Articles

Title VII Protection for Workers of Racial or Religious Discrimination
Posted by: Jennifer Salvatore
November 04, 2011

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False Claims Act Revisions Make Immediate Return Government Overpayments More Urgent, With Stiff Penalties for Contractors who Delay
Posted by: David Blanchard
October 28, 2011

by David Blanchard and Dari Stuhl

The passing of the new national healthcare bill has increased the number of Americans with public healthcare plans. While the legislation will reduce the number of people who are currently uncovered or unsatisfied with their healthcare insurance policy, it will also place greater financial responsibility on the shoulders of the health care providers. As a measure to better track the flow of funding paid to doctors and medical suppliers, and as a way to both prevent and detect monetary fraud, the new federal law requires that overpayments must be identified and returned to the federal government. This new provision has significant ramifications for health care providers and the attorneys who advise them. Most significantly, the law converts inadvertent and even good faith Medicare overpayments into "False Claims" with broad civil and criminal penalties for those who delay in returning the money.

Definition of an Overpayment

A Medicare overpayment is a payment that a doctor or supplier has received in excess of amounts due under Medicare statute and regulations. Once a determination of an overpayment has been made, the amount of the overpayment becomes a debt owed by the debtor to the Federal government. The Centers for Medicare and Medicaid Services (CMS) seek the recovery of all indentified overpayments. Over payments may be the result of: 1) duplicate submission of the same service or claim; 2) payment to the incorrect payee; 3) payment for excluded or medically unnecessary services; or 4) a pattern of furnishing and billing for excessive or non-covered services.

Overpayment Provision

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (PPACA). Under Section 6402 (a) of the PPACA, Medicare and Medicaid overpayments received by any provider, supplier, Medicaid managed care organization, Medicare Advantage organization, or PDP sponsor; must be reported and returned within 60 days after they are identified, to the Secretary, state, intermediary, carrier, or contractor.

This requirement is only one of many aspects of the program integrity provision in section 6402 (a). Its purpose is to enhance transparency and improve the integrity of federal health care programs. Since the Act became effective the day the president signed it into law ? March 23, 2010 ? overpayments that were identified on or before that date must be reported and returned by May 22, 2010. The law, however, doesn't clearly define what it means to identify overpayments. And at this early stage, it is difficult to predict with certainty how courts will apply this important term in the new law. Overpayments that are subject to a reconciliation process needn't be reported and returned within the 60 days requirement. Instead, they are to be reported and returned by the due date of the corresponding cost report.

In addition, when an overpayment is returned, it must be accompanied by a written notification of the reason for the overpayment. And the failure to timely comply with any of the above requirements could result in liability under the False Claims Act, as well as the imposition of civil monetary penalties and exclusion from the Medicare and Medicaid programs.

False Claim Act & Fraud Enforcement and Recovery Act (FERA)

On May 20, 2009, President Obama signed the Fraud Enforcement and Recovery Act (FERA) into law. FERA is basically an expansion/amendment of the federal False Claims Act. Before FERA, the False Claims Act hadnot been amended since 1986. It gives the federal government more power to combat health care and other program fraud. Specifically, it increases the types of conducts that constitute a federal crime, e.g., there are now more cases which prosecutors and whistleblowers may bring to justice. Among them, it prohibits the knowing concealing or avoiding the return of an overpayment. The report and return of an overpayment is considered an obligation to the government under the FERA. The failure to do so, under FERA, is a now newly created False Claims Act liability. Prior to FERA, the False Claims Act established liability only for fraudulent statement for the purpose of avoiding or decreasing an obligation to pay money to the government. This section of the law is generally referred to as the reverse false claim provision. The passing of FERA expands the False Claims Act's reverse false claim provision, creating liability for persons who knowingly conceal the retention of an overpayment of government money.

In other words, health care providers should familiarize themselves with the long reaching effect of FERA and avoid its powerful enforcement ability. Under the new law, health care providers can face penalties not only for false or improper claim, but also for mere knowing retention of government overpayments. Moreover, the FERA also enhances whistleblowers' ability to investigate alleged FCA violations (e.g., unreturned overpayments) and provides them enhanced protection. Whistleblowers who report withheld overpayments may trigger civil and criminal investigations. And the law provides for a finder's fee of ten to thirty percent of the recovery, providing the whistleblower with a strong incentive to do so.

The overpayment provision and FERA enhance criminal enforcement of federal fraud laws. The crime of fraud against the federal government, which previously only covered fraud in government procurement and contracts for services, now includes a wider range of government involvement, such as various forms of Federal assistance. Due to the broad scope of the legislation, it is crucial that legal and medical professionals take careful notice of the various requirements placed on providers of healthcare and suppliers.

Resources

We will continue to monitor the unfolding impact of this False Claims Act Amendments and related Financial Regulatory Reform. If you have any questions or would like more information on the issues discussed in this comment, please contact the authors, Attorney David Blanchard is a principal at the Firm of Nacht, Roumel, Salvatore, Blanchard & Walker PC practicing in the area of whistleblower representation and qui tam law. Attorney Dari Stuhl practices exclusively in Health Care Law for doctors, medical groups and other health care providers, she is of counsel with the Nacht Law Firm.

