Archive for the ‘Workers Compensation’ Category

In the current job markplace, it has become increasing difficult to get a job. It is even more difficult for those with criminal backgrounds and or questionable credit or prior workers compensation injuries or claims. However, you should keep in mind that, if you are denied a job based upon any of these critera, you may have a legal basis to complain.

The Equal Employment Opportunity Commission has been cracking down on efforts to disqualify potential hires with criminal records or bad credit history, arguing that the practice can be tantamount to discrimination, as such applicants are disproportionately black or Latino. Justice Department statistics show that 38 percent of the U.S. prison population is black, compared with about 12 percent of the general population. In 2008, African Americans were about six times more likely to be incarcerated than whites. The incarceration rate for Latinos was 2.3 times higher than whites.

A blanket refusal to hire someone with a criminal record could run afoul of federal employment law, though. If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.

The EEOC indicated its disapproval of such practices last fall, when it it filed a class-action discrimination lawsuit against Dallas-based Freeman Companies, an events planning firm. The EEOC alleged that Freeman Companies used credit history and criminal records to discriminate against against blacks, Hispanics and males. Freeman has denied the charges, according to the AP.

You should also keep in mind that under Florida law and most other state laws, it is illegal to refuse to hire someone based upon a workers compensation claim or injury with a prior employer.

If a potential employer does perform a credit or criminal history check it must be done in accordance with the Fair Credit Reporting Act and you must have given permission to do so. If your work state does not have a law that prohibits or otherwise regulates an employment credit check on you (you should verify if your state has such a law), then the employment provisions in the Federal Fair Credit Reporting Act (FCRA) rule. The FCRA provisions regulate how employers obtain and use your credit report; for example, generally:

An employer must first inform you that someone will be conducting a credit check on you and get your permission in writing (unless you work in the trucking industry, in which case your permission might not be required). Technically, you may refuse to allow it; but, in reality, you might not keep your job or land a new one if you do that.

Before an employer may take an adverse action against you (e.g., eliminate you as a job candidate or fire you) based solely on a credit check, the employer must give you a “pre-adverse action disclosure” that consists of a copy of your credit report and a written summary of your rights under the Fair Credit Reporting Act.
After an employer has taken adverse action against you, the employer must then provide you with an “adverse action notice” and give you the contact information of the agency that provided your credit report, so that you may dispute inaccurate information.

An employer must keep the results of your credit check confidential and can’t store any information about it in your personnel file.

If you believe you have been wrongfully turned down for a job due to your criminal or credit history speak to an employment law attorney to evaluate your situation.

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You may recall my recent posting on whistleblower protections provided to employees under both state and Federal Laws. Well, the the recent Federal health care legislation provides new whistleblower protections to employees under the recently enacted Patient Protection and Affordable Care Act (“PPACA”).

Congress included whistleblower and retaliation protections in the recently-enacted Patient Protection and Affordable Care Act (“PPACA”), the comprehensive health care legislation signed by President Obama in March 2010. The whistleblower provisions encourage employees to report fraud or waste under the statute.

The PPACA clearly showed an intent by Congress to extend whistleblower protection to those who report abuses or fraudulent conduct in the delivery of health care through the use of public monies.

Any employee who believes that he or she has been discharged or discriminated against in violation of law is entitled to seek relief using the same procedures provided in 15 U.S.C. ยง2087(b), which contains the extensive whistleblower protections contained in the Consumer Product Safety Improvement Act of 2008. These procedures include filing a complaint concerning discrimination or retaliation with the Department of Labor, going through an administrative process to determine whether the employee’s conduct protected by Section 18C was “a contributing factor in the unfavorable personnel action” alleged by the employee, and providing for the filing of a civil action in federal court after exhaustion of the administrative process.

Interestingly, however, Section 1558 explicitly limits application of Section 18C only to violations of Title I of the PPACA. Title I covers the statute’s core provisions for medical care in conventional settings, such as the provision of health care services at hospitals, clinics and physician offices; hence, employees who report fraud, waste or violations in those settings fall under the protections afforded by Section 1558.

Finally, Section 1313 of the PPACA makes any “[p]ayments made by, through or in connection with an Exchange” subject to the False Claims Act, 31 U.S.C. 3729, et seq., if the payments involve any Federal funds. The False Claims Act prohibits the “knowing” presentation of a false or fraudulent claim for approval or payment; hence, any “knowing” presentation of a bill or invoice for health care services through an Exchange set up under the PPACA that contains overcharges is subject to a civil penalty. The penalties include a fine of up to $10,000, a civil penalty of between 3 to 6 times the amount of the overcharge, and repayment of the cost to the Federal government of bringing the civil action to prove the violation. Note that Section 1313 contains the threat of a civil penalty up to 6 times the amount of damages sustained by the Federal government as a result of a violation, which is twice as high as the maximum available under the False Claims Act. Coupled with the whistleblower provisions contained in Medicare and Medicaid statutes, any payment for health care services that involves Federal funds could be expected to be subject to the protection of a whistleblower provision.

Since these statutory provisions and processes are complicated, if you work in a healthcare setting and believe you have been retaliated against or terminated based upon complaints of illegalities in your medical office, you probably want to consult with a skilled employment lawyer to evaluate your next course of action.

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As many of you may know, a workers compensation injury is one where you have suffered an injury working on the job for your employer. Many employers carry workers compensation insurance to cover medical care and injuries caused by on the job accidents. Normally when you suffer these injuries you need to let your employer know as soon as possible so that they may complete the necessary claims forms to get your the medical care you need. It is also sometimes helpful to retain an attorney that specializes in workers compensation claims to guide you through the process. But, this article is really not intended to talk to you about this process.

Some of you may not know that an employer’s workers compensation insurance premiums are a type of insurance called retrospective. In other words, the more claims and open claims an employer has, the higher their premiums go. So why should that matter to the employees? Well, on many occasions, employers don’t want to continue to employ employees who have suffered workers compensation injuries for a number of reasons. First, their insurance premiums may increase. Second, they may not want to continue to employe an employee who has a higher chance of getting injured in the future. Third, they may not want to have to pay an employee for the time it takes to go to doctors appointments to care for their injuries.

On may occasions, the ultimate outcome is that employers try to find ways to terminate employees who have suffered workers compensation injuries. However, in Florida and most other states around the country there is a civil cause of action for workers compensation retaliation. In Florida, it is Florida Statutes Section 440.205 while other states have their own statutes. These types of statutes were created to protect employees who have suffered on the job injuries. Under these statutes, you can’t be fired for making a workers compensation claim. While you can be fired for other legitimate reasons, the workers compensation claim can’t be a motivating factor in the decision to terminate your employment. In addition, under the Florida statute, an employee can’t be terminated for threatening to bring a workers compensation claim. An employee can also not be harassed as a result of a workers compensation claim. For instance, an employer may not refuse to abide by medical restrictions imposed by your doctor such as lifting restrictions. Under the Florida Statute, an employee who is terminated or harassed in violation of this statute may recover monetary damages against their employer including possible punitive damages.

So if you believe you have been terminated, harassed or retaliated against due to the filing of a workers compensation claim, you may want to consult with an attorney in your state to discuss your legal options.

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