Over thirty-five years after Congress passed the Pregnancy Discrimination Act to amend Title VII of the Civil Rights Act, the United States Supreme Court decided that Employers must provide a light duty position to a pregnant worker as a medical accommodation if restricted by her doctor, and similar light duty positions are afforded to other non-pregnant employees with similar limitations on their ability or inability to work.1 The Court explained that the Pregnancy Discrimination Act is clear that Title VII's prohibition against sex discrimination applies to discrimination “based on pregnancy.” It also says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The Court decided the question of how this second provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. Prior to the Young decision, courts frequently refused Title VII challenges to light duty policies that only applied to occupationally injured workers. A healthy pregnancy was not treated as a disability. 

Young involved a part-time UPS driver whose doctor provided her with a twenty-pound lifting restriction in the first several months of her pregnancy, and a ten-pound lifting restriction thereafter. Young’s job required her to be able to lift up to seventy pounds.  After her employer told her she could not work while under the lifting restriction, Young took a leave from work and eventually lost her medical coverage. She filed a Title VII and ADA lawsuit alleging that UPS discriminated against her due to sex and disability. Young pled a “disparate treatment” discrimination claim.  

UPS had bargained a union contract that provided for temporary light duty positions in the following three circumstances: 1) occupational injury; 2) ADA qualifying disability; and 3) temporary loss of DOT certification.  UPS argued that this light duty allocation was gender neutral and contractually binding.   

The federal district court granted UPS’ motion for summary judgment and the Fourth Circuit Court of Appeals affirmed.  The appellate court reasoned that the employer’s light duty allocation policy was gender-blind.  Because Young’s pregnancy was neither an occupational injury nor a disability, and it did not provide a legal obstacle such as a licensing issue to continue working, she was not comparable to the other workers who were provided temporary light duty positions. “Such a policy is at least facially a ‘neutral and legitimate business practice,’ and not evidence of UPS's discriminatory animus toward pregnant workers.2  The Fourth Circuit refused to treat temporary conditions caused by pregnancy more favorably for purposes of construing the PDA or providing claimed workplace benefits. 

The U.S. Supreme Court granted certiorari and reversed the Fourth Circuit.  The Court reasoned that although an employer may defend against such a claim by showing it had non-discriminatory reasons for treating pregnancy-related infirmities and other work-limiting conditions differently, a plaintiff can overcome that showing with evidence that the “employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” Such evidence may defeat summary judgment and send the case for trial.3 In reviewing Young’s evidence and arguments, the Court applied the familiar McDonnell Douglas burden-shifting framework.  In doing so, the Court focused on accommodations provided to other employees who were similar in their ability or inability to work. 

In concluding its decision, the Court posed the following question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  The Court did not decide that UPS had intentionally discriminated against Young, but instead left a final determination of that question for the Fourth Circuit to make on remand, in light of the Court’s interpretation of the Pregnancy Discrimination Act. 

In light of the Supreme Court’s analysis in Young, employers should review their light duty or temporary alternative work policies. If a light duty policy provides disparate treatment to pregnant employees, it should be revised.  If an employer has available light duty positions, it may be prudent to make them available for both work-injured and non-work-injured temporarily disabled employees.  Accommodations provided to employees with injury-related lifting restrictions who are similarly situated in their ability or inability to work should correspondingly be provided to workers with pregnancy-related lifting restrictions who are similarly situated in their ability or inability to work.  Consulting with the employer’s attorney when these questions arise is recommended.


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By judgment of October 6, 2015, the European Court of Justice declared the Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbor privacy principles and related frequently asked questions issued by the US Department of Commerce invalid. In that Decision, the European Commission had held that the U.S. ensures an adequate level of protection of personal data transferred to the U.S. under the ‘safe harbor’ scheme. As a consequence, many U.S. companies doing business in the EU had relied on the safe harbor principles when transferring personal data from the EU to the U.S. 