Additional information about the Medicare overpayment collection process for physicians and suppliers is available in Chapter 34 of the Medicare Claims Processing Manual and Chapters 3 and 4 of the Medicare Financial Management Manual located at http://www.cms.gov/Manuals/IOM/list.asp.

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Sixth Circuit Court Rules to Expand Definition of "Employee" to Include Volunteers, Making More "Employers" Liable to Title VII Claims
Posted by: Edward Macey
October 03, 2011

A recent ruling from Sixth Circuit Court of Appeals specifically confirms that the federal civil rights laws protect certain volunteers from discrimination at work. The case brought by a volunteer firefighter against the Middlefield Fire Dept. was originally thrown out before trial by the lower court. The Appeals court ruling reverses the lower court and sends the discrimination case back for trial, based on a determination that the law's protection against discrimination and harassment for "employees" includes employees who are unpaid.

The plaintiff in Bryson v. Middlefield had alleged sexual harassment in the form of unwanted advances by her supervisor which led to her eventual termination when she rejected the advances. The volunteer firefighter brought suit after the EEOC issued her a Notice of Right to Sue after concluding that there was enough evidence that she was "sexually harassed and subject to a sexually hostile work environment." The volunteer "employee" brought her suit in district court, where the fire department argued that Bryson, as a "firefighter member" could not be considered an employee because firefighter members were volunteers; and not "employees" under Title VII. (Title VII of The Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin). The lower court bought the argument and granted partial summary judgment finding the Department did not meet the statutory definition of employer by not having enough employees to be covered by federal law. The Sixth Circuit disagreed and reversed.

The Sixth Circuit's groundbreaking analysis rejects a previous Second Circuit Court opinion on employee/volunteer determination and, as some employment rights advocates might say, has made a significant push for employees' rights by stretching the boundaries as to who is considered an "employer" and "employee" with regard to Title VII claims. Because Bryson established that firefighter-members received "worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund," the Sixth Circuit ruled that the district court made an error by adding the requirement of "significant remuneration" when trying to determine if an individual can be considered an "employee." As a result of this classification, the Department can be held responsible for discrimination and harassment under Title VII. The case now returns to the district court to determine whether sexual harassment occurred.

The lawyers at Nacht Law will continue to monitor the developments in this area. If you have any questions or would like more information on the issues discussed in this comment, please contact the author. Attorney Edward Macey is an associate at the Firm of Nacht, Roumel, Salvatore, Blanchard & Walker PC, practicing in the area of employment rights and civil rights.  

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Governor Snyder Effectively Dismantles Teacher Tenure Rights in Michigan, new tenure law raises more questions than answers
Posted by: David Blanchard
September 16, 2011

With the beginning of every school year comes enivitable anticipation, anxiety, and uncertainty. As this particular school year begins, teachers and administrators also face a brave new world and some of the same "jitters" more commonly associated with the returning students than their teachers.  On July 19, 2011, the Governor of Michigan, Rick Snyder, signed into law a four-bill package of legislation that has fundamentally altered the system of tenure rights for teachers in the state. Under the new law, it is both harder to qualify for tenured status and easier to be fired or stripped of tenure rights once obtained. The rights associated with teacher tenure have also been significantly reduced.  The legislative package pushed by Governor Snyder included a variety of sweeping reforms to usher in this new reality.

Teachers will now have to serve in a probationary period for five years, rather than four, in order to secure tenure and must be deemed "effective" or better on their three most recent year-end performance reviews. >Previously, tenured teachers would be evaluated just once every three years, but the new law mandates annual year-end performance reviews. These new reviews will base teachers' effectiveness ratings on measures of "student growth." The law also states that tenured teachers who are evaluated as "ineffective" on two consecutive year-end reviews must have their tenure rights stripped and must serve an additional probationary period. If a tenured teacher is rated as "minimally effective" in consecutive years, then the School Board will have discretion to strip away tenure rights. Once back on the additional probationary period, a teacher who fails to receive a rating of "effective" or better on two consecutive year-end evaluations is required to be terminated. What the new law lacks is any detailed direction for administrators in conducting these new evaluations. As the school year begins, teachers lack a clear rubric explaining how they will be judged. Administrators with limited resources and some without any recent classroom experience are scrambling to develop performance criteria (for themselves and for teachers) without guidance from governor Snyder, the legislature, or even the Michigan Department of Education. Each district is left to "reinvent" it for themselves.

Under the old law, teachers on continuing tenure could be fired or demoted only for "reasonable and just cause," but now the State simply has to prove that its action was not "arbitrary and capricious." In making personnel decisions, School Boards are allowed to take length of service and tenured status into account only as possible tiebreakers in the event that two teachers are otherwise completely equal. Seniority had previously been the primary basis on which many Michigan school districts made their staffing choices, providing a clear rule, but one that has been subject to political attack for years. On one hand, a seniority system provides job security and stability that many argue is necessary to attract highly qualified young people to the profession. On the other, it pushed performance measures back burner and allegedly created a system of entitlement.

