Monday, May 2, 2016

Legal News & Knowledge: May 2016 Newsletter

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Section Topics:

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Employment Law

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How to Regulate Employees' Off-Duty Conduct

By Sarah Briley, Esq.
 
With the increasing ubiquity of social media, information on the off-duty conduct of employees has never been more accessible to employers. As an employer, it is important to keep in mind that simple disagreement with an employee's off-duty conduct is not always sufficient to justify termination . . .

Full Article
 



One surprising upside to DOL's overtime rule change

By Christian Schappel
 
. . . the new regulations have presented employers with the opportunity to audit employees' job duties against their job descriptions/classifications in an attempt to make sure employees are still properly classified -- and, if not, change their classifications using the umbrella of the rule change as a way to minimize any potential legal liability.

Full Article
 



It's Not Easy to Determine If an Employee Is Really "Exempt"

By John E. Thompson
 
Coming changes in at least some of the U.S. Department of Labor's definitions for the federal Fair Labor Standards Act's Section 13(a)(1) "white collar" exemptions are leading employers to evaluate whether employees they treat as exempt meet all of the duties-related requirements . . .

Full Article
 



"You're Fired" or Not? Possible Impacts of the 2016 Presidential Election on Employers

By Douglas Gerhardt, Esq.
 
Presidential elections will impact employers and employees, nationwide. While many local and state labor laws dictate specific entitlements and actions, who is in the White House also matters. With 2016 being an election year, a lot may be impacted . . .

Full Article
 



NLRB Agenda Continues to Focus on Non-Union Employee Rights

By Jason Shinn
 
A recent decision of the National Labor Relations Board provides employers with a reason to carefully evaluate disciplining employees who make negative comments about their company's products . . .

Full Article
 


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FMLA

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DOL Issues New FMLA Poster and Publishes Guide to Help Employers Administer FMLA

By Jeff Nowak
 
This week, the Department of Labor announced that it soon will issue a new general FMLA Notice that can be used interchangeably with their current FMLA posting. In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA . . .

Full Article
 



I Denied My Employee FMLA Leave and Now I'm a Defendant?

By Kathryn Morris Willis, Esq.
 
In Graziadio v. Culinary Institute of America, 216 WL 1055742, (2nd Cir. Mar. 17, 2016), the Second Circuit joined several other circuits in finding that a human resources professional could possibly be individually liable for FMLA violations under the "economic realities" test . . .

Full Article
 



ADA, FMLA and Medical Marijuana, How Do They Mix?

By Lawrence Postol
 
Almost a majority of the states allow medical marijuana, so a common question is how does the use of medical marijuana affect the rights under other laws, and in particular, the Family Medical Leave Act ("FMLA") and the Americans With Disabilities Act ("ADA")?

Full Article
 



When the FMLA and ADA Intersect: Double Trouble for Employers

By James D. Holman, Esq.
 
Complying with the FMLA is at best inconvenient, at worst a substantial hardship, particularly if the employer loses a key employee for twelve weeks. But what happens if, at the end of the twelve weeks, the employee now qualifies for coverage under the Americans with Disabilities Act?

Full Article
 



86 the "100% cured" policy for employees returning from FMLA leave

By Eric B. Meyer
 
In Dykstra v. Florida Foreclosure Attorneys, PLLC (opinion here), the plaintiff, an IT Director for a law firm, alleges that she took FMLA leave for a bad back. According to the plaintiff, about a month before her FMLA ran out, she told the law firm that she wanted to return to work . . .

Full Article
 


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Independent Contractors

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Uber ups the ante; will $100M proposed settlement pass muster?

By Joy P. Waltemath, J.D.
 
Just weeks after a federal district judge for Northern California denied preliminary approval to a $12M class action settlement to resolve Lyft drivers' misclassification claims . . . Uber has said it will pay up to $100M to drivers in California and Massachusetts to settle their Rule 23 class actions . . .

Full Article
 



The Employer-Employee Relationship: More than Titles and Terminology

By Jonathan Nessler, Esq.
 
To recover under the Workers Compensation Act in Illinois, an employee-employer relationship must exist between the parties, and the injury must arise out and in the course of the employment. Whether an employee-employer relationship exists is essential to this analysis . . .

Full Article
 



Everyone Keeps Focusing On Independent Contractors, So We Will Too…

By Felicia S. O'Connor
 
If it looks like "Independent Contractor vs. Employee Week" on Labor & Employment Law Perspectives, that may be a function of the fact that misclassification of employees as independent contractors has been a hot topic for some time and shows no signs of cooling down . . .

Full Article
 



Are Independent Contractors on the Endangered Species List?

By Daniel J. Burnick, Esq.
 
. . . The Administrator's Interpretation makes it clear that the "Economic Realities Factors Should Be Applied in View of the FLSA's Broad Scope of Employment and 'Suffer or Permit' Standard." By cherry picking language from various court cases, going back as far as 1918, the DOL sets forth a six step test to determine if a worker is an "employee" or an "independent contractor" . . .

