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Disclosure Rule to be Later than Scheduled

A controversial provision of the HITECH Act may very well not be finalized by the January 1, 2014 deadline. Leon Rodriquez, Director of the HHS Office for Civil Rights, stated during the Health Care Compliance Association’s annual conference that the deadline for the HITECH rule was now “fluid”, and he did not give any indication when the rule could be issued as the agency is still reviewing the comments it has received in regards to the rule.

Under HIPAA providers are required to give people certain information about how their healthcare data has been shared. Once this provision of HITECH takes effect it will allow a person to ask for a simple version of the existing HIPAA disclosure and a report that would include a wide range of information. That information would include the names of the individuals who have accessed the health information and what those individuals did with the records. Also under HITECH, the provider will only have 30 days to respond to the person’s request v. the current 60 days under HIPAA.

The American Health Care Association (AHCA) states that the current 60 day timeline should be maintained as it is impractical to believe that a provider can put together such a comprehensive report in that time period. In addition, AHCA states that the aggregate access report requirement should be eliminated for long-term care providers due to the fact that in cases involving a nursing home resident, their health record will be comprised of both paper and electronic information from a variety of places such as the hospital, pharmacy, therapists and so on. AHCA states that if not eliminated then it should be limited to just the system that that provider maintains and controls.

HHS received over 400 comments after the proposed rule was released in May 2011. Some providers believe the rule should be eliminated due to it being excessively burdensome while other providers state that they feared a disgruntled patient could and would retaliate against any employees named in the access report.

By Tammy Schroeder | Posted on May 16, 2013 in News, Retweetable | Comments (0)

Nebraska Legislature – Proposed Bills Could Affect Employers Withholding Wages

Two Nebraska bills have been proposed which would hold employers more accountable for withholding employee wages and provide employees with more protection. The Business and Labor Committee held hearings on LB 177 and LB 560 on February 4 and has not yet taken further action.

Senator Jim Smith introduced LB 177 which proposes to allow the Commissioner of Labor to seek enforcement of the Nebraska Wage Payment and Collection Act by investigating employers who have violated the act and could assess a civil penalty up to $1,000. This bill gives the Commissioner the power to:

• investigate
• hold hearings and
• subpoena records and witnesses.

If an employer willfully violated the Act, then the Commissioner could hold the employer liable to the affected employee for waiting time damages. These damages would be 50 percent of the wages owed.

This bill would give employees a different avenue to recover unpaid wages. Currently employees can only recover unpaid wages if they bring a civil suit after 30 days of a missed pay day.

In addition the Commissioner would be obligated to report a noncompliant employer to the county attorney. A violation would be Class IV misdemeanor. Under the current law, only a fine can be levied against employers who fail to provide an employee with an itemized statement, if a request was made.

During the hearing Sen. Smith offered an amendment to the proposed bill which would drop the Labor Commissioner’s ability to issue a $1,000 penalty.

The second bill, LB 560 introduced by Senator Heath Mello, proposes amendments to several acts. The bill would amend the Nebraska Fair Employment Act, the Wage and Hour Act, the Nebraska Wage Payment and Collection Act, and the Employee Classification Act.

LB 560 would amend the Nebraska Fair Employment Act to give the Commissioner of Labor the power to hold hearings and subpoena witnesses. It would also require every employer and labor organization that is subject to Fair Employment Act to keep and maintain employment records for five years.

The Nebraska Wage Payment and Collection Act would be amended to require employers give a 30-day notice to an employee before altering the employee’s wages. Currently the Act only requires a 30-day notice before altering an employee’s regular paydays. Also, the bill would require employers to provide an itemized statement detailing wages and the deductions made. This is different from the current rule which requires an employer to only supply an itemized statement after a request from an employee. Senator Mello’s bill would also give the Commissioner of Labor power to investigate and subpoena records and

witness related to enforcement of the Act. It also requires the county attorney to prosecute violators.

LB 560 would also prohibit retaliation by employer against an individual for participating in any investigation or hearing under the Nebraska Wage and Payment Act, The Wage and Hour Act, and the Employee Classification Act.

Several groups supported the two bills during the hearings, while each bill received a letter in opposition. The Labor Commissioner took a neutral position on both bills because more employees would need to be hired to carry out the investigations. A fiscal note is attached to both bills and estimates a cost between $149,148 and $165,345 for each of the next two years.

While LB 560 contains very similar amendments as LB 177, no formal discussions about combining the bills have taken place.

Nebraska employers should keep an eye on these proposed bills, as their effect on employment laws could be severe.