The judgment was issued in preliminary ruling proceedings and concerned the transfer of personal data of Mr. Schrems, a Facebook user residing in Austria, by Facebook’s Irish subsidiary to servers located in the United States. Mr. Schrems had argued that in the light of the revelations made in 2013 by Edward Snowden, the law and practice of the U.S. do not provide sufficient protection against surveillance by the public authorities of the data transferred to the U.S. The Court held that Commission Decision 2000/520/EC fails to comply with the requirements laid down in Article 25 (6) of Directive 95/46 in that it merely examined the safe harbor scheme but did not take into consideration that the scheme is applicable solely to the United States undertakings which adhere to it but not to United States public authorities. Public Authorities in the U.S. may thus interfere with the fundamental rights of persons, because national security, public interest and law enforcement requirements of the U.S. prevail over the safe harbor scheme. 

Due to the invalidity of Commission Decision 2000/520/EC, transfer of personal data from the EU to the U.S. can no longer be based on the safe harbor privacy principles. Companies that have so far relied on the safe harbor principles will have to react so as to ensure compliance in the future. The alternative routes had so far been the use of the EU Model Clauses pursuant to Commission Decision of 5 February 2010 or the implementation of Binding Corporate Rules (BCR) approved by the competent data protection authority. However, it remains to be seen if and to what extent the ECJ judgment of October 6, 2015 also has an impact on these alternative routes, because neither the EU Model Clauses nor BCR protect against surveillance by public authorities in the U.S. or other non-EU countries. It also remains to be seen how European data protection authorities react to the judgment. 

See press release by the European Court of Justice and full text of the judgment. 

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Court Issues New Decision

Vermont’s Lawsuit against Alleged Patent Troll Can Stay in Vermont State Court

Case Not About Federal Patent Rights and Does Not Belong In Federal Court

A federal appeals court has just affirmed Vermont federal Judge Sessions’ second decision to “remand” the case against MPHJ – the alleged “patent troll” – back to Vermont state court.

Procedural History Of The Case:

Vermont Attorney General William Sorrell originally filed this lawsuit against alleged “patent troll” MPHJ Technology Investments, LLC in Vermont state court claiming that MPHJ’s bad faith sending of numerous patent infringement letters to Vermont businesses and non-profit organizations violated Vermont consumer protection law. (The AG’s Complaint was not based on Vermont’s new Bad Faith Assertions of Patent Infringement Act (i.e., the “anti-patent troll” law), as that law had not yet been passed when the AG filed his Complaint).  MPHJ “removed” the case to federal court arguing that the case was really about its federal patent rights and therefore belonged in the federal court system.  The AG moved to “remand” the case back to state court and federal Judge Sessions did so, agreeing with the AG that the case was not fundamentally about MPHJ’s patent rights but rather about its behavior within Vermont.  MPHJ appealed that remand decision, and lost.  The federal appeals court agreed with the AG and with Judge Sessions that the case did not implicate patent law.  Therefore, the case was back in state court as originally filed.  The AG then amended its Complaint against MPHJ.  Thereupon MPHJ again removed the case to federal court.  MPHJ argued that the AG’s amendment invoked the new anti-troll law (even though the amended Complaint made no mention of the law), and that that law is unconstitutional, and therefore provided a basis for removing the case to federal court.  The AG responded by again moving to remand the case, stating emphatically that the amended Complaint did not implicate the anti-troll law and that the AG was not suing MPHJ under that law, but only under pre-existing Vermont consumer protection law.  Again Judge Sessions remanded, agreeing with the AG that the amended Complaint did not invoke the anti-troll law.  Again MPHJ appealed that remand order.  And, again, the same federal appeals court has now shot down MPHJ’s (second) appeal – agreeing with the AG and with Judge Sessions that the AG’s case against MPHJ is not based on the anti-troll law and has nothing to do with federal patent rights.

But What About Vermont’s Anti-Troll Law?

What is interesting about this decision – and about this entire case – is that it is about the legality or illegality of a patent-holders alleged trolling activities, but it is NOT about Vermont’s new anti-troll law. MPHJ’s second attempted “removal” of this case to federal court was an attempt to make this case about the constitutionality of the anti-troll law.  But that attempt did not work. This decision does not decide whether Vt.’s anti-troll law is or is not constitutional, nor whether it does or does not interfere with a party’s patent rights. The whole point of this jurisdictional decision is that that issue was not before the court, because, in turn, the AG is not suing under that law. Thus, this particular case will not involve, and will not test, Vermont’s first-in-the-nation state anti-troll statute.

