Employment Overwatch: The EEOC

Employment Overwatch: The EEOC by James Vagnini{Read in 5 minutes} In my previous post, I wrote about the impact an impending Supreme Court decision may have on employee protections — particularly LGBT employees. The issue is whether or not sex discrimination as prohibited by Title VII includes sexual orientation or gender identity protections for employees. While the Equal Employment Opportunity Commission (EEOC) has consistently found that it does, District and Circuit Courts have differed on the matter, and the Supreme Court will rule on the issue in their next term. Continue reading

Are Doctors Entitled to Unpaid Compensation in New York?

Are Doctors Entitled to Unpaid Compensation in New York? by James Vagnini{3 minutes to read}  Currently pending in the New York State Supreme Court for Kings County is a class-action lawsuit styled Okeke v. Interfaith Medical Center, et al. The plaintiff, Theophilus Okeke, is a former emergency room physician at Interfaith Medical Center (the “Hospital”) located in Brooklyn, New York. He alleges that the Hospital promised him and other similarly situated physicians additional compensation of $96.00 per shift for performing medical examinations on the Hospital’s pre-admitted psychiatric patients. However, the Hospital failed to provide them with the promised compensation.Continue reading

Employer Discrimination by Disparate Impact

Employer Discrimination by Disparate Impact by Robert J. Valli
{Read in 3:30 minutes}  In my last article, I discussed a pattern of discrimination in terms of the disparate impact on African Americans. But what does “disparate impact” mean?  In 1971 the Supreme Court adopted the position of the Equal Employment Opportunity Commission (“EEOC”). In Griggs v. Duke Power Co. (1971), the Court invalidated an employer’s requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:

The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.Continue reading

Workplace Discrimination or Harassment? What Should You Do!!

Workplace Discrimination or Harassment? What Should You Do!! by James Vagnini{Read in 6 minutes}  Recently I posted an article reminding employees that they must file a harassment complaint within 180-300 days after the latest occurrence. While working on that blog, the question came up about what an employee should do if they are the victim of harassment.
Report the Behavior
First and foremost, report the questionable behavior to someone in your Human Resources (HR) department. The company is not expected to have eyes and ears everywhere; internally,  most of them require their employees to report incidents, and the law also requires employees to report incidents themselves.Continue reading

Valli Kane & Vagnini Attorneys Named to 2018 New York Super Lawyers List

Valli Kane & Vagnini Attorneys Named to 2018 New York Super Lawyers ListWe are pleased to announce that Sara Wyn Kane, a partner at Valli Kane & Vagnini LLP has been selected for the 2018 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the State of New York.
Associate Monica Hincken has also been selected for the 2018 Rising Star list.Continue reading

Workplace Discrimination? Get that Complaint Filed!

Employees in this country have protections against workplace discrimination and harassment. These include protection from sexual or racial harassment, national origin, religion, age, disability, and gender (including sexual orientation) discrimination. These forms of harassment and discrimination are spelled out under Title VII, and its amendments, which is the statute enacted as a result of the Civil Rights Act of 1964.
Workplace Discrimination? Get that Complaint Filed!
Prior to that time, there had been other federal statutes such as §1981 and §1983 which address primarily race and national origin discrimination as well as retaliation. These sections, however, did not include gender, religion, disability, or age discrimination. As a result of the civil rights movement, the Civil Rights Act was passed, which was designed to specifically address workplace discrimination and expanded protections for employees subjected to these additional types of discrimination.
The Title VII statute empowered what is known as the Equal Employment Opportunity Commission (EEOC) and created that faction of the government whose job it is to survey and take complaints of workplace discrimination. Anyone wanting to bring a complaint and go into Federal court under those claims has to first go through the EEOC administrative process. As a federal statute, it is the same in every state and any employer who has 15 employees or more is subject to the statute.
The EEOC Filing Deadline
Title VII sets a complaint filing deadline of 180 calendar days. However, it also provides that in any state where there is a similar employment discrimination statute, such as New York, the deadline may be expanded to 300 days. With the exception of a few states like New Mexico and Georgia, every state in this country has a state-level statute against workplace discrimination. In those states that do not, the filing period is limited to the 180 days.
A complaint must be initiated when the harm takes place. You can’t have something happen two years earlier and then wait, worrying whether you are going to lose your job. That is certainly a legitimate worry, but if you choose to wait and try to raise that complaint after the 180-300 days have passed, it will be considered untimely because the statute requires you to make that complaint within 180-300 days of the occurrence of discrimination.
However, certain claims trigger the 180-300 day filing requirement after the last occurrence of discrimination where the discrimination takes place over a period of time. This type of discrimination is known as a “continuous violation.” For example, if you are a victim of sexual harassment and you were subjected to repeated, unwanted sexual advances or comments over a period of months, the clock starts running from the last act of harassment, not the first. Most employees do not know this.
If you believe you have a legitimate complaint, it is extremely important that you make use of resources like the EEOC’s website, or contact a lawyer like us to ask for information about what to do, even if you choose not to act on it at that time. Failing to act in many states leaves you high and dry, without any other protection, because either there is no state statute, or in more conservative jurisdictions like Texas, for example, the states only adopt the same 180-day rule as Title VII.
Paying attention to the EEOC deadlines is an important issue because an employee may have a very strong legal claim but if they do not act within a certain period of time, or get the information to act within a certain period of time, their claim may be completely barred leaving you with no avenue for justice.
James A. Vagnini
Partner
email: jvagnini@vkvlawyers.com
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Supervisor sues Omni hotels, alleging sexual harassment and retaliation when she reported it

