassified as an exempt employee and losing out on overtime wages, call our FLSA Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss and analyze whether you really should be treated as a non-exempt employee and thus entitled to the protections of the FLSA and state law.

False Claims Act: Before Careful of Committing Fraud When You Submit Claims Under Medicare and Medicaid

Tue, 10 Jan 2012 09:22:52 -0500

The Justice Department just announced that the government is intervening in a whistleblower lawsuit against AseraCare Hospice ("AseraCare") for violating the False Claims Act by misspending millions of dollars which was intended for Medicare recipients with less than 6 months to live, and using it on patients who were not terminally ill. AseraCare is a for profit business with about 65 hospice providers in 19 states.

For-profit companies like AseraCare, who care for hospice patients, receive money from Medicare only for Medicare recipients who are terminally ill. In other words, when AseraCare admits a Medicare patient for hospice care, that patient is not longer able to receive medical service that would help treat or cure his or her illness. The purpose of hospice care it to provide palliative care which is intended to relieve pain, symptoms or stress of terminal illness, which includes medical, social, psychological, emotional and spiritual services.

The government has charged AseraCare with knowingly submitting false claims to Medicare for patients receiving hospice care who were not terminally ill. Joyce White Vance, the U.S. Attorney for the Northern District of Alabama, stated that "Medicare benefits, including hospice benefits, are intended only for those individuals who are appropriately qualified."

Two whistleblowers, Dawn Richardson, and Marsha Brown, who are former employees of AseraCare, originally filed this qui tam lawsuit under the False Claims Act. Since the government has intervened and taken over the lawsuit, the whistleblowers may by entitled to recover anywhere from 15% to 25% of the government's recovery. Whether you are a patient, a former or current employee, or a competitor, you can bring an action on behalf of the government if you have knowledge of fraud being committed against the government.

Under the False Claim Act, a healthcare provider will be liable if he or she knowingly files a false or fraudulent claim for payment or approval to Medicare or any other governmental healthcare program or knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by a healthcare program. If AseraCare is found to be guilty, the government may recover treble damages as well as impose monetary penalties ranging from $5,500 to $11,000 per violation.

Medicare and Medicaid fraud are serious and costly violations of federal law which can also result in exclusion from participating in Medicare and Medicaid. If you think your healthcare company or medical practice has violated the False Claims Act, you must act quickly. Once you discover that you have been overpaid, you must notify the government as to why the overpayment occurred and return the overpayment within 60 days of your discovering it. Our attorneys have helped many health care providers resolve costly mistakes and avoid potential litigation. If you think you might have received an overpyamnet from Medicare or Medicaid, call our False Claims Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you remedy any fraud before the government or a whistleblower brings an action against you.

New York Discrimination and Retaliation Update: Make Sure Your Employees Don't Retaliate Against Complaints of Religious Discrimination

Mon, 09 Jan 2012 09:45:05 -0500

The EEOC recently announced a lawsuit it filed a lawsuit against Grand Central Partnership, Inc. ("GCP") for violating a prior consent decree by committing new acts of discrimination. The new charges allege that GCP fired a black Rastafarian security officer in retaliation for his complaining of discrimination and threats of violence. The earlier consent decree was entered into in 2009 and promised to provide Rastafarian security officers accommodation for their religious practices.

GCP is a non-profit developer in New York City that manages the Grand Central Business Improvement District, which is one of the largest business improvement districts in the world.

In 2009, the EEOC and GCP settled a lawsuit over how GCP treated its Rastafarian and Caribbean security officers. The parties agreed in a consent decree that GCP would accommodate the Rastafarian security officer's religious practices and not retaliate against them for participating in the lawsuit. GCP is still subject to court supervision as part of that settlement.

More recently, in 2010, and as part of the new lawsuit, a non-Caribbean security officer threatened to shoot and kill a group of Rastafarian security officers. After a white security supervisor made light of the situation, a Rastafarian security officer objected to his conduct and called him a racist for referring to a group of Rastafarians with the "N" word. After he complained and called the EEOC, he was fired by the GCP three months later.

Title VII of the Civil Rights Act of 1964 clearly prohibits discrimination in employment based on race, color, religion, sex or national origin. It also makes it illegal to retaliate against an individual for engaging in "protected activity" such as filing a discrimination charge, participating in an investigation, or opposing discriminatory practices. In this case, the Rastafarian officer reported the threats and complained to the EEOC, which is protected activity. Thereafter, he was fired for having complained.