So one might well ask: why is Vermont’s Attorney General so determined not to use the anti-troll law against an alleged patent troll?  Wouldn’t a state attorney general want to use his latest and greatest weapon to go after an alleged patent troll, and rise up, so to speak, against a challenge to the constitutionality of that law?  I assume the answer is, essentially, because the conduct by MPHJ that the AG is suing over in this case took place before the anti-troll law went into effect, and the lawsuit was filed before the law went into effect. Trying to apply that law retroactively against MPHJ might be problematic.  If MPHJ were to be found liable under the new anti-troll law, it could argue on appeal that that law shouldn’t have been applied to them in the first place because it wasn’t in effect at the time of their activities.

So What Now?

So what now?  After two years of procedural and jurisdictional battles that had nothing to do (at least in the view of the AG and the federal courts) with the merits of the consumer protection case, will the case now proceed in state court to litigation on the merits? 

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Email and Loss Prevention for Lawyers

Posted on October 1, 2015 04:23 by Steve Crislip

I bet some of you remember practicing law.  Now we seem just to constantly respond to dings from emails, no matter where we are, or what else we might be doing.  It is a classic example of change with a tech innovation that has caused all things large or small to be immediate.  I suspect one of those electronic responses of yours will cause you a claim someday.

The site WordRake says a majority of emails are handled within 6 seconds of email arrival and then it takes about 64 seconds to return what you were doing.  Between your haste to reply; your interrupted thinking; your failure to limit your reply to the right people; and auto correct, something bad is bound to happen.

I do not want to be known as the Master of the Obvious with these Loss Prevention posts.  Email is fully a required part of the modern practice of law, but you must slow down and be careful.  Stop and smell the electrons.  I fear I sound like I am telling people to stop texting and just drive.

However, the typical down-and-dirty quick e-mail response makes for bad communications, but a really great trial exhibit.  Emails often appear to mean something other than what the writer intended.  Likewise, nice people become A-1 jerks in their emails when they would not be like that to your face.  People tend to lie 50 percent more when negotiating by email, says WordRake. Now even a term called “e-venting” is used to describe the terrible rants people put in emails and on social media sites.

Where are you going with this, you say?  I once got a tour of the NASA facility outside of Houston. The adjacent gift shop sold tee shirts that said:  “It Is Not Rocket Science – Wait, Yes It Is.”  None of which I write involves such science.  But if it were that easy and that plain to all people, why do we have such colossal failures with this media form then?  In the legal world, such miscues are often called claims.

Recently the Sixth Circuit of the U .S. Court of Appeals ruled that a “butt-dial” on a cell phone, entirely accidental from a person’s vacation in Italy, was admissible.  One of the judges likened the events to leaving your drapes wide open and then expecting no one to peer into your house.  So, if you are expected to secure your phone by locking it, setting up a passcode, or using an App to prevent such breaches of confidential information, you can bet your purposeful and intentional email will just be a nice large exhibit in any claim against you.

ABA Formal Opinion 11-459 (2011) stated that a lawyer must warn the client about the risks of using electronic communications in cases where third parties may gain access.  Moving forward, an April 2015 Texas Bar opinion concluded that while a lawyer may generally communicate confidential information by email, some circumstances require the duty to disclose to the client and to consider whether to use encrypted email or another form of communication.  Such circumstances could be:

• Communicating “highly sensitive or confidential” matters;

• Sending to a shared email account;

• Sending to an account where others may have the password;

• Sending to a public or borrowed computer or on an unsecured network.

So, in addition to secure transmissions, have you waived the attorney-client privilege in your send list?  Have you inadvertently waived the privacy laws such as HIPAA/HiTech with your emails including protected information?