A former supervisor with Omni Hotels & Resorts has filed suit against the Dallas-based company, alleging sexual harassment and saying the company broke federal laws governing equal pay.Continue reading

Davita Rx Agrees to Pay $63.7 Million to Resolve False Claims Act Allegations

DALLAS – DaVita Rx LLC, a nationwide pharmacy that specializes in serving patients with severe kidney disease, agreed to pay a total of $63.7 million to resolve False Claims Act allegations relating to improper billing practices and unlawful financial inducements to federal healthcare program beneficiaries, the Justice Department announced today.  DaVita Rx is based in Coppell, Texas.
The settlement resolves allegations that DaVita Rx billed federal healthcare programs for prescription medications that were never shipped, that were shipped but subsequently returned, and that did not comply with requirements for documentation of proof of delivery, refill requests, or patient consent.  In addition, the settlement also resolves allegations that DaVita paid financial inducements to Federal healthcare program beneficiaries in violation of the Anti-Kickback Statute.  Specifically, DaVita Rx allegedly accepted manufacturer copayment discount cards in lieu of collecting copayments from Medicare beneficiaries, routinely wrote off unpaid beneficiary debt, and extended discounts to beneficiaries who paid for their medications by credit card.  These allegations relating to improper billing and unlawful financial inducements were the subject of self-disclosures by DaVita Rx and a subsequently filed whistleblower lawsuit.
“Providers should not make patient care decisions based upon improper financial incentives or encourage their patients to do the same,” said U.S. Attorney Erin Nealy Cox for the Northern District of Texas.  “The U.S. Attorney’s Office has and will continue to work cooperatively with providers that bring such issues to light to redress the losses the federal healthcare system has incurred.”
DaVita Rx has agreed to pay a total of $63.7 million to resolve the allegations in its self-disclosures and the whistleblower lawsuit.  DaVita Rx repaid approximately $22.2 million to federal healthcare programs following its self-disclosure and will pay an additional $38.3 million to the United States as part of the settlement agreement.  In addition, $3.2 million has been allocated to cover Medicaid program claims by states that elect to participate in the settlement.  The Medicaid program is jointly funded by the federal and state governments.
“Improper billing practices and unlawful financial inducements to health program beneficiaries can drive up our nation’s health care costs,” said Civil Division Acting Assistant Attorney General Chad Readler.  “The settlement announced today reflects not only our commitment to protect the integrity of the healthcare system, but also our willingness to work with providers who review their own practices and make appropriate self-disclosures.”
“The conduct being resolved in this matter presents serious program integrity concerns” said CJ Porter, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services, “DaVita Rx’s cooperation in the investigation of this matter was necessary and appropriate to reach this resolution.”
The lawsuit resolved by the settlement was filed by two former DaVita Rx employees, Patsy Gallian and Monique Jones, under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private parties to sue on behalf of the government when they discover evidence that defendants have submitted false claims for government funds and to receive a share of any recovery.  The case is captioned United States ex rel. Gallian v. DaVita Rx, LLC, No. 3:16-cv-0943-B (N.D. Tex.).  The relators will receive roughly $2.1 million from the federal recovery.
The settlement of this matter illustrates the government’s emphasis on combating health care fraud.  One of the most powerful tools in this effort is the False Claims Act.  Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement can be reported to the Department of Health and Human Services, at 800-HHS-TIPS (800-447-8477).  HHS also offers several programs for health care providers to self-report potential fraud.  More information on self-disclosure processes can be found on the HHS-OIG website.
The investigation was conducted by HHS-OIG, the Civil Division’s Commercial Litigation Branch and the U.S. Attorney’s Office for the Northern District of Texas.  The claims asserted by the government are allegations only and there has been no determination of liability.
Assistant U.S. Attorney Lisa-Beth C. Meletta handled this matter for the U.S. Attorney’s Office.
Read the original article from the Department of Justice