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Does Requiring a High School Diploma Violate ADAA Rules?
Employers are looking for answers
January 30, 2012 Download Article
By Timm W. Schowalter, Attorney at Law
A informal recent letter issued from the federal agency that oversees employment laws has sparked discussion and some confusion among human resources managers and company owners nationwide. The Equal Employment Opportunity Commission (EEOC) issued an informal letter warning that requiring a high school diploma for a job applicant may violate the Americans with Disabilities Act, as amended.
Although the high school diploma requirement has been long standing among many employers, the EEOC is exposing the criteria as a possible violation of the rights of disabled Americans. The EEOC stated that a high school diploma requirement should only be used as a criterion for hiring to the extent that it is job related and consistent with business necessity. Essentially, the EEOC is saying that employers must determine whether job applicants whose learning disabilities kept them from obtaining diplomas can perform the essential job functions, with or without reasonable accommodation. An employer is not required to “prefer” a learning-disabled applicant over other applicants with more extensive qualifications, but at the same time disabled individuals cannot be excluded from consideration for employment based upon the strict qualification standard of having a high school diploma.
Social Networking – A friend or enemy for businesses?
July 28, 2011 Download Article
By Stefan J. Glynias, Attorney at Law
Social media is not a fad. It serves as a driver of the shift in our society to a life lived online. Companies are no longer questioning whether they should have a social media presence, but rather what type of presence would work best for their business.
There’s an interesting dichotomy between the advantages of social media for driving a business, and the use of social media by employees and its detriment to a business and its reputation.
So how can employers protect themselves and their business while utilizing social media for the myriad of advantages that it can offer?
Accountable Care Organizations – How Providers are Impacted
July 28, 2011 Download Article
By Stuart J. Vogelsmeier, Attorney at Law
Health care providers are trying to wrap their heads around the complexities of new requirements for coordinating care for Medicare patients – Accountable Care Organizations (ACOs). The federal government is still finalizing the regulations for this new model, which is part of the Affordable Care Act and takes effect in 2012.
ACOs use a shared savings model to reward integrated or coordinated groups of providers that deliver quality care at a reduced cost, while continuing to be paid by Medicare on a fee for services basis.
The ACOs can be made up of physicians, physicians’ assistants, nurse practitioners, clinical nurse specialists, hospitals, and joint ventures and partnerships of these providers. Existing physician groups can become ACOs, as can hospitals, and medical groups can also collaborate with hospitals and other providers to form an ACO.
Non-Competition Agreements - Are They Enforceable in This Job Market?
March 1, 2011 Download Article
By Timm W. Schowalter, Attorney at Law
The recession has prompted companies to work harder to maintain their competitive advantage by securing their customer base. So, it’s not surprising that the business world is seeing more legal activity related to non-competition agreements, both from employers trying to enforce them, and from ex-employees trying to defend their new employment.
According to urban myth, non-competition agreements are unenforceable, but this is not necessarily the case. The general rule is that a court will uphold a non-competition agreement that is limited in duration and geographic scope and is narrowly tailored to protect a company’s legitimate business interests – mainly their customers and trade secrets. The courts are hostile toward agreements that go too far and are viewed as mere restraints on legitimate competition.
Government Issues New Regulations for Service Animals in Schools
Districts No Longer Liable for Injury or Damage
March 1, 2011 Download Article
By Lisa O. Stump, Attorney at Law
New federal regulations regarding the use of “service animals” in schools will go into effect on March 15, 2011. The new regulations set comprehensive guidelines for school districts to follow in dealing with the special circumstances of students requiring a service animal. The law affects not only students wishing to bring a service animal to school, but any disabled person desiring to bring an animal to a public school function.
These new regulations cover the definition of service animal, and the qualifications required for a disabled student, staff member or visitor to use service animals at schools. While the regulations exempt the school district from any damage, liability or responsibility for animal care, the new rules limit the school district’s authority and discretion in setting policies for service animals.
The new federal rules specify that only a miniature horse or dog is allowed as a service animal and that the animal must be “individually trained to do work or perform tasks for the benefit of an individual with a disability.” However the regulations do not stipulate any specific type of training and in fact prohibit the school district from requiring documentation that the horse or dog has been certified or licensed as a service animal.
KNOW THE LAW:
New Provisions in Genetic Information Non-Discrimination Act Take Effect
March 1, 2011 Download Article
By Timm W. Schowalter and David A. Doellman, Attorneys at Law
The Equal Employment Opportunity Commission’s (EEOC) final regulations implementing the employment-related provisions (Title II) of the Genetic Information Non-Discrimination Act (GINA) recently took effect. As a result, employers must now be mindful of these new prohibitions and take the necessary steps to avoid potential GINA violations.
