Category: Workers’ Rights

Disability Discrimination

HIV+ Disability Discrimination case will proceed

HIV positive employee’s disability discrimination, failure to accommodate claims will proceed, court rules

A Washington court has ruled that an employee’s claims of disability discrimination, failure to accommodate, retaliation, and wage withholding will proceed. The Defendants in the case, Kindred Nursing Centers West, had filed for summary judgement on said claims in hopes of having them dismissed.

The case was originally filed in 2014 by David Edman. He began working for the employers in July 2011 as their Food Services Manager. He worked without incident from his hired through the receipt of a new direct supervisor, Sandra Hurd. She became the facility’s new Executive Director in November 2012, and Edman reported to her directly. It wasn’t until April of 2013 however that Edman disclosed to Hurd that he is HIV positive.

In summer of 2013, Edman’s health began to deteriorate. He began losing a significant amount of weight, and his co-workers grew concerned about his wellbeing. That July, he received a written warning from Hurd regarding two arguments he had with staff members – one with a nurse, and one with a vendor. Edman admitted he had raised his voice, but stated his disposition was being negatively affected by his illness.

On July 29th, Edman had the day off from work for a previously scheduled doctor’s appointment. He received a call from Hurd however, telling him that the Department of Health & Human Services dropped by unexpectedly to conduct their annual survey. Edman claims that he told her he was ill and on the way to the doctor’s, but she insisted that he come in to work anyway. Hurd however claims that she did call to tell him about the survey, but did not ask him to come in, and rather said that she could handle it without him. Regardless, Edman cancelled his doctor’s appointment and worked from that day through August 6th at the conclusion of the survey. During that time, one of the surveyors complained to Hurd that Edman seemed “focused only on the timing of the meals, and not the accuracy or quality”, and also that he was yelling at staff members. Despite this complaint and his illness, Edman’s area received only one mark of deficiency. Hurd admitted he had “worked long hours throughout the week of the survey without asking for time off or accommodations for his illness”.

With the survey concluded, Edman was able to finally see his doctor on August 8th. At this appointment, his doctor Thomas Smith suggested that he go on immediate medical leave. Edman’s request to his employers for leave was granted, and he began receiving short term disability benefits.

Edman returned to work on October 1st, 2013. He had previously requested to work part-time for the first two weeks he was back, which was granted. However, on his first day back he received a written warning and was put on a Performance Improvement Plan for his behavior during the survey. Edman did not object to the behavior, citing “multiple infections and lack of sleep” as the cause of the issues. Hurd responded allegedly by saying that his medical conditions were “not an excuse”. Edman was the only employee disciplined because of the survey, despite the fact that the manager of another area received nine citations.

Later that month, Edman’s health took another serious hit as he was diagnosed with Kaposi’s Sarcoma – a form of cancer. Though he qualified under social security as having a disability, he would still be able to work without accommodations. On October 29th, he requested temporary accommodations while he was being treated as well as intermittent FMLA (Family Medical Leave Act) leave. Upon hearing his requests, Hurd allegedly replied, “No, I can’t do this. You still have to do your job.” Two days later, Edman, Hurd, and HR Director Elaine Revelle met. There, they told Edman that they would not be able to provide the requested accommodations and he would instead be placed on unpaid leave while they discussed the situation. To add insult to injury, he was asked to leave the building thereafter.

During his leave, Edman sent several emails asking for the process to be sped up as he had no source of income. After providing additional information regarding his accommodations and an updated note from his doctor, some of Edman’s accommodations were finally granted on November 22nd. However, the acceptance came with the expectation for Edman to have cooking duties added to his work load. They stated this was necessary due to budget cuts. It wouldn’t be until December that more of his accomodations were granted, intended to allow him uninterrupted lunch in his office with the door closed and not having to interview residents. Other accommodations he had requested were denied, such as a temporary moratorium on changing dining services department operations, staffing, or duties, two weeks’ notice of any such changes, and his request to transfer to a position in the Central Supply Department, which would not require cooking. In place of the last request, the employers agreed to remove cooking from his duties.

