http://www.scotusblog.com/case-files/cases/sackett-et-vir-v-environmental-protection-agency-et-al/

•   Nebraska Immigration Law
•   Nebraska Social Security Disability Law
•   Nebraska Workers’ Compensation Law

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 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.

The Borrower obtained $1,100,000 loan and gave a promissory note dated “December 15, 2008” referencing a “Security Agreement dated December 13, 2008” (more on the date discrepancy later).  In January, 2010 the Borrower obtained a second loan giving a $950,000 note again referencing a “Security Agreement dated December 13, 2008.”

The court parsed the defined terms in the Security Agreement (e.g., “Indebtedness,” “Note” and “Related Documents”) and found that despite containing an estimated 10,000,000 words in 6 pages of single-spaced text, the Security Agreement had no language which would extend the security interest to future advances (a so-called “dragnet clause”).  The Bank argued that a careful reading of the defined terms and the fact that the second note contained a reference to the December 13, 2008 Security Agreement, revealed a clear intention to secure the second note.

The court rejected the Bank’s arguments finding that the circular definitions limited the secured indebtedness to the first note and that a simple reference to the earlier security agreement in the second note could not overcome the failure to include a future advance clause.

Another issue raised by the Trustee was the date discrepancy—the December 15 Note which referenced the December 13 Security Agreement.  The Trustee argued that the Bank’s security interest was invalid because it provided that it secured a debt evidenced by a note that did not exist (i.e., a note dated December 13, 2008) and therefore no “value” was given as required by Article 9 of the UCC.

The court found that the $1,000,000-plus that was advanced to the Borrower was “value” and the security interest was enforceable against the Borrower (and third parties as well).  While avoiding this potentially fatal finding, the inconsistencies in the documentation and simple clerical errors (e.g., leaving the “$_________________” blank when defining the “Note”) nearly cost the bank the loss of all of the collateral in which the security interest was granted.

In March, Rick Reier, Kevin McManaman, and Laura Essay of the Knudsen Law Firm presented a series of estate planning seminars for federal employees. The seminars, which were presented in conjunction with LifeSpan Services, Inc., focused on key factors to planning an estate, including pertinent estate documents, asset ownership, probate and non-probate transfers, and related tax issues.

The case involved Daniel Coleman, an individual employed by the Maryland Court of Appeals. Coleman requested FMLA leave for a serious medical condition, and the Court of Appeals terminated him. Coleman claimed the termination was in violation of the FMLA, which entitles an employee to take up to 12 weeks of unpaid leave per year for the employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work, and brought suit. Maryland argued that Coleman’s claim was barred by sovereign immunity and should be dismissed. According to Maryland, the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the state’s sovereign immunity. In order to avoid the state’s sovereign immunity and allow the lawsuit, it had to be shown that the self-care provision of the FMLA remedies a pattern of gender-based discrimination in states’ sick leave policies.

The Federal District Court, the Court of Appeals for the Fourth Circuit, and ultimately the Supreme Court ruled in favor of Maryland. The Court held that Congress lacked authority to abrogate states’ sovereign immunity because the FMLA self-care provision was not tailored to remedy or prevent discriminatory conduct violating the Fourteenth Amendment. The Court determined that the FMLA provision entitling employees to take leave for their own serious medical conditions is completely different than the provisions relating to family-care leave, which are protected. No basis existed to conclude that state employers had previously discriminated against employees on the basis of sex in regard to sick leave, and thus there was no reason to hold state employers liable for damages under this provision of the FMLA.

The Court’s decision potentially leaves state employees without legal recourse in the event they are denied FMLA leave for self-care or terminated because of the need for leave. Ultimately, it was suggested that an employee can still seek injunctive relief to stop an employer from violating the FMLA, even though the employee can not recover monetary damages.

In Cushing, the Department of Health and Human Services (DHHS) paid out $78,594.15 for medical assistance to the Cushing after she was 55 years or older. Cushing subsequently died and an estate opened. Notice of the informal probate was first published in an Omaha paper on July 2, 2012. The notice listed September 2, 2010 as the deadline for filing a claim. On September 14, 2010, DHHS filed a request for notice and on January 18, 2011, filed a claim for Medicaid benefits received by Cushing pursuant to Neb. Rev. Stat. § 68-919 (Reissue 2008).  After the estate disallowed the claim, DHHS filed a petition for allowance of the claim and argued that it was not given notice in accordance with Neb. Rev. Stat. §§ 25-520.01 and 30-2483 (Reissue 2008), which meant that under Neb. Rev. Stat. § 30-2485(a)(2) (Cum. Supp. 2010), it had 3 years from Cushing’s death to file its claim. The Court agreed.

The Court first determined that a claim for Medicaid benefits is a claim that arises during the life of the recipient and is therefore subject to the time limitations set forth in § 30-2485(a). Whether a claim is subject to the two-month limitations period set forth in § 30-2485(a)(1), or the three-year period set forth in § 30-2485(a)(2), depends upon whether DHHS was given notice in compliance with § 25-520.01 and § 30-2483. Section 30-2483 requires that the estate send notice to DHHS if the decedent was 55 or older at the time of death, or resided in a medical institution. Moreover, § 25-520.01 requires the estate to mail notice to known and interested parties within five days after the first publication of notice. In prior cases, the Court had determined that failure to comply with these two sections subjected the creditor to the three-year period provided by § 30-2485(a)(2). In Cushing, because the estate did not mail notice to DHHS within five days of July 2, 2010, the date the notice to creditors was first published, the estate failed to comply with § 25-520.01 and § 30-2483 and the three-year limitations period of § 30-2485(a)(2) applied. Thus, DHHS had three-years to present its claim.

Here is a link to the Court’s opinion: http://www.supremecourt.ne.gov/opinions/2012/march/mar23/s11-614.pdf

To learn more about the seminar, please click the link below:

http://www.nbi-sems.com/SemTeleDetails.aspx/R-59420ER%7C?ctname=SPKEM