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Wednesday, July 25, 2012
Study Shows Increase in Wage and Hour Labor Suits
During the past five years there has been a steady increase in the number of lawsuits filed under the Fair Labor Standards Act, according to research by Seyfarth Shaw.
Using data confirmed by the Federal Judicial Center, the firm counted 7,064 cases during the 12 months ending on March 12 of this year. Since 2008, there has been a steady increase in the number of cases filed per year.
Richard Alfred, Seyfarth partner and chair of the firm's national wage and hour litigation practice group, attributes the recent spike in cases over the past few years partially to a slumping economy. People who lost their jobs during the economic downturn, Alfred said, explored their legal options.
"Whether or not they had a wrongful termination case, they went to seek legal advice on that subject," Alfred said. He said some plaintiffs lawyers will often steer potential clients away from a wrongful termination suit in favor of a wage and hour suit because the law is often difficult to interpret. He added that these were generally not intentional violations on the part of employers.
From the mid 90's through the early 2000's, wage and hour lawsuits hovered a little less than 2,000 cases per year. Since then the number of cases have increased more than threefold.
Alfred attributes the sharp rise in the number of cases, beginning in 2003, to a few enterprising lawyers who won large settlements and attorney fee awards.
"That led to a realization by other plaintiffs lawyers that the wage and hour laws, because of the way they are written and the changes in the workplace, were relatively easy claims to bring against employers on a class basis," Alfred said.
And he doesn't see the number of wage and hour suits declining any time soon. He said that it would ultimately rely on lawmakers to update the 74-year-old law.
"I see a continuing increase in these claims brought in federal court and in state courts," Alfred said. "I think that ultimately Congress and state legislatures need to change the laws so that they more closely fit the modern day economy."
Posted by Matthew Huisman at 03:45 PM.
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Monday, June 18, 2012
Courts See Increase in Bankruptcy Filing Abuse by Nonlawyers
There has been an increase in the number of complaints against non-lawyers preparing bankruptcy filings for a fee, according to a report the Administrative Office of the U.S. Courts released Monday.
Federal law allows bankruptcy filers to use an attorney or go it alone as pro se filers. Those who elect to file themselves can use the help of non-lawyer, bankruptcy petition preparers who often charge a fee to help prepare the filing.
The increase in the abuse is due in part to the mortgage crisis that has gripped much of the country, the AOC concluded.
"The increase in 'foreclosure rescue' and 'loan modification' services seems to be the source in the past three years," U.S. Bankruptcy Judge Maureen Tighe in the Central District of California said in the report. "The homeowners are desperate and take advice from the most questionable sources."
Between fiscal years 2005 through the 2011 fiscal year, complainants filed 2,529 formal actions against bankruptcy petition preparers. In 98.5 percent of the formal actions, the court granted some form of relief. Common infractions include the unauthorized practice of law or collecting more than the petition-preparation fee. In other instances preparers who have been barred from filing bankruptcy petitions prepare the paperwork but advise the pro se filer to sign the bankruptcy petition.
Posted by Matthew Huisman at 02:41 PM.
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Wednesday, May 30, 2012
NLRB Report on Social Media Highlights Overbroad Employer Restrictions
The National Labor Relations Board on May 30 issued a new report on social media policies for employees, giving real-world examples of company restrictions that cross the line, as well as highlighting instances where rules are valid.
"I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area," said NLRB acting general counsel Lafe Solomon in a news release.
The key question in evaluating social media policies, according to the report, is whether restrictions “would reasonably be construed to chill the exercise of Section 7 rights” by employees under the National Labor Relations Act.
For example, the NLRB found that one policy barring workers from disclosing “confidential guest, team member or company information” on social networking sites like Facebook or You Tube was unlawful. The reason: It could “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.”
Another no-no: instructing employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” According to the NLRB, “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
The NLRB also said it was unlawful to tell employees not to post “offensive, demeaning, abusive or inappropriate remarks” because that covers “a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”
As for cautioning employees to “think carefully” about friending colleagues, that too was unlawfully overbroad, according to the NLRB, because it would discourage communication among co-workers.
Not even an admonishment against commenting on legal matters passed NLRB muster. “We found that the prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer,” according to the NLRB.
So what are employers allowed to do? The report included an example of an acceptable policy, which included warnings such as “you are solely responsible for what you post online,” and “Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”
Former NLRB general counsel Ronald Meisburg, now a partner at Proskauer Rose, found this section to be “of greatest interest,” he said via e-mail. “This goes beyond the usual guidance given by the General Counsel and should be of special interest to employers.
Posted by Jenna Greene at 06:04 PM.
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Friday, May 11, 2012
Congress Passes Bill to Extend Temporary Bankruptcy Judgeships
Congress sent a bill to the White House on Thursday that would extend 30 temporary federal bankruptcy judgeships for another five years, but Democrats fear an amendment attached to it could make it tougher to extend them again.
The bill, passed unanimously on Thursday, reauthorizes bankruptcy judgeships in 14 states and Puerto Rico that had already expired. Without the legislation, those districts would have lost a judgeship anytime a judge retired or left the bench for any reason, something that had already happened in two districts, including the spot for now-retired Judge Arthur Gonzalez in the U.S. District for the Southern District of New York.
