Qui Tam 2020: A Preview from the Co-Chairs
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(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Welcome to our introductory video for this year’s Qui Tam Conference — the Federal Bar Association’s third annual [Qui Tam Section] conference on February 27-28, 2020.
For this video I am joined by Kate Seikaly, who is a partner at Reed Smith, and David Finkelstein, who is a trial attorney at the Department of Justice. Kate and David, welcome!
Katherine J. Seikaly: Thanks, Scott.
Oswald: Tell us a little bit about the conference that we have scheduled on the 27th and 28th of February. Let’s talk about theme: What is the theme of the conference?
Seikaly: The theme of this year’s conference is Emerging Trends in the False Claims Act. It’s a two-day conference, so we’ve split it up to be one day of talking about new procedural issues that are coming up — the cooperation memo that came out from the Department of Justice, looking at dismissals, … new trends in discovery procedure. And that’s one day.
And the other day we’re focusing on new substantive trends — the opioid litigation, some different kinds of False Claims Act cases that are coming up.
So that’s how we’ve split up the conference.
Oswald: So David, talk to us a little bit about — if I’m coming to the conference, and maybe I’ve been to previous conferences, what am I going to see this year that’s new?
David Finkelstein: I like to think of that question as, How is this night different from every other night?
Of course, we’re keyed into recent developments in the False Claims Act jurisprudence, so the themes almost select themselves. I think, as Kate said, one of the things that’s distinctive about this conference is the way it focuses on all aspects of investigating and litigating and resolving a False Claims Act case from beginning to end.
In that respect, it’s just like the training that we do in the Department of Justice. We have something called Frauds 101, and we do the same thing: Beginning, middle, and end of the case.
What’s distinctive about this conference is we have all perspectives. In the DOJ training, of course, we’re all drinking a certain kind of Kool-Aid. We’re not interested in what the defense bar has to say. Here, unfortunately, we have to be.
[Laughter] No, I’m just kidding.
Oswald: So if I’m defense counsel, right, Kate, and I’ve had the Kool-Aid myself on the defense side, what am I going to learn from my colleagues at DOJ and the relators’ bar who are going to be on these panels?
Seikaly: So that’s what I love the most about this conference, and the ones that I’ve been involved in in the past, is having the perspective of all sides of [the False Claims Act] bar. I do think that’s really important, and I will say the feedback that we’ve gotten from past conferences has been that it’s the distinguishing factor of our conference.
And so each of our panels are built that way. We have members of the defense bar, relators’ bar, and government counsel on each panel. And it really is, it’s very enlightening, I will say, as a defense bar [member] sitting in the audience, just to hear the perspective — to hear the way relators’ counsel or government attorneys think about these issues, and what’s important to them.
It just is invaluable to our practice to take that back and talk to our clients about it, talk to our colleagues about it. I think having that perspective is always helpful.
Oswald: So it helps us be better for our clients.
Seikaly: Absolutely.
Oswald: David, tell us about some of the panels. Maybe some of the ones that you’re excited about that we’re going to see.
Finkelstein: One that I’ve thought a lot about is the (c)(2)(A) relator dismissal panel. It’s a hot topic after what we lovingly call the Granston Memo. Mike Granston in his new capacity will also be [at the conference, by the way].
Organizing that panel, the (c)(2)(A) panel, is Colin Huntley — who I think it’s no understatement to say is the world’s leading authority in (c)(2)(A). He’s been responsible for overseeing all of the [Justice] department’s (c)(2)(A) litigation, both as a trial attorney and as management. And so I’m looking forward to what he has to say because it’s been a while since I’ve attended one of his trainings. I think I’ll probably learn as much as everybody else.
Oswald: So we talk about the Granston Memo, I mean that absolutely is a hot topic. Any other hot topics that we can expect to be addressed at this year’s Qui Tam Conference?
Seikaly: Well, I mentioned before the cooperation memo. I think that’s something a lot of people — I mean obviously everybody’s read the memo. But I think just having government lawyers, defense counsel, relators’ counsel, talking about that and what it means in practice, I think is going to be really interesting.
I’m personally really looking forward to the discovery panel, in part because there was a panel last year —
Finkelstein: [Interjects] Which we were on.
Seikaly: [Laughs] It was our panel, coincidentally — about materiality. And [we spent] most of our prep sessions … talking about discovery and the discovery aspects of materiality. So I think that’s going to be a really good panel.
