Monthly Archives: November 2012

DC upholds challenge to Health Care Rule

In San Miguel Hosp. Corp. v. NLRB, ___F.3d___ D.C. Cir. 11/02/12, The DC Court of Appeals affirmed the NLRB’s decision to certify the Union as the sole representative of a unit that comprised professionals and non-professional employees.

The Hospital raised two main arguments.

  1. The Hospital argued that the Health Care Rule violated Section 9 of the NLRA because it endorses the extent of a union’s organization as the controlling factor in unit determination.
  2. The Hospital also argued that unit certification is improper when the unit comprises professional and non-professional employees.

The Court responded to these arguments as follows.

  1. The Court held the argument to have “zero merit.”  First, the Court explained, the administrative record makes “quite clear that the factors the Board considered in deciding upon the eight listed units included ‘uniqueness of function; training, education and licensing; wages, hours and working conditions; supervision; employee interaction; and factors relating to the collective bargaining agreement.'”  Second, the Court stated that the NLRA only requires that the extent of organization not be the controlling factor.  Therefore, the “consideration of that factor among others is entirely lawful.”
  2. Regarding the second Hospital’s argument, the Court highlighted the fact that the Hospital never challenged this issue.  The Court also stated that there is no precedent, in the NLRB or Courts, that addressed this specific issue.  As a consequence, the Court concluded that no remand was necessary since the Hospital waived any subsequent challenge.

In plain words, the DC Circuit Court of Appeals reaffirmed two main conclusions, supported by precedent.

First, that if you don’t raise a challenge below — you cannot raise a challenge in appeal.

Second, that the NLRA Section 9(c) provides that the NLRB can use the extent of the organization as a factor, as long as it is not controlling.  Since the NLRB used a plethora of factors, it was clear that it did not decide the issue solely on the extent of union organization.

What we can learn from this case is simple.  Raise all challenges in the court below to make sure you preserve these challenges in an appeal.

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Filed under Appellate, courts, labor, legal decision, NLRB, union

Who is a “supervisor” in a sexual harassment case? Supreme Court will decide

On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit.  The issue in this case centers around the word “supervisor.”

In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor.  In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.

The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.

What’s so interesting about this case, you may ask?  The fact that courts all throughout the US are split on this definition.  Will this definition be broadly construed, narrowly construed?  If so, what would the consequences be of this decision.  Will sexual harassment claims be significantly reduced?  Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?

As it is, civil rights have traditionally been limited.  The purpose of Title VII is to be broadly construed in order to provide civil rights protection.  The purpose of Title VII appears to be eaten away slowly.  It really does remind me of ADA before Congress enacted the ADAA.

In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act.  Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant.  When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.

Is it time for Congress to act once again?

via Vance v. Ball State University : SCOTUSblog.

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Proposed “Cloud Computing Act of 2012”

Sen. Amy Klobuchar has introduced a new bill, the “Cloud Computing Act of 2012” (S.3569), that purports to “improve the enforcement of criminal and civil law with respect to cloud computing.”

The Cloud Computing Act seeks to amend 18 USC 1030 by purporting:

  • It is a separate offense to have unauthorized access (including exceeding the authorized access) to a cloud computing account, or even conspiring to have unauthorized access.
  • Defining “cloud computing account” as “information stored on a cloud computing service that requires a password or similar information to access and is attributable to an individual”
  • Defining “cloud computing service” as a service that “enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.”
  • The losses are (1) the value of the loss of use, information, or aggregated loss to 1 or more persons; or (2) the product obtained by multiplying the number of cloud computing accounts accessed by $500.”

As a reminder, 18 USC 1030, a person who acts or conspires to act in violation of the Act is to be

  • (1) fined or imprisoned for not more than 10 years or both, when the conviction does not occur after another offense under the section; or
  • (2) fined or imprisoned for not more than 20 years or both, when the conviction occurs after another offense

 

The problems with this proposed bill are alarming due to the vagueness of the definitions.  In employment, I can see this Act (if it goes through) being used against employees.

For example, say if your authorized access is limited to “work” use.  If an employee uses the computer network to go to a social network, how would this pan out?  The employee, in this case, uses a password to get into the network of the employer.

Or say that authorized access is limited to using email for work purposes only.  What if the employee sends a personal email or an email to an attorney using the work email?  The email account is, after all, protected by a password and it is in the alleged protected network of the employer.

Or say that authorized access is limited to accessing the email at work.  Yet, the employee and other employees, and say even management, use their smartphones to keep up with work.

I can see potential issues in employment law, where the situation does not arise out of the purported intent of the Act.  None of these cases involve a person getting into a network or service to steal information.  None of these cases involve a disgruntled employee accessing information they are not supposed to have access to.

It is my guess that if the Act gets through, there will be a need for a lot of updates on employee policies, manuals, and trainings.

