#SocialMediaAsEvidence

Social media has officially taken over our lives. The statistics only confirm this fact. There are 2.3 billion active social media users across the world. Any given internet user has an average of five social media accounts. Facebook has over 1.71 billion users, YouTube has over 1 billion users, and WhatsApp has 900 million users. Every day, there are 60 billion messages sent through Facebook messenger and Whats-App. Three hundred hours of videos are uploaded on YouTube every minute. Snapchat users watch 6 billion videos on average a day.

It is clear that an individual’s accounts contain a plethora of intimate, personal details meant to be shared exclusively with friends or a fan base. But this begs the question, with this personal nature of social media, what can be excluded from court? The answer: potentially none of it. Continue reading »

UPDATE: Salaries Speak Louder than Words

Equal Pay Day was celebrated this month on April 2, 2019. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not stationary. In fact, the date occurs seventeen days earlier than it did in 2005. While there is a lot to celebrate with that achievement, there is still a long way to go to completely close the gender wage gap.

In fact, the Supreme Court recently faced the opportunity to potentially close this wage gap even further when it granted cert to Rizo v. Yovino. See Katherine Flett’s blog post titled “Salaries Speak Louder than Words” for more discussion on the case. In Rizo, the Ninth Circuit sitting en banc found that the use of salary history to establish a starting salary violated the Equal Pay Act, as it perpetuated the discriminatory nature of women historically being underpaid in almost all sectors of employment. Thus, reliance on prior pay could no longer be considered as an affirmative defense under the Act’s fourth catchall exception, “any other factor other than sex.” Continue reading »

Mandatory Arbitration in the Transportation Industry Takes a Blow from The United States Supreme Court

New Prime, Inc. v. Oliveira

On January 15, 2019, the United States Supreme Court ruled unanimously in favor of Dominic Oliveira, a purported Independent Contracted driver (“owner-operator”) for New Prime, Inc., an interstate trucking company, holding that Oliveira’s dispute need not be compelled to arbitration.

The case hinged largely on the Federal Arbitration Act (FAA), a 1926 law that requires courts to move cases involving interstate commerce disputes to arbitration.  However, the FAA includes an exception in Section 1 for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Oliveira filed a class action lawsuit, alleging that New Prime deprived its driver of legal wages.  New Prime sought to resolve the dispute via arbitration pursuant to Oliveira’s owner-operator agreement, which included a mandatory arbitration provision.

The first issue that the Court considered was whether a court or an arbitrator should decide whether the Section 1 exception applied.  In a unanimous opinion written by Justice Neil Gorsuch, the Court held that “a court should decide for itself whether Section 1’s ‘contracts of employment’ exclusion applies before ordering arbitration. After all, to invoke its statutory powers . . . to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2 [of the FAA].” Continue reading »

Favorable Changes to 065 Agreements in Missouri Apply Prospectively Only

The Court of Appeals of Missouri’s Western District has issued an opinion holding that the recent amendment to Section 537.065 RSMo. may not be applied retrospectively, under the Missouri Constitution.  The Court of Appeals held in Desai v. Seneca Specialty Ins. Co., 2018 WL 3232697 (not released for publication as subject to motion for rehearing or transfer, etc.) that the trial court’s judgment should be affirmed in which the insurance company’s motion to intervene and motion for relief from judgment were denied.  The insurance company had argued that Section 537.065, as amended effective August 28, 2017, required that it should have received notice of a “065” agreement and the opportunity to intervene as a matter of right.

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Troubling Practices by Hospitals for Patients’ Access to Medical Records Uncovered

A new study published in JAMA Network Open and conducted by Yale University School of Medicine found troubling practices at U.S. hospitals relating to patients’ access to and provision of patients’ own medical records.  HIPAA’s Privacy Rule absolutely requires access to a medical record when properly requested under two circumstances:  (1) to the patient; and (2) to the Secretary of the Department of Health and Human Services.  Further, the patient must be provided records in his or her preferred format and for a reasonable processing fee.  Shockingly, only 53 percent of the hospitals surveyed provide patients an option to obtain their own medical records.  (Eighty-three top-ranked U.S. hospitals in 29 states were surveyed.)

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#MeToo Movement Spurs a 50 Percent Increase in EEOC Sexual Harassment Lawsuits

It comes as no surprise that one year after the rise of the #MeToo movement, more women are not just speaking up about sexual harassment in the workplace, but they are taking action in the courthouse.

According to a recent Equal Employment Opportunity Commission (EEOC) press release, the EEOC has already filed 66 harassment lawsuits in 2018, including 41 specifically citing sexual harassment – a 50 percent increase over 2017.

The EEOC also reported that it recovered almost $70 million for the victims of sexual harassment through administrative enforcement and litigation in 2018, up from $47.5 million in 2017. Interestingly, the overall number of discrimination charges are down, but charges for sexual harassment are up.