Oswald: So Kate, we’re also going to have some time for socializing, right? We have, after the first day, a cocktail party. We have lunches each of our days — kind of an opportunity to rub elbows with folks who are on both sides of the bar, with Assistant US Attorneys and DOJ attorneys. Sounds like a lot of fun.
Seikaly: Absolutely. That’s another great thing about this conference — just having all those people in one room in that social setting, I think you meet a lot of people. I’ve met a lot of DOJ lawyers at these panels that I’ve worked on cases with and haven’t, you know, haven’t actually met in person before.
So that is a fun part of this conference as well.
Oswald: Kate and David, thank you very much.
Finkelstein: Thank you.
Seikaly: Thank, Scott.
Oswald: We look forward to seeing you on February 27-28 of [2020] at the third Qui Tam Conference. You can find us at fedbar.org.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Katherine J. Seikaly is a partner at Reed Smith LLP. David Finkelstein is a trial attorney at the U.S. Department of Justice.
» Click here for registration and full details on Qui Tam 2020
Arguments Show That Comcast Suit Is a Flawed Vehicle for Making Law
By R. Scott Oswald
How much racial discrimination must someone describe before a court may conclude, under 42 U.S.C. § 1981, that they might not have enjoyed “the same right” as a white person to — for instance — compete for a job?
The U.S. Supreme Court addressed this question in 1989, giving what seems like the only sensible response: As long as it’s within the scope of the venerable civil rights law, any intentional racial discrimination may be a violation of the statute, which first became law in 1866.
After all, Section 1981, as it’s commonly known, calls for all races to be treated the same.
“In order to prevail under § 1981,” Justice Anthony Kennedy wrote succinctly in Patterson v. McLean Credit Union, “a plaintiff must prove purposeful discrimination.”
Since then, under the Civil Rights Act of 1991, the much-used statute has been broadened and clarified by Congress. So why, on Wednesday, did a new slate of justices seem so bewildered by oral arguments in Comcast Corp. v. National Association of African American-Owned Media, a case that was granted to fine-tune Section 1981’s pleading requirements?
In large part, it was because Comcast is a manifestly flawed vehicle for making law: A non-employment case that will impact mostly employment cases, concerning the dismissal of a complaint that omitted a key fact and was tainted by dubious insinuations, posing a false dichotomy between pleading standards that could be harmonized, and examining a decision from the U.S. Court of Appeals for the Ninth Circuit that added its own layer of shakiness.
These issues were compounded on Wednesday by muddy advocacy — particularly on the part of Erwin Chemerinsky, a Berkeley law professor who argued on behalf of respondents including a company owned by Byron Allen, a former TV host and aspiring mogul who claims that Comcast discriminated against him by refusing to carry his media properties on its cable network.
In a stint at the lectern that veered from opaque to baffling, Mr. Chemerinsky seemed repeatedly to get tangled and turned-around, requiring Chief Justice John Roberts, among others, to ride to his rescue.
In the end, the justices seemed to conclude that there was far less to Comcast than met the eye: Adequately pleading a Section 1981 case isn’t rocket science, they suggested — and anyhow, the sides seemed not really to disagree. Justice Brett Kavanaugh proposed correcting what he viewed as an incidental legal error by the Ninth Circuit and then tossing the hot potato back to lower levels, where he indicated the case should likely proceed.
A better outcome might be to dismiss the writ of certiorari as improvidently granted. The supposed error by the Ninth Circuit was never briefed and a “correction” could do more harm than good. Everything else, meanwhile, can wait for a better vehicle — and for any light that may be shed by the upcoming case of Babb v. Wilkie, about standards of causation under a different statute, the Age Discrimination in Employment Act.
Babb looks to be cleaner and better briefed than Comcast, and the ADEA provision in question demands an outcome that’s just as pure as Section 1981’s “same right” phrasing, requiring that personnel actions be “free from any discrimination.” Arguments are scheduled for January.
On its surface, Comcast purported to pit two pleading standards against each other: A lenient “motivating factor” framework and a more demanding “but-for” framework. Arguing for Comcast, Miguel Estrada of Gibson Dunn claimed that Section 1981 “requires but-for causation.” Along with Morgan Ratner, who argued for the U.S. Department of Justice in support of Comcast, he ran into two main obstacles.
First, none of the justices seemed willing to recognize any real distinction between the two allegedly different pleading standards: Chief Justice Roberts called the issue “somewhat academic,” while Justice Stephen Breyer asked, “Who cares whether they say it was a motivating factor or whether they say it was a but-for?”
Indeed, when Justice Breyer suggested that a motivating-factor complaint can transform into a but-for complaint simply by alleging the same facts and adding a bald contention that Comcast “on information and belief” denied Mr. Allen on the basis of race, no other justice seemed to have a problem with his formulation.