The Regional Attorney of the EEOC's New York District Office, Elizabeth Grossman, stated that the "EEOC is particularly concerned when it obtains a consent decree to stop violations of the law and the employer turns around and ignores the settlement by reverting to the illegal behavior." Michael Ranis, a trial attorney at the same office added that "Retaliation against an employee who objects to threats of violence against his co-religionists and then objects to racism will not be tolerated. EEOC's lawsuit should make it clear that an employee may not blame the victim when it loses control of its managers and employees."

It is a shame that GCP personnel continued to engage in discriminatory and retaliatory conduct even after being sued by the EEOC and agreeing to change its conduct. Clearly these employees needed more than a consent decree to learn how not to engage in discriminatory behavior. Unfortunately, such conduct is prevalent and becomes a liability costing thousands for many businesses. Our experienced Discrimination Attorneys have conducted many training sessions and seminars on discrimination at the workplace which have made a real difference in how employees conduct themselves to prevent litigation. Call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help provide training and seminars to prevent potential litigation from financially destroying your business.

Whistleblower Exposes Medicaid Fraud Using False Claims Act and Makes Huge Recovery

Tue, 03 Jan 2012 21:04:36 -0500

The Department of Justice recently settled allegations with pharmaceutical giant GE Healthcare Inc. that a company that it had acquired in 2004, Amersham Health, Inc. ("Amersham"), violated the False Claims Act by overcharging Medicare for a drug used to detect heart disease. GE Healthcare paid $30 million plus interest to resolve the qui tam whistleblower lawsuit. The whistleblower, James Wagel, will get $5.1 million from the government's recovery.

The government had charged that Amersham had caused Medicare to overpay for Myoview, a radiopharmaceutical drug used in certain medical procedures to detect heart disease. Myoview, which comes in multi dose vials of powder, is mixed with radioactive agents to make individual doses which are then injected into patients for cardiac imaging procedures. Medicare payment rates for Myoview were partly based on the number of doses per vial of Myoview. The Department of Justice claimed that Amersham gave Medicare false information as to how many doses were available in each vial which caused Medicare to overpay.

The fraud against the government in this case would have continued if James Wagel, the whistleblower, had not brought it to the government's attention. Wagel, who sold Cardiolite, which is a competing drug to Myoview, repeatedly heard from clients that they were purchasing Myoview because they were able to maximize the number of times each vial was used. Not only was this against the U.S. Food and Drug Administration guidelines but it also resulted in health care providers billing Medicare multiple times for the same product. Additionally, health care was being compromised as the drug was being diluted to get more use out of it.

Tony West, the Assistant Attorney General for the Justice Department's Civil Division, stated that it's "important for drug manufacturers to provide accurate pricing information to Medicare so that taxpayers aren't overcharged for medicines purchased with their dollars."

The qui tam provision of the False Claims Act allows an individual with knowledge of fraud being committed against the government to bring an action on behalf of the government. However, you must be represented by an attorney and you must be the first person to bring evidence of the fraud to the government's attention. In other words, you cannot reveal your story on Eyewitness News and then expect to bring an action. You may be entitled to anywhere from 15% to 30% of the government's recovery depending on whether the government intervenes and takes over your lawsuit.

Medicaid and Medicare fraud is a national problem affecting not just the government but also every taxpayer in this country. The qui tam whistleblower provision of the False Claims Act is a great tool to fight fraud against the government. Although it is a complex statute with strict requirements, the recovery can be quite substantial and worth the effort. However, it only works if you observe fraud and do something about it. If you have observed fraud being committed against the government at your workplace, call our experienced qui tam Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to figure out if you have a case under the False Claims Act.

Employer Update: Avoid ADA Discrimination Liability If You Can Provide Reasonable Accommodation Without Undue Hardship

Tue, 20 Dec 2011 20:43:29 -0500

Walmart was recently hit with a lawsuit by the EEOC for violating the Americans with Disabilities Act ("ADA") by failing to accommodate an employee with a disability. The charges also included retaliation against the mega retailer for firing the employee because of his disability and for exercising his civil rights. The EEOC is seeking monetary damages on behalf of the employee discriminated against, training on the ADA and steps to stop Walmart from future discrimination.