By Charles Wilbrand | Posted on February 8, 2013 in News | Tagged employer. employee, employment law, labor law, Nebraska Legislature, wage collection, wage theft, wages | Comments (0)

Sign up for the Bankruptcy Litigation 101 Seminar

On Friday, December 14, 2012, Knudsen Law Firm attorney Trev Peterson will be speaking at the Bankruptcy Litigation 101 Seminar on three topics:

Preference Litigation
Fraudulent Transfer Litigation
Objections to Claims

Trev has nearly 30 years of experience in the commercial and real estate lending, bankruptcy, foreclosure and commercial litigation practice areas. He

has represented lenders in cases under Chapters 7, 11, 12 and 13 of the bankruptcy code. He is a member of the American, Nebraska State and Lincoln bar associations, and the American Bankruptcy Institute. Trev is a fellow in the American College of Real Estate Lawyers and Litigation Counsel of America, and was named as a “Super Lawyer” of the Midwest in 2007. He is a past president of the Banking Law Section of the Nebraska State Bar Association and is a former president of the Bankruptcy Section of the Nebraska State Bar Association.

By Michael W. Khalili | Posted on November 14, 2012 in News | Comments (0)

Obese Employee Settles Disability Discrimination Claim for $55,000

Ronald Kratz, a material handler for defense contractor

BAE Systems in Sealy, Texas was fired from his $21/hr job for being too fat. Despite weighing nearly 680 lbs, Mr. Kratz performed his work duties and when his forklift seatbelt would not extend enough to securely buckle him in, he requested an extender from his superiors. Rather

than accommodate Mr. Kratz, he was terminated two weeks later.

In 2011, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of the morbidly obese Kratz, under the Americans with Disabilities Act. With help from the EEOC, Kratz settled with his former employer for $55,000 in a lawsuit alleging disability discrimination.

By Michael W. Khalili | Posted on July 26, 2012 in News | Comments (0)

U.S. Supreme Court historic decision takes teeth out of Arizona Immigration Law

The U.S. Supreme Court, in a key immigration ruling, struck down three major provisions of Arizona’s law (Senate

bill 1070) targeting illegal immigrants. However, one key part of the Arizona law was deemed constitutional—paving the way for it to go into effect.

The court ruled that the state provision requiring police to check the immigration status of someone they suspect is in the country illegally is constitutional. However, the justices did state that the provision could be subject to additional legal challenges.

The justices also stated that the police have limited authority. They must buy generic viagra check with federal immigration agents before deciding to hold the suspects due to the federal governments ultimate authority on immigration. Thus, Arizona’s police can notify federal agents if they have a suspect in custody, but they cannot keep them in a county jail on state charges. By taking the power out of the officers’ hands to arrest people on minor immigration charges, it has greatly limited the effectiveness of this provision.

The court struck down the following three major provisions: requiring all immigrants to obtain or carry immigration registration papers, making it a state criminal offense for an illegal immigrant to seek work or hold a job and allowing police to arrest suspected illegal immigrants without warrants.

Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joined all of Kennedy’s opinion. Justices Antonin Scalia and Clarence Thomas would have allowed all the challenged provisions to take effect. Justice Samuel Alito would have allowed police to arrest undocumented immigrants who seek work, and also make arrests without warrants.

Sixteen states had signed an amicus brief in support of the Arizona law—which included Nebraska.

By Michael W. Khalili | Posted on June 25, 2012 in News | Comments (2)

New Nebraska Employee Reference Protections

Nebraska recently signed into law LB959, a bill that lets employers share more information to prospective employers about current and former employees with less threat of legal liability. In a nutshell, employers will be given a rebuttable presumption of good faith when they follow the law’s specific requirements. Employers should learn the new law’s requirements, and very real limitations, before changing policies, procedures and forms.

To obtain the protections of the new law, employers must first obtain a written authorization from the employee to release the information, and that consent must be signed and dated, and in either a stand-alone document, or be a conspicuous part of the employment application

(in bold and larger typeface) which states:

“I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).”

Those employers obtaining that that specific consent will be given the protection for a period of six months when providing certain information, including:

(i) Date and duration of employment;

(ii) Pay rate and wage history on the date of receipt of written consent;

(iii) Job viagra for sale description and duties;

(iv) The most recent written performance evaluation prepared prior to the date of the request and provided to the employee during the course of his or her employment;

(v) Attendance information;

(vi) Results of drug or alcohol tests administered within one year prior to the request;

(vii) Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;

(viii) Whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and

(ix) Whether the employee is eligible for rehire.

Employers should not be lulled into false confidence by this new law for several reasons. The protections are quite limited since the authorization is valid for only six months. Also, the presumption of good faith on the part of the employer does not apply if information disclosed turns out to be false and the employer either knew it was false, or acted with malice or reckless disregard for its truth. Where particularly subjective information is shared, such as the quality of job performance, this means employers may have little actual protection from lawsuits. Finally, the good faith presumption on the part of the employer can be overcome with a finding that the employer discriminated or retaliated because the employee “exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.” In summary, significant risk remains, and employers should maintain their caution when sharing any information about current or former employees.

