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News

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Wolters Kluwer

Prior supervisor’s year-old positive review didn’t suggest employee’s disciplinary firing was pretextual

News Source: Wolters Kluwer
Post Date: Monday - August 13, 2018 - 9:53am
By Marjorie Johnson, J.D. Fired following his purported violation of patient confidentiality rules, which was a hospital employee’s fourth and last allowable offense under its progressive discipline policy, the employee failed to revive his disability bias claim asserting that two new supervisors harbored animus against him due to his attention deficit disorder (ADD) and other disabilities. ...
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ConAgra not required to pay employees for donning and doffing time

News Source: Wolters Kluwer
Post Date: Monday - August 13, 2018 - 9:51am
By Kathleen Kapusta, J.D. ConAgra is not required to compensate employees for the time spent donning and doffing their protective equipment under either the FLSA or the Arkansas Minimum Wage Act (AWMA), the Eighth Circuit ruled, affirming the grant of summary judgment in favor of the packaged foods company. Nor is it required to compensate employees ...
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Challenge to Seattle ordinance establishing collective bargaining for Uber/Lyft drivers properly dismissed as unripe

News Source: Wolters Kluwer
Post Date: Monday - August 13, 2018 - 9:49am
By Ronald Miller, J.D. A lawsuit challenging a Seattle ordinance that established a collective bargaining process covering for-hire drivers who contract with rideshare companies such as Uber and Lyft was properly dismissed as unripe, ruled the Ninth Circuit. The drivers had not satisfied any of the requirements for establishing an injury in fact, the appeals court ...
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Kusserow on Compliance: Inappropriate denial of services and payments in the Medicare Advantage program

News Source: Wolters Kluwer
Post Date: Monday - August 13, 2018 - 8:30am
In an update to its Workplan, the HHS office of Inspector General (OIG) added a new project in June. The OIG Office of Evaluation and Inspection will be reviewing and evaluating the question of inappropriate denial of service and payment in the Medicare Advantage program. Medicare Advantage Plans must cover all of the services that ...
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Future attorneys’ fees recoverable by statute or contract must be included to assess CAFA amount in controversy

News Source: Wolters Kluwer
Post Date: Friday - August 10, 2018 - 9:06am
By Kathleen Kapusta, J.D. When assessing whether CAFA’s amount-in-controversy requirement is met, a court must include future attorneys’ fees recoverable by statute or contract, the Ninth Circuit ruled. Applying that rule here, the appeals court vacated the lower court’s order remanding an employee’s wage-and-hour class action complaint to state court. Because the employee demanded attorneys’ fees ...
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Trial court erred in tossing state-law wage claims on eve of federal trial based on assumed forum shopping

News Source: Wolters Kluwer
Post Date: Friday - August 10, 2018 - 9:00am
By Marjorie Johnson, J.D. A federal district court erred in refusing sua sponte to exercise supplemental jurisdiction over laundromat workers’ state-law claims on the eve of trial without affording the parties notice or an opportunity to be heard. Vacating and remanding, the Second Circuit ruled that under the circumstances, which included intervening Second Circuit law, the ...
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Missouri voters defeat right-to-work law

News Source: Wolters Kluwer
Post Date: Friday - August 10, 2018 - 8:55am
By Pamela Wolf, J.D. Missouri voters have nixed the state’s right-to-work law in a ballot referendum on August 7, 2018. Of the 1,389,316 Missourians who cast their ballot on the question of whether Senate Bill 19 should stay on the books, only 452,075 voted that it should be upheld, while 937,241 voted to repeal it. The legislation, ...
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STRATEGIC PERSPECTIVES—Top labor and employment developments for July 2018

News Source: Wolters Kluwer
Post Date: Thursday - August 9, 2018 - 4:37pm
In case you missed the in-depth coverage of Employment Law Daily for July, here’s a recap of some key developments in the L&E community. SUPREME COURT NEWS Justices asked to decide if Title VII shields against gender identity discrimination The Supreme Court has been again asked to determine the scope of Title VII’s prohibition against discrimination based on ...
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Dollar General discriminated against diabetic employee fired for violating ‘anti-grazing’ policy

News Source: Wolters Kluwer
Post Date: Thursday - August 9, 2018 - 9:24am
By Kathleen Kapusta, J.D. In a case brought by the EEOC on behalf of a diabetic Dollar General sales associate, the Sixth Circuit found a jury permissibly determined that the discount retailer discriminated on the basis of disability when it fired the employee after discovering she drank orange juice from the store’s cooler during hypoglycemic episodes. ...
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NLRB: Hospital wrongly barred off-duty workers in its public cafeteria from soliciting others on nonworking time

News Source: Wolters Kluwer
Post Date: Thursday - August 9, 2018 - 9:21am
By Ronald Miller, J.D. An employer’s solicitation and distribution policy was overbroad because it prohibited off-duty employees, who were permissibly on the employer’s property, from engaging in Section 7 activities, ruled a three-member panel of the NLRB. Having granted off-duty employees access to its cafeteria, the employer could not at the same time prohibit them from ...
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NY AG sues US DOL to compel production of records on PAID Program

News Source: Wolters Kluwer
Post Date: Thursday - August 9, 2018 - 9:09am
By Pamela Wolf, J.D. New York Attorney General Barbara D. Underwood has filed a lawsuit against the U.S. Department of Labor for neglecting to respond to records requests about its Payroll Audit Independent Determination (PAID) Program, which she said permits employers who violate labor laws to avoid prosecution and penalties. The complaint seeks to compel the ...
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Kusserow on Compliance: OIG report on vulnerabilities in the Medicare hospice program

News Source: Wolters Kluwer
Post Date: Thursday - August 9, 2018 - 8:30am
15 specific actions recommended to reduce Hospice vulnerability 4 million Hospice beneficiaries with an annual cost of $17 billion CMS plans to increase hospices reimbursement by $340 million   The HHS Office of Inspector General (OIG) reported on numerous evaluations, audits, and investigations of the hospice program that have resulted in questioned costs, as well ...
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NLRB: ALJs are validly appointed; Board is ‘Department,’ Members collectively are ‘Head of Department’

News Source: Wolters Kluwer
Post Date: Wednesday - August 8, 2018 - 8:53am
By Joy P. Waltemath, J.D. Unified, for once, on a significant issue of Board law or procedure, the five Members of the NLRB agreed that the Board’s appointment of administrative law judges is constitutionally valid under the Appointments Clause because the Board itself is a “Department” and the Board’s Members collectively are a “Head of Department,” ...
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Replaced opinion relies on ‘tickets’ (not uniforms) used by valets as ‘materials’ to find FLSA enterprise coverage

News Source: Wolters Kluwer
Post Date: Wednesday - August 8, 2018 - 8:51am
By Ronald Miller, J.D. In a supplemental opinion on rehearing, the Eleventh Circuit withdrew its earlier opinion of June 29, 2018, and replaced it with a new opinion. Still, the appeals court concluded that an employer was not entitled to summary judgment on the issue of “enterprise” coverage. Rather, based on the evidence, it concluded that ...
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Bank of America can’t dodge class California Labor Code claims

News Source: Wolters Kluwer
Post Date: Wednesday - August 8, 2018 - 8:44am
By Lisa Milam, J.D. A Bank of America employee may proceed with the bulk of her California Labor Code and derivative claims, a federal court in California held, finding she asserted plausible allegations that the employer violated state-law overtime, meal and rest period, waiting-time and wage statement provisions. Much turned on whether bonuses had to be ...
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