The EEOC's investigation showed that the Walmart employee, David Gallo, began working at its Placerville, California location in June 2003. The company was aware that Gallo had a heart condition called atrial fibrillation which causes shortness of breath and difficulty walking. Gallo received good performance evaluations which resulted in him being promoted from overnight stocker to manager of the store's tire lube express bay.
Although Gallo had a handicap parking placard and the company knew of his disability, in March 2008, the new store manager stopped Gallo from parking in the handicap parking spaces or any other spots near the front of the store. In September 2008, Gallo filed a charge with the EEOC for Walmart's failure to accommodate his disability. He was then fired eight months later for an error that an employee working under him made. However, the employee and the person who had reviewed his work were not fired.

The ADA prohibits employers with 15 or more employees from discriminating against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, as well as any other terms or conditions of employment. An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of the impairment, or is regarded as having the impairment.

An employer is legally required to make a reasonable accommodation if it does not impose an "undue hardship" on the employer's business. For example, it is a reasonable accommodation to allow a diabetic employee to take scheduled breaks to check his or her sugar level. A reasonable accommodation is an "undue hardship" if it requires significant expense or difficulty given the employer's size, financial resources, and business operations.

Clearly, Walmart should have accommodated Gallo by allowing him to park in the handicap parking spot or at the least, allowed him to park close to the front of the store. Considering that Walmart knew of Gallo's disability and could have easily accommodated him, Walmart's actions were completely unreasonable. To top it off, Walmart then retaliated against Gallo for filing an EEOC complaint and fired him. Given Walmart's size, financial resources, and past instances of disability discrimination, it is a shame that Walmart engaged in this behavior.

Now matter how big or small your company, make sure your managers and supervisors are trained on the ADA. Our attorneys have conducted hundreds of training sessions on the ADA and Title VII to help businesses save thousands of dollars by avoiding potential litigation. Call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you safeguard your company against potential ADA claims.

Disclaimer:  
Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Do's and Don'ts for Your Office Holiday Party - Sexual Harassment and other Employment Law Risks and Considerations

Thu, 15 Dec 2011 09:03:13 -0500

As much as this is a festive and joyous time of the year for your holiday office party, it can be a legal nightmare if you are not prepared. The holiday party can lead to sexual harassment complaints as well as social host liability suits. The following is a list of precautions you can take to minimize your risk of liability:

The biggest way to avoid trouble at your party is to skip the alcohol. Alcohol clearly lowers inhibition and impairs judgment and makes employees act in a way that they normally would not act at work. Consider serving apple cider or non-alcoholic beer. If you must serve alcohol, hire a bartender to mix and serve the drinks. Instruct the bartender to "water down" the drinks as well as offer plenty of non-alcoholic drinks. Make sure the bartender will stop serving to anyone who appears intoxicated. Another option is give everyone drink tickets to limit consumption. Also stop serving alcohol at least an hour before the end of the party.

Food is an important factor if you will be serving alcohol. Serve plenty of appetizer so that employees are not drinking on an empty stomach.

Remind employees before and at the party not to drink and drive. Before the party, designate supervisors and managers to stay sober and arrange for car pools. Inform your employees well before the party that if they appear drunk, they will not be allowed to drive home. Also ask your managerial staff to watch out for who appears intoxicated and make sure that they do not drive home. Arrange a head of time to have taxis take anyone home who has had too much to drink.

Inviting spouses is also a great way to keep the party sober. Inviting spouses tends to keep employees more sober and encourage appropriate behavior.

Holiday parties tend to bring out the office romance and sexual harassment. The alcohol tends to encourage the shy, fearful employee to ask out a colleague or engage in unwanted sexual conduct. Before the party, inform all your employees about the company's anti-harassment policy and that it applies to the holiday party. Let them know that any complaints will be investigated and disciplinary action will be taken for harassment. Have your supervisors watch for any inappropriate conduct and be ready to cut it off. Don't hang mistletoe or allow anyone to dress up as Santa. This only encourages sexual behavior which can lead to unwanted advances.

Confirm with your insurance carrier that you have enough coverage in the event of an alcohol related accident.

Keep in mind that the holiday party is still an office party and remind your employees to enjoy themselves but to remain professional. They shouldn't do anything that they normally wouldn't do while at work. Our attorneys have helped many businesses make sure that they have minimized any potential liability that may arise. If you're planning a holiday party, call our experienced attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your company from any holiday related liability.