On December 9th, Edman sent an email to his attorney describing the great stress the situation had caused him, and expressed an interest in “resolving his employment” with Kindred. The following day, an offer letter was sent to the company, requesting the possibility of his resignation “in exchange for certain compensation and fees”. This offer was rejected by the employers, and instead the parties continued communications about Edman returning to work.

In January 2014, Edman’s doctor released him to return to work with several accommodations, including:

  • Intermittent FMLA leave as needed
  • Uninterrupted 30 min lunch in his office with the door closed
  • 8 business days’ notice prior to deadline for any assessment, planned event, or staffing modification
  • An effort by all parties to keep stress levels low
  • Adequate rest between shifts

On January 6th, Edman returned to work full time but states that the accommodations outlined were not met, which caused his health to deteriorate once again. Despite this, he continued working for over another year before finally going on his last medical leave due to a work related injury. After his leave is when he initiated the lawsuit for claims of disability discrimination, failure to accommodate, retaliation, and wage withholding.




Superintendent’s wrongful discharge, FMLA retaliation claims valid

On November 14th, the United States District Court for the Southern District of Ohio Eastern Division granted and dismissed portions of the Defendant’s (CB&I Constructors) Motion for Summary Judgement, which aimed to throw out certain claims alleged by the Plaintiff (Lightner). The Defendants wished to dismiss his assertions of FMLA retaliation, wrongful discharge, and FMLA interference. Only the latter ended up being dismissed.

Evan J. Lightner was employed as a Site Superintendent by CB&I Constructors from July 2009, through June 2014. During most of that period, he was considered an exemplary employee, having received positive reviews of “meeting or exceeding expectations” annually. His job as a Site Superintendent was to ensure OSHA (Occupational Health and Safety Administration) compliance, as well as supervising solid waste and landfill development projects. Lightner had a great amount of experience in the field, having worked for years prior in similar supervisory positions and receiving special training/certification from OSHA.

Lightner was dealt a devastating blow when his wife was diagnosed with cancer in August 2011. His then supervisor and Operations Manager Mike Mehalic told him that the employers would be “more than happy” to help him care for his wife, and helped Lightner reach out to Human Resources. He was granted intermittent FMLA leave when needed, and stated he was “very happy” with the support he received from the company.

Then, things seemingly began to change in 2012 when Greg Cooper replaced Mehalic as the Operations Manager. It wasn’t until July or August of 2013 however that the situation started taking a turn for the worst. Lightner brought unsafe situations he had noticed to the attention of Cooper and another supervisor that acted as the Project Manager in the Solid Waste Group, Josh Broggi. Lightner stated that he noticed unsafe dump truck operations, as well as observing workers that were “unqualified and untrained” welding pipes. Despite his concern, Cooper and Broggi assured Lightner that the workers had enough prior experience to make up for their lack of formal training and certification.

In October 2013, Lightner and his co-workers began working on a project in Miami, Florida. Upon arrival at the site, Lightner noticed the same aforementioned “untrained and uncertified” employees completing welding tasks. Once again, he expressed his concerns about this to Broggi. Both Cooper and Broggi responded by telling Lightner that it was “too costly” to have the employees trained and certified. Lightner persevered in attempting to remedy the problems, having telephone and in-person conversations on the subject with the Division Safety Manager Greg McElroy. This supervisor assured Lightner that he had discussed the matter with Broggi and Cooper, and promised to have the employees appropriately trained “in the very near future”. However, that never happened.

Not only were the employees not trained, but their performance actually seemed to get worse as time went on. The environment became so dangerous in the eyes of Lightner that he believed the employees should either be dismissed, or the site should have been shut down entirely. Yet again, Lightner made desperate calls to Cooper and others. Cooper did fly to Miami in order to observe the situation for himself. Despite having observed several concerning things, such as employees not being able to properly operate an “off-road dump truck without causing damage”, he told Lightner that it would “be easier to hire five of the untrained employees and get rid of [him]”.