“What’s the difference?” shrugged Justice Breyer.
Second, some of the justices challenged the underlying idea that some racial discrimination might be OK under Section 1981, as long as it didn’t change the substantive outcome.
If that’s the standard, Justice Sonia Sotomayor asked Ms. Ratner, “How can you say that [plaintiffs] have the ‘same right’ and we’re eliminating all vestiges of discrimination?”
Justice Breyer echoed this concern, as did Chief Justice Roberts at times — although, perhaps surprisingly, Justice Elena Kagan seemed unfazed by a but-for burden of persuasion for a plaintiff under Section 1981, something that’s at least arguably contrary to Justice Kennedy’s 1989 opinion. The substantive issue wasn’t before the court, but Justice Kavanaugh seemed eager to muster a majority for instructing the Ninth Circuit on it regardless.
(Justice Ruth Bader Ginsburg presumably would have tried to pump the brakes on this, but she missed the argument due to a stomach bug. She will still participate in deliberations.)
Even more surprising than Justice Kagan’s unconcern was Mr. Chemerinsky’s agreement with his opponents that Section 1981 requires but-for causation in order for a plaintiff ultimately to prevail — so that he was forced to burn time explaining why a different pleading standard made sense, while also asserting that he met the other side’s higher pleading standard anyhow even as he argued that but-for pleading “is often an impossible standard.”
It was a hard sell.
If a plaintiff can’t manage even to allege a but-for case, asked Justice Samuel Alito — and if that’s actually the standard for substantive success — then why should such a case “be permitted to go forward toward its inevitable doom?”
And furthermore, needled Chief Justice Roberts, “why have you so strenuously resisted alleging but-for causation?”
“We do actually allege [it],” answered Mr. Chemerinsky, adding another layer of fog as he explained that his point was that it’s not required.
Ultimately the justices seemed stymied by their inability to make progress with Mr. Chemerinsky. Perhaps peevishly, Justice Alito ended by diverting the argument toward other reasons the case might have been dismissed, including some conspiracy-tinged allegations in the complaint.
“Do you think that had any effect,” he asked pointedly, “on what the district court did here in granting dismissal?”
The conspiratorial stuff was omitted in the second amended complaint, Mr. Chemerinsky replied, leaving himself open to rebuttal from Mr. Estrada just a minute later.
Mr. Estrada took his opportunity with relish, somewhat overstating the “theory of the [operative] complaint” as a racist plot between Comcast and “the Obama Administration, the oldest civil rights organizations in the country, Diddy [Sean Combs], and Magic Johnson,” thereby reminding the court of the checkered history of this case.
Mr. Estrada did his client no favors by tossing in a shabby statement that Mr. Combs and Mr. Johnson — two of the most prominent Black cultural figures in recent decades, both hugely successful entrepreneurs — “apparently are some sort of artists,” but he still made his point.
In the end, the justices indicated, this case should likely move into discovery. It doesn’t need a Supreme Court decision to do so, however — and a dismissal of cert might be the most dignified way ahead. There are better vehicles for making law.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C.
(Note: This version has been edited slightly from the version published by Law360, and carries a slightly different headline.)
Avanir Pharmaceuticals Will Pay $103 Million to Taxpayers to Settle Whistleblowers’ Allegations of Healthcare Fraud
Drug Maker Improperly Paid Doctors to Boost Prescriptions of Medication Intended for Rare Disorder, Say U.S. Prosecutors
Feds Will Reward Executive Who Reported Avanir’s Scheme
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WASHINGTON, D.C. (September 26, 2019) — The maker of the drug Nuedexta will pay $103 million to settle claims that it defrauded Medicare and other government insurance programs by encouraging doctors to prescribe Nuedexta to patients who didn’t need it, according to a press release from the U.S. Department of Justice.
The drug company, Avanir Pharmaceuticals, Inc., also agreed to pay a further $12.9 million to resolve a related criminal case in which it was charged with paying kickbacks to a physician for prescribing Nuedexta, the Justice Department said.
Nuedexta is approved as a treatment for pseudobulbar affect (PBA), a rare medical condition that causes laughing or crying that is unconnected to a person’s real mood. Avanir brought PBA to popular attention with a TV advertisement featuring the actor Danny Glover. Based in Aliso Viejo, Calif., Avanir is a subsidiary of Otsuka Pharmaceutical Co., Ltd., the Japanese drug giant, itself a unit of Otsuka Holdings Co., Ltd., a public company listed on the Tokyo Stock Exchange.
