Articles

The Supreme Court of Illinois Holds That the Illinois Nursing Home Care Act Does Not Invalidate Arbitration Agreements

In Carter v. SSC Odin Operating Company, LLC, __ N.E.2d __, 237 Ill.2d 30, 2010 WL 1493626 (Ill. 2010), Lashly & Baer attorneys W. Jeffrey Muskopf and Mark R. Feldhaus won a significant victory for their client before the Supreme Court of Illinois that will help individuals and businesses enforce pre-dispute arbitration agreements throughout Illinois. The plaintiff alleged that the defendant nursing home failed to provide proper care to one of its residents. Both the resident and her daughter executed written agreements with the nursing home to resolve any such claims by arbitration as opposed to the court system. In response to the defendant's motion to compel arbitration, the plaintiff argued that the arbitration agreement was invalid under the Illinois Nursing Home Care Act, which contained provisions that purported to make null and void any waiver of a jury trial by a nursing home resident or his legal representative. The defendant argued that the Federal Arbitration Act (“FAA”) preempted the Illinois Nursing Home Care Act’s anti-waiver provisions, and thus the arbitration agreement was enforceable. The trial court denied defendant’s motion to compel arbitration, and this decision was upheld by the appellate court.

New Mandatory Document Exchange Program for Family Court cases in St. Louis County

The St. Louis County Family Court recently amended Local Rule 68 to encompass its “Mandatory Document Exchange” program. Effective May 1, 2010, the program was designed by the Court, in conjunction with the St. Louis County Family Law Bar, to establish a set of procedures for attorneys and parties to exchange information pertinent to family court cases. This document exchange program is required in matters involving paternity, child support, child custody and divorce; this includes both original petitions and motions to modify prior decrees in domestic relations cases.

Make Sure You are in Compliance With the Federal and State Immigration Laws

In the wake of recently passed controversial immigration law by the state of Arizona, which many other states are trying to mimic, and the recent shift in Obama administration’s policy for stricter worksite compliance, it becomes imperative to ensure that you, your business and your employees are in compliance with the federal and the state immigration laws.

The federal E-verify system, which was introduced in 2008 and implemented across the board in September 2009 along with its state ratified variants, may affect businesses and contractors who deal in federal and state contracts, but the Immigration Reform and Control Act (IRCA) of 1986 is applicable to every business and employer. The IRCA makes employers liable for knowingly employing aliens not authorized to work in the United States. Employers are required to maintain I-9 forms showing that all employees, including U.S. citizens, are authorized to work. Employers commit many common errors while completing this small and simple looking form. This intricate area of law requires careful attention by all employers. With passage of stricter compliance regulations and modifications in the IRCA, employers cannot afford to make any mistakes on the I-9 forms. Employers should be as careful as ever in ensuring that the I-9 form is meticulously filled in and is without errors.

Bullying And The Internet - Legal Rights and Obligations 

According to I-SAFE, the nonprofit foundation dedicated to protecting youth online, in a survey of 1500 middle school students, 42% report being bullied, 58% report having hurtful or angry things said to them, and 53% admit to saying hurtful or angry things to someone online. Since 2007, Missouri has required every school district to have an anti-bullying policy to address bullying complaints between students.

In the last legislative session, the Missouri Legislature amended the requirement to obligate all school districts to specifically include “cyber-bullying” and “electronic communications” in their anti-bullying policies. Further, the Missouri Legislature amended Section 160.261 of the Missouri Statutes to specifically provide that a school district may discipline students for off-campus conduct that negatively affects the school environment. Thus, school district officials and parents need to take seriously every report or mention of bullying or harassment, even if it occurs electronically through cell phones, digital cameras or Facebook, including bullying that may occur outside of school hours or off campus.

Red Flags Rule Enforcement Deadline Postponed Again

In November 2007, the Federal Trade Commission and five other federal agencies jointly promulgated the “Red Flags Rule” implementing the Fair and Accurate Credit Transaction Act of 2003.  Under the Red Flags Rule, financial institutions and creditors with certain credit accounts must develop and implement an identity theft prevention program, which provides for the identification, detection, and response to “Red Flags”: patterns, practices, and specific activities that could indicate identity theft.