Cooper also commented that the employees were the “best the company could afford and still turn an adequate profit.” The reason for Cooper’s concern about profitability seems to stem from the fact that CB&I was in the process of acquiring another company at the time. This meant that, according to Cooper, they needed to “do whatever was possible” to ensure the transition period went smoothly. Apparently, this included not reporting safety incidents. Lightner’s job became blatantly threatened as Cooper instructed him not to report a particular incident involving a bulldozer, or else “be the person that left before the other employees did”.

Similar incidents continued to occur, then in May 2014, Lightner noticed a lump in his neck which seemed to be growing rapidly in size. As his doctors advised, he underwent a procedure to remove the mass so a biopsy could be performed. The lump turned out to be benign, but due to the nature of the procedure, Lightner and Cooper discussed him taking 3-4 weeks off. The very next day, Cooper called Lightner and told him that he was likely to be “furloughed” due to various business reasons. On June 2nd 2014, this indeed came to fruition and Lightner was let go allegedly as part of a reduction in force.





Wage case against McDonald’s continues…

Yet another McDonald’s franchise is in the news again for court drama. This time, the case is regarding a wage and hour class action lawsuit (ref: wage and hour lawsuit) against a chain of 16 locations in Pennsylvania. The case was initially filed back in 2013, after an employee quit due to the outrageous fees associated with the chain’s mandatory pay card system. After quitting, she called a law firm to see if the practices were legal – which they weren’t.

The issue arises from the employers (owners Albert and Carol Mueller) requiring non-managerial employees to accept payment via a JP Morgan & Chase pay card, rather than being issued an itemized check/cash. This violated the Pennsylvania Wage Payment Collection Law (WPCL), which states that, “wages shall be paid in lawful money of the United States or check”. Employers will sometimes utilize a pay card system in order to avoid costs associated with printing and distributing checks, which can be expensive. Cash is not usually a practical form of payment for established businesses. It’s difficult to track and itemize. Another reason employers may be shifting towards the option of pay cards, is that banks may offer incentives to employers for providing them with new customers, aka the employees.

The courts reasoned that the pay cards are not “lawful money”, though the employers insisted it is a “functional equivalent”. However, the court stated that it was not a “functional equivalent” due to the fees that could be incurred for various reasons such as inactivity. The class action representative, Natalie Gunshannon, chose not to activate her pay card after reviewing the hefty fees, which included $1.50 per ATM withdrawal, $10 per month after 3 months of inactivity, 75 cents per online bill payment, and $1 each time they checked the balance. Additionally, users of the cards were allotted only one free over-the-counter withdrawal per deposit. After the initial withdrawal, a $5 fee was incurred each subsequent time. “I tried to work with the company. They refused. I tried the main office in Clarks Summit. They refused,” Ms. Gunshannon said. “I never activated the card. I refused the fees. I just want it to be fair.” An expert witness in the case stated that between the fall of 2010 and the summer of 2014, the employees were subject to a collective estimate of 47,000 fees.

While this case is set in Pennsylvania, it would most likely fare similarly here in California. The DLSE has opined that pay cards can be legal forms of payment so long as they are voluntary on the part of the employee. This means that the employee must have the option to receive a check or other form of payment if they would prefer. The DLSE states that the alternative form of payment must be “easily turned into cash” without a fee. Because the employees in the Pennsylvania case were not given the option to an alternate form of pay other than the card, the system would still be considered illegal in California. Then of course there is the issue with the fees, which also would be considered unlawful and cause to bring suit or request reimbursement.

An inquiry to the DLSE on this subject was answered back in 2008. Carl Morris and Daniel Schwallie asked whether their payroll services complied with California labor laws. The letter cites California Labor Code section 212, which reads:

“No person, or agent or officer thereof, shall issue in payment of wages due, or to become due, or as an advance on wages to be earned:

(1) Any order, check, draft, note, memorandum, or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand, without discount, at some established place of business in the state, the name and address of which must appear on the instrument, and at the time of its issuance and for a reasonable time thereafter, which must be at least 30 days, the maker or drawer has sufficient funds in, or credit, arrangement, or understanding with the drawee for its payment.