Title II of GINA is very specific in its application and restrictions. It restricts employers and others from deliberately acquiring genetic information, prohibits the use of even properly acquired genetic information in any employment decision (including hiring, promoting/demoting, termination and compensation), requires that properly acquired genetic information be kept confidential, and provides remedies for individuals whose genetic information is acquired, used, or disclosed in violation of GINA’s protections. As used in Title II of GINA, “genetic information” includes not only the individual’s testing information and medical history, but also an individual’s family history as well, including the “manifestation of a disease” in family members (e.g., “Has anyone in your family ever had cancer?").
New Face to Face Requirements for Home Health Services
January 21, 2011 Download Article
By Richard D. Watters, Attorney at Law
The Conditions of Participation ("COP") for home health services ("HHS") have long required a physician to certify that (i) the patient needs intermittent skilled care or physical, speech or occupational therapy; (ii) HHS and required because the patient is confined to home; (iii) a plan for furnishing the services has been established; and (iv) the services were provided while the individual was under the care of a physician (42 CFR §424.22(a)). This "certification" and the plan of treatment has to be performed by a physician who does not have a financial relationship with the home health agency ("HHA") as defined in the Stark law unless one of the Stark exceptions is satisfied. The HHS must be recertified every 60 days (42 CFR §424.22(b)).
The Affordable Care Act amended the law and regulations by adding a new requirement that prior to making the certification the certifying physician "must document that the physician [or as described below the non-physician practitioner]…had a face to face encounter…with the [patient] within a reasonable time frame." By regulation, CMS has interpreted the law as requiring that the certifying physician document (a) that the condition for which the patient was being treated in the face to face encounter is related to the primary reason the patient requires HHS; and (b) why the clinical findings of such face to face encounter support findings that the patient is homebound and in need of either intermittent skilled nursing services or therapies (42 CFR §424.22(a)(l)(v)(b)). The documentation of the face to face encounter must also show, by including the date of the face to face encounter, that it occurred "no more than thirty days prior to the home health start of care date or within two weeks of the start of the home health care."
Social Media and Schools - Students' Rights, Teachers' Responsibilites
December 9, 2010 Download Article
By Kathryn B. Forster, Attorney at Law
The rapid growth of social media has changed the way we share our personal news with friends and family. While it’s a great tool to keep in touch with others by exchanging updates, photos, videos and more, school districts need to be aware of the down side to social media when used inappropriately by students and employees.
A number of court cases illustrate the various ways students have used social media as a platform to criticize or even threaten teachers or administrators. The most common issue involves a student or group of students creating a parody profile of a principal or teacher on Facebook or MySpace, adding sexually suggestive or lewd comments. In some cases, the courts rule in favor of the student, citing freedom of speech under the First Amendment. In cases where lewd or vulgar speech was used, however, courts tend to favor the school districts. Further, courts look to the connection the speech has to the school campus, by either causing a substantial disruption, being viewed on campus, or the utilization of district owned materials to create the parody profile. If the court finds a substantial connection, it is more likely to rule in favor of the district.
Federal Government Instructs School Districts to Address Bullying as Possible Harassment
December 9, 2010 Download Article
By Lisa O. Stump, Attorney at Law
On October 26, 2010, the Department of Education, through the Office of Civil Rights (“OCR”), issued a detailed guidance for school districts regarding bullying and federal antidiscrimination laws (the “Guidance”). In sum, it directs school districts to look at each bullying incident not only as a violation of bullying policy, but as a possible action of discriminatory harassment. If discriminatory harassment has occurred, the school district must take steps to end the harassment, regardless of any discipline imposed for bullying.
The Guidance notes that bullying/harassment may take several forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on race, color, national origin, sex, or disability, it is “discriminating harassment” and implicates the civil rights laws.
Office of Inspector General Issues - 2011 Work Plan
December 9, 2010 Download Article
By Stuart J. Vogelsmeier, Attorney at Law
The Office of the Inspector General of the Department of Health and Human Services (“OIG”) recently issued its 2011 Work Plan at http://oig.hhs.gov/publications/workplan/2011/. The OIG was created to protect the integrity of Federal health care programs. The Work Plan provides brief descriptions of projects that the OIG intends to initiate or emphasize in 2011, and typically gives providers a glimpse at enforcement priorities. Although there are well over 100 projects described the 2011 Work Plan, providers should note the following areas of emphasis:
Attorney Stephen L. Beimdiek Obtains Defense Jury Verdict
On November 3, 2010, Stephen L. Beimdiek obtained a defense verdict on behalf of Abbott Ambulance, Inc. and its driver following a jury trial in the Circuit Court of St. Louis County.