Under Michigan's new teacher tenure law, the determining factor in personnel decisions will now be the "effectiveness rating" of teachers as determined by year-end performance reviews. The new legislation also goes on to dramatically weaken teachers' collective bargaining rights. There are six areas that have been removed from the collective bargaining process: (1) placement of teachers; (2) personnel decisions when conducting a reduction in force, a recall or when hiring; (3) performance evaluation systems; (4) the discharge or discipline of employees; (5) the format or number of classroom observations conducted during performance evaluations; and (6) the method of performance-based compensation.

The tenure package's four bills--now known respectively as Public Acts 100, 101, 102, and 103 of 2011--took effect immediately. However, a council charged with establishing the guidelines for grading teacher performance will have until April 2012 to put recommendations together. Those recommendations will then come back to the Michigan Legislature for final approval. If the process moves swiftly, even advocates for the tenure reforms admit that the criteria for the new year-end evaluations could be in place by the fall of 2012 at best. At the end of this school year, administrators may be left without guidance for the inevitable layoffs that will occur as school budgets are stripped or just placed in budgetary limbo. We know seniority cannot be a significant criteria. Unions will be without powers to challenge layoffs. Administrators will have no choice but to make up performance criteria without direction from the state. And it will be left for individual teachers and their lawyers to sort out what, if anything motivated their performance evaluation, selection for layoff or other discipline.

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Nacht Law attorneys petition the EEOC for litigation review of UPS "no restriction" failure to accommodate policies alleged to violate the Americans with Disabilities Act
Posted by: Staff NachtLaw
July 14, 2011

The US Equal Employment Opportunity Office in Detroit has taken the step of recalling a case for reconsideration after Nacht Law attorney David Blanchard intervened to urge action on a class basis for "no restriction" policies that deny employees with disabilities their job rights even when they can perform the essential functions of their jobs. Nacht Law took up the EEOC case on behalf of an individual UPS employee who was fired even though her doctor said she could work, simply because she was limited to a forty-hour work week.

Courts in the Sixth Circuit have found that 40 hours per week is a reasonable accommodation. In Smith v. Henderson, 376 F.3d 529 (6^th Cir. 2004), the Sixth Circuit reversed the district court’s grant of summary judgment where the employee was only able to work 40 hours per week. The employer argued that working more than 40 hours was an essential function of the job. The Court disagreed. The employee wanted to delegate time-consuming financial accounting duties to subordinates in order to complete her job within 40 hours per week. Crucially, other people with the plaintiff’s jobs had previously delegated the accounting functions creating “a genuine issue of material fact as to whether the accounting duty was an essential function of the [position].” Id. at 536.

A district court in the Southern District of Ohio reached a similar conclusion. Geiger v. Pfizer, Inc., 2008 US Dist LEXIS 89238 (S.D. Ohio 2008). Pfizer claimed that more than 40 hours of work was an essential function of the plaintiff’s job. The district court determined that this was a factual question. The court noted that Pfizer could not “demonstrate the necessity of working more than 40 hours a week other than to draw comparisons and use deductive reasoning.” The court found whether the job could be performed within 40 hours is “soundly within the province of the trier of fact.”

David Blanchard urged the EEOC to consider the case for the broader group of UPS workers with disabilities, arguing that zero tolerance "no restriction" policies are violating the jobs rights of many disabled UPS employees, and those rights could only be effectively remedied by EEOC action. The [disability rights] lawyers at Nacht Law regular represent individual employees and groups throughout the EEOC and in court for individual and class claims. A claim with the EEOC deserves the same legal attention and skilled representation as your lawsuit in court. Contact the job discrimination lawyers at Nacht Law for a consultation on your disability or other EEOC discrimination claim today.

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Disability Discrimination in the Workplace on the Rise
Posted by: Staff NachtLaw
March 29, 2011

2010 saw a drastic increase in the number of workplace disability discrimination claims. According to the Equal Employment Opportunity Commission (EEOC), the agency received a record 100,000 complaints of disability discrimination in 2010, a 17% increase over the previous year.

The rise in claims was attributed in part to amendments to the Americans with Disabilities Act (ADA) that went into effect in 2009. Under the ADA Amendments Act of 2008, Congress increased the scope of qualifying disabilities to make it easier for individuals to receive protection under the important federal civil rights law. This included overturning a previous U.S. Supreme Court ruling that said available mitigating measures must be considered prior to determining if an individual has a disability.

The ADA and Reasonable Accommodation

By broadening the definition of disability under the ADA, Congress made it possible for many who have suffered discrimination in the workplace to take action against their employers for their discriminatory actions, including the failure to provide reasonable accommodation.

Under the ADA, federal and state employers and private employers with at least 15 employees are required to provide reasonable accommodations to employees and job applicants with disabilities who are otherwise qualified for an employment position. Thus, the employee must first be qualified for the position, which means he or she must have the requisite skill, training, education and experience for the job, prior to being entitled to a reasonable accommodation.

The employer's duty to provide a reasonable accommodation is triggered once the employee makes a request for one. The employer and the employee then should work together to determine which accommodation(s) will help the employee perform his or her job duties.