(2) Any scrip, coupon, cards, or other thing redeemable, in merchandise or purporting to be payable or redeemable otherwise than in money.

(b) Where an instrument mentioned in subdivision (a) is protested or dishonored, the notice or memorandum of protest or dishonor is admissible as proof of presentation, nonpayment and protest and is presumptive evidence of knowledge of insufficiency of funds or credit with the drawee.

(c) Notwithstanding paragraph (1) of subdivision (a), if the drawee is a bank, the bank’s address need not appear on the instrument and, in that case, the instrument shall be negotiable and payable in cash, on demand, without discount, at any place of business of the drawee chosen by the person entitled to enforce the instrument.”



whistleblowers graphic

Government whistleblowers to receive $29 million reward

Two whistleblowers will be reaping a big reward – a $29 million dollar reward to be exact. This is because settlement has been reached in the case of United States v. Life Care Centers of America. The defendants will be paying a record breaking $145 million dollar settlement for allegedly violating the False Claims Act between January 2003 and February 2013. The False Claims Act (31 U.S.C. §§ 3729–3733, also called the “Lincoln Law”) is an American federal law that imposes liability on persons and companies (typically federal contractors) who defraud governmental programs. It is sometimes called the Lincoln Law because it was initially passed under President Abraham Lincoln during the Civil War.

Life Care Centers of America is a chain of private nursing homes with more than 200 locations across the country. The lawsuit against them was initiated because former employees turned whistleblowers Glenda Martin and Tammie Taylor tipped the government off to the possible fraud, leading to what is called a Qui Tam case. This type of case is when whistleblowers alert the Government that they are being defrauded. The Justice Department alleged that the company purposely entered patients into the highest level of care even when it wasn’t necessary, in order to bill Medicare and TRICARE at the highest rates. The complaint states that “while Life Care punished those facilities and employees that failed to meet its Ultra High targets or that complained about corporate pressure, it rewarded and applauded those that met its targets. As part of its goal to maximize Medicare and TRICARE payments, Life Care also frequently overrode or ignored the recommendations of its own therapists and unnecessarily delayed discharging beneficiaries from its facilities…. As a direct result of Life Care’s corporate pressure to maximize its Ultra High billings, Life Care therapists provided Medicare and TRICARE beneficiaries with excessive amounts of therapy that was not medically reasonable and necessary, and sometimes even 2 harmful. Moreover, instead of providing skilled rehabilitation therapy that was tailored to beneficiaries’ particular needs, Life Care therapists routinely provided generic, non-individualized services that did not (and could not) benefit the beneficiaries and that served primarily to inflate what Life Care billed Medicare and TRICARE for those beneficiaries.”

A statement released by the company vehemently denies any wrongdoing, stating, “Life Care has strongly disagreed with the allegations, and believes that it was entitled to payment for services rendered”. Legal action was also taken against the owner and sole shareholder of the chain, Forrest L. Preston, as the Justice Department claimed he was “unjustly enriched” by the practices. The statement continues, “We deny in the strongest possible terms that Life Care engaged in any illegal or improper conduct. We are, however, pleased to finally put this matter behind us, without any admission of wrongdoing, and we look forward to continuing our efforts to deliver quality care and services to our patients, residents and their families”.

Not only will the company be paying the hefty settlement amount, they have also agreed to their therapy services being monitored for five years, entering into a Corporate Integrity Agreement with the US Department of Health and Human Services. A $45 million down payment will be made this year, with the remainder of the settlement amount to be paid out over the course of the next three years.

