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White House Announces New Department of Labor Regulations for Home Care Workers.
Posted by: David Blanchard
December 15, 2011

A New York Times article reported today suggests that revisions to overtime and other regulations under the Fair Labor Standards Act may be in the works. A decades old exemption to the FLSA designed to protect nannies, maids, and babysitters will likely be revised or eliminated in order to extend FLSA protection for home health care workers. Home health care work is one of the fastest growing sectors in Michigan and across the nation. In central Michigan especially thousands of people work in the industry, where demographics lead to long drive times to and from home-bound consumers. One possibility for the new regulations would be to require compensation for certain drive times, and overtime pay where applicable. The change will make a significant impact for the income in thousands of households.

Today's article quotes Mid-Michigan Congressman Tim Wahlberg, who claims that despite a lift it would bring for many home care workers in his district, he opposes Fair Labor Standards coverage for home care workers, based on the burden for home care employers, consumers, or tax dollars. The proposed changes, whatever form they take, will have to go through an extensive "notice and comment" period before their adoption. Hopefully a balance can be struck that addresses the business concerns while still advancing the concept of fair pay for home care workers.

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Sexual Harrassment: Perception versus Reality
Posted by: Staff NachtLaw
December 12, 2011

An opinion piece on CNN.com hits on a sensitive nerve. The charge is that people understand and respond to accusations of marital infidelity in a way that is very different from allegations of sexual harassment. The author, Barbara J. Risman writes that men respond to infidelity and assign blame and responsibility because they see it as a problem of one's own choosing. When it comes to workplace harassment however, the author concludes that these allegations stir up other feelings among men: fear for how the employment laws can be used, resentment, or assumptions that sexual harassment is just a trap for male bosses who "say the wrong thing" in the elevator.

From my own experience litigating sex discrimination and harassment for years, I have to agree there is a ring of truth to these comments. SOME men have these attitudes, in SOME workplaces. It is a stretch to say all men in the workplace feel this way but there is certainly an element of it. The strange thing is that these attitudes persist in some corporate cultures even though the types of allegations generally prosecuted under the sex discrimination laws are very serious and not just a matter of the boss "saying the wrong thing."

Remember, victims of sexual harassment risk everything by coming forward: their job, their reputation. Victims usually only come forward when there are no other options left. Most harassment cases that we see turn into lawsuits deal with inappropriate touching, sexual propositions, or even sending pornographic pictures to the victim. This is what we mean when we say "sexual harassment" at the Firm. Public attitudes that treat workplace harassment as "accidental" rather than intentional victimization undermine our workplace discrimination laws and hide the real evil that is out there in too many workplaces.

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Are professors who commit fraud subject to criminal liability?
Posted by: David Nacht
December 05, 2011

In a current case reported in Medscape Medical news, see http://www.medscape.com/viewarticle/754423?src=ptalk, Janis C. Kelly reports about a Nevada researcher, July Mikovits, Ph.D., who is fielding criminal as well as civil claims stemming from missing research notebooks concerning chronic fatigue syndrome. Dr. Mikovits, according to the report, "was charged with two felonies: possession of stolen property and unlawful taking of computer data, equipment, supplies, or other computer-related property". She was found at her California home and she spent some nights in jail before any finding of guilt has occurred.

As is often the case, the allegations of fraud in this case first surfaced when other researchers were unable to replicate findings.

There have also been news reports of a criminal investigation in Massachusetts concerning a Harvard professor accused of fraud.

While research fraud in science has been the subject of Congressional interest for a couple for a couple of decades, prosecutors have not historically pursued criminal claims. It appears we are on the cusp of a change in that attitude.

In the private sector, we are seeing the FBI investigate theft of trade secrets theft cases much more routinely, particularly, when American companies are losing material to foreign companies. Now that researchers often have access to valuable intellectual property which are easily portable, that is one motivation for universities, non-profits and companies to bring in the authorities to avoid the loss of data. 

But there is also a growing concern within the academic and research communities about the extent of fraud and the potential for the loss of confidence in Congress and therefore a threat to funding for academic research. So we can expect to start seeing more routine referrals from vice presidents of research and the general counsel's office of universities to law enforcement authorities, as well as the now-routine reports to NIH and other funding agencies.

Professors or other researchers facing claims of intellectual dishonesty must be vigilant in defending themselves. Do not try to defend yourself in an internal inquiry within the university or research institute. Your statements may be used against you in a later criminal proceeding.

You should retain a law firm with experience in employment law; knowledge of federal research funding practices (if your lawyer doesn't know what an R-01 is, get a different lawyer!); academic/research cultural norms; and criminal defense of fraud cases. Our firm is one of the few nation-wide, in which the same lawyers have the expertise to handle all aspects of such a claim.

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US Supreme Court Deciding if Pharmaceutical Sales Representatives Entitled to Overtime Pay
Posted by: Edward Macey
December 01, 2011

The United States Supreme Court agreed this week to decide whether pharmaceutical sales representatives are entitled to overtime pay. Pharmaceutical sales representatives regularly work more than 40 hours a week but are not generally paid overtime for their additional work. In a series of lawsuits across the country, these hard-working employees are challenging this practice and arguing that they are entitled to overtime. To date, courts have come down on both sides of the issue. A federal appeals court in New York ruled that Novartis sales representatives are entitled to overtime pay. A federal appeals court in California ruled that Glaxo SmithKline sales representatives are not. The Supreme Court will review the California case and hopefully decide whether these employees are entitled to overtime or whether, as the pharmaceutical companies claim, the "outside sales exemption" to the Fair Labor Standards Act applies, meaning sales representatives are not entitled to overtime pay. The United States Department of Labor argues that the exemption does not apply and that the sales representatives are entitled to overtime pay. The Supreme Court should issue a decision next spring and that decision will have an enormous impact on thousands of employees and the entire operation of the pharmaceutical industry.

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