The company’s practices were first reported to authorities by Kevin Manieri, a former Avanir sales director who will receive a share of the settlement proceeds. A biopharmaceuticals executive with decades of experience, Mr. Manieri was fired only months after joining Avanir in 2014. He had been quick to oppose the practices he discovered at the company, including improper payments to doctors. In early 2015, represented by The Employment Law Group® law firm and Murphy Anderson PLLC, Mr. Manieri outlined Avanir’s wrongdoing in a complaint filed against his former employer under the federal False Claims Act (FCA).
The FCA, originally signed into law by President Abraham Lincoln in 1863, makes it illegal to defraud the federal government. The law includes a “qui tam” provision that allows whistleblowers to file a complaint on behalf of the government and — if they prevail — to receive a portion of any resulting settlement or judgment.
Mr. Manieri’s lawsuit remained under seal for several years while being investigated by the Justice Department. It became public today after prosecutors agreed to its partial dismissal in the U.S. District Court for the Northern District of Ohio in exchange for Avanir’s combined nine-figure payout to the U.S. Treasury and, via a related agreement, to a number of U.S. states.
The settlement also will result in the dismissal of a second FCA lawsuit, filed after Mr. Manieri’s complaint by two sales representatives who reported similar fraud in a different part of Avanir. Those whistleblowers, too, will receive a reward under the FCA.
While Avanir has settled the fraud allegations, Mr. Manieri will continue pursuing his related claim of unlawful retaliation. Soon after he complained to an Avanir vice president about the company’s use of “speaker fees” to reward doctors for writing unnecessary prescriptions for Nuedexta, Mr. Manieri was fired on a flimsy pretext, according to the lawsuit.
“Today we celebrate Kevin for his honesty and courage in alerting prosecutors to Avanir’s actions — and for the money he has helped return to federal coffers,” said R. Scott Oswald, managing principal of The Employment Law Group (TELG), who represents Mr. Manieri. “But there’s still an injustice to be corrected here. After decades of excellence in the biopharma industry, Kevin lost his job because he spoke out at Avanir. A jury’s verdict will erase the black mark that Avanir tried to place on him.”
According to the complaint filed by Mr. Manieri, whom the drug company hired to oversee Nuedexta sales to physicians in the northern U.S., Avanir pushed its reps to focus on a few high-volume prescribers who were willing to recommend Nuedexta to patients who likely didn’t need the drug. He cited a vivid example in the complaint: A Cleveland-area neurologist who wrote twice as many Nuedexta prescriptions as any other doctor in the U.S. — and who also was Avanir’s highest-paid speaker, with 42 engagements in 12 months yielding more than $56,000 in payments.
Many of Avanir’s speaking engagements were sparse gatherings at local restaurants. The company favored speakers who were willing to promote a diagnosis of PBA “based upon a bare minimum of symptoms,” according to Mr. Manieri’s complaint. The heavy-prescribing neurologist named in Mr. Manieri’s complaint was indicted last week on criminal charges in the U.S. District Court for the Northern District of Ohio, along with another doctor and two former Avanir salespeople who arranged Nuedexta speaking engagements, “many with little to no educational value,” according to a press release issued today by the U.S. Attorney’s Office for the Northern District of Ohio.
Avanir resolved its own criminal kickback case separately today via a deferred prosecution agreement reached with the U.S. Attorney’s Office for the Northern District of Georgia, according to the Justice Department.
Avanir did not admit to wrongdoing in its civil settlements with the federal government and U.S. states, but it has agreed to pay restitution and to abide by the terms of a “Corporate Integrity Agreement” that will be enforced by the Office of the Inspector General for the U.S. Department of Health and Human Services.
Mr. Oswald represents Mr. Manieri along with Janel Quinn, TELG’s qui tam associate; both are based in Washington, D.C. They worked closely on the case with Ann Lugbill, counsel with Murphy Anderson in Cincinnati and D.C.; Assistant U.S. Attorneys Patricia M. Fitzgerald and Brendan F. Barker from the U.S. Attorney’s Office for the Northern District of Ohio in Cleveland; and Natalie Waites, senior counsel for health care fraud at the Justice Department in D.C.
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Case Information
United States ex rel. Manieri v. Avanir Pharmaceuticals, Inc.
No. 5:15-cv-611
U.S. District Court for the Northern District of Ohio, Eastern Division
Original complaint filed on March 27, 2015 (available here)
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About The Employment Law Group
The Employment Law Group® law firm represents whistleblowers and other employees who stand up to wrongdoing in the workplace. Based in Washington, D.C., the firm takes cases nationwide.