FMLA UPDATE: New Regulations, New Rules

Wednesday, April 28, 2010            Download Presentation

James C. Hetlage presented a program entitled “FMLA Update: New Regulations, New Rules.” He spoke on the recent changes to the Family and Medical Leave Act and how those changes affect Missouri school districts. Jim addressed the new notice and certification requirements as well as recordkeeping issues under the revisions to the FMLA regulations. Jim also provided insight into steps school administrators should take to ensure compliance with the FMLA.

Executive Board Minutes, Meetings and Other Requirements of The Missouri Sunshine Law

Wednesday, April 28, 2010            Download Presentation

Lisa O. Stump presented a program entitled “Executive Board Minutes, Meetings and Other Requirements of the Missouri Sunshine Law.” The presentation focused on the legal requirements for taking and keeping minutes of both open and closed session meetings, drafting the notice for meetings under the Missouri Sunshine Law, and how to respond to public record requests. Lisa also discussed the Sunshine Law’s effect on the retention of emails, and the use of email by members of a public governmental body.

Interpreting Plan Documents

Wednesday, April 28, 2010            Download Presentation

Rhonda A. O’Brien presented a program entitled “Interpreting Plan Documents.” She spoke about best practices and a model to use in interpreting the provisions of welfare, retirement and deferred compensation plans and how to handle claims made by participants and beneficiaries. She discussed the interaction of plan document terms with laws affecting plan administration, including COBRA, FMLA, HIPAA, nondiscrimination laws and state law. Examples drawn from health, welfare, 403(b) and 457 plans were addressed.

Nursing Mothers Get Unpaid Breaks in Health Care Law

Friday, April 9, 2010            Download Article

While employers are trying to quickly understand their current and future health insurance obligations and costs under the newly enacted Patient Protection and Affordable Care Act of 2010, other little-known provisions of the Act are coming to light. One of these provisions is the Nursing Mother Amendment, which adds to the Fair Labor Standards Act a requirement that all U.S. employers covered by the FLSA allow nursing mothers to take unpaid breaks to express breast milk.

The Nursing Mother Amendment, which appears in Section 4207 of the PPACA, is effective immediately.  Under the Amendment, all FLSA-covered employers have two obligations: First, an employer must permit a “reasonable break time” for an employee to express breast milk for her nursing child for the first year of the child’s life. These breaks must be given “each time such employee has need to express the milk.” The Amendment does not define “reasonable,” nor does it identify the number of breaks that must be given during a work day. Instead, the number and duration of the breaks appears to be dictated by the amount of time and frequency the mother claims to need to express the milk.

EMPLOYER BEWARE: Employers Face Increased Wrongful Discharge Claims

Recent rulings from the Missouri Supreme Court gives Missouri employers cause for concern. On February 9, 2010, in three separate opinions, the Court continued to erode the employment at-will doctrine and kept course with its recent pro-employee holdings. For the first time, the Missouri Supreme Court expressly adopted the cause of action for wrongful discharge based on the public policy exception to the employment-at-will doctrine. The Court ruled that an at-will employee may not be terminated for: (1) refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a governmental body; or (2) reporting wrongdoing or violations of law to superiors or public authorities, i.e. whistle-blowing.

While Missouri appellate courts have recognized this cause of action for some time, it was the Supreme Court’s first explicit recognition and recitation of what circumstances will give rise to such a wrongful discharge claim. The Court further ruled that for an employee to prevail on such a claim, he or she need only prove that his or her refusal to violate the law or a well-established and clear mandate of public policy was a "contributing factor" in the employer’s decision to terminate. The standard is much easier for an employee to meet than the "exclusive" causation standard that had been applied by the appellate courts for years. The new "contributing factor" standard is the same lower standard that the Missouri Supreme Court adopted in 2007 for Missouri Human Rights Act violations. One court has defined "contributing factor" as that which "contributed a share in anything or has a part in producing the effect."

Social Networking Websites In The Public Workplace What’s Legal; What’s Not

2/25/2010            Download Article

What restrictions can you impose as a public employer on an employee’s use of Facebook, Twitter, MySpace, blogging, etc.? Social networks have become part of many people’s day-to-day work. Approximately 54% of large employers block social networks completely at work, while 19% of large employers limit employee access to social networking websites to business related activities. The rapid growth of online social networks is blurring the lines between professional and private lives.