Some examples of reasonable accommodations include:

•          Modified work stations and equipment, including telephones, desks and computers
  

•          Modified work schedules, including part-time

•          Temporarily or permanently moving a disabled employee to a different vacant position

•          Increase accessibility to common areas, including break rooms and restrooms

•          Installing wheelchair access ramps

Employers are not required under the ADA to provide employees with the exact accommodations they request or with the most expensive or best available accommodation. Federal law only requires that employers provide accommodations that will allow employees with disabilities to achieve the same level of performance and enjoy the same benefits of employment as other similarly situated, non-disabled workers.

Employers also do not have to provide a reasonable accommodation if it would cause undue hardship for the employer's business. What is or is not considered an undue hardship is determined on a case-by-case basis by considering a number of factors, including the cost and difficulty of procuring the accommodation and the size, revenue and nature of the employer's business.

Lastly, employers do not have to provide reasonable accommodations that are personal use items. This includes eye glasses, hearing aids, wheelchairs and other items that the employee can use outside of the workplace. The accommodation must be work-related for the purpose of helping the employee perform the essential functions of his or her job.

Temporary Medical Leave and Returning to Work

In some cases, temporary medical leave can be a reasonable accommodation for a worker with a disability. However, there has been abuse of this accommodation and some employers have fired employees at the end of their medical leave rather than allow them to return to work.

In a recent case, merchandiser Jewell Osco agreed to settle a $3.2 million disability discrimination lawsuit filed against it by the EEOC for doing just that. According to the EEOC, Jewel Osco had adopted a policy of firing employees with disabilities once they reached the end of their medical leave rather than providing them with reasonable accommodations that would have allowed them to return to work. The EEOC alleged that the company had fired around 1000 employees under this policy in the last seven years.

When an employee with a disabilitytakes medical leave, the ADA requires that the employee be allowed to return to his or her job or an equivalent position, unless the employer can show that it would create an undue hardship to do so. While employers always can fire a disabled employee for a legitimate job-related reason, employers cannot fire them because of their disability or as a means to circumvent their legal obligations under the ADA, including the duty to provide reasonable accommodations.

Getting Help for a Disability Discrimination Claim

If you believe you have been discriminated against in the workplace because of your disability, contact an experienced employee rights attorney today. While the ADA requires you to first file a discrimination claim with the EEOC, Michigan law provides you other sources of relief, including the right to take legal action immediately. For more information on your rights under state and federal anti-discrimination laws, contact a knowledgeable employment law attorney today.

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U-Visa Process Can Make it Easier for Undocumented Victims of Workplace Harassment to Come Forward
Posted by: Staff NachtLaw
March 24, 2011

(January 11, 2011) My client was an undocumented Spanish-speaking housekeeper at an Ann Arbor area budget hotel. She was sexually harassed in a series of escalating incidents that culminated in attempted rape by a manager.   She worked there only six weeks.   The harasser took advantage of my client's undocumented status. He was betting that she would have to risk everything -- her job, her family, possible deportation -- if she dared refuse his advances or report him to authorities.  Luckily, the "U-Visa" exists to help encourage undocumented individuals who are victims of crimes to come forward.  Not everyone realizes that this can offer protection in some cases for victims of sexual harassment who are undocumented.  We brought the case to the attention of the Equal Employment Opportunity Commission in Detroit and pushed the EEOC to certify my client for a U-Visa, which would protect her from deportation as a cooperating victim in a criminal case.  

Ultimately, the EEOC certified my client for a U-Visa and filed suit against the hotel. The hotel agreed to settle the case before trial for the maximum statutory damages cap (the client was ineligible for lost wages because she was undocumented).  A consent judgment was reached requiring the court to retain jurisdiction for three years and the hotel to give mandatory sexual harassment training in English and Spanish to all employees, provide written materials in Spanish to employees, and allow the EEOC access to the job site at any time for monitoring and enforcement purposes.   Shortly thereafter, we got word that the client's U Visa and employment authorization were granted, which gives her legal status and the right to work in the United States for four years.  At that time, she can apply for permanent legal status in the U.S.

This was a significant victory for our client, who has three children under 6 years old, is living at the poverty level, and has been unable to legally work in this country.

This was also a significant policy victory and will help other undocumented workers who experience egregious workplace abuse. This was the first U Visa that the Detroit EEOC office has certified.  The process was long and involved a lot of advocacy on the part of our firm at higher levels of the EEOC.  Attorneys and investigators in the Detroit EEOC office are now educated about their ability to certify some undocumented claimants for U-Visas. Just last week, when I filed another EEOC claim for another undocumented woman who has been the victim of egregious workplace sexual harassment, the EEOC investigator assigned to her case called me to suggest that she was a candidate for a U-Visa. Clearly, the EEOC in Detroit is now being proactive in suggesting U-Visas in appropriate cases.  This is a great policy result for all undocumented workers -- who are particularly vulnerable to abuse and sexual harassment in the workplace.