This lawsuit is hardly the first legal issue the company has come across. In recent years, several other lawsuits have been initiated. The first lawsuit arose in 1998, alleging that the company negligently allowed a patient to fatally beaten by another patient with a history of violent outbursts. Two years later, an eerily similar case was initiated, alleging that a female patient was also attacked by a violent patient, resulting in her death. In 2003, a $12 million lawsuit claimed that the facilities failed to provide basic care such as proper bedding and ulcer prevention after a patient’s leg had to be amputated due to infection. From 2004 to 2008, three more bed sore cases were initiated which claimed that the facility neglected to provide basic care, nutrients, and medical attention to patients that were suffering from dehydration, thrush, and staph infections. As if all of that wasn’t enough, all patient admissions were suspended for a time in 2011 due to allegations of cooking malfunctions, patient abuse and sexual assault.



Obama “Time Card” overtime rule faces new challenges

A new bill was introduced on September 29th by Republican senators, which would make changes to the overtime bill introduced by the Obama administration back in July. The Regulatory Relief for Small Businesses, Schools, and Nonprofits Act (or H.R. 6094) passed in the House of Representatives 246 to 177 and will delay the Department of Labor final rule until July 2017. The changes to current overtime laws were supposed to go into effect on December 1st , but the updated bill seeks to spread out these changes over the next 5 years, rather than everything going into effect all at one time. Not only would the bill raise the overtime threshold gradually from $23,600 to $47,476 through the 5 years, it would also require an “independent government watchdog study” of the rule after it’s first year in effect. If the rule is found to negatively impact “American workers and our economy, non-profits—including colleges and universities—along with state and local governments and many Medicaid- and Medicare-eligible facilities such as nursing homes or facilities serving individuals with disabilities will be exempt from any further increases under the rule.” Additionally, it would prevent a possible threshold raise in 2017, as well as the automatic increases that were supposed to occur every 3 years.

Senators Lamar Alexander (R-TN), Susan Collins (R-ME), James Lankford (R-OK), Tim Scott (R-SC), and Jeff Flake (R-AZ) introduced the legislation in fear that the sudden doubling of the salary threshold would be too extreme, and therefore detrimental to various employers. Senate Labor Committee Chairman Alexander states, “the Overtime Reform and Review Act makes urgently needed modifications to the administration’s rule, which will otherwise on December 1 force changes in overtime pay that are too high, too fast and will result in employers, non-profits, colleges and others cutting workers’ hours, limiting their workplace benefits and flexibility, as well as costing students more in tuition….This is a moderate, bipartisan approach that should be able to pass both Houses before December.” Senator Collins adds, “The Department of Labor’s overtime rule will be extremely damaging to small businesses, universities, nonprofit organizations, and service industries, particularly in rural states like Maine…While it is time for a reasonable update in the threshold, doubling the threshold overnight will hurt workers and employers alike and limit the services provided by nonprofits and educational institutions. Our legislation takes a common-sense, bipartisan approach that would phase-in an increase to the overtime threshold over five years, providing businesses with additional time to prepare for this major federal rule change.” Similarly, Senator Lankford states, “This federal overtime rule is devastating for small businesses, colleges and nonprofits all across America, but particularly in states with a low cost-of-living…The economic realities and regional cost of living differences that exist throughout the country were completely ignored in favor of yet another one-size-fits-all approach by this administration. I have been told from small business owners, colleges and nonprofits that this federal overtime rule will quickly lead to job loss, increased tuition, and the reduction of charitable services. I think this rule should be pulled entirely, but at least its implementation should be delayed or slowed.”

A copy of the Overtime Review and Reform Act has not yet been made available to read, but proponents of the bill (i.e. employees) will surely be disappointed by its terms. Meanwhile, letters of support for the revised bill and its originators have been pouring in. The White House issued a Statement of Administration Policy on September 27th, strongly opposing H.R. 6094. The statement gives facts supporting the necessity of the December 1st implementation. Additionally, the statement clearly and in no uncertain terms indicates that if the bill reaches President Obama’s desk, he will veto it. Perhaps the most powerful text in the statement reads, “While this bill seeks to delay implementation, the real goal is clear—delay and then deny overtime pay to workers. With a strong economy and labor market, now is a good time for employers to provide these essential protections for workers, who cannot afford to wait.”