Changing Currents 2019: Panel Preview – Artificial Intelligence in Hiring
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Welcome, everyone, to a little preview of our panels at “Changing Currents in Employment Law” this year on October 29, 2019, from 6:00pm to 9:15pm at the D.C. Bar.
Today we have [turns to interviewee] Mikael Rojas of Outten & Golden — and your panel is on artificial intelligence.
Before we get there: Maybe just a little bit about you. Because you’re from the West Coast, right?
Mikael A. Rojas: Yes.
Oswald: Now you’ve come out to Washington. Tell us a little about your background and what brought you here.
Rojas: Sure. So I went from Washington State to Washington, D.C. I grew up in the Yakima Valley in Washington —
Oswald: Where’s the Yakima Valley?
Rojas: It’s about three hours east of Seattle. It’s right in the middle of beautiful orchard country and wine country. It’s home to a lot of hard-working people — and that’s part of the reason why I wanted to become an employment lawyer and a civil rights lawyer. That really set the stage for my whole life and career.
Oswald: And your family’s still in Washington?
Rojas: My whole family’s still back home. I’m the black sheep. I ended up about 2,500 miles away from everyone else, but I still get back home to see them — and they get out to see me once in a while as well.
Oswald: Well, Mikael, I want to talk about the panel on [October] 29th. It’s on artificial intelligence. I know that artificial intelligence is a new thing and it’s supposed to wring out bias from the hiring process — but it’s really only as good as the input, right? The facts that go into the algorithm. Why is that?
Rojas: I think that’s for a couple of reasons. I think the great hope for AI and a lot of machine learning tools is that we can eliminate some of the inherent biases that human beings have, unfortunately. But as you just explained, the software that we develop and the tools that we use are only as good as the people and the information that goes into them.
One high-profile example of where AI — and the business community — suffered a setback is with an Amazon recruitment tool that was developed using current Amazon employees as the model for future recruits to the company. Because of the male-dominated nature of the company, and of the industry, the tool sought out other male candidates over female candidates — and it actually ended up penalizing words [on résumés] like “women’s chess club” or [the names of] all women’s colleges.
And Amazon [ended] the use of that tool because of the bias that it saw being reflected in its use.
Oswald: That must have been a public relations nightmare.
Rojas: I think it was and there’s plenty of publicity on it. I think this issue is flashing across the headlines pretty much every day.
Oswald: So tell us a little about your panel. You will be presenting on AI — and let’s say I’m in the audience. I don’t know a whole lot about it, right? Give us a sense of what I might see on the panel.
Rojas: Sure. So I’m presenting with Meredith Schramm-Strosser from Littler Mendelson. I work at Outten & Golden, which is a plaintiff’s side firm. Littler, of course, is a great defense-side firm in employment issues. We’ll hope to do our best at representing both perspectives. And we’ll talk about some of the cutting-edge issues in this area — but we’ll hope to define the terms to begin with, as well.
Artificial intelligence can be used in a lot of different ways in hiring. It can be used to narrow applicant pools. It can be used as an affirmative recruiting device. It can be used to assess applicant performance in interviews and other application materials. So I hope we’ll walk through each of those different uses for AI and talk about the potential benefits and the potential risks from an EEO perspective and otherwise. We’ll just hope to do a good overview of all those things.
Oswald: So it sounds like, from what you’re saying, that [AI] really could be a time-saver. If done right, it could save an HR department a lot of time.
Rojas: I think that’s the big hope. Hiring is expensive, and it’s time-consuming, and it’s difficult — and it’s also a competitive process, so employers always want to be able to be more efficient, be more competitive. And if you have a machine or software that can help you do that, you know, that can be a great thing. We just have to watch out for potential issues.
Oswald: So let’s say I’m an HR director and I’m thinking about using AI in my business, in my company. What are some of the things that I need to be careful of in implementing a program that includes AI?
Rojas: I think, first and foremost — this might sound obvious, but I think it’s worth stating and restating — is you should be conscious and considerate of potential bias impacts or effects.
I think if you want to use modern technology, you have to abide by some pretty timeless principles. And that is to ensure that you’re doing the best job you can to be fair, and to comply with the law. I think you should look at the different case studies that are available. There’s a lot of media and news sources on where AI has sort of gone wrong, so I think you should be an informed consumer of the AI technology.
There’s also some legal guidance that’s in development. I think one area to look at, in particular, is the Uniform Guidelines on [Employee] Selection Procedures, which are federal regulations that help give some guidance to the business community about how they should carry out their selection procedures.
