Recent Publications - Employment & Labor


Employee Benefit Plan Review – From the Courts
December 7, 2017 | Norman L. Tolle | Employment & Labor | Insurance Coverage
Plaintiffs’ Claimed Violation of California’s “Day of Rest” Law Fails The plaintiffs in this case, former California employees of Nordstrom, Inc., a retail department store, sued the company, alleging that it had violated the provision of the California Labor Code granting employees a right to one “day’s rest” in seven. One of the plaintiffs alleged that, while …
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Trump DOL’s Proposed New Rule to Allow Employers to Pocket and Redistribute Tips
December 7, 2017 | Scott R. Green | Johanna Sanchez | Employment & Labor
The Trump Administration’s Department of Labor has proposed a new tip rule that could rescind a 2011 regulation enacted during the Obama administration that mandates employers distribute tips to their tipped employees. The proposed rule, which was published in the Federal Register on December 5, 2017, would allow restaurant owners to pool tips and share …
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New York Paid Family Leave: Update of Available Forms
October 24, 2017 | Daniel M. Bernstein
We previously posted bulletins addressing an overview of employer and employee requirements under New York’s Paid Family Leave Act (the “Act”), which goes into effect January 1, 2018. (See http://www.rivkinradler.com/publications/regulations-issued-new-york-paid-family-leave-benefits-law/ and http://www.rivkinradler.com/publications/ny-workers-compensation-board-finalizes-paid-family-leave-regulations/.) Under the Act, employees who will not meet the minimum employment duration requirements to qualify for coverage will have the option of waiving …
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Employee Benefit Plan Review – From the Courts
October 7, 2017 | Norman L. Tolle | Employment & Labor | Insurance Coverage
California Federal Court Permits Plaintiff in ERISA Suit to Proceed Under a Pseudonym The plaintiff in this case, appearing anonymously as John Doe, filed a lawsuit against Lincoln National Life Insurance Company alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA). Specifically, the plaintiff alleged that, since June 12, 2013, he had been disabled, …
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Employee Benefit Plan Review – From the Courts
September 18, 2017 | Norman L. Tolle | Insurance Coverage
Insurer Could Offset Monthly Disability Payments Against Plaintiff’s Part-Time Earnings, Third Circuit Rules The plaintiff in this case, a gastroenterologist, suffered a debilitating injury to her shoulder and underwent surgery in an attempt to repair the damage. The surgery was only partly successful and the damage from her injury prevented her, for a time, from …
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Can NY Employers Legally Terminate a Rally Protester?
September 14, 2017 | Brian M. Culnan | Daniel M. Bernstein
So you employ a white supremacist … Since August’s tragic events in Charlottesville, various social media feeds have identified protesters from the “Unite the Right” rally held on the University of Virginia campus. Several traditional media outlets have reported that subsequent public shaming of those identified as participants in the rally has caused companies to …
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Obama-Era DOL Overtime Rule Struck Down
August 31, 2017 | Scott R. Green
After months in limbo, U.S. District Judge Amos Mazzant struck down the Obama Administration’s November 2016 rule that would have expanded overtime protections to millions of white collar workers.  Had it been implemented, the Fair Labor Standards Act’s “white collar” exemption threshold would have essentially doubled to just over $47,000 per year and would have …
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NY Workers’ Compensation Board Finalizes Paid Family Leave Regulations
July 24, 2017 | Daniel M. Bernstein
As we previously reported (June 6, 2017), beginning January 1, 2018, private sector employees in New York State who meet the minimum employment-duration requirements will be eligible for paid family leave under New York’s Paid Family Leave (“PFL”) law. The PFL program will be funded by employees via mandatory payroll deductions – tacked onto existing …
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Trump Administration Plans to Revisit Stalled Overtime Regulations
July 13, 2017 | Scott R. Green | Greg E. Mann | Employment & Labor
The Trump Administration created new uncertainty in a recent Court filing by declaring its intentions to rewrite an Obama-era regulation designed to dramatically expand the number of workers covered by federal overtime rules. Employers have been left in limbo since last November when a federal district court issued a preliminary injunction that prevented the U.S. …
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Trump-Era DOL Withdraws Two Pro-Employee Guidance Memos
June 9, 2017 | Employment & Labor
On June 7, 2017, the United States Department of Labor rescinded two critical guidance memos issued during the Obama Administration, one conceived to curb the misclassification of employees as independent contractors and another that broadened liability for joint employment. These moves signal a shift toward less vigorous enforcement by the Department and a return to …