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Whistleblowers face legal challenges
Posted by: Staff NachtLaw
March 24, 2011

(December 28, 2010) Doing the right thing often takes a clear conscience. For employees, it also takes a tremendous sense of courage and some fundamental understanding of the law. When you find out that your employer or the company that you're working for is doing something legally unsound or ethically dubious, you may find yourself in a difficult situation. That inner moral guide may tell you to report what you know: a crime, a fraud, some irregularity or violation of practice, but you may be afraid of retaliation or discrimination or fired by your employer for doing the right thing.

There are many state and federal laws that help employees to overcome this fear and protect them from possible retaliation for being a whistleblower. In cases of government fraud, the False Claims Act allows an individual to sue on behalf of the federal government. This 147-year-old law was enacted during the Civil War time to prevent armament profiteering. It has become, in recent years, prosecutors and whistleblowers' most useful weapon in fighting crimes and frauds committed by government contractors.

Example: West Point grad John Kopchinsky, became a Pfizer sales rep when he left the Army. When he found out that Pfizer fraudulently promoted the usage of Bextra, a painkiller, far beyond that which was approved by the FDA, he complained to management. But his complaint was ignored. And as his concerns grew, the "ethical line kept moving" in the wrong direction. By the time he was talking with lawyers about evidences he had gathered on the company's promotion of Bextra in 2003, he was already fired by Pfizer. Because of Kopchinsky's good conscience, upstanding courage, and sound legal representation, Bextra was withdrawn from the market in 2005, and Kopchinski will be awarded $51.5 million of the money recovered by the feds for his help. Furthermore, he'll also get a share of the money being returned to various states.

Kopchinsky's case represents an ever growing trend in the legal world of fraud fighting and prevention. Public Citizen, a consumer group, reports that financial penalties against drug companies under the federal False Claims Act including fines and settlements since 1991 totaled $19.8 billion. And most of that money (about three-quarters) was paid by drug companies over the past five years. So it is clear that documented pharma fraud has been accelerating.

One of the reasons for this huge increase in reported pharma fraud is the parallel increase in the number of industry insiders emboldened to make public dirty industry secrets. Public Citizen reports that whistleblower cases made up only 9% of pharma payouts to the government in the 1990s, but 67% in the past decade. They now do so with the promise of a share in the penalties.

Despite the soaring penalties, whistleblowers are still in a legally fragile situation because whistleblower cases often involve very complex set of facts and employment history. In retaliation, the company/employer may claim other work related pretext as justification for discrimination or firing. Our whistleblower lawyers at Nacht Law can provide you with expert legal advice, as well as legal representation to cut through an employer's excuses and wrongdoings.  Proper representation and advice makes it easier for you to do the right thing and avoid the dangers associated with being the one to blow the whistle.

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Hostile Work Environment
Posted by: Staff NachtLaw
March 24, 2011

(December 24, 2010) There is a concept in the employment world called hostile work environment. The concept in law is different from the one in most people's heads. Many people who have a boss that yells or creates a high stress working environment are victims of a hostile work environment in the literal sense, but that kind of environment is not necessarily illegal. To have a boss that yells or makes employees cry is not an uncommon phenomenon in the United States, and the law does not prevent it--except when the motivation is discriminatory. A hostile work environment, in the legal sense, is a workplace made hostile because of a person's gender, race, and/or disability.

Sexually hostile work environment cases are by far the most common. These cases typically involve women who are repeatedly subjugated to offensive conduct of a sexual nature. Instances of repeated touching, exposure to pornography, being asked out on dates, and the like will usually constitute a sexually hostile work environment. It is uncommon for a single incident to be considered a hostile work environment under the law, but a single case of aggressive physical assault can constitute a hostile work environment.

Racially hostile work environments typically must be rather extreme for the courts to provide relief. In the case of African-Americans, we're talking about the repeated use of the N-word or conduct involving references to slavery. In the case of Arab-Americans, we're talking about the repeated use of derogatory terms referring to national origin. The key here is that the conduct should be considered pervasive, and that the victim is being reasonable when he or she takes offense.

Under Michigan law, if the offender is a coworker or a boss, the employee must notify the company through a sexual harassment hotline, make a complaint through a human resources department, or contact the owner to give the company a chance to resolve the problem. Often, just mentioning it to a co-worker of even a supervisor is not considered sufficient notice for the company to be held responsible for fixing the situation. Our firm advises clients how to make a complaint in a way that protects their rights and stops the conduct, while carefully considering the impact on their careers.

Cases of a non-sexual, gender-based hostile work environment or disability-based hostile work environment are very rare in the courts, but they occur more often than is commonly recognized. A boss who picks on a person with a disability in a pervasive manner or who regularly demeans women but not men might be vulnerable to a law suit. Our law firm provides guidance in handling such situations.

Moreover, while the doctrine of bullying has recently taken on prominence regarding kids in school and on the internet, the law still doesn't protect people from bullying in the workplace as a general rule. Truly extreme behavior fits within another category, "intentional infliction of emotional distress," but the courts are very careful in limiting the cases being brought under that doctrine to extreme situations.

We counsel people in many different settings who are under pressure, unsure of their legal options, and how it will all impact their careers. You don't have to suffer alone; come in for a consultation.