Oswald: Mikael, thank you.
Rojas: Thank you, Scott.
Oswald: [Turning to camera] We look forward to seeing all of you at “Changing Currents” this year on October 29th from 6:00pm to 9:15pm at the D.C. Bar.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Mikael A. Rojas is an associate at Outten & Golden LLP.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
Changing Currents 2019: Panel Preview – The FMLA/ADA Intersection
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Hello everyone! We are here in anticipation of “Changing Currents in Employment Law” this year on October 29, 2019, at the D.C. Bar. And we are here with Consuela Pinto. She is a shareholder at FortneyScott —
[Turning to interviewee] And Consuela, you come from a government background.
Consuela A. Pinto: I do, I do. I joined FortneyScott a little over a year ago after spending about 10 years at the Department of Labor in the Office of the Solicitor.
Oswald: So you must have a unique perspective, especially with your clients.
Pinto: I do.
Oswald: Giving them advice on what to do, and what not to do, in the employment field.
Pinto: So I think my past experience helps quite a lot in terms of guiding my clients, particularly multi-jurisdictional ones — understanding that the flavor of their audit might be a little bit different depending on whether they’re in the Northeast or the Southwest, and what the expectations are going to be from the [government] agency.
Oswald: And speaking of multi-jurisdictional issues: The Family and Medical Leave Act and the Americans with Disabilities Act — it’s different depending upon how it interplays with various state laws, right?
Pinto: Yes.
Oswald: So how does that — you know, what’s a big company to do [when it operates] in multi states?
Pinto: So that’s really a struggle for them right now as the patchwork of state laws grows — and even within the various states, the laws are very different. Some are paid family leave; some are just paid leave; some are paid sick leave. And then you have to layer, on top of those, your obligations under the Family and Medical Leave Act and the ADA.
So what a lot of multi-jurisdictional employers struggle with is: How do I comply? Do I look at all the laws that I’m subject to in the leave area and figure out which is the most generous for my employees, and apply it everywhere? Do I take a more jurisdictional approach? And if so, how do I coordinate that? How do I track that?
And then the Family and Medical Leave Act and the ADA have their own intersection and differences. That’s a whole other level.
Oswald: Sounds to me like a huge headache.
Pinto: Yes, I like to call it a quagmire. [Laughs]
Oswald: So let’s talk about the intersection between the ADA and the Family and Medical Leave Act because, you know, if I’m an employer — many say, “Well, I know I have to give 12 weeks of leave and then my obligation is done, right?”
Pinto: Right.
Oswald: So how does the ADA interplay with the Family and Medical Leave Act?
Pinto: You have to understand the standards under the two.
So the Family and Medical Leave Act: You just need a serious health condition and then you qualify for up to 12 weeks of leave, and that’s just for yourself or to care for a family member.
Then you’ve got the ADA, and the ADA kicks in when an employee has a disability and the accommodation that they need does not pose an undue hardship to the employer.
So [let’s say] you start by: Employee comes in — “I need leave.” It may very well be, when you’re providing that leave under the FMLA, you’re very likely also providing an accommodation under the ADA.
That sounds great, right? It overlaps; you’re golden!
Oswald: You can be triggering both protections.
Pinto: Right. [And] at the end of those 12 weeks your obligation under the FMLA may be done. But if that employee comes back and says, “I’m not quite well enough to return to work, I need another 12.” You are then just under the ADA and the question then becomes: Is this extra 12 weeks an undue hardship? Is it reasonable for me to provide another 12 weeks?
So one of the biggest mistakes employers make is, they assume once they’ve complied with the FMLA and they’ve given the 12 weeks, they’re covered under both [laws] and it’s all good.
And that may not necessarily be the case.
Oswald: So let’s talk about about the panel, “Changing Currents in Employment Law” on October 29. This panel will explore some of the tricky issues that come up with the ADA and the FMLA. If I’m in the audience, what might I see?
Pinto: So my colleague Cori Cohen and I, we’re going to be covering this overlap. We’re going to start out talking about the overlap between the ADA and the FMLA and how do you — what are some of the issues, as employment practitioner, you might come across, and what you need to be prepared to address to help your client stay compliant.
And then we’ll probably touch on some of the various state laws — particularly D.C.’s new paid-leave law and how that intersects, or doesn’t, with your federal obligations.
Oswald: Consuela, thank you.
Pinto: Thank you!