I would not want to rely upon the standard email disclaimer at the end for a defense, and I bet none of us have such for the texts you send anyway.  So, should you just stay in bed and reduce most risks, or take “reasonable steps” to preserve your client confidentiality?  May I suggest the instruction we all got when we started school: “Stop, Look, and Listen.”  Many of the common misfires can be fixed by a standard routine practice of scanning the “to” and “cc” list and re-reading the text of the message always.  Slow down enough to be able to testify that you always follow these reasonable steps with all electronic communications.

This blog was originally posted on Lawyering for Lawyers on October 1. Click here to read the original entry. 

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Some Lawyers Got Sued Last Year

Posted on September 10, 2015 03:00 by Steve Crislip

There is no surprise in that statement other than the lawyers at Dentons got out ahead of me this year reporting on the annual survey of trailing 2014 claims submitted by insurance advisor Ames & Gough.  As the early TV Los Angeles police character used to say on Dragnet:  “All we want are the facts, ma’am.”  They are what they are, and it is not good news for lawyers.  Consistent with other surveys, the frequency of lawyer claims is about the same, but they are more costly.

The practice area of Trust and Estate Law topped the list for the largest source of claims.  There are a lot of legal areas within that practice field and often the potential for client bickering and dissatisfaction occurs there, even over the dearly departed.  For some years, real estate practices were the largest source of claims, but many more claims by trust and estate clients, and even in some areas non-client beneficiaries, have spiked it to the top. Real estate dropped to fourth after corporate business/securities, and business transactional claims.

As I have reported in the past, those pesky conflicts of interest claims show up as claims year after year.  While many come from current or past client issues, claims from lateral lawyer hiring continue to rise.  Like those presented by conflicts, many claims come from totally preventable areas such as mistakes of all types.  When we have areas where we can control the potential for loss we should, but yet these types of claims soldier on each year.

For some years I have advocated that firms can reduce their exposure with a regular program of loss prevention.  When it is always stressed as important in a firm, the mistakes, conflicts and other such preventable claims drop.  In addition, good and regular communications help prevent claims.  Surprises for clients often lead to unhappy clients and even claims.  Good case evaluations and assessments with a discussion of the attendant risks help clients make proper business decisions.  Budgeting and reserve settings are part of business organizations with regard to litigation these days.  They are important to be timely and quickly updated when things change.  Unhappy clients also happen around larger than budgeted bills, some even leading to fee disputes.  So, when costs are going up, you best be communicating all to the client.  A review of disciplinary complaints filed last year in just one surveyed state showed the biggest complaint area was the “Failure to Communicate”, followed by “Lack of Diligence”.  That makes a case for communication.

There are many common sense and logical ways to prevent claims.  Good procedures and good communication are at the heart of any program.  Yet busy lawyers still misstep year after year.  I submit that you can make money for your firm by having someone therein designated as the quality control lawyer.  Pilots immediately read back the controller’s flight information for a reason. — The loss from a failure to communicate properly could be their own.

This blog was originally posted to Lawyering for Lawyers on September 1. Click here to read the original entry. 


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The Centers for Medicare and Medicaid Services (CMS) recently made several announcements regarding Medicare, Medicaid, and SCHIP Extension Act (MMSEA) Section 111 reporting for Non-Group Health Plans (NGHPs).


CMS announced it would be hosting a Section 111 NGHP Policy and Technical Support Town Hall Teleconference from 1:00 p.m. to 2:00 p.m. EDT on July 28, 2015. CMS-hosted Section 111 NGHP Town Hall Teleconferences begin with announcements from CMS representatives followed by an open question and answer session. The call-in number for the teleconference is 1.800.603.1774, and the passcode is “Section 111.” CMS recommends that individuals interested in attending begin calling in 20 minutes before the start of the call due to the large number of participants.


