Parker Poe Adams & Bernstein LLP

U.S. Supreme Court Rules in Favor of Implied Certification Using a Fact-Intensive Materiality Standard

The legal landscape for False Claim Act (“FCA”) cases recently shifted when the United States Supreme Court announced its decision in Universal Health Services, Inc. v. U.S. ex rel Escobar, No. 15-7, 2016 WL 3317565 (U.S. June…more
| Civil Procedure, Government Contracting, Health

NLRB Allows Temporary Employees to Form Part of Bargaining Unit for Union Elections

In its 2004 Oakwood Care decision, the National Labor Relations Board concluded that a union seeking to organize a unit of workers that includes both permanent and temporary employees obtained from a third-party agency, must…more
| Administrative Law, Commercial Law & Contracts, Labor & Employment Law

ADA Allows Employer to Reduce Employee to Part-Time Status After Return From Medical Leave

Here is a common human resource scenario: An employee goes out of work on medical leave. While she is away from work, the managers or co-workers who cover her duties discover that the work can be readily accomplished without the…more
| Civil Procedure, Civil Rights, Labor & Employment Law

New SEC Guidance for Rule 144A/Exxon Capital Debt Exchanges

For decades companies have privately issued nonconvertible debt securities to large, sophisticated investors (usually in a Rule 144A transaction) and agreed to exchange those unregistered securities for subsequently issued,…more
| Finance & Banking, Securities Law

Fourth Circuit Says Failure to Advise Employee of Leave Reinstatement Interfered with FMLA Rights

The U.S. Supreme Court’s 2002 Ragsdale decision rejected Department of Labor regulations stating that failure to provide employees with notice of leave rights was a per se violation of the Family and Medical Leave Act. Instead,…more
| Civil Procedure, Labor & Employment Law

Fifth Circuit Says Texas May Challenge EEOC Criminal Background Check Guidance

In 2012, the Equal Employment Opportunity Commission issued an Enforcement Guidance stating when employers’ use of criminal background checks to exclude applicants from jobs violates Title VII. The Guidance states the EEOC’s…more
| Civil Procedure, Civil Rights, Constitutional Law, Labor & Employment Law

Entity Fined $650,000 in First HIPAA Settlement with a Business Associate

The possibility of business associates potentially being audited, investigated, and ultimately fined is now a reality. On June 24, 2016, the United States Department of Health and Human Services’ Office of Civil Rights (“OCR”)…more
| Commercial Law & Contracts, Consumer Protection, Health, Privacy, Science, Computers, & Technology

Sustainability Reporting Gains Momentum

A couple of years ago I suggested that companies should consider adding new, or enhancing their existing, sustainability disclosures. The trend toward sustainability (frequently known as “ESG” for environmental, social and…more
| Finance & Banking, Securities Law

Cashed Out Benefits Must Be Included in Regular Rate When Calculating Overtime Premium

Overtime paid to non-exempt employees under the Fair Labor Standards Act must be at time and one-half of the employee’s “regular rate.” The regular rate includes most compensation paid to the employee, such as bonuses and other…more
| Civil Procedure, Labor & Employment Law

The High Stakes Poker of Playing Fast and Loose with Federal Laws and Regulations Just Got More High Stakes: US Civil Penalties Set to Increase August 1, 2016

Though corporate compliance programs can be expensive, companies that fail to implement such programs are about to double down on their gamble as a result of a newly imposed increase in civil fines. Prior to this increase,…more
| Business Organizations, Civil Remedies, Science, Computers, & Technology

Employers Limited in Service Fees Deductions From Credit Card Tips

Restaurants and some other businesses that use employees partially compensated by tips can claim a tip credit toward the Fair Labor Standards Act’s minimum wage requirements. However, the FLSA strictly regulates the servers’…more
| Civil Procedure, Labor & Employment Law

Limited Liability Company Member Not an Employer Under NC Wage and Hour Act

The North Carolina Wage and Hour Act imposes liability on employers for failure to pay promised wages. The law is modeled after the federal Fair Labor Standards Act, and like the FLSA, individual managers and officers of a…more
| Business Organizations, Securities Law

Federal Judge Blocks DOL "Persuader" Rule

Thanks to the intervention of a federal district court in Texas, the federal Department of Labor’s new “Persuader” rules did not go into effect as scheduled on July 1, 2016. The rules for the first time would require legal…more
| Civil Remedies, Commercial Law & Contracts, Labor & Employment Law

Implied False Certification Theory as Basis for FCA Liability Endorsed by Supreme Court with Limits

In a recent and highly anticipated opinion that will significantly affect healthcare providers and other government contractors, the U.S. Supreme Court unanimously ruled that the “implied false certification theory” is a valid…more
| Civil Procedure, Government Contracting, Health

Highly Compensated Employee Cannot Claim FLSA Violation Based on Employer's Wage Withholding

In order to claim most exemptions from overtime and minimum wage requirements under the Fair Labor Standards Act, employers must pay a guaranteed salary. Employers can only deduct from such salaries in very limited…more
| Civil Procedure, Commercial Law & Contracts, Labor & Employment Law
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