Daily Archives: April 30, 2013

DOL clarifies expansion of FMLA due to ADAAA

The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA.  The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.

The DOL clarified the following.

  • The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older.  See 58 Fed. Reg. 31794, 31799 (June 4, 1993).  The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
  • The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
  • The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
  • A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
  • For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.

In the Administrative opinion, the DOL provides examples.

via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.

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Court upholds Handgun-Sales Age Requirement

This case again shows that regulating firearms is constitutional.

In NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 11-10959 (5th Cir. Apr. 29, 2013), the court upheld 18 USC 922(b)(1) and (c)(1).  These laws prohibit federally licensed firearms dealers from selling handguns under the age of 21.

The NRA claimed that this federal statute was unconstitutional under the Second Amendment.  The court disagreed.

The Fifth Circuit Court of Appeals explained:

In a critical passafe, moreover, the Court emphasized that the ‘right secured by the Second Amendment is not unlimited.’ [Dist. of Columbia v. Heller, 554 US 570, at 626].  As the [Supreme] Court explained:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ills, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (emphasis added) (citations omitted).

Thus, the Circuit Court stated that “Congress designed its scheme to solve a particular problem: violent crimes associated with the trafficking of handguns from federal firearms to licensees to young adults.”  The court, further stated that Congress could have sought to prohibit all persons under 21 from possessing handguns or all guns.  Additionally, the court pointed that under the Census, 18-to-20-year-olds accounted for a disproportionately high percentage of arrests for violent crimes” in 2010.

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E-Discovery: Defendant not required to redo discovery

In this product liability case, the issue is when does a defendant meet its discovery obligations.  In other words, does defendant satisfy its duty by using a keyword search.

In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits.  Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents.  The case is as follows.

Defendant (Biomet) relied on keyword searching in order to reduce the volume of information.  The documents to be searched were reduced from 19.5 million to 2.5 million.  Afterwards, Biomet used predictive coding.  Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.

Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding.  Plaintiffs wanted to be part of the process and give input as to the predictive coding language.  The court disagreed.

In explaining its decision, the court relied on proportionality.  The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Further, starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

The court agreed that predictive coding would identify additional relevant documents.  However, the benefits would not outweigh the burdens.

 

via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.

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