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Filed under Pending Legislation, technology

City of Detroit Faces Default Judgment

Good reminder to Defendants why they need to respond to a lawsuit.  If you don’t, you will likely face default judgment.

The City of Detroit is facing a $1.1 million judgment in a civil rights suit, after failing to respond to the litigation and being held in default by a federal judge.  Caleb Sosa, who is now 19, says he was coerced at age 14 into initialing a confession he couldnt read, to a murder he had nothing to do with, and held in juvenile detention for two years before he was acquitted at trial. His lawyer, Ronnie Cromer Jr., said he might well have been able to persuade a jury to award even more than U.S. Judge Sean Cox did had the case gone to trial, the Associated Press reports.  The city has declined to discuss the management of the Sosa case and why no response was ever filed to the 2010 suit, even after an amended complaint was filed in 2011 and hand-delivered to Detroits law department. The suit accused city police of faking Sosas confession and covering up evidence in his favor.

via After City of Detroit Ignores Civil Rights Suit, Federal Judge Declares Default, Awards $1.1M – News – ABA Journal.

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Waiver of Attorney-Client Privilege

This is an illustrative case as to why attorneys want to take precautions when producing discovery.  The case is Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 /0S.D. Ohio Aug. 28, 2012).

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

Here, Defendant did not stamp any documents as confidential.  Upon reviewing the documents at issue, the court held that those documents were covered under the attorney-client privilege.  However, the court found that the privilege had been waived.  The court highlighted the following facts:

  • Defendant’s lack of specificity as to who conducted the review and how the review was conducted.  The general assertion that multiple lawyers reviewed it was not enough.
  • Defendant failed to produce a privilege log during discovery;
  • 4.6% of the documents were inadvertently produced, which the Court found to be “relatively high.”

In sum, the Court opined:

After balancing the required factors, the Court concludes that Medex waived the attorney client privilege otherwise applicable to the 347 documents in the May 30 production.  To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.

via Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails : Electronic Discovery Law.

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Filed under attorneys, courts, discovery, electronic discovery, legal decision, sanctions, waiver

What NOT to include in your social media policy

HR.BLR has a good list to keep in mind when drafting your social media policy.  Please read this very carefully.

Social Media Policies: What NOT To Do

When creating your social media policies, here’s what NOT to do:

  • Don’t screen applicants on social media and/or ask for passwords to such sites. “Increasingly [such practices] will be prohibited by both federal and state law,” Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
  • “Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA.” Scott continued.
  • Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
  • Don’t use third-party apps that are overbroad in their access to applicant and employee information.
  • Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.

Social Media Policies: What TO Do

Here are some “dos” for social media policies

  • Create a current, effective and enforceable social media policy.
  • Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
  • Create a companion privacy policy, establishing guidelines to prevent the disclosure of confidential employee or company information. Confidential employee information may include things such as home addresses, birthdays, employee personal data (including medical data), and protected status information. Company proprietary information could be financial, trade secrets, or other business information deemed confidential. (These lists contain examples, but are not comprehensive.)
  • Train employees about social media policies.
  • “Use a non-decision-maker to filter the contents of the social media page” if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
  • Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.

via What NOT to include in your social media policy.

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Facebook is collecting your data — 500 terabytes a day

With more than 950 million users, Facebook is collecting a lot of data. Every time you click a notification, visit a page, upload a photo, or check out a friend’s link, you’re generating data for the company to track. Multiply that by 950 million people, who spend on average more than 6.5 hours on the site every month, and you have a lot of information to deal with.

Here are some of the stats the company provided Wednesday to demonstrate just how big Facebook’s data really is:

  • 2.5 billion content items shared per day (status updates + wall posts + photos + videos + comments)
  • 2.7 billion Likes per day
  • 300 million photos uploaded per day
  • 100+ petabytes of disk space in one of FB’s largest Hadoop (HDFS) clusters
  • 105 terabytes of data scanned via Hive, Facebook’s Hadoop query language, every 30 minutes
  • 70,000 queries executed on these databases per day
  • 500+terabytes of new data ingested into the databases every day

“If you aren’t taking advantage of big data, then you don’t have big data, you have just a pile of data,” said Jay Parikh, VP of infrastructure at Facebook on Wednesday. “Everything is interesting to us.”

Parikh said the company is constantly trying to figure out how to better analyze and make sense of the data, including doing extensive A/B testing on all potential updates to the site, and making sure it responds in real time to user input.

“We’re growing fast, but everyone else is growing faster,” he said.

via Facebook is collecting your data — 500 terabytes a day — Data | GigaOM.

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Filed under electronic discovery, Privacy Rights

Mobile Data Privacy Laws Misunderstood by Users

Smartphone users understanding of privacy laws may not be accurate, according to a recent survey by law researchers from the University of California at Berkeley. The survey considered data from 1,200 users telephoned on either a landline or a mobile phone and sought to gain insight on perceptions about privacy as it relates to data stored on mobile devices. Researchers found that over 80 percent of users surveyed believed that their mobile phone was as private at their personal computer. Further, 70 percent of users would not want their cell phone provider to use location-based data to target ads to them, nor would they wish for social networking apps to use their contact lists.