The case stemmed from a vehicular accident when an Abbott ambulance rear-ended a vehicle at a stoplight at the top of an exit ramp from Interstate 270.
While the plaintiff had pre-existing degenerative conditions, she claimed that the impact from the collision aggravated those conditions such that pain in her neck, back and hips became more pronounced and ultimately led to her having to undergo fusion surgery on her neck and spine. She further contended that the increased pain she sustained was permanent in nature and that she had permanent restrictions on her movement and range of motion as a result of the accident.
Lashly & Baer Attorneys Win Summary Judgment for Mine Safety Appliances Company
On Monday, October 18, 2010, Anne Bode Callahan and W. Jeffrey Muskopf won summary judgment in favor of their client in a complex product liability case. The plaintiffs claimed that respiratory protection products manufactured by Mine Safety Appliances Company caused or contributed to cause Robert Savage to develop silicosis, an occupational lung disease. Aggressive defensive of the lawsuit during extensive discovery revealed that Mr. Savage’s silicosis was diagnosed more than five years prior to the filing of the lawsuit, and therefore the plaintiffs’ claims were barred by the applicable statute of limitations. The United Stated District Court for the Eastern District of Missouri agreed, and entered judgment in favor of MSA. Robert and Ruth Savage v. Mine Safety Appliances Company, 2010 WL 4000620 (E.D. Mo.)
Social Media in the Courtroom: How Facebook Can Be Used to Investigate Claims and Prove Deception
Attorneys nationwide are finding that social media is more than just a great way to keep in touch with friends – it’s also a handy tool to investigate an opponent in a legal proceeding. Facebook, MySpace and other online sites offer a wealth of information about someone’s personal habits and behaviors that can be used as evidence in a court of law.
For example, a man recently sued a doctor for malpractice because of back pain, but lost in court when attorneys presented a YouTube video of the man dancing. Another man who alleged severe and debilitating short-term memory problems was playing video games and posting questions about them on an online bulletin board; his case was resolved at a fraction of his demand.
Lashly & Baer Attorneys Win Jury Verdicts for SLUCare and US Bancorp
June was a successful month for the litigation section of Lashly & Baer. Stephen G. Reuter and Stephen L. Beimdiek both achieved winning results in the St. Louis City Circuit Court for their clients, SLUCare and US Bancorp.
2010 Tax Rate Procedures
Governing bodies of political subdivisions will conduct public hearings in August and September in connection with the determination of the 2010 tax rates to be set prior to October 1st. Because of increased demands on public services during these economic times, the loss of revenue by these political subdivisions may create additional hardships. Two mechanisms exist to ameliorate the dramatic loss of revenue: recoupment and voluntary rollback recovery.
Ask the Experts
On the Banking Industry
Jason Koelling is vice president of commercial loans at St. Louis Bank and a founding officer of the bank, which opened in 2005. Jason has thirteen years of commercial banking experience in the St. Louis community. We talked to him recently about the challenges the banking industry has faced during the recession and how the lending environment has changed.
Q: The media has chronicled the challenges and problems encountered by the banking industry over the past couple of years. Can you describe the current lending environment in St. Louis?
A: Challenging. Without question the credit underwriting environment has tightened across the board. It appears no segment of banking is immune to the existing credit crunch. From local to regional to national players we are all playing by a new set of rules.
Steinbrenner Family Brings Home a Winner – Tax Free
By Carl M. Markus, Estate Planning Attorney
When George Steinbrenner, famed owner of the New York Yankees, passed away in July 2010, his family reaped the benefits, from a financial perspective. Because the federal estate tax expired in 2010, his $1 billion estate will likely escape taxation. If he had died prior to 2010, his heirs could have owed about $500 million in taxes.
Meanwhile, Georgia Frontiere, former owner of the St. Louis Rams, passed away in 2008 and left her ownership to her son and daughter. They felt the pressure to sell the team due to Frontiere’s estate tax. According to the St. Louis Post-Dispatch, by 2014, Chip Rosenbloom and Lucia Rodriguez must start paying on the principal of those estate taxes rather than the interest, and that increased payment would severely cut into the team’s profits.
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.
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.
