By Ruth Binger
The U.S. Supreme Court held in Obergefell v. Hodges that there is a constitutional right to marry and that the 14th Amendment’s Due Process and Equal Protection clauses require states to allow same-sex marriages and to recognize same-sex marriages lawfully performed in other states.
The Obergefell decision is not an employment decision. However, the Equal Protection language in the opinion will require companies to make some changes to their employment practices, training, manuals, forms, beneficiary designations, and other personnel policies going forward.
Obergefell followed the Supreme Court’s decision in United States v. Windsor which held that the federal government’s interpretation of “marriage” and “spouse” must apply to both opposite sex and same-sex unions. Windsor made employee benefits like the Family Medical and Leave Act (“FMLA”), COBRA, and the Employee Retirement Income Security Act (“ERISA”) available to all same-sex spouses of federal employees.
What Does Obergefell Mean To Employers? Continue reading »
07/16/15 8:50 AM
Business Law, Employment Law, Manufacturing and Distribution | Comment (0) |
Effect of 2015 SCOTUS Same-Sex Marriage Decision on Employment Practices
By Ruth Binger
The labor landscape has changed and it will continue to change. The average worker has become increasingly responsible for the more traditional aspects of the employment relationship including health insurance, pension, and job security. There also has been a substantial increase in the numbers of part-time workers, workers/employees classified as exempt from overtime premium pay, and workers misclassified as independent contractors. Commentary and theory abounds as to the reason for the loss of full-time jobs, much less middle class jobs, including outsourcing, computers/software, Affordable Care Act, robots, automation, high taxes, globalization, etc.
Suffice it to say, a legal backlash is building against this new terrain. Proposed restrictive legislation, administrative rule-making, and recent court cases show evidence of a concerted attempt to re-create or retrieve the job security and wages and benefits of days gone by.
Most recently, the U.S. Department of Labor (“DOL”), in a long-awaited announcement on June 30, 2015, proposed a new rule that will decrease the ability of companies to classify their employees as exempt from premium overtime wages under the Fair Labor Standards Act (“FLSA”).
Backdrop – Increase in Part-time Workers
This legal backlash is due, in part, to other recent and dramatic changes in the number of part-time workers:
- Since 2007, the number of “involuntary” part-time workers has doubled.
- Employers are increasingly using software tools such as the use of just-in-time scheduling software. Estimates are that 17 percent of the work force is now employed by companies that use just-in-time scheduling software. Employees accordingly work fluctuating work weeks with uncertain schedules.
- Another contributing factor is business practices, such as the use of “call in shifts” where the employer does not confirm need for services until two hours before start time.
In response, a host of bills are being introduced in many states and municipalities to legislate predictable scheduling.
Backdrop – Misclassification
Likewise, misclassification of workers has also increased. Companies are attempting to shift work from employees to independent contractors, especially in the construction, transportation, and cab industries using a variety of strategies. Continue reading »
07/15/15 3:43 PM
Business Law, Employment Law, Manufacturing and Distribution | Comment (0) |
Exempt Employees, Overtime, and the Proposed DOL Rule for 2016
By David W. Morin
The federal Occupational Safety and Health Administration (OSHA) implemented rules on January 1, 2015 which place additional requirements on employers under OSHA jurisdiction (and with greater than 10 employees) to report occupational injuries and illnesses. This new data is going to be made public, which would allow individuals, companies, or labor unions to view injury reports submitted by health care providers.
Currently, employers in Missouri are required to report work injuries to the state if an employee sustains an injury at work requiring medical treatment beyond immediate first aid. The information is not made public, but is rather provided only to the state as a reporting requirement. In fact, workers’ compensation trials or hearing are not generally open to the public. Express consent is usually required of the parties or their attorneys for a member of the general public to watch these court proceedings.
Under the current OSHA regulations, fatalities must be reported within eight hours. The regulations add additional requirements and require all employers to report work-related in-patient hospitalizations, as well as amputations or incidents where someone loses an eye, within 24 hours. Continue reading »
05/12/15 10:53 AM
Business Law, Employment Law, Workers' Compensation | Comment (0) |
OSHA Finalizes Rules Requiring Health Care Employers to Report Injuries
By Jeffrey R. Schmitt
Drones are all the rage. Actually, drones are causing quite a rage as well.