CMS also announced the release of an updated version of the MMSEA Section 111 NGHP User Guide. The updated user guide is version 4.7. Version 4.7 incorporates the following changes from prior Section 111 NGHP Alerts:

-The web address or URL for accessing the Section 111 Coordination of Benefits Secure Website (COBSW) and submitting Section 111 reporting information has been changed to https://www.cob.cms.hhs.gov/Section111//

- CMS had previously provided a workaround that allowed Responsible Reporting Entities (RREs) to submit Recovery Agent or Third-Party Administrator (TPA) information on Tax Identification Number (TIN) Reference Files. CMS has eliminated this workaround and provided a permanent fix. The permanent fix allows Recovery Agent or TPA name and contact information to be submitted on TIN Reference Files in dedicated fields designated as “Recovery Agent” fields (fields 16–22). Submission of Recovery Agent information is optional. If Recovery Agent information is submitted in the Recovery Agent fields, copies of all correspondence regarding recovery claims will be sent to both the RRE and the designated Recovery Agent. These fields should only be used for agents who handle recovery claims. These fields should not be used for Section 111 reporting agents, unless the same agent handles Section 111 reporting and recovery claims. If Recovery Agent information is submitted in fields 6–11 of the TIN Reference File, only the Recovery Agent will receive correspondence regarding recovery claims.

-To prevent false positives when querying with partial Social Security Numbers (SSNs), all four of the additional matching criteria (first initial of the first name, first six letters of the last name, date of birth and gender) will need to match a Medicare beneficiary’s information. When querying with full SSNs or Medicare Health Insurance Claim Numbers (HICNs), only three of the four additional matching criteria need to match. CMS encourages RREs to submit full SSNs or HICNs whenever possible to ensure an accurate match is identified.

-The naming convention used for the Claim Response, TIN Response and Query Response Files was changed in order to ensure file names are always unique. Specifically, the values of the time node were changed.

For additional information regarding any of these changes, a full copy of the MMSEA Section 111 NGHP User Guide is available at http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Mandatory-Insurer-Reporting-For-Non-Group-Health-Plans/NGHP-User-Guide/NGHP-User-Guide.html


Finally, on July 18, 2015, CMS issued a Section 111 NGHP Alert reminding Section 111 RREs and their reporting agents of the mandatory transition from ICD-9 to ICD-10 codes for all claims with a CMS Date of Incident on or after October 1, 2015. Additional information regarding the transition to ICD-10 codes is available in the MMSEA Section 111 NGHP User Guide, Chapter IV, Technical Information, Section 6.2.5.

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On Monday July 20, 2015, the Seventh Circuit Court of Appeals weighed in on the hotly-contested issue of standing in data breach class action litigation. In so doing, the Court reversed the district court’s dismissal of a consumer class lawsuit against luxury department store Neiman Marcus, holding that the plaintiffs had successfully alleged the concrete, particularized injuries necessary to support Article III standing.

This lawsuit arose in January of 2014, when Neiman Marcus publicly disclosed that it had suffered a major cyberattack, in which hackers collected the credit card information of approximately 350,000 customers. Soon after this disclosure was made, a number of consumers filed a class action lawsuit in the United States District Court for the Northern District of Illinois, alleging that Neiman Marcus put them at risk for risk for identity theft and fraud by waiting nearly a month to disclose the data breach. In September 2014, the district court dismissed the case, ruling that both the individual plaintiffs and the class lacked standing under Article III of the Constitution.

On appeal, the Seventh Circuit analyzed the injuries the Neiman Marcus consumers claimed to have suffered in order to determine whether they constituted the type of “concrete and particularized injury” required to establish standing.  In this instance, plaintiffs alleged lost time and money spent in protecting against fraudulent charges and future identity theft, as well as two “imminent injuries:” an increased risk of future fraudulent charges and greater susceptibility to identity theft.  The Seventh Circuit ultimately determined that these allegations sufficiently established standing, as they showed a “substantial risk of harm” from the Neiman Marcus data breach. Importantly, the Court explained that the Neiman Marcus customers did not have to wait until hackers actually committed identity theft or credit-card fraud to obtain class standing, as there was an "objectively reasonable likelihood" that such an injury would occur. The full opinion is available here