Oswald: [Turning to camera] And we look forward to seeing each of you at “Changing Currents in Employment Law” this year on October 29 from 6:00pm to 9:15pm at the D.C. Bar.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Consuela A. Pinto is a shareholder at FortneyScott.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
Changing Currents 2019: Panel Preview – Anti-SLAPP Laws in the Workplace
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Welcome, everyone, to our preview of our panels for this year’s “Changing Currents in Employment Law” on October 29 of this fall from 6:00pm to 9:15pm.
For this edition we are joined by Jim Murphy. Jim is a partner at Ogletree Deakins in the District.
[Turning to interviewee] Jim, welcome.
James J. Murphy: Thanks Scott.
Oswald: So tell us a little bit about your background because you, in addition to being in private practice now, you had a stint in-house at General Dynamics. Give me a sense of the perspective that brings — and [how it] helps you now to best represent your clients.
Murphy: I think it probably helps particularly when, as an outside lawyer dealing with litigation and employment counseling, you need to put things in perspective — you understand what is more critical [and] what is not as critical for the client; the areas where they might be uniquely sensitive; and the internal politics and challenges that your clients have when you’re looking for that perfect theory in a case. [Because] maybe that’s not always the thing that they need. Those sort of intangible things, I think you pick up on.
Oswald: You can tell your client, “Hey listen, I’ve been there” — right?
Murphy: There you go. There you go. Right.
Oswald: So let’s talk a little bit about your panel. Your panel is on anti-SLAPP suits and we’ve seen a number of states pass these statutes. Tell us a little bit about what they’re designed to do, why legislatures passed these, and a little bit of how they’re used.
Murphy: I mean, it is a bit of an esoteric topic, isn’t it? But actually, when you dig into it, I think those who attend the session will find it a creative [way of] thinking through some of these strategies.
But anyway, in anti-SLAPP law you’ve got to know what a SLAPP is first. So a SLAPP is a “strategic lawsuit against public participation.” And these statutes were created — right now I think there are about 30 states that have them, including the District — in order to prevent litigation and the burdens of the discovery process from being used to chill, basically, First Amendment-protected activity.
So these laws provide these protections for a defendant [in a SLAPP], but the defendant could be the individual. So it’s important, I think, to plaintiffs’ lawyers and lawyers representing individual parties, as well as the corporate employer community, when their clients are the defendant in the case.
And, in a nutshell, the District, Maryland and Virginia each have an anti-SLAPP law. They are amazingly different. At one end of the spectrum is a very vanilla statute in Virginia and then at the other end is a pretty rigorous one in the District. And Maryland’s probably in between.
So there’s a great variety between these statutes. Typically the main thrust of them is that they provide a defendant with an earlier opportunity to have [a SLAPP] dismissed early on in the case, before discovery, where the claims at issue implicate the defendant’s First Amendment activity or expressive activity. And the First Amendment really is baked into some of these things.
The interesting thing is, you wouldn’t think that these statutes really have a lot to do with day-to-day, garden-variety employment litigation — and that’s what I thought for some time, until I got a little more educated about it.
These statutes are now implicated in a lot of non-compete, restrictive covenant litigation. We’ve had some new developments, new legislation in Texas to deal with that sort of issue. Also, in California there was a case involving a major media company that terminated one of its writers for plagiarism. They were sued for discrimination, retaliation, etc., and ultimately the California Supreme Court ruled that the [state’s] anti-SLAPP law actually was available to the defendant media company in that case on the termination claim.
And you [might] think: Well, what in the world does that have to do with First Amendment activity, expressive activity? Well, the theory was that the defendant’s decision to terminate that employee for plagiarism actually was an exercise of [the company’s] First Amendment rights in that — well, it was in furtherance, let’s say, of their First Amendment rights.
Oswald: The termination decision itself?
Murphy: Right, right. Because the selection of who is going to be handling that work — writing the content and being a representative of the defendant — reflected their choice around who was going to communicate on their behalf to the public. And so there was that nexus there. It’s an interesting decision. I recommend it. The plaintiff is Wilson, I forget the first name. But it’s a good case — and a timely one.
Oswald: So let’s talk about individuals, because we know that there’s a lot of litigation surrounding employees who leave — they leave with a customer list, maybe; or they leave and they solicit business; or maybe they compete, etc.
And sometimes companies will sue them under those circumstances.
[Now] we’re seeing some litigation where [employees who have been sued] are bringing anti-SLAPP suits in response. What kind of advice do you give employers about the ironclad nature of their post-employment restrictive covenants — [especially] at the time when they’re thinking about bringing a suit against [an employee]?