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Criminal charges present special dangers for public school employees
Posted by: Staff NachtLaw
March 24, 2011

(December 22, 2010) For any professional, the prospect of a criminal charge, even a simple misdemeanor, can present serious threat to a job and a career.  For teachers and public school employees, 2005 Michigan "School Safety" legislation (2005 PA 129-131 and 138) presents a special danger for future employment.  Although it has been effective since January 1, 2006, many criminal defense lawyers and even judges are unaware of the special reporting requirements for teachers charged with a crime.  As a result, minor violations of the law can too often become major employment issues with far reaching and devastating employment consequences. In order to protect the rights of their clients, competent criminal defense lawyers need to know the law and advise their clients to avoid the traps. For those facing arraignment on a criminal charge, even before most defendants secure counsel, proper notice of their obligations from the district court judge may be all that stands between them and the unemployment line.

Example: a public school teacher is charged with a felony or one of many enumerated misdemeanors --   felony obstruction of an officer is a common arraignment charge -- maybe based on "mouthing off" or simply on a refusal to take a breathalyzer. His criminal defense lawyer believing this offense can easily be dismissed later allows the client to be arraigned on the charge and a week later negotiates a dismissal of the charge in exchange for a non-criminal "civil infraction" or some other minor offense.  All is well, right? Not so fast.  If the arraignment is not reported within three days, the public school teacher is in violation of the School Safety Act and subject to summary dismissal.  Unfortunately, many school districts are taking a hard line "no excuses" approach on enforcement of the act.

Among other things, the School Safety Act imposes two reporting requirements: it requires school employees to self-report to both the employing district and the Michigan Department of Education (MDE) (1) when they have been arraigned and (2) when they have been convicted of a felony certain enumerated misdemeanors. The self-reporting must be done within 3 business days.  For arraignment, any felony charge must be reported and the same goes for a number of misdemeanor offences, including among other offences, breaking and entering, larceny, assault, assault and battery, drug manufacturing or delivery,  child abuse (in any degree), and any sex crime listed in the sex offender registry act (such as criminal sexual conduct, indecent exposure, assault with intent to commit csc, or any number of similar ordinance violations). Michigan has developed disclosure forms for teachers arraigned or convicted on criminal charges, but they are rarely if ever made available at the place and time of arraignment.

Upon conviction the law requires mandatory disclosure to the court and even requires prosecutors to notify school districts directly.  However, the most dangerous time for many teachers is arraignment, where representation is the exception and magistrates or judges are crunched for time. In order to ensure protection of teacher rights, it is crucial that criminal court judges and criminal defense lawyers are aware of, and can advise on, the self-reporting obligations. This is because if the employee fails to report the charge or conviction, then the school district may discharge the person from employment and terminate his contract. Moreover, the failure to self-report may render the employee guilty of an additional crime: if the non-reported charge or conviction is a felony or listed (sex crime) offense, then the criminal defendant may be guilty of a felony; and if the non-reported charge is any other enumerated misdemeanor, then failure to disclose is another misdemeanor in itself.

It is essential that judges and lawyers are aware and able to advise on the special legal requirements for teachers, so all employees working for a school district may avoid serious threats to their job based only on a a lack of information about legal obligations.  At Nacht Law, we are proud of our ability to provide sound legal advice to teachers, paraprofessionals and other school employees, and solid criminal AND employment representation to avoid these pitfalls. 

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How to Achieve Good Results Without Filing a Lawsuit
Posted by: Staff NachtLaw
March 24, 2011

(December 15, 2010) $930,000 Settlement Latest Pre-Suit Victory for Salvatore

The conventional wisdom is that you litigate the big cases with good facts.  While that is generally true, it's often a mistake to forgo attempts at pre-suit mediation in such cases.  In virtually every case I plan to litigate, I reach out to the other side prior to suit and explore settlement, often with surprisingly good results.   In particularly sensitive cases - sex harassment, for example, where even a successful lawsuit more often than not re-victimizes my clients - I will push for early mediation, before a complaint is ever filed.

I was reminded again of the wisdom of this approach with a recent case, which settled for close to a million dollars after pre-suit mediation. There, my clients were able to have an opportunity to be heard by their employer on extremely sensitive issues in a setting that was safe, non-confrontational, and confidential.  The mediation process resulted in a number of significant non-monetary policy changes that were important to my clients, as well as a sizable monetary settlement, all achieved within 60 days of my clients walking in my door.  Most importantly, my clients felt that their experience with the legal system and with their employer was a positive one that respected their dignity and valued their losses. They and their employer are moving on with their employment relationship without the significant distraction and damage of a multi-year discrimination suit.  It was truly the best outcome for everyone involved.

Last year, I settled a $450,000 sex harassment suit against Central Michigan University in a similar fashion.  My clients were young women who played soccer at CMU.  The soccer coach there engaged in inappropriate contact with them, and left his job following their allegations.  CMU wanted to do the right thing for the students and families involved, and a public sex harassment lawsuit - in which the University would have legal defenses that would have been hurtful and damaging to the young women involved and where my clients would lose their privacy and open their lives up to public scrutiny - was not the right approach for anyone.  Rather than filing a complaint and sending it to the newspaper, I approached the University first and suggested mediation.   The mediation process itself not only resolved the legal claims in a timely fashion that allowed my clients to continue their college careers, but, again, my clients walked away with a significant monetary settlement and commitments to policy changes at CMU that would help protect other young women from predatory conduct by coaches.