This ruling is consistent with decisions from several other courts across the country. See, e.g., In re Sony Gaming Networks and Customer Data Security Breach Litigation, 996 F.Supp.2d 942 (S.D. Cal. 2014); Moyer v. Michaels Stores, Inc., No. 14 C 561, 2014 U.S. Dist. LEXIS 96588, 2014 WL 3511500 (N.D. Ill. July 14, 2014); In re Adobe Systems Inc. Privacy Litigation, No 13-cv-05226-LHK, 2014 U.S. Dist. LEXIS 124126, 2014 WL 4379916 (N.D. Cal. Sept. 4, 2014); Michael Corona, et al. v. Sony Pictures Entertainment, Inc., No. 2:14-cv-09600-RGK-E (C.D. Cal. June 15, 2015).  Earlier this year, in a comprehensive article on standing in data breach cases (available here), our firm questioned whether opinions of this nature were indicative of a trend or anomalies.  The Seventh Circuit’s ruling this week and the Central District of California’s ruling in Corona last month suggest it is in fact a trend. If the trend continues, consumers nationwide may find it easier to survive a motion to dismiss based on a lack of standing.    

Ryan Brown is a partner and Christina Vander Werf is an associate with Gordon & Rees Scully Mansukhani. 

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In most states, the legal requirements a Plaintiff must meet to bring a medical malpractice claim are similar if not identical to what is required in order to bring a claim against a nursing home or assisted living facility.  One distinction between these types of cases, however, has been in the numerous claims and legal theories of recovery that Plaintiffs have historically brought against long term care providers in the same complaint.  Some states have enacted legislation in order to end the distinction between traditional “medical malpractice” claims and Adult Protection Act claims, Negligence Per Se claims, and so-called “custodial care” or ordinary negligence claims against nursing facilities.  For instance, the Tennessee Civil Justice Act of 2011 deleted the term “medical malpractice” from the Tennessee code books altogether.  It was replaced, instead, with a broader cause of action called a “health care liability action.”  Some notable provisions of the Act are as follows:         

- There is no longer any formal claim called “medical malpractice”;

- “Health care liability action” is a defined term in the statute and includes any civil action regardless of the theory of liability on which the action is based alleging that a health care provider caused an injury related to the provision of, or failure to provide “health care services.”

- “Health care provider” is a defined term and includes physicians and nurses but now also specifically includes LPNs, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, and CNAs.

- “Health care services” is a defined term and includes care provided not only by physicians and nurses but now also specifically includes care provided by LPNs, pharmacists, orderlies, CNAs, advance practice nurses, physicians assistants, nursing technicians and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.   

- Long term care facilities and their employees, such as LPNs, CNAs, and orderlies are “health care providers” whose care and services are subject to the statute’s requirements.  

- Many claims which traditionally fell under ordinary negligence (i.e. care provided in a nursing home by CNAs) are now defined as health care liability claims.  

- A Plaintiff must bring such an action in accordance with the provisions of this Act.  

Regarding the change in the law, one Tennessee opinion, Parker v. Portland Nursing & Nursing Rehab, 2012 Tenn. App. LEXIS 606, FN. 4 (Tenn. Ct. App. Aug. 30, 2012), is instructive because the case was decided after passage of the Civil Justice Act but plaintiff’s claims accrued prior to enactment.  The plaintiff initially sued the defendant nursing homes for ordinary negligence before amending her complaint to add a medical malpractice claim.  The Court allowed the amendment and applied the prior law (distinguishing between ordinary negligence (custodial care) and medical malpractice) while acknowledging the change in the law for claims that accrued after the relevant date of the Act.  The Court noted: “. . .[C]laims for ordinary negligence and medical malpractice are separate and distinct causes of action. . .”  Importantly, however, the Court added: “Both parties note that the passage of the Tennessee Civil Justice Act of 2011 ended this distinction and created a new cause of action of a "health care liability" claim.” (See 2011 Tenn. Pub. Acts ch. 510). Id. at FN 4 (emphasis added).  Clearly, the “Civil Justice Act” replaced “medical malpractice” and expanded the definition of a “health care liability claim” to include the type of claims commonly alleged against nursing homes and long term care providers.