Those wishing to obtain the protections of the law should examine and alter current policies and procedures with advice of counsel. Potentially conflicting legal requirements and company policies should be considered, for example, those pertaining to drug and alcohol tests. The new Nebraska law makes no direct changes to those, and many company policies provide assurances of confidentiality. Reference release forms and applications must also be reviewed, and will most likely require alteration to be in compliance. And as before, an employer’s best practices include keeping tight controls on the release of such information, with only one person in a company designated (and properly trained) to do so.

By Kevin McManaman | Posted on April 18, 2012 in News | Tagged authorization, consent, defamation, drug and alcohol tests, eligible for rehire, Employee Reference, Employer, employment law, forms, HR, Human Relations, inquiry, LB 959, LB959, nebraska, performance evaluation, policy, reference, referral | Comments (0)

Update NLRB Poster

The NLRB has announced that “In view of the DC Circuit’s order, and viagra online pharmacy in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.” http://www.nlrb.gov/news/nlrb-chairman-mark-gaston-pearce-recent-decisions-regarding-employee-rights-posting

By Jeanelle Lust | Posted on April 17, 2012 in News | Comments (0)

Do I put that NLRB poster up on the 30th or Not? _x_NOT.

Today the DC Circuit court of appeals enjoined the enforcement of the NLRB’s rule requiring the posting of this poster: : http://www.theemployerhandbook.com/assets_c/2012/03/rights%20poster-37093.html. The short opinion is here. http://www.chamberlitigation.com/sites/default/files/cases/files/2011/NAM%20v.%20NLRB%20(DC%20Circuit%20Injunction%20Order).pdf. The 8th Circuit and Nebraska district courts have not yet ruled on this issue. However, the DC’s circuit’s opinion certainly directs the NLRB not to enforce the posting requirements. Therefore, while super cautious employer might decide to post the poster anyway our best advice is that the NLRB would be violating a court order to require or penalize any employer to post the poster

at this time until the appeal in the DC Circuit is

resolved.

By Jeanelle Lust | Posted on April 17, 2012 in News | Tagged April 30 deadline, NLRB poster, union poster | Comments (0)

Fremont, Nebraska: The E-Verify System and Employer Compliance

The city of Fremont, Nebraska, has passed an ordinance requiring all private businesses (and city contractors) within the city limits to use the E-Verify system. Other portions of the ordinance were recently struck down by the federal court, but the portion of the ordinance requiring use of E-Verify was upheld. The city will require compliance by May 4, 2012.

Approximately 3,000 of Fremont’s businesses will be required

to double-check the citizenship status of every new employee. An appeal of the decision has been made, but for the present time employers in Fremont are advised to comply with the law.

In Nebraska, it is already mandatory for public employers and public contractors to use E-Verify for their employees and all subcontractors. A public contractor means any contractor (and includes his or her subcontractors) who is awarded a contract by a public employer for the physical performance of services within the State of Nebraska.

A business entity may register online at USCIS E-Verify. A business entity that applies for any contract, loan, grant, license, or permit from the City after March 5, 2012, must provide documentation that the business entity has

registered in the E-Verify program and must execute an affidavit stating that the business entity does not knowingly employ any person who is an unauthorized alien.

The E-Verify system is an internet-based process that compares information from an employee’s employment eligibility verification form (Form I-9) to data from U.S. Department of Homeland Security and Social Security Administration records to confirm authorized employment eligibility.

If you are one of the businesses required to use the E-Verify system, you will need to know what information to acquire from new employees in order to conduct an E-Verify initial verification. After hiring a new employee and completing the employment eligibility verification form required for all new hires (regardless of E-Verify participation), the employer must submit a query that includes information from the Form I-9, including:

Employee’s name and date of birth,
Social Security Number (SSN),
Citizenship status he or she attests to,
A number or I-94 number, if applicable,
Type of document provided on the Form I-9 to establish work authorization status, and
Proof of identity and its expiration date, if applicable.

Response to the initial query is sent within seconds of submitting the query.

By Michael W. Khalili | Posted on March 8, 2012 in News | Comments (1)

Capital Humane Society Honors Jeanelle Lust

On January 17, 2012, Jeanelle Lust of the Knudsen Law Firm was honored by Executive

Director Robert A. Downey and the Capital Humane Society for her invaluable time, talent and efforts as an advocate for animal welfare.

By Michael W. Khalili | Posted on February 3, 2012 in News | Tagged Award, Board, Capital Humane Society, Honor | Comments (0)

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