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Regulations Issued For The New York Paid Family Leave Benefits Law
June 6, 2017 | Employment & Labor
On May 31, 2017, New York’s Department of Financial Services published the much anticipated final regulations for Paid Family Leave.  The regulations provide critical information that will help New York employers comply with these new legal requirements that are set to go into effect on January 1, 2018.  The law provides eligible employees with job-protected, …
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Employee Benefit Plan Review – From the Courts
May 9, 2017 | Employment & Labor | Insurance Coverage
Employee Who Left Job Due to Terminal Illness Was Entitled to Severance Pay, Ninth Circuit Rules The wife of the plaintiff in this case was employed by the American Society for Technion-Israel Institute of Technology (ATS) until her terminal illness forced her to leave her job. The plaintiff contended that his wife was entitled to severance …
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U.S. House of Representatives Passes the Working Families Flexibility Act
May 9, 2017 | Employment & Labor
Last week, the U.S. House of Representatives passed the Working Families Flexibility Act— a bill that if enacted, would allow private-sector employees to receive “compensatory time” off in lieu of traditional overtime pay. The bill, H.R.1180, passed 229 to 197, largely along party lines, with all the Democrats and just six Republicans voting against it. Employers …
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New York City Passes Legislation to Ban Pay History Questions During Hiring Process
April 10, 2017 | Employment & Labor
On April 5, 2017, New York City Council approved a bill that bans employers from requesting or using job applicants’ salary history when making hiring decisions. This latest development follows trend of the pay-equity movement taking place in cities and states nationwide.  It is also the latest in a series of legislative measures in New York …
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Employee Benefit Plan Review – From the Courts
March 30, 2017 | Insurance Coverage | Employment & Labor
Failure to Timely File ‘Charge’ with EEOC Doomed Plaintiff’s ADA Suit, Seventh Circuit Rules The plaintiff in this case, a senior customer service representative of Christian Brothers Services (CBS), was in an automobile accident in March 2011 as a result of which she had to use a cane and limped. According to the plaintiff, CBS fired …
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New York City To Make History With New Legislation Protecting Independent Contractors
February 28, 2017 | Employment & Labor
On May 15, 2017, New York City’s Freelance Isn’t Free Act (“FIFA”) will take effect, and make history as the first law of its kind. FIFA establishes significant protections for freelance workers, or independent contractors by requiring a written contract, timely payment and anti-retaliation provisions. The law will provide many of the protections afforded to …
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Employee Benefit Plan Review – From the Courts
February 22, 2017 | Employment & Labor | Insurance Coverage
Seventh Circuit, Joining Other Circuits, Rejects ERISA Plan’s “Coordination of Benefits” Lawsuit Against Health Insurers The plaintiff in this lawsuit, filed in a federal district court in Illinois, was the trustee of the Central States, Southeast and Southwest Areas Health and Welfare Fund, a self-funded plan under the Employee Retirement Income Security Act of 1974 …
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Employee Benefit Plan Review – From the Courts
January 21, 2017 | Employment & Labor | Insurance Coverage
Florida Court Upholds Denial of Long-Term Disability Benefits to Employee Who Worked Fewer Hours  The plaintiff in this case was a financial sales professional with AXA Equitable Insurance Company who said that he experienced neck and back pains stemming from motor vehicle and snowboarding injuries that he had suffered in 2003. The plaintiff regularly worked 70 to …
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Employee Benefit Plan Review – From the Courts
December 21, 2016 | Employment & Labor | Insurance Coverage
Implied-in-Fact CBA Excluded Time Spent Donning and Doffing Work Clothing from Compensable Time, Eighth Circuit Decides Since at least 1967, hourly employees working at the battery manufacturing facility in Joplin, Missouri, operated by EaglePicher Technologies, LLC, were represented by a union, presently known as the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial …
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Texas Court Blocks New Overtime Rules, Appeal to Follow
December 5, 2016 | Employment & Labor
On November 22, 2016, a federal judge in Texas granted a nationwide preliminary injunction blocking the U.S. Department of Labor’s (DOL’s) overtime rule scheduled to take effect December 1, 2016. The rule more than doubles the required salary level to qualify for the Fair Labor Standards Act (FLSA) “white collar” exemptions, increasing the annual salary …