Murphy: Oftentimes there are two critical points for the employer, right?
There’s the point at which somebody is drafting this ironclad agreement upfront, and it’s designed to not allow anything to slip through the cracks — so they typically have very broad, lengthy definitions, etc.
And then you’ve got the point at which somebody actually maybe is in violation of [the agreement].
One of the critical considerations there is: Just what is the employer’s legitimate interest that’s being implicated by [the employee’s] departure — and is there not only a technical violation of the language, but is the person’s departure to join this new employer really something that’s going to implicate the employer’s general business interests?
[Because] you know, to think that an employer is going to use the restrictive covenant to keep somebody on the bench, [just] because they might be in their industry and they might be competing against them, you know —
Oswald: That’s a harder sell for a court.
Murphy: Yeah, it’s a harder sell for a court. Right. So part of the challenge, I think, for employer’s counsel is to adjust client expectations sometimes in those clauses.
Oswald: So especially in non-compete litigation, unless that employer has an ironclad agreement and it’s really narrowly tailored, potentially they could be opening themselves up to [an anti-SLAPP] countersuit?
Murphy: Yeah. The interesting thing — and this has come up in some of the Texas cases in particular, that are now being addressed with legislative amendments — is that, well, where is the First Amendment activity in that? In joining another employer? Well, freedom of association, right? That’s the theory in those cases.
And the Texas legislature’s trying to dial it back — trying to narrow their anti-SLAPP statute, saying that was never the intention of the legislature when they initially enacted it. But that’s the way it’s written. And that’s the way it’s been playing out in some cases.
Oswald: Jim, thank you. We look forward to the panel on the 29th.
[Turning to camera] And we look forward to seeing each of you at “Changing Currents in Employment Law” on October 29, 2019, at 6:00pm at the D.C. Bar.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. James J. Murphy is a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
Changing Currents 2019: Panel Preview – Medical Marijuana in the Workplace
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Hello everyone. We are here with Bernadette Sargeant of the Stinson law firm. We are talking about one of our panels at this year’s D.C. Bar “Changing Currents in Employment Law” on October 29, 2019.
[Turning to interviewee] Bernadette, your panel is going to be on medical marijuana in the workplace. So let’s talk about medical marijuana — because when we’re dealing with that subject, it’s a really complicated subject because you’ve got differences between federal law, and state law, and local law.
So what’s an employer do?
Bernadette Sargeant: You know Scott, it’s a minefield really.
I think the bottom line [for] employers, even in states where there are comprehensive medical marijuana laws, [is that under] the federal law, marijuana is still a controlled substance. And a lot of employers, they might have positions that have safety requirements — so employers still have a lot of discretion if they want to be able to discipline or terminate an employee who has a positive marijuana test result. Impairment is a separate thing: Impairment involves laws of termination even for a legal substance like alcohol.
But here are the complications. First of all, not every employer wants to terminate his or her employee who tests positive.
Oswald: It may be their best employee.
Sargeant: That’s right. But if you’re a federal contractor you pretty much have to — if you’re doing contracts that require your employees to have any kind of security clearance, if they have to have a drug-free environment, if they have to be able to pass drug tests. We’ve gotten more than one call from clients who are federal contractors who are beside themselves because one of their best employees on a contract now has this marijuana issue.
Medical marijuana obviously is different from recreational marijuana. States that allow medical marijuana usage usually have a lot of certification requirements and prescription requirements. But even if an employee goes through [that] and has all of that certification that they can present, the federal law still stands as a potential roadblock.
Oswald: So let’s say that I’m an employer, or counsel for an employer, and I’m sitting in the audience at “Changing Currents” on October 29. What am I likely to hear in terms of the advice that you would give me in crafting a marijuana policy in my workplace?
Sargeant: Well, I think if you’re in a position where part of your practice is counseling employers, you always know Step One: Listen to all the facts and circumstances of your client’s situation. If your client is doing business in D.C. there is, as I said, a comprehensive medical marijuana statutory system — but there is still the federal prohibition. A lot of our D.C. employers are federal contractors.
Oswald: And if I’m a federal contractor, I’m following federal law.
Sargeant: Right — you have to be able to follow the requirements of your contract with the federal government. So the issue becomes, for medical marijuana, do I have to accommodate if a person requests an accommodation?
I think the short answer right now is: If you’re a federal contractor, you probably don’t have that option. If you’re not a federal contractor — if you’re a private employer or if you have contracts that are not through the federal government — it’s probably more nuanced whether you need to engage with some interchange as to accommodation.
Oswald: So for the employee