For those interested in further discussion of this topic and learning other ways in which nursing home/ALF litigation is different from medical malpractice litigation, DRI’s Nursing Home/ALF seminar is right around the corner – September 10-11, 2015 at The Venetian/Palazzo Resort Hotel in Las Vegas, Nevada. Among the many areas discussed, there will be presentation regarding the business side of defending nursing home cases, how plaintiffs’ themes have developed and evolved, and tips and techniques for defending these types of cases from inception through trial.  This is the preeminent seminar for attorneys in private practice, in-house counsel, claims specialists, and other professionals involved in the defense of claims against long-term care facilities, assisted living facilities, and other aging services providers across the country.  Additional information on the seminar can be found here


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On June 10, 2015, the New York City Council passed the Fair Chance Act (“the Act”), which makes it unlawful for employers to inquire about an applicant’s criminal background during the initial stages of the application process. The law joins other “ban the box” legislation across the nation in an attempt to ban the checkbox indicating criminal history on employment application forms. Mayor Bill de Blasio is expected to sign the bill any day, and the law will go into effect 120 days later.

The Act makes it a discriminatory practice for employers or employment agencies to inquire into an individual’s arrest or conviction record or perform a criminal background check before an employer has extended a conditional offer of employment. The Act also restricts an employer’s ability to issue any solicitation, advertisement, or publication that in any way expresses any form of limitation in employment based on a person’s arrest or criminal conviction history. Applicants are not required to respond to illegal inquiries and cannot be disqualified for not responding.

Importantly, the law does not prohibit employers from inquiring about criminal history or running background checks; it just delays the background check until an applicant can demonstrate his or her qualifications. Employers may still inform prospective employees that employment is contingent on their responses to a criminal history inquiry or criminal background check.

If the employer decides to take adverse action based on the inquiry or criminal background check, the employer must first take a number of steps:

1. The employer must provide a written copy of the inquiry or background check to the applicant, in a manner that will be established by the NYC Commission on Human Rights (the “Commission”).

2. The employer must perform a multi-factor analysis under Article 23-A of the New York State Corrections Law and then has to provide that analysis to the applicant in writing in a manner to be determined by the Commission, which shall include the “supporting documents that formed the basis for the adverse action” as well as the employer’s reasons for taking the adverse action.

3. After giving the applicant the inquiry and analysis in writing, the employer must allow the applicant a reasonable time to respond, which the Act states should be at least three business days. Furthermore, during that time, the position must remain open for the applicant.

The above provisions do not always apply. The law excludes certain positions that require criminal background checks by federal, state or local laws where a conviction prohibits employment, as well as police officers, peace officers, and law enforcement agencies (as those terms are defined by law). The Act also does not apply to certain positions that involve law enforcement, are susceptible to bribery or other corruption, or entail the provision of services to or safeguarding of individuals vulnerable to abuse, though if any employers in this category take adverse action based on criminal history, they must comply with item 2 above. The positions that qualify for this exemption will be enumerated by the commissioner of citywide administrative services, published as a commissioner’s calendar item, and listed on the website of the department of citywide administrative services.

The Act modifies the New York City Human Rights Law, Section 8-101 et seq. of the Administrative Code of the City of New York; thus, it does not apply to employers with less than four employees. However, for those it does cover, the damages available are among the broadest of all employment discrimination protection statutes and include the potential for back pay, front pay, unlimited compensatory damages, and unlimited punitive damages.

New York City employers are advised to take steps now to prepare for when the Act goes into effect. These steps may include, but are not limited to:

-reevaluating and revising employment application forms.

-updating handbook provisions and other policies and procedures as needed.

-examination of the Article 23-A factors, to fully understand the written analysis that must be performed in the event a candidate is rejected due to their criminal history. Employers may want to create a template for the analysis, to increase the likelihood that no factor will be overlooked in the analysis.

-providing training to all employees involved in recruiting, hiring and interviewing, to ensure they understand the parameters of the law and how, if at all, they must adjust their prior practice.