Full Article
 



Louisiana Court of Appeal Holds Injured Independent Contractor did not Meet Burden of Proof for Workers' Compensation Benefits under Manual Labor Exception

By Charles E. Lavis
 
Recently, the Louisiana Fourth Circuit Court of Appeal addressed whether an individual seeking workers' compensation benefits qualified as an independent contractor of a bath and kitchen company, performing manual labor essential to the employer's trade or business . . .

Full Article
 


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Workers' Compensation

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A Year in Review: Significant Workers' Compensation Cases of 2015

By Robert Ferreri, Esq.
 
With 2015 in the books I thought it would be interesting to offer this look back at some significant cases decided by Kentucky's Court of Appeals and Supreme Court last year. The first two cases addressed the statute of limitations and the statute of repose respectively regarding reopening of claims . . .

Full Article
 



Court sets aside portions of Oklahoma's new workers' comp law

By Josh Cline
 
It has been just over two years since Oklahoma's completely overhauled workers' compensation system went into effect . . . Recently, the court overturned portions of the law because they are contrary to the Oklahoma Constitution. Other legal challenges remain, however, so the period of uncertainty is not over . . .

Full Article
 



Working from Home Complicates Workers' Compensation

By Bradley G. Garber, Esq.
 
As computers become more and more pervasive in the workplace, it becomes easier to work out of an employer-controlled office space. The traditional circumstances that identify an injury as work-related are blurred . . .

Full Article
 



Company Picnic May Turn Into Compensation for an Employee Injured In Route

By Bernard D. Nomberg
 
An attorney in Alabama may successfully assert a client's claim for workers' compensation benefits when the client was involved in an accident while traveling to a work related event . . .

Full Article
 



Past Medical History Remains the Key to Controlling Costs in Workers' Compensation

By John H. Geaney
 
Those who do not remember the past are doomed to repeat it, wrote George Santayana. In workers' compensation, those who do not know the past are doomed to pay for it . . .

Full Article
 


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Real Estate and Property Management

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New HUD Fair Housing Guidelines Cause Confusion for Property Managers

By Mindy Wallis
 
Last June, the Supreme Court handed down a decision in Texas Department of Housing v. The Inclusive Communities Project that a housing provider violates the Fair Housing Act when the provider's policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate . . .

Full Article
 



HUD Seeks to End Discrimination Against Tenants with Criminal Records

By Evan L. Loeffler, Esq.
 
The U.S. Department of Housing and Urban Development (HUD) published guidelines in April 2016 for the proper consideration of applicants' criminal records when considering them for housing. HUD notes that because a disproportionate amount of people with criminal records are minorities, a blanket policy of refusing to rent to anyone with a criminal history may violate the Fair Housing Act . . .

Full Article
 



Going Green in Multifamily Construction is Fast Becoming the Standard

By Tim Blackwell
 
Builders and remodelers seem to be shaking perceptions that green building is too expensive and plan to incorporate sustainable construction practices in future homes. Architects and construction companies that specialize in multifamily say it's not rocket science to go green, and, in some cases, the cost is negligible.

Full Article
 



More Than a Pet: Emotional Support Animals in Rental Properties

By Steven J. Krueger, Esq.
 
. . . under Wisconsin housing law, if an individual's vision, hearing, or mobility is impaired, it is discrimination for a landlord to refuse to rent or sell housing to the individual, evict the individual, require extra compensation as a condition of continued residence, or harass the individual because she keeps a service animal that is specially trained to lead or assist her . . .

Full Article
 



How to Handled Unauthorized Repairs

By Jane Meggitt
 
You've just received a bill from a contractor. Only this bill was for a repair you didn't authorize at your rental unit! Do you have to pay for unauthorized repairs? The answer is "no," under most circumstances . . .

Full Article
 


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Law and Ethics

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Ethics opinion revisits rule on providing client representation information

By David L. Hudson Jr.
 
In legal ethics, like so many other fields, it's not easy to address all the possible applications of a rule on the first try. And the task becomes even tougher when the rule undergoes major changes before all the variations in its application can be considered by the courts and other authorities . . .

Full Article
 



Estate Planning and Conflicts of Interest: Who Exactly Is Your Client?

By Thomas D. Sands, Esq.
 
There are few things that are clear in the law. With that said, knowing who your client is should be one of them. Not having a clear understanding of who your client is can lead to a whole host of problems such as conflicts of interest, malpractice, and ineffective representation . . .

Full Article
 



As Non Lawyer Providers Move Ahead on Flat Fees, Ethics Regulators Move Backwards

By Carolyn Elefant
 
Last week, the Kansas Supreme Court issued a public censure of a criminal defense attorney, finding that he violated various ethics rules in failing to deposit a flat fee for legal services into his trust account and neglecting to track his time in connection with the matter . . .

Full Article
 



California Law Allows For New Trials When Experts Recant Their Testimony

By Colin Miller
 
"Previously, [California] law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions" . . .

Full Article
 



Looking Back, Looking Forward: 20 Years as a Lawyer

By Bernard Nomberg, Esq.
 
. . . Growing up at my father's law office, quite often I saw the great work he did to help those who needed it most. Ordinary people from the community who were injured on the job or from some type of accident and needed legal guidance to get them through a difficult time in their life . . .

Full Article
 


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