Victoria Lipnic, acting chair of the agency, commented during an interview with The Washington Post that she believe the increase is a result of the #MeToo movement, saying “This stuff happens everywhere. If you don’t address it in your workplace, you could find yourself on the receiving end of a federal enforcement [action].” Continue reading »

Missouri Health Care Legislation Update

MO HealthNet Program Expands Its Coverage:

• Section 208.151 (20) RSMo was expanded to include language allowing pregnant women who receive substance abuse treatment within sixty (60) days of giving birth, subject to appropriations and any necessary federal approval, to be eligible for MO HealthNet benefits for substance abuse treatment and mental health services for the treatment of substance abuse for twelve (12) additional months, as long as the woman remains adherent with treatment.
• With the passage of HB 1516, § 208.152(7), chiropractors are included in the MO HealthNet Program and now allows, . . . subject to appropriation, up to twenty (20) visits per year for services limited to examinations, diagnoses, adjustments, and manipulations and treatments of malpositioned articulations and structures of the body provided by licensed chiropractic physicians practicing within their scope of practice.

CEU Requirements Expanded:

• As amended, § 324.046 RSMo provides that any Missouri licensed healthcare professional may annually complete training in the areas of “suicide assessment, referral, treatment and management,” which may qualify as part of the continuing education requirements of the professional’s licensing authority with the Division of Professional Registration for renewal of licenses.

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Modernizing Healthcare Legislation in the Face of the Opioid Crisis

In 2016, opioid overdoses accounted for more than 42,000 deaths in America. It was estimated that 11.5 million people misused opioid prescriptions and 2.1 million people suffered from an opioid use disorder that same year.[1] From July 2016 to September 2017, the Center for Disease and Prevention found that opioid overdoses increased 30% in 45 states; however, the Midwest region alone saw a 70% increase.[2] On October 26, 2017, President Trump declared the opioid crisis a national Public Health Emergency under federal law.

While the federal government has responded by allotting six billion dollars to assist in the treatment and prevention of opioid overdoses, hospitals and medical providers still face barriers when it comes to the disclosure of medical information related to these overdoses due to conflicts between HIPAA and other federal law. Congress is working to resolve this conflict.

In 2017, the Department of Health and Human Services Office for Civil Rights (OCR) released a new HIPAA Guidance on when and how healthcare providers may share a patient’s health information with his or her family members, friends, and legal representative if the patient is in crisis. Current HIPAA regulations permit (but do not require) healthcare professionals to disclose health information without a patient’s consent if the provider determines that doing so is in the best interest of an incapacitated or unconscious patient and the information shared is directly related to the family or friend’s involvement in the patient’s healthcare or payment of care. This allows a provider to talk to the parents of someone incapacitated by an opioid overdose about the overdose, but generally does not allow disclosure of medical information unrelated to the overdose without the patient’s permission. Continue reading »

Employers With Arbitration Clauses Win – Part Two: Factors Employers Should Consider When Determining Whether to Incorporate an Employee Arbitration Program

One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

Employers With Arbitration Clauses Win – Part One: The U.S. Supreme Court Embraces Arbitration Agreements with Class Action Waivers

The U.S. Supreme Court upheld the legality of class action waivers in employee arbitration agreements by issuing a 5-4 decision in Epic Systems Corporation v. Lewis on March 21, 2018.

In short, employers can require employees to arbitrate claims on an individual basis. This much-anticipated decision allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

Brief History of Arbitration Clauses and Class Action Waivers in the Employment Context

The Federal Arbitration Act (“FAA”) was enacted in 1925 in response to hostility toward arbitration agreements. The FAA provides that a written agreement to submit a controversy arising out of the agreement to arbitration is to be enforced unless “grounds exist at law or in equity for the revocation of any contract.” Since the enactment of the FAA, the Supreme Court has consistently recognized the establishment of a federal policy supporting arbitration agreements.

However, in 2012, the National Labor Relations (“NLRB”) found in D.R. Horton, Inc., that mandatory arbitration agreements with class action waivers were violative of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to self-organize, bargain collectively, and “engage in activities for the purpose of collective bargaining or other mutual aid or protection.” Following the NLRB’s decision, a split among the circuits developed. While the Second, Fifth and Eighth Circuits rejected the NLRB’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the NLRB and refused to enforce employee arbitration agreements with class action waivers.

Epic Systems Corporation v. Lewis

On May 21, 2018, the Supreme Court resolved the circuit split and upheld the use of class action waivers in arbitration agreements in Epic Systems Corp. v. Lewis.  Epic Systems, which was decided along with two sister cases, involved employees seeking class action litigation despite having employment contracts with provisions that required individualized arbitration proceedings. The following are the three key arguments by employees and the Court’s decisions: Continue reading »