Willful Misconduct

News & Analysis as of

What NOT To Do in an Investigation – $2 Million Willful Judgment Affirmed Where Employer “Whited-Out” and Edited Time Records

Seyfarth Synopsis: Employer is caught by WHD investigator instructing its employees to lie during interviews, and provides falsified records, containing whited-out and edited time records, in order to conform to the Federal...more

Honesty is the Best Policy

May an employer fire an employee for lying about the reason for an absence? In a recent decision, the Connecticut Appellate Court said “yes.” Orlando Martinez worked for Polar Industries as a machine operator. He was...more

Delaware Supreme Court Affirms Sanctions Award

The Supreme Court affirmed perhaps the largest award of attorney fees as a sanction for bad conduct in Delaware’s history in this very unusual decision. It is a good summary of when a Court may depart from the “American...more

6 Employment Actions That Can “Automatically” Land Your Hospital In Court

As a healthcare employer, it must be tempting to want to develop rigid workplace rules that will help newbie bosses reach conclusions almost automatically, especially where the best nurses or techs often become supervisors...more

Willful Permit-Required Confined Space Entry Citation Upheld by the Seventh Circuit

On February 1, 2017, the United States Court of Appeals for the Seventh Circuit affirmed the decision of the Occupational Safety and Health Review Commission (“Commission”) which imposed serious willful citations under the...more

US Board of Governors of the Federal Reserve System Finalizes Rule Adjusting Maximum Civil Money Penalties

The US Board of Governors of the Federal Reserve System finalized a rule increasing the maximum civil money penalty limits for 2017, as required by law. A civil money penalty is a fine imposed by a federal agency to penalize...more

Proskauer Represents Employer Against Former Executive Found Liable for Snooping on Boss’s and Others’ Emails

A former employee of the upscale outdoor furniture designer and manufacturer Brown Jordan recently failed in his bid to pursue whistleblower retaliation claims against the company and also found himself liable for snooping on...more

Intertwining allegations and information… the case of the misused password

In the case of Eiger Securities LLP v. Korshunova UKEAT/0149/16 the EAT considered what amounted to a protected disclosure when bringing a whistleblowing claim. ...more

Federal Court Holds California Insurance Code Bars Duty to Defend Against False Claims Act Violations

The Central District of California held that Section 533 of the Insurance Code eliminated any potential for coverage for suit under the state False Claims Act. On January 4, the U.S. District Court for the Central...more

Employee’s “Alternative Facts” Can’t Overcome Summary Judgment for Employer

As the week begins with new lexicon coming out of our nation’s capital, a recent federal court of appeals ruling reminds us that, in most situations, it’s the employer’s assessment of the facts, not the employee’s...more

Debtors Who Misuse Collateral Can Lose the Benefit of Discharging their Debt in Bankruptcy

On November 21, 2016, in a case entitled In re Monson, the Eleventh Circuit Court of Appeals affirmed the Bankruptcy Court’s decision, which held that a debtor’s conduct constituted a willful and malicious injury to a...more

Client’s Bad Behavior Imputed to Counsel – Both Get Sanctioned

In Arrowhead Capital Fin. Ltd. v. Seven Arts Entertainment, Inc. 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), District Judge Katherine Polk Failla imposed significant sanctions upon both the Chief Executive Officer...more

Commercial Division Refuses to Disturb Judgment Based On “Newly Discovered” Evidence That Was Available in Russian Public Records...

What is the ability of a litigant in the Commercial Division to use evidence located in the public records outside of the United States to re-open a New York court judgment? On December 7, 2016, in Alexander Gliklad v....more

Reckless Indifference Is Enough For Willfullness Finding For Puroses Of FBAR Nonfiling Penalties

A husband and wife had an accounting in Switzerland at UBS AG, into which they deposited commissions from camera sales and also directed some of their international customers to make deposits. In 2007, the tax year at issue,...more

Discovery Misconduct “As Deep As It Is Wide” Merits Harsh Sanctions

Arrowhead Capital Fin., Ltd. v. Seven Arts Entertainment, Inc., No. 14 Civ. 6512 (KPF), 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016). The court imposed substantial sanctions on the defendants and their...more

Chris Lazarini Comments on Application of Manifest Disregard of the Law

Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former trader fraudulently purchased $1 billion in Apple shares that ultimately forced the closure of the trader's firm, Rochdale Securities. Rochdale...more

FDA Launches Form for Reporting Allegations of Misconduct by Device Manufacturers

Program Has Broad Reach - On October 21, 2016, the Food and Drug Administration launched a webpage that contains an Allegations of Regulatory Misconduct Form to enable whistleblowers, competitors, and others to report...more

Taking prior disciplinary warnings into account

The extent to which an employer can take prior warnings issued to employees into account can be confusing. The recent case of Trye v. UKME (UK Mission Enterprise Ltd) UKEAT 0066_16 is a helpful reminder of the Tribunal's...more

Piracy Pays (The IP Owner) – Judge Whyte Grants Motion for Default Judgment After Awarding Sanctions in Unauthorized Software...

Order Granting Motion for Default Judgment, Adobe Systems Inc. v. Software Tech, et al., Case No. 5:14-cv-02140-RMW (Judge Ronald M. Whyte) - Everyone in the software field (and probably every computer user) is familiar...more

Ninth Circuit Permits SEC to Assert Standalone Claim for False Sarbanes-Oxley Certification and Confirms Disgorgement Remedy...

In Securities & Exchange Commission v. Jensen, No. 14-55221, 2016 WL 4537377 (9th Cir. Aug. 31, 2016), the United States Court of Appeals for the Ninth Circuit broke new ground by providing the Securities & Exchange...more

Shanghai Salary Payment Regulations Now More Flexible for Employers

Effective August 1, the rules around salary payment practices are now more practical for employers in Shanghai, thanks to an update to the Municipal Enterprises Salary Payment Regulation (“Updated Regulation”). An employer in...more

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related...more

What did Ryan Lochte do? 8 tips for waterproof investigations

Despite the conclusion of the 2016 Summer Olympics, Ryan Lochte is still “under water” with questions still looming after Rio police reports that the American gold-medal Olympian fabricated a story about being robbed at...more

Terminating employees due to internal investigations in Germany

When it comes to internal investigations, multinational companies need to reconcile the sometimes conflicting legal requirements of various jurisdictions. Under German law, conflicts typically arise where a foreign law...more

Thinking Like a Prosecutor – Yates and Internal Investigations

I respect prosecutors, most of them at least. I had the fortunate opportunity to work with a number of terrific prosecutors. Most are intelligent, hard working and committed to doing the right thing. I recognize that there...more

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