Monthly Archives: May 2013

Minn. Sup. Ct. reins in expungement power

Minnesota Lawyer (subscription required) has an interesting article regarding expungement of adult and juvenile cases.

In this decision, the Minn. Sup. Ct. declined to recognize a court’s inherent authority to order expungement of executive branch records of an adult’s criminal history (State v. M.D.T.).  When explaining prior precedent, the court differentiated State v. C.A., where the language was dicta and the case did not involve executive records.

The Minn. Sup. Ct. also narrowly construed a juvenile’s statutory expungement remedy in companion cases (In the Matter of the Welfare of: J.J.P.).  Here, the court held that the authority of the court under Minn. Stat. sec. 260B.198 is limited to the order adjudicating the juvenile delinquent.

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Filed under Appellate, courts, legal decision, Minnesota, Privacy Rights, state, Supreme Court

VA modifies Mental Health benefits

Courthouse News has this update on VA benefits regulations:

The Department of Veterans Affairs has modified eligibility rules so veterans with mental illness may receive treatment while waiting for confirmation of their service, according to a revised regulation.

The VA has revised its rules to allow for tentative eligibility approvals for VA health care for those who served in the military after Sept. 7, 1980. Applicants must still meet the minimum service requirement under federal code and tentative approvals are contingent on whether they have filed for VA health care within six months after their discharge under conditions “other than dishonorable,” the agency said in its action.

Effective June 13, veterans may receive medical treatment before their psychosis or “mental illness other than psychosis” has been confirmed to be service-connected, the rule says.

The VA said the rule change makes sense considering most veterans are able to connect their medical condition to military service, and early treatment could improve their chances of a positive outcome.

“The immediate medical treatment will, in turn, enable the veteran to manage his or her medical condition more effectively,” the agency said in its action.

The agency also removed the six-month minimum service time to be eligible for the mental health benefits. The minimum was originally set by a Congress concerned about some service members who would enlist with the sole intention of obtaining eligibility for veterans’ benefits, but then would bring about their own early discharge, the agency explained in its action.

The agency said that the rule has been changed “in consideration of the fact that very few, if any, veterans will be seeking tentative eligibility determinations within six months of discharge for a period of service that began over 32 years ago. The amount of time that a veteran, who entered active duty after Sept. 7, 1980, must serve on active duty to be eligible for VA benefits is governed by another U.S. code.

In addition, mental health care has been extended to “non-enrolled” veterans, or veterans who receive their care from private hospitals instead of the VA, and copayment obligations have been removed.

via Courthouse News Service.

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Filed under civil rights, federal, regulations

New Homeowners Bill of Rights

Governor Dayton will soon be signing a new bill that includes new protections for homeowners facing foreclosures.  This new law is known as the Homeowners Bill of Rights.

Some of the ways that it protects homeowners are as follows:

  • Loan servicers are required to communicate all options to homeowners.
  • Loan servicers are required to offer loan modifications to all eligible homeowners.
  • “Dual tracking” is banned.  Dual tracking is when servicers foreclose without a clear yes or no on loan modification.
  • Servicers are required to assist homeowners in submitting documentation regarding the foreclosure process.
  • Homeowners are allowed to take the servicer to court to stop a foreclosure if the servicer fails to comply with any aspect of the law.

 

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Filed under civil rights, Minnesota

Federal Agents Indicted in Immigration Scams

Seeking immigration or legal advice sometimes comes with the risk that the person you are talking to is committing fraud.

The most public cases of these frauds are known as “Notario Fraud” or “Immigration Consultants Fraud.”  Notarios or immigration consultants use false advertising and fraudulent contracts.  They hold themselves as qualified to help immigrants to obtain lawful status or perform other legal functions.  (You can read more about Fight Notario Fraud at the ABA).

Now, federal agents were indicted in an immigration fraud scheme led by a L.A. attorney.  The indictment alleges two conspiracies against the US involving bribery and fraud, seven counts of bribery, as well as making false statements and misuse of government seals.

The U.S. Attorney stated in a statement,

The conspiracy was allegedly orchestrated by a Los Angeles attorney who paid bribes as high as $10,000 to officials with several agencies in the Department of Homeland Security to help secure immigration benefits for aliens he was representing.

The indictment claims alleged that Kwan Man “John” Lee bribed public officials to get immigration benefits for clients who paid him, at times, more than $50,000.  Lee was charged in a previous criminal complaint and is not a defendant in the indictment.

via Courthouse News Service.

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Filed under civil rights, immigration, regulations

Senators’ committee will advise on new U.S. attorney

Minnesota Lawyer Blog brings to our attention that a new advisory committee has been formed to recommend a new U.S. Attorney.

The current U.S. Attorney B. Todd Jones has been nominated to serve as the permanent director of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and his confirmation hearing is expected to be held soon, the release states.

Judge Timothy O’Malley of the Minnesota Office of Administrative Hearings and the former head of Minnesota’s Bureau of Criminal Apprehension will chair the committee, which will also include Annamarie Daley, a Minneapolis attorney in private practice; former U.S. Attorney Thomas Heffelfinger; Stearns County Attorney Janelle Kendall; Donald Lewis, Dean of Hamline Law School; retired St. Louis County Judge Carol Person; and Chief Thomas Smith of the St. Paul Police Department.

The committee will review letters of interest, conduct interviews, and offer guidance to Klobuchar and Franken.  In the press release, Klobuchar stated that the candidate should be a seasoned, respected attorney who is fair-minded, able to work productively with local, state and federal law enforcement agencies, and who is committed to seeing that justice is done under the law and for the people of Minnesota.

Those wishing to be considered for the position of U.S. Attorney should submit letters of interest by June 3, 2013 to: Judge Timothy O’Malley, U.S. Attorney Advisory Committee, c/o Caroline Holland, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415.  Letters may also be e-mailed to caroline_holland@judiciary-dem.senate.gov.

via Senators’ committee will advise on new U.S. attorney – MinnLawyer Blog.

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EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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Filed under civil rights, discrimination, employment, federal, regulations, rules

Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

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Filed under courts, discovery, District Court, electronic discovery, legal decision, rules, sanctions

EEOC wins over $1.5 million in sexual harassment case

The EEOC has issued a press release announcing a big victory for sexual harassment cases.  These cases are often dismissed.  For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints.  Of these, 53% were found to have no reasonable cause.  This is an increase from 2010, where the percentage was of 50.1%.  Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar  sexual remarks at the company’s Avaya Memphis area warehouse facility.  Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

 

via Jury Awards More Than $1.5 Million in EEOC Sexual Harassment and Retaliation Suit against New Breed Logistics | U.S. Equal Employment Opportunity Commission (EEOC) – JDSupra.

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Filed under civil rights, courts, District Court, employment, legal decision, wage

Minnesota Senate joins House in approving same-sex marriage

This news exploded in the media and social media.  Minnesota is set to become the first Midwestern state and the 12th state in the U.S. to allow same-sex marriage.

Yesterday, Minnesota Senate voted 37 to 30 in favor of allowing same-sex marriage.  Earlier, the Minnesota House of Representatives voted 75 to 59 in favor for it.  As a backdrop, in the prior election, Minnesota voters rejected a proposed constitutional amendment that would have defined marriage as only between a man and a woman.

Governor Dayton stated that he will sign the bill once it comes to his desk.

via Minnesota Senate joins House in approving same-sex marriage | MinnPost.

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Filed under civil rights, Pending Legislation

D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

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