Assessing the Impact of Federal Entitlement Benefits on Employment

Lebau and Neuworth partner attorney Richard Neuworth recently made a new and important presentation on the topic of Federal Entitlement Benefits and how they affect employment law.

Those federal benefits that affect employment litigation are:

To view the presentation, click here.

The topic was timely because of the large numbers of older and disabled workers that left the work force due to COVID 19 since February 2002 through to the present. In fact, many such workers will have difficulty finding other employment.

The issues addressed in the presentation concern how entitlement benefits interface with employment law cases primarily dealing with age and disability discrimination; the Family and Medical Leave Act; health insurance; and causes of action available to Medicare recipients.

The presentation was designed to show how individuals could also keep the proceeds of settlements and/or judgments without jeopardizing federal benefits to which the former or present employee was legally entitled before filing legal actions against past and present employers.

The attorneys at Lebau & Neuworth are well experienced in litigating employee benefits issues. If you need advice, assistance and/or representation for and benefits issue, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Home Companions & Aides Can Get Their Wages & Attorney Fees

A Maryland Court recently issued an important decision in Pinnacle Group et al. v. Victoria Kelly concerning overtime for companion-care home-healthcare workers in that state.

Victoria Kelly was a companion-care home-healthcare worker providing care for seniors citizens and persons with disabilities for the employer, Lifematters. Ms. Kelly regularly worked overtime, sometimes up to 97 hours in a single week, without overtime pay. Her employer failed to pay overtime wages because the federal Fair Labor Standards Act (FLSA) exempts companion caregivers from its minimum-wage and overtime requirements.

However, companion-care home-healthcare workers are not exempt from overtime pay under the Maryland Wage and Hour Law (MWHL). 

After filing a lawsuit against the employer, the parties reached a settlement regarding Ms. Kelly’s unpaid overtime wages. However, the employer disputed Ms. Kelly’s right to seek payment of her attorney’s fees and costs. Ultimately, Ms. Kelly was awarded attorney’s fees under the Maryland Wage Payment and Collection Law (MWPCL), which allows for an award of up to three times the owed wage and reasonable attorney fees and costs.

This case is important because it stands as a reminder to employers that, in Maryland, home-care companions are entitled to minimum and overtime wages and ignorance of the law is not a defense to an employer’s responsibilities. Further, employers who violate the law may also be required to pay trebled damages and the employee’s attorney’s fees and costs associated with a lawsuit.

If you think you may be owed unpaid wages, the attorneys at Lebau & Neuworth may be able to help. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.  

State Law Claims Against Benefit Plans May Be Preempted by ERISA

When an employee is wronged by their employee benefit plan, such as a health care plan or life insurance plan, the employee may want to file a lawsuit in state court -- because state laws generally allow for more diverse remedies and greater damages than those allowed for under the federal Employee Retirement Income Security Act of 1974 (“ERISA”). However, employees may not be able to file a lawsuit in state court because ERISA controls, or “preempts,” all state laws to the extent that they relate to employer-sponsored plans.

Simply put, you may not be able to sue in state court if ERISA is or could be involved.

The federal Fourth Circuit court of appeals, of which Maryland is a part, recently addressed the test for ERISA “preemption” in Prince v. Sears Holding Corp. There, the employee, Mr. Prince, applied to enroll his wife in the life insurance program sponsored by Sears, his employer. Sears acknowledged the application and began withholding premiums from Mr. Prince’s pay. A year later, Sears notified Mr. Prince that his wife’s coverage was never effective because a mandatory eligibility questionnaire was never submitted. Mr. Prince filed a lawsuit in state court alleging misrepresentation, constructive fraud, and infliction of emotional distress. Sears had the case moved from state to federal court, where it was dismissed because the state law claims were preempted by ERISA.

The Fourth Circuit Court of Appeals upheld the dismissal by the lower court because Mr. Prince could sue for relief under ERISA, so his claims fell within the scope of a section of ERISA that he could file a lawsuit to enforce. Therefore, the claim could not be resolved without interpreting a contract governed by federal law, i.e., the life insurance plan covered by ERISA. Accordingly, Mr. Prince’s state law claims were completely barred by ERISA. Although Mr. Prince could not pursue his claims in state court, he could file a lawsuit in federal court; however, he was limited to the relief allowed by ERISA.

This case is important because even though the remedies and damages available under state law are often greater than those available under ERISA, employees may be completely barred from seeking such relief.

The question of whether an employee benefit plan, such as a health care plan or a life insurance plan, is covered by ERISA can be complicated. If you think you have a claim against such a plan, the attorneys at Lebau & Neuworth may be able to help, as we are experienced in dealing with lawsuits against employee benefit plans, including those covered by ERISA. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Comprehensive New Rules Govern Reporting of Doctors, Health Care Providers

Sweeping new regulations issued from the Maryland Department of Health and Mental Hygiene, have several key preliminary definitional terms that require a hospital or practice group to report an employee to the Maryland Board of Physicians in certain situations from which he or she may face discipline and never be able to get another job.