“This legislation should help avoid that and provide some small degree of relief to overburdened bankruptcy courts around the country,” Sen. Patrick Leahy (D-Vt.) said. “Quite frankly, I think we should be doing more and hope we will continue to make sure the Federal Judiciary has the resources it needs to serve all Americans.”
In order to secure passage, however, Sen. Tom Coburn (R-Okla.) required an amendment that says the Administrative Office of the U.S. Courts would have to issue a report on the need for bankruptcy judges before the judgeships could be extended again, Leahy said.
Leahy said Sen. Chris Coons (D-Del.), the bill’s main proponent, worked with the AO and bankruptcy judges in a variety of districts to determine where need was greatest. “To codify an unenforceable mandate nominally imposed on future Congresses is unnecessary and unwise,” Leahy said on the Senate floor.
The Senate first passed the bill in April, but there was a technical error and it had to be corrected and passed again Thursday.
Coons said this would “prevent a genuine crisis in America’s bankruptcy court system.” But judges cost money, and the $16 million price tag had been the main obstacle for the Senate amid overall efforts to reel in the national debt.
To get unanimous support, the Senate passed a version of a House bill that would extend the 29 temporary judgeships for another five years but first tacked $167 onto the current $1,000 bankruptcy filing fees.
In 2005, Congress added 28 temporary bankruptcy judgeships at the same time it made sweeping changes with the Bankruptcy Abuse Prevention and Consumer Protection Act, which also calls on those judges to do more to prevent bankruptcy fraud. As of Oct. 31 of last year, there were 338 bankruptcy judges on the bench nationwide in 90 geographic districts to handle six types of bankruptcy filings, including consumer and business filings under Chapter 7, reorganization filings under Chapter 11 and debt repayment under Chapter 13.
Posted by Todd Ruger at 12:17 PM.
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Tuesday, May 1, 2012
In Courtroom Pitching Duel, Andy Pettitte Testifies in Roger Clemens Trial
Two elite Major League Baseball pitchers were pitted against each other in a federal courtroom Tuesday, as Andy Pettitte told a jury that he first learned about a performance-enhancing drug called human growth hormone when Roger Clemens admitted to using it.
The afternoon was some of the most emotional testimony in the high-profile perjury and obstruction prosecution of seven-time Cy Young Award-winner Clemens, who is accused of lying to Congress when he denied using performance enhancing drugs at a 2008 oversight hearing.
When prosecutors asked why testifying in the case against his baseball idol and former teammate and training partner was so difficult, Pettitte could only muster: “Cause… good friend.”
Pettite’s testimony was some of the most important and trickiest for federal prosecutors, who are trying to connect Clemens to his former strength trainer but avoid another mistrial. Clemens’ first trial in 2011 was cut short when the jury heard evidence that was supposed to be excluded.
On Tuesday, Pettitte testified about using the drug HGH in 2002 and 2004 to deal with injuries, but was prohibited from speaking about where he got them. Assistant U.S. attorney Steven Durham danced around with questions that often began, “Without saying names…”
Pettitte is key to the prosecution’s case because he acquired HGH from Brian McNamee, Clemens’ former strength trainer. McNamee is the central government witness, and is expected to testify that he injected Clemens with performance enhancing drugs.
To show how close the two pitchers were, Durham showed the jury photos of Clemens and Pettitte jogging together in a baseball park's outfield, standing next to each other in a dugout during a game, and standing next to each other during the national anthem.
Then Durham showed photos of McNamee, Pettitte and Clemens working out together during the off-season. Pettitte told the jury during one of those workout sessions that Clemens told him about using HGH.
“Roger had mentioned to me that he had taken HGH and it could help with recovery. That’s really all I remember about the conversation,” Pettitte testified.
Later, Pettitte recalled approaching Clemens in a Florida spring training clubhouse in 2005 and asking what Clemens planned to do if the media asked him about using performance-enhancing drugs, since there were congressional hearings about the topic and a growing public interest.
“My concern in my mind was, I knew I was very approachable by the media, I knew I had already taken HGH and I was concerned with what I was going to say if the media approached me with that question,” Pettitte testified.
“He just said, ‘What are you talking about?’” Pettitte said. “I said, ‘Didn’t you tell me that, you used it?' ” He said Clemens told him, “I didn’t tell you that, I told you my wife Debbie used it.”
“Obviously, I was a little flustered because I thought he told me that he did,” Pettitte said. “I thought, it’s no good asking him or talking to him about this now and walked out.”
Did they argue? “There was nothing to argue about,” Pettitte said. “He said he didn’t use it.”
In cross examination, one of Clemens’ attorneys, Mike Attanasio, focused on how Pettitte was probably the best person to talk about Clemens as a legendary pitcher and as a teammate, including his incredible work ethic and dedication to studying opposing batters and umpires.
Pettitte agreed that Clemens’ body and pitching mechanics never changed over the years, and that he was always “country big” instead of “weightroom big.” Pettitte denied that there was any time he saw Clemens – either dressed or undressed in the shower, as Attanasio put it – that he suspected Clemens was on performance-enhancing drugs.
And Clemens struck out batters using a sinking pitch he developed called a “splitter,” and not a faster fast ball, as his career went on.
“Did he ever once tell you or suggest to you that you personally should use HGH or steroids?” Attanasio asked.
“No,” was Pettitte’s reply.
Posted by Todd Ruger at 05:10 PM.
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