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The DOL’s Overtime Salary Regulations are Enjoined
November 30, 2016 | Employment & Labor
Last week, a Texas federal court issued a preliminary injunction delaying the U.S. Department of Labor’s (DOL) latest rule for overtime exemptions from taking effect. The injunction comes as the result of a lawsuit filed by 21 states and several business organizations that claimed that the DOL exceeded its authority by more than doubling the …
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Employee Benefit Plan Review – From the Courts
November 21, 2016 | Employment & Labor | Insurance Coverage
Company’s COBRA Breach Justified Award of Premiums to Former Employee, Eighth Circuit Rules When Health Resources of Arkansas, Inc. (HRA) reduced its work force in response to financial difficulties in 2012, the plaintiff in this case was 57 years old and had been working for HRA since 1987. She had worked her way up from …
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Employee Benefit Plan Review – From the Courts – October 2016
October 17, 2016 | Employment & Labor | Insurance Coverage
Video Surveillance Properly Led Claim Administrator to Terminate Long-Term Disability Benefits, Eleventh Circuit Rules The plaintiff in this case worked for JPMorgan Chase Bank as a technical operations lead – a sedentary position that required sitting most of the day – and had long-term disability insurance coverage as a participant in an employee welfare benefit plan …
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Employee Benefit Plan Review – From the Courts – September 2016
September 6, 2016 | Employment & Labor | Insurance Coverage
Court Permits Plaintiff to Proceed Under a Pseudonym with Complaint Seeking Long-Term Disability Benefits The plaintiff in this case, who alleged that she suffered from HIV/AIDS, brought a lawsuit under the Employee Retirement Income Security Act (ERISA) to recover benefits she asserted were due to her under a long-term disability insurance benefit plan sponsored by her former …
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Employee Benefit Plan Review – From the Courts – August 2016
August 23, 2016 | Employment & Labor | Insurance Coverage
Tribal Government’s ERISA Claims Against Blue Cross May Proceed, Court Rules The Little River Band of Ottawa Indians, a federally recognized Indian tribe, entered into an administrative services contract (ASC) with Blue Cross & Blue Shield of Michigan that provided that the Little River Band was a “self-funded” customer of Blue Cross. As provided in …
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Employee Benefit Plan Review – From the Courts – June 2016
June 22, 2016 | Employment & Labor | Insurance Coverage
Relying on Dudenhoeffer, Court Dismisses Action Against ERISA Fiduciary Based on Publicly Available Information The plaintiff in this case was a former employee of J.C. Penney Corporation, Inc., a retail department store, who purchased and held J.C. Penney common stock in her retirement account through the J.C. Penney Savings Profit-Sharing and Stock Ownership Plan. The …
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Changes to Minimum Wage Requirements for Home Care Workers
October 31, 2015 | Health Services | Employment & Labor
In 2014, the United States Department of Labor (“DOL”) issued a new regulation to be effective January 1, 2015 to modify the minimum wage and overtime requirements of home care workers (including companionship and live-in domestic workers).  Prior to the new regulation being effective, a Federal District Court vacated the regulation finding that the DOL …
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The Fair Chance Act
October 31, 2015 | Employment & Labor
The Fair Chance Act, which imposes substantial restrictions and obligations on New York City employers, goes into effect on October 27, 2015. Generally, the ordinance prohibits an employer (with at least four employees) from inquiring about a candidate’s pending arrest or conviction record until after a conditional offer of employment has been extended.  Only a …
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Department of Labor Issues Guidance on Categorization of Independent Contractors and Employees
August 6, 2015
On July 15, 2015, the head of the Wage Hour Division of the United States Department of Labor (the “DOL”) issued a 15-page guidance which states that the DOL takes the position that most workers are employees under the Fair Labor Standards Act and should not be classified as independent contractors.  New York State and …
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From the Courts
April 1, 2015 | Insurance Coverage | Employment & Labor | Appeals
U.S. Supreme Court Reverses Decision Finding that Collective Bargaining Agreements Created Right to Lifetime Contribution-Free Health Care Benefits The plaintiffs in this case had worked at, and in 1996 and 1998 had retired from, the Point Pleasant Polyester Plant in Apple Grove, West Virginia. During their employment, the plaintiffs were represented in collective bargaining by …
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Citing Surveillance Videos and Other Evidence, Circuit Court Upholds Plan Administrator’s Decision to End Employee’s Long Term Disability Benefits