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As a shareholder at a small firm, I understand the unique concerns of small businesses. My goal each day is to find balance between tending to current client needs, supervising young attorneys, and making sure the firm’s administrative engines are running on all cylinders. My biggest priority, however, is maintaining a steady flow of new business and a stable of happy people to do the work. That’s where DRI comes in.

Small firms have limited resources, both in terms of (wo)manpower and finances, to devote to building a referral network and professional development. We need to make sure that every dollar and hour spent counts because there is not room for “fluff” in a small firm budget. Simply being a member in a national organization with more than 21,000 participants will not give you much bang for your buck. Here are 5 easy tips that can help your small firm maximize its DRI membership: 

1. Sponsor In-House Counsel’s Membership. DRI offers membership to in-house counsel for only $285/year. In-house counsel who join DRI’s Corporate Counsel Committee (which is free) can also attend any DRI seminar free of charge, and will receive substantial discounts for attending the annual meeting. There are currently more than 900 members in DRI’s Corporate Counsel Committee and introducing your in-house lawyers to this DRI network would be a great way to show that you are all about their specific needs. By sponsoring a DRI membership, you not only cover their CLE needs for the entire year through the free educational programming available to in-house members, you also lay the groundwork to connect with them in person at DRI seminars. That’s a win-win.

2. Invest In Your Young Lawyers. All firms feel the impact when an associate leaves to pursue other opportunities, but small firms feel that loss tenfold. The best way to retain talented young lawyers is to invest in their development and let them know that you care. The membership for a young lawyer (admitted 5 years or less) is only $165/year. Included with that membership is a certificate to attend any DRI seminar for free. One of our associates joined DRI during his first year at our firm, attended the Young Lawyers’ Seminar with the free certificate, and made connections that turned into a leadership role almost immediately. He has not even been in practice for three years, but he has already been published in The Whisper and serves as the Young Lawyer Vice Liaison for the Insurance Law Committee. That kind of involvement in a national organization is not only great for him, it’s good for us.  

3. Join a Substantive Law Committee. Small firms don’t have the same access to multiple practice groups as large firms. Our firm’s practice focuses on insurance coverage and bad faith litigation; if a case involves an IP question, it is not as though we can walk to another floor and get the answer. One of the benefits of DRI is that they have 29 active Substantive Law Committees – which means that you have access to newsletters, compendiums, and leading practitioners in each of those 29 areas. Have a question about Trucking Law? Pick up the phone and call the Committee Chair. Want to know about current trends in Data Management and Security? Download the most recent newsletters. Need to find an expert in a unique area? Search the DRI expert database and expert profiler. These types of broad resources are even more valuable to small firms with specialized practice areas.  

4. Double-Dip Your Seminar Trips. For small firms, any time a lawyer is out on business travel, the impact is felt on the home front. The firm is down billable hours, fewer hands are around to handle last-minute projects, and travel is much more expensive than staying in the office to watch a webinar. But the truth is that relationships aren’t often formed through webinars. If you want to build a meaningful referral network, you need to get out and shake some hands! Attending DRI seminars is an incredible way to meet inspiring lawyers from across the country. There is not a single DRI seminar that our firm can’t turn into a “double dip trip.” If we are traveling to New York for the Insurance Coverage Symposium, we plan our flights so that we can visit clients in New Jersey and Boston while we’re on the east coast. If an associate is attending the Young Lawyers Seminar in Nashville, it’s easy to have her stop by a client’s office in Atlanta on the way. The convenient locations of the DRI seminars make it possible for small firms to get the most bang for their travel buck. 

5. Seek Out Publication and Speaking Opportunities. Small firms are always looking for ways to set themselves apart from the competition. One of the best ways to increase your firm’s visibility is to become well-known as being knowledgeable in your substantive practice area by publishing or speaking. These opportunities abound at DRI. From blog posts, to articles, and compendiums; from webcasts, to panel presentations, and break-out sessions. DRI is always looking for current topics to share and welcomes participation from its members. Did you recently obtain summary judgment on an issue of first impression? Have you researched an emerging area of law? Share it with the DRI community! Most Substantive Law Committees have a publications chair or a social media chair you can contact to figure out what opportunities exist and how you can get your name out there.  


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