The use of social network sites is not a fad. In 2010, Gen Y will outnumber Baby Boomers, and 96% of them have already joined social networks. Everyone from government agencies to Fortune 500 Companies is engaging in use of social network sites, and so are their employees. Government agencies are harnessing social media websites to reach out to constituents. For example, cities use Twitter and Facebook to keep residents up to date on street closures, events, and other issues. Universities and local public school districts are taking cues from their students and are jumping onto social networking websites. School districts set up Twitter and Facebook accounts to break news about upcoming events or to publicize their achievements. Social websites make it easier and faster to reach a larger and more diverse audience.

Federal Government Pursues Defendants For Medicare Lien

2/25/10            Download Article

A new case, U.S. v. Stricker, was filed on December 1, 2009, in the United States District Court for the Northern District of Alabama. In the suit, the United States seeks reimbursement of conditional payments made by Medicare on behalf of some 907 beneficiaries, all plaintiffs in a previously settled lawsuit. This Stricker case is significant in that it is the first case in which the United States has brought claims against all parties, in a single action, to seek reimbursement for the conditional payments made by the Medicare program for the medical care provided to personal injury plaintiffs. Reimbursement is sought not only from the plaintiffs and their counsel, but from the defendants and their insurers. Likewise, it appears the government is seeking reimbursement not only for conditional payments made prior to the settlement, but perhaps for conditional payments made post settlement as well. The underlying case was a consolidated action wherein multiple plaintiffs claimed injuries resulting from exposure to polychlorinated biphenyls (PCB) from a chemical plant in Alabama. It was settled for $300 million in 2003.

RICO Obstacle Removed For Business Owners

2/25/10             Download Article

Civil RICO is a powerful cause of action which may be used to protect your interests against the entities which have defrauded you or your business. One bar to its use in Missouri and certain other states was a requirement that you, the plaintiff, relied upon the misrepresentations of the parties which caused you harm. This same requirement, however, did not exist if the same cause of action was filed by the United States Attorneys’ office as a criminal matter. This conflict has been resolved by a recent United States Supreme Court decision. 

The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 – 1968 (“civil RICO”) provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” As such, it is a powerful piece of legislation.

Grandparents' Rights

2/25/10             Download Article

When parents divorce or one parent dies, grandparents are often concerned about how such events will affect their relationship with their grandchildren.  Missouri legislators and the courts have recognized these concerns and have provided some remedies for grandparents.  In Missouri, the law allows for grandparents to petition the court for reasonable visitation with their grandchildren in certain circumstances. The Petition for these rights is extremely time-sensitive and such rights need to be requested of the court in short fashion.  In the case where the parents are divorcing, grandparents need to intervene in the dissolution action solely on the issue of visitation rights. In determining whether to grant such visitation, the Courts take into account what is in the best interests of the children.

Grandparent visitation is determined on a case-by-case basis. There are several factors considered by the court in awarding grandparent visitation including: the child’s best interest, whether the grandparents had a consistent relationship with the child in prior years, whether the grandparent was the primary caregiver for the child, and the frequency and flexibility of the visitation requested. The court will examine all of the factors in each case to determine whether grandparent visitation is necessary as well as determining the appropriate amount of the grandparent’s visitation.

Big Changes For Employers Hiring Foreign Workers

2/25/10             Download Article

USCIS Redefines “Employer-Employee Relationship” Concerning Temporary Specialty Occupation Workers (H-1B Visa)

April 1, 2010 is around the corner and the businesses are gearing up to file applications with the United States Citizenship & Immigration Services (USCIS) to obtain the temporary foreign skilled workers in specialty occupations under the H-1B program. Interestingly however, prior to this year’s filing season, USCIS issued a guidance memo on January 8th aimed specifically at employers who utilize H-1B workers to be placed at third party work sites.  This memo will significantly impact many employers and companies in the field of IT and healthcare staffing.  The memo clarifies the requirements to establish an ‘employer-employee relationship’ to qualify for the H-1B ‘specialty occupation’ classification.