These examples, of course, are the success stories. Not every case can or will be settled early; often litigation is the only means available to achieve justice for our clients.  But in my view too often lawyers don't explore as carefully as they should whether a lawsuit is necessary in the first place. And in every case I view my job as not just maximizing the financial result for my client, but as respecting my clients' overall goals, careers, privacy and dignity.  Of course, when those goals can be accomplished along with a million dollar settlement, that's a good day by anyone's measure.

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Laws Provide Protection for Nursing Mothers
Posted by: Staff NachtLaw
March 24, 2011

(December 01, 2010) The health benefits of breastfeeding are widely recognized. Nevertheless, there are many practical hurdles to overcome ? especially for working mothers. The American Academy of Pediatrics currently recommends that breastfeeding continue for at least 12 months, and thereafter for as long as mother and baby desire. Also, the World Health Organization recommends continued breastfeeding up to 2 years of age or beyond. Recent legal developments are making it easier for women to adhere to these guidelines.

Employers Required to Provide Lactation Breaks Due to Recent Amendments to FLSA

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (PPACA). As part of the PPACA, the Fair Labor Standards Act (FLSA) (29 USC ? 207) was amended to require employers to provide reasonable break time and private spaces for nursing mothers to express breast milk during the workday for up to one year after a child?s birth.

Under this new FLSA provision, employers must provide employees with enough time to express breast milk each time they need to do so ? whether or not the timing is convenient from the employer?s perspective. There are no specific limitations on the number, frequency, or duration of the breaks. Nevertheless, employers are not required to compensate employees for time spent expressing breast milk. Also, the Department of Labor has issued guidelines stating that only employees who are not exempt from FLSA?s overtime pay requirements are entitled to lactation breaks under FLSA.

In addition to break time for covered employees, employers must also provide a private place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and customers for women to express breast milk. According to the Department of Labor?s guidelines, if the space is not exclusively dedicated to the nursing mother?s use, it must be available when needed in order to meet the statutory requirement.

The law applies to employers of all sizes. However, employers with less than 50 employees are not required to provide lactation breaks if they can show that doing so would pose an ?undue hardship? by causing ?significant difficulty or expense? when considered in relation to the size, financial resources, nature, and structure of the business. Employers with over 50 employees have no such defense.

It is too soon to tell how this provision will be enforced by the courts. Because these cases do not involve lost wages, it will be difficult to measure damages for those women who are denied lactation breaks. Even so, employees who are denied reasonable break time or private spaces for pumping can go to court to obtain injunctive relief, and they would be protected from retaliation for enforcing their rights under FLSA. Also, prevailing plaintiffs under FLSA have the right to recover attorney?s fees.

City of Ann Arbor Prohibits Discrimination Against Nursing Mothers

In early 2006, the Ann Arbor City Council passed a revision to the Ann Arbor City Code that gives nursing mothers the right to breastfeed in public in the City of Ann Arbor. This law was passed in response to press coverage over an incident in December, 2005 where an Ann Arbor woman, Kelly Fuks, was told to stop breastfeeding her 6-month-old daughter at the local YMCA.

The City Code now provides that ?No person shall prohibit a breastfeeding mother from or segregate a breastfeeding mother within any public accommodation where she and the child would otherwise be authorized to be.? Persons who are found to have violated this provision can be fined up to $500.00 per day. Also, any woman who is denied the right to breastfeed in a place of public accommodation has the right to bring a civil action against the person (or persons) who violated her rights. The City Code explicitly provides for the recovery of attorney?s fees, in addition to damages and injunctive relief.

Proposed Legislation Would Provide Similar Protection under ELCRA

Under Michigan law, municipalities are prohibited from criminalizing breastfeeding as a form of public nudity. In spite of this, there is no state law that prohibits discrimination against nursing mothers. The state legislature is considering a bill that could change this.

On October 14 2009, State Representative Rebekah Warren introduced House Bill 5515 which would amend the Elliott-Larsen Civil Rights Act to provide protection for nursing mothers. The proposed law would make it illegal to ask a woman to stop breastfeeding her infant in a place of public accommodation. In addition, it would make it illegal to deny equal enjoyment of goods and services to a woman because she was breastfeeding a child.

The bill passed the House Judiciary Committee on December 2, 2009, but it has not yet come up for a vote in the House.

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School Bullying
Posted by: Staff NachtLaw
March 24, 2011

(November 30, 2010) The recent cascade of bullying cases has rushed its way out of school campuses, into the national headline. The U.S. Department of Education reacted by issuing warnings to schools across the country, reminding them of their federal obligations and moral responsibilities: "tolerating or failing to adequately address ethnic, sexual, or gender-based harassment could put them in violation of federal anti-discrimination laws." So while state law is woefully inadequate in provide legal protection from bullying, federal anti-discrimination law may help some victims of bullying and stalking.