July 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case was employed by BDP International as an air import coordinator. Her full time sedentary job required her to sit for most of an eight hour day and, occasionally, to lift or carry a small amount of weight. After she was diagnosed with relapsing-remitting multiple sclerosis (“MS”) in the late 1990s, …
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ADA Accommodation Claim by Janitor Who Alleged She Had a Sensitivity to Cleaning Products Is Rejected
June 30, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for Knight Facilities Management-GM, Inc., as a janitor for several years, during which time she alleged that she developed a sensitivity to cleaning products. After she went to her family physician with symptoms, the doctor recommended that the plaintiff miss work for a week and wear a mask when …
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Severance Payments Made to Terminated Employees Are Taxable Wages, Supreme Court Rules
May 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
Before and after voluntarily entering bankruptcy, Quality Stores, Inc., an agricultural-specialty retailer, terminated thousands of employees. The employees received severance payments that were the result of a reduction in work force or a discontinuance of a plant or operation pursuant to two different termination plans. Under the first plan, terminated employees received severance pay based …
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Deducting Balances Due on Company-Guaranteed Credit Cards from Employees’ Final Paychecks Did Not Violate FLSA, Circuit Court Rules
April 30, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiffs in this case sued their former employer, Costco Wholesale Corporation, under the federal Fair Labor Standards Act (FLSA) and the California Labor Code, alleging that Costco improperly had withheld wages from their final paychecks to repay the undisputed outstanding balances due on their company-guaranteed credit cards. After a bench trial in which the …
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New York City Earned Sick Time Act Commences April 1, 2014
March 31, 2014 | Employment & Labor
The New York City Earned Sick Time Act (the “Act”), as recently amended, goes into effect on April 1, 2014.  The amendment has set forth significant changes to the original New York City Earned Sick Time Act, adopted into law on June 26, 2013 (the “Original Act”).  Key provisions of the Act are discussed herein.  …
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Director of Insurer’s Retirement Plans Business Unit Found Exempt from FLSA Overtime Rules
February 28, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case was hired by Standard Insurance as Director of Institutional Sales and Product Manager for The Standard’s 403(b) and 457 retirement products shortly after the company introduced a new product into those markets. The plaintiff’s responsibilities included training staff about 403(b) plans, explaining their differences from 401(k) plans, doing what was …
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Claim for Disability Benefits Filed 9 1/2 Years After Payments Had Ceased Is Dismissed on Statute of Limitations Grounds
January 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case sued Raytheon Company on June 13, 2013 for breach of contract because it had discontinued paying long term disability benefits to him in November 2000. The plaintiff, who had been terminated by Raytheon in July 2002, sought $3.8 million in damages. Raytheon moved to dismiss, arguing that the plaintiff’s action …
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CVS Pharmacist Found Exempt from FLSA’s Overtime Rules
December 31, 2013 | Insurance Coverage | Employment & Labor | Appeals
The plaintiff in this case was employed as a pharmacist by CVS RX Services, Inc. His base weekly salary, which was calculated on a 44 hour work week, exceeded $1,250. CVS guaranteed his base salary and classified him as a salaried employee exempt from the time-and-a-half overtime requirements of the federal Fair Labor Standards Act …
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Employment Agreement’s Requirement that Employee Bring Legal Actions Within Six Months Is Ruled Invalid with Respect to FLSA and Equal Pay Act Claims
October 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for FedEx Customer Information Services, Inc., under an employment agreement that provided, in part, that “[t]o the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date …
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Court Rules Same-Sex Spouse Entitled to Survivor Annuity under ERISA Profit Sharing Plan
September 30, 2013 | Appeals | Employment & Labor | Insurance Coverage
After Sarah Ellyn Farley began working at a law firm in 2004, she became a participant in the firm’s profit sharing plan.  In 2006, Farley married Jean Tobits in Toronto, Canada, as authorized under Canadian law. Shortly after her wedding, however, Farley was diagnosed with cancer and died in 2010. The profit sharing plan required that, …
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Court Dismisses Breach of Fiduciary Duty Claim against Disability Plan Administrator for Failing to Provide Plan Summary