For example, a Maryland-based hospital or practice group must report an employee if confronted with the following three employment scenarios:

  1. A doctor, licensed and practice in Maryland, voluntary resigns from employment with a local hospital after he is accused of sexually harassing a fellow hospital employee, not a patient;
  2. An ultrasound technician is placed on administrative leave for 45 days for failing to take required training; patient care was not at issue; or
  3. A physician’s assistant resigns, in lieu of termination, after it is discovered that he miscoded procedures to increase his compensation and which had nothing to do with patient care.

The regulations have several key preliminary definitional terms. The first is “reporting entity,” which is defined to include a hospital or related institution, and an employer of an allied health provider. The second is an “allied health provider,” which is defined as all the professionals licensed by the Maryland Board of Physicians, including physicians, physician assistants, respiratory care practitioners, naturopathic doctors, radiologists, and sleep study and nuclear medicine technologists, to name a few.

Under the new regulations, a reporting entity must report to the Board of Physicians any change to the status of the health care provider whom the reporting entity employs, who has a contract with the reporting entity, or to whom the reporting entity has granted privileges. A “change” is an action taken by the reporting entity against a health care provider, such as terminating or failing to renew a health care provider’s staff privileges or employment or contract with the reporting entity, or terminating or refusing or failing to renew or to extend the term of the academic contract of an individual in a postgraduate training program.

A “change” also encompasses disciplinary action short of termination or revocation of privileges, including suspension, probation, or restriction of privileges or duties. Importantly, the regulations define a “change” broadly to include actions that could be taken to try to avoid a required reporting. For example, accepting an involuntary resignation, or requesting that a health care staffing entity cease furnishing the services of a specific health care provider, are covered changes.

In the case of a physician, a change also includes denying an application for staff privileges and, for a physician assistant, terminating his or her delegation agreement.

The regulations now are unequivocal that a reporting entity must report to the Board of Physicians any change to the health care provider that has been made, in whole or in part, because the health care provider:

Not a change

There are several actions that are not considered a “change” and do not trigger a reporting requirement. A voluntary leave of absence is not considered a change in status when taken by a health care provider who is in good standing with the Board of Physicians (not subject to any discipline, pending discipline, supervision or restrictions) for innocuous reasons such as maternity leave, family problems of a medical or other personal nature, sabbaticals and military deployment. However, a leave for medical problems that implicate a provider’s physical, mental, or emotional ability to provide competent care is considered a “change” that triggers mandatory reporting.

The regulations provide that administrative suspensions are not a “change” that requires reporting if such suspensions are 30 days or less cumulatively in a calendar year and solely as a result of a failure to acquire mandated vaccinations or complete retired training, for example.

Special provisions apply to physicians. The regulations state that an involuntary alteration in a physician’s practice is not reportable the change results solely from a Focused Professional Practice Evaluation or a focused review, among other reasons. However, an automatic disqualifier from a non-reporting, involuntary alteration is when it is caused or results from inappropriate sexual behavior, harassment, or any other unprofessional conduct in the workplace.

If you believe you have been subjected to a situation in which a hospital or practice group has treated you improperly, the attorneys at Lebau & Neuworth may be able to help. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

EEOC Battles Discrimination Against Workers With Cancer

In the past few weeks, the U.S. Equal Employment Opportunity Commission has been busy filing lawsuits against employers for disability discrimination against workers with cancer. The headlines are below:

The employment lawyers at Lebau & Neuworth represent workers before the EEOC and with the EEOC in court. Contact us if you think you have been discriminated against.

Caregiving Responsibilities, The EEOC & What You Need Know

The Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance on the treatment of workers with caregiving responsibilities. Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate against an individual on account of his or her sex, race, national origin, and/or color. In addition, according to the EEOC, it is unlawful under Title VII to discriminate against working male and female employees who have caregiving responsibilities. In the new guidance statement, the EEOC explains the need for creating protections for caregiving workers:

As more mothers have entered the labor force, families have increasingly faced conflicts between work and family responsibilities, sometimes resulting in a maternal wall that limits the employment opportunities of workers with caregiving responsibilities. These conflicts are perhaps felt most profoundly by lower-paid workers, who are disproportionately people of color. Unable to afford to hire a childcare provider, many couples tag team by working opposite shifts and taking turns caring for their children. In comparison to professionals, lower-paid workers tend to have much less control over their schedules and are more likely to face inflexible employer policies, such as mandatory overtime. Family crises can sometimes lead to discipline or even discharge when a worker violates an employer policy in order to address caregiving responsibilities. To be covered by the law, the caregiving responsibilities may be to healthy children (not simply disabled children), disabled adults, elderly parents, elderly in–laws, and/or elderly spouses. As a caregiver, to establish that one has been unlawfully discriminated against one must provide evidence that the adverse action taken was based on your sex. An example of unlawful discrimination against a female worker would be where an employer started treating a female worker less favorably, such as providing her with less lucrative or growth oriented work assignments, upon finding out that she was pregnant or upon finding out that she had an elderly parent relying upon her for care.  An example of unlawful discrimination against a male worker would be where a male worker was denied leave to care for children while a female worker in the same organization was not denied such leave. So, if you think you are being discriminated because you are the caregiver for your family or due to an employer’s bias against employment caregivers, you should educate yourself as to your possible legal rights.  To learn more, contact us at Lebau & Neuworth, LLC.