Last weekend’s Super Bowl in Arizona was a “no drone zone,” where flying drone aircraft for purposes of getting a better view of the action was prohibited. In fact, all NFL games are no-fly zones for drones, as are nearly all professional sporting events and other outdoor stadium events where more than 30,000 people are present.
Drones are threatening to interfere with air travel near airports, and one crashed on the White House lawn recently. The recent explosion of drone usage by the public has even caused one major drone manufacturer to begin a software update for its vehicles that will prohibit them from entering air space in Washington, D.C., or near airports.
Unmanned aerial vehicle (“UAV” or drone) technology is one emerging area where the speed of technology has eclipsed the speed of the law. If you were lucky enough to receive a drone as a gift during the holidays and want to use it for personal use, the good news is that the Federal Aviation Administration (“FAA”) is not stopping you from doing so, as long as you do so in a reasonable manner and do not infringe on others’ rights.
However, commercial use of drone technology is a different story. Continue reading »
02/3/15 1:02 PM
Business Law, Litigation, Real Estate | Comments Off on No-Fly Zones: Using Drones for Commercial Purposes |
No-Fly Zones: Using Drones for Commercial Purposes
By Misty A. Watson
Co-authored by Misty Watson and Samantha Maerz
“A major victory for the disability community, ABLE, for the first time in our country’s policy on disability, recognizes that there are added costs to living with a disability….For far too long, federally imposed asset limits to remain eligible for critical public benefits have served as a roadblock toward greater financial independence for the millions of individuals living with a disability.” – Michael Morris, Executive Director of the National Disability Institute
Savings accounts for individuals with disabilities will soon be possible without risking their access to federal benefits. On December 19, 2014, the Achieving a Better Life Experience (ABLE) Act was signed into law by President Barack Obama after receiving huge bipartisan support in both the U.S. Senate and House of Representatives. The ABLE Act is an amendment to the federal tax code that eliminates the $2,000 cap on conventional savings accounts for individuals with disabilities to qualify for Supplemental Security Income (SSI) and Medicaid.
Eligibility for many federal benefits, such as SSI, SNAP and Medicaid, requires that individuals meet a means test. Part of that test includes that an individual can report no more than $2,000 in savings. However, such a uniform test failed to recognize the additional costs of living with a disability. The ABLE Act seeks to remedy this unfairness by allowing a tax-advantaged savings account to supplement federal benefits, rather than supplanting them. Continue reading »
01/9/15 3:33 PM
Estate Planning, Family Law, Special Needs, Trusts | Comments Off on Understanding the ABLE Act |
Understanding the ABLE Act
This summer, Missouri voters approved an amendment to the Missouri Constitution protecting electronic data from searches and seizure by law enforcement officers.
Article I, Section 15 of the Missouri Constitution closely resembles the Fourth Amendment to the Federal Constitution: both provide that the people shall be “secure in their persons, papers, homes and effects from unreasonable searches and seizures,” and that law enforcement must demonstrate probable cause before obtaining a search warrant. The recent amendment modifies Section 15 so that it now explicitly protects “electronic communications and data” and requires police to “describe the data or communication to be accessed as nearly as may be” when applying for a warrant.
Surprisingly, the amendment might have ripple effects far removed from searches conducted by law enforcement. Continue reading »
12/2/14 1:11 PM
Business Law, Digital Media, Litigation | Comments Off on Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information |
Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information
By David A. Zobel
The current unrest facing the St. Louis metropolitan region carries with it the elevated risk of damage and/or destruction of both real and personal property. While everyone intends and hopes their insurance policies cover all eventualities that may arise, the truth of the matter is that not all eventualities are covered by insurance.
Unfortunately, it is generally only after something truly unexpected happens that policies are reviewed and tested for actual coverage. At that moment, it may be too late to both prepare for the event and/or adjust coverage.
As a result, it may be wise now to pull out your current auto, homeowners, renters, commercial or other similar policies to review each policy’s specific language.
One of the coverage limitations to consider are so-called “force majeure” clauses. “Force majeure” is a contractual term that relieves parties from performing their contractual obligations when certain circumstances beyond their control arise, often making their performance under the contract impractical or impossible. Examples of these circumstances can include earthquakes, war, strikes, epidemics, acts of God, and riots. Continue reading »
11/21/14 3:07 PM
Business Law, Real Estate | Comments Off on Is Your Property Insured Against a Riot? |
Is Your Property Insured Against a Riot?
By Laura Gerdes Long
The Connecticut Supreme Court has now joined Missouri, West Virginia and North Carolina in rulings connecting HIPAA with negligence lawsuits by patients.
In a case of first impression in Connecticut, the state’s Supreme Court ruled that a patient can sue a medical office for HIPAA negligence if it violates the patient’s privacy when improperly releasing the medical records to a third party. There is no dispute that HIPAA does not create a private cause of action. Increasingly, however, HIPAA can provide the standard of care for a medical office in how it releases confidential medical records and can be found negligent if it releases such medical records contrary to the requirements of the HIPAA regulations. Continue reading »
11/14/14 2:24 PM
Healthcare | Comments Off on Another State Rules That Patients Can Sue For Negligence for Violating HIPAA Regulations |
Another State Rules That Patients Can Sue For Negligence for Violating HIPAA Regulations
By Ruth Binger
Your company is an “A” player and it has done everything right in the U.S. in protecting its intellectual property (“IP”). You have not just relied upon a “smile.” You’ve invented a unique product called Superstar® widget and it is not yet offered by your competitors. Vast amount of resources have been poured into the development of the Superstar widget. Prior to introducing the Superstar widget, you used due diligence and used the IP Awareness Assessment Tool on the U.S. Patent and Trademark Office website to identify what IP you have, if it has value, and if it can be protected under U.S. law.
Upon identifying your IP, the company retained capable attorneys who were successful in obtaining U.S. trademark registrations on the corporate name, non-functional design, and logo so customers could more easily identify the Superstar widget and its association with the company. Superstar widget packaging correctly evidences all registered trademarks.
You made a wise expenditure on patents and the company has received patents on the Superstar widget process. Further, copyright registrations with the U.S. Copyright Office have been obtained on your website, web video, and associated software and you are giving notice to the world of your ownership by using the appropriate symbol of “©2012 Company.” Continue reading »
10/27/14 2:24 PM
Business Law, Intellectual Property, International, Manufacturing and Distribution | Comments Off on Protecting Your Intellectual Property in a Wild World |
Protecting Your Intellectual Property in a Wild World
By Laura Gerdes Long
4.5M Records Stolen, HIPAA violation
In June 2014, hackers in China used high-end, sophisticated malware to launch criminal cyber-attacks to access patient information from a national hospital system. Community Health Systems, Inc. (“CHS”), operates 206 hospitals across the U.S. in 29 states, including four located in Missouri (Kennett, Kirksville, Moberly, and Poplar Bluff). The breached data is considered protected health information under the Health Insurance Portability and Accountability Act (“HIPAA”).
In a filing with the U.S. Securities and Exchange Commission, CHS said the attacker was an “Advanced Persistent Threat” group which bypassed CHS’ security measures, successfully copying and transferring certain data outside CHS. Although CHS has confirmed that this data did not include patient credit card, medical, or clinical information, the breach does include patient names, addresses, birth dates, telephone numbers and Social Security numbers. CHS has been working closely with federal law enforcement authorities in connection with their investigation and potential prosecution of those determined to be responsible for this attack.
Under various state and federal laws, CHS is obligated to notify affected patients. The Department of Health and Human Services provides a web page describing the breach notification requirements of covered entities to effected individuals, the Secretary of Health and Human Services, and, in certain circumstances, to the media. Continue reading »
08/19/14 8:29 AM
Healthcare, Litigation | Comments Off on Hacked Hospital Network Includes Outstate Missouri Hospitals |
Hacked Hospital Network Includes Outstate Missouri Hospitals