August 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
After her claim for benefits was denied, the plaintiff in this case, a former employee of Corning Incorporated and a participant in the Corning Incorporated Long Term Disability Plan, sued the plan administrator – the Corning Benefits Committee – for breach of fiduciary duty by virtue of its alleged failure to furnish her with a …
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Circuit Upholds Sanctions against Plaintiff’s Attorney in Case Involving Alleged Breach of Disability Insurance Policy
July 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case sued Paul Revere Life Insurance Co., alleging that Paul Revere had engaged in bad faith and that Paul Revere had breached his disability insurance policy by terminating his disability benefits. The district court dismissed the plaintiff’s bad faith claim, and denied the plaintiff’s two motions for reconsideration. Shortly before trial …
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Fair Labor Standards Act
June 30, 2013 | Employment & Labor
The United States Court of Appeals Second Circuit issued a significant decision with respect to individual liability of corporate officers and employees under the Fair Labor Standards Act (“FLSA”).  In Irizarry v. Castimedes, (Torres v. Gristede’s Operating Corp.) the Court found that an individual owner of a corporation may be held to be an employer …
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U.S. Supreme Court Rules that Offer of Judgment that Mooted Plaintiff’s FLSA Case Required that It Be Dismissed
May 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
In 2009, Laura Symczyk, who had been employed by Genesis Healthcare Corporation as a registered nurse at its Pennypack Center in Philadelphia, Pennsylvania, filed a complaint on behalf of herself and “all other persons similarly situated” – known as a “collective action” – that alleged that Genesis had violated the federal Fair Labor Standards Act …
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Circuit Upholds Decision Denying Disability Benefits for Employee Who Claimed She Had Fibromyalgia
April 30, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for American International Group (AIG) and participated in its group long term disability benefit plan, which was governed by the provisions of the Employee Retirement Income Security Act (ERISA) and administered by Hartford Life and Accident Insurance Company. After several hospitalizations, the plaintiff filed a claim for long term …
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Handbook’s Disclaimer Insufficient to Bar State Wage Claim
March 31, 2013 | Insurance Coverage | Employment & Labor | Appeals
The plaintiffs in this case brought a class action in federal court against Comcast Corporation and Comcast Cable Communications Management, LLC, alleging among other things that the defendants had violated the Illinois Wage Payment and Collection Act (IWPCA) which requires every employer “at least semi-monthly, to pay every employee all wages earned during the semi-monthly pay …
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Second Circuit Severely Limits ADA Claims Against Government Employers
February 28, 2013 | Appeals | Employment & Labor
The U.S. Court of Appeals for the Second Circuit has ruled that a former employee of the Central Islip Public Library may not bring an employment discrimination claim against the library under Title II of the Americans with Disabilities Act (“ADA”). The circuit court’s decision, in which Rivkin Radler LLP represented the library, resolves an …
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Facebook Photos Doom Employee’s FMLA Retaliation Claim
February 28, 2013 | Insurance Coverage | Appeals | Employment & Labor
After working for Advantage Health Physician Network for about 18 months, the plaintiff in this case began taking intermittent leave under the Family and Medical Leave Act, claiming that she was incapacitated from pain from a back injury she had sustained years earlier. About five weeks into her leave, several of her coworkers saw pictures …
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LTD Plan Administrator Need Not Consider Social Security Administration Decided After Its Final Decision
January 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case, who worked for GKN North America Services until January 2009 when she stopped due to persistent pain from various medical conditions, filed a claim for disability benefits under an insurance policy issued by Hartford Life and Accident Insurance Company. The plaintiff received short term disability benefits through July 21, 2009, …
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Employer Does Not Violate FLSA by Changing Workweek So Employees Earn Fewer Hours of Overtime
December 31, 2012 | Appeals | Employment & Labor | Insurance Coverage
Five current and former employees of Redland Energy Services, LLC, who worked as operators of Redland’s two drilling rigs, sued Redland, alleging that it had violated an overtime provision of the federal Fair Labor Standards Act (FLSA) by changing the designation of their workweek, but not their work schedule, so that fewer hours qualified as …
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