On Tuesday, the Assistant Secretary for Civil Rights Russlynn Ali issued a guidance letter that has been sent to tens of thousands of schools districts, colleges and universities, calling on them to subscribe to federal civil rights laws. The letter does not present any new law. It does, however, make clear that when school officials limit their responses to a specific application of an anti-bullying policy, they fail to recognize whether the student's misconduct constitutes discrimination in violation of student's federal civil rights. The relevant anti-discrimination statutes that the Department of Education Office for Civil Rights enforces are:

• Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.
• Title IX of the Education Amendment of 1972, which prohibits discrimination on the basis of sex.
• Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability.

Recent incidents in Michigan and across the country have led to new attention to this gap in Michigan law, which provides no response to the spate of stereotyping, sexual harassments, and suicides across the state.

Chris Armstrong, 21, the openly homosexual student assembly president at the University of Michigan has been harassed by Andrew Shirvell, an assistant state attorney general, whose personal blog claims Armstrong a racist with a "radical homosexual agenda." Shirvell's interviews on the CNN show Anderson Cooper 360 have bought national attention to a problem in the heart of Michigan.  Other bullying cases have led to even more tragic results. Matt Epling, 14, an East Lansing eighth grader was forced down and covered with broken eggs and syrup by a group of high school students, on the last day of middle school.  His father said Matt was traumatized, so he killed himself.

Sadly, Matt's story is not unique. Since 2001, claims the Detroit Free Press, at least eight students from Michigan have committed suicides over alleged bullying. Despite the national school-bullying controversy, and subsequent adaptations of anti-bullying legislation, Michigan, according to Bully Police USA (a watchdog organization) remains one of only five states that have not passed an anti-bullying law to help prevent those who seek refuge from taunts and harassments that attack their look, demeanor, sexual orientation, religious belief, etc.

The Michigan Department of Education has anti-bullying policies, adopted in 2006. While the department can legally recommend school districts to adopt them, it cannot require districts to adopt them because these policies are not state laws. Only a state law can legally require Michigan school districts to adopt an anti-bullying legislation. An anti-bullying bill was sent to the Senate Education Committee for review, where it has stalled to date.

While Michigan legislation has yet to catch up to the epidemic of bullying in schools, response on the federal level provides some protection and some hope. Still, bullying is alive and well, but too many lives have been lost or broken because of it. Clearly not enough has been done to render bullying history. It is our responsibility to stand up against bullying and see to it that effective anti-bullying policies are put in place.

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New Retroactive Sentence Guidelines
Posted by: Staff NachtLaw
March 24, 2011

New 2010 Crack Law Takes another Step Toward Sentencing Equality, But Not Retroactive.

In August 2010, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams.

In a September 27, 2010 opinion piece in the National Law Journal by Harlan Protass and Mark Harris, the authors argue that "although far from perfect ? the new law still maintains an excessive distinction between crack and powder cocaine ? the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Many are calling on Congress to take another step forward by making the 2010 law retroactive ? a move that would benefit thousands of men and women who were sentenced long ago for crimes involving crack.

Doing so would be a bold step, but not unheard of. Sentencing guidelines are rarely given retroactive effect because of the administrative burdens involved with the re-opening of old cases. But the sentencing commission did exactly that in 2007, when they adopted retroactive guidelines for crack offenses. The 2007 action meant a substantial reduction in sentences for thousands of federal inmates, and it did so without hobbling the judicial system.

The Commission amended policy statement ?1B1.10, the crack cocaine sentencing guideline, on December 11, 2007. The changes were in response to years of criticism over the inequality of treatment in the criminal justice system based solely on whether cocaine was found in rock or powder form. The more lenient guidelines went into effect in March 2008, reducing the average sentence for crack cocaine possession by nearly two years. The revisions brought the sentence ranges for crack cocaine in line with other forms of the drug, but left open the question of how inmates previously convicted under the harsher rules would be affected. The Commission's 2007 decision clarifies that issue and applies the guidelines retroactively to prior sentences. It had the potential to effect approximately 19,500 federal prisoners, who were sentenced under the old possession rules.

For twenty years before, federal guideline sentences for crack cocaine offenses had been more severe than for the powder form of the drug. But in recent years, critics have suggested that the drug is just as dangerous and harmful to society in either form, with no legitimate reason for a distinction. The harsher guidelines almost exclusively impacted African American communities, where the drug is more often found in rock form. Federal prisoners serving pre-2007 sentences for crack cocaine possession are able to petition the court. Not all crack cocaine offenders will be eligible for lower sentences and not all of those eligible will receive the same updated sentence. The change is not automatic and requires petitioning to federal court and consideration of many factors, including an inmate's post-sentencing conduct. Each judge will be left to make a case by case determination within a broad range of discretion.

The 2007 retroactivity guidelines can be found at: http://www.ussc.gov/2007guid/030308rf.pdf. The 2010 law is at http://www.ussc.gov/2010guid/PDF_Supplement_2010_Guidelines_Manual.pdf. For more information, feel free to take a look at these FAQs.

To retain a lawyer to petition the court or other criminal defense issues, contact the criminal defense attorneys at Nacht Law.

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