As discussed by Technology Review, most smartphone users surveyed were seemingly unaware that, during an arrest, courts have allowed the search of a cellphone just as if it were any other possession. Regarding the use of location-based data for targeted advertisement, many apps already collect location data, sometimes with the users unknowing permission, hastily and inadvertently given when accepting the conditions of a free app.

But for midsize businesses, it is the collection of users contact lists that is perhaps most troubling. Businesses have privacy policies to protect customer information, but rightly or wrongly, it is a common enough practice in industry for employees to store customer phone numbers and other sensitive information on business and sometimes even personal cellphones. A recent article in Todays iPhone says that a recent Bitdefender study of 65,000 apps showed that 18.6% access cellphone users contact list information, and only 57.5% of those apps go on to encrypt the captured data. Although the release of iOS 6 will warn users when an app wants to collect data, it is still a troubling statistic.

via Midsize Insider: Mobile Data Privacy Laws Misunderstood by Users.

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Updates to Medicare

The Centers for Medicare & Medicaid Services (CMS) have revised the Medicare prospective payment system to update payment rates and reporting requirements for hospital outpatient departments, ambulatory surgical centers, and inpatient rehabilitation facilities for 2013, and will continue the electronic reporting pilot for the Electronic Health Record, according to a recent final rule.  You can access the regulations here.

According to the Courthouse News, this is the summary of the changes:

Many of the changes were made to bring the Medicare payment system into alignment with provisions of the Affordable Care Act. The changes affect hospitals paid under the Outpatient Prospective Payment System (OPPS) as well as Community mental health centers (CMHCs) and Ambulatory surgical centers (ASCs). The agency estimates that most hospitals paid under the OPPS will see “a modest increase or a minimal decrease” in payment for services in 2013 with an expected 1.9 percent increase for all services over what was paid in 2012.

The agency estimates that some urban hospitals will experience a payment increase of 8.3 percent due to increased payments for partial hospitalization, group psychotherapy and hemodialysis services. CMHCs may see a decrease of 4.4 percent due to a decrease in estimated costs. The updates to the ASC payment system for 2013 will affect each center individually, depending on the mix of patients who are Medicare beneficiaries and the payment changes for the procedures offered by those centers, the rule said.

In addition to new payment rates, the agency decided to continue the electronic reporting pilot for the Electronic Health Record (EHR) Incentive Program “exactly as finalized for 2012” and made changes for the Quality Improvement Organizations (QIOs), including the secure transmission of electronic medical information, and beneficiary complaint resolution and notification processes, according to the CMS.

The agency maintains that “the use of an electronic infrastructure that supports the use of EHRs by eligible hospitals and CAHs [Critical access hospitals] to meet the requirements in various CMS programs” will reduce reporting burdens simultaneously with the submission of quality data “to provide a foundation for establishing the capacity of hospitals to send, and for CMS, in the future, to receive, quality measures via hospital EHRs for the Hospital IQR [Inpatient Quality Reporting] Program’s measures.

via Courthouse News Service.

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Medicare: Not a “Fancy Two-Step” Process

A federal judge, Judge Rosemary Collyer, in the District of Columbia Court, ruled in the case Allina Health Servs. v. Sebelius, U.S. Dep’t of Health and Human Servs., 10-cv-1463 (RMC).

In his option, Judge Collyer rebuked the government for arbitrarily changing the Medicare reimbursement formula for hospitals serving low-income patients.

Generally, the DSH (Dep’t of Health and Human Services) calculates payments by using the Medicare Disproportionate Share Hospital Fraction. The basis of this lawsuit arose out of the interpretation of the program “Medicate + Choice.”  Judge Collyer found that by relying on the complex nature of the program, the government executed a “fancy two-step” process whereby the government did not engage in proper rulemaking or even an explanation of the benefits.

In the opinion, Judge Collyer stated:

“The secretary’s pretense in briefing the instant matter – that her current interpretation is entirely consistent with the past – is, as the court explains below, clearly forestalled by Northeast Hospital.”

“[P]atients enrolled in an M+C Plan should be counted in the Medicare fraction or the Medicaid fraction of the DSH patient percentage calculation.”

Consequently, Judge Collyer ruled:

“The court concludes that the secretary’s interpretation of the fractions in the DSH calculation, announced in 2004 and not added to the Code of Federal Regulations until the summer of 2007, was not a ‘logical outgrowth’ of the 2003 NPRM”…. “The rulemaking procedure was flawed due to both the single-minded way the NPRM presented the issue and the fact that the secretary adopted the polar opposite of the original proposal.  Contrary to the secretary’s argument, the comments do not remedy these deficiencies.”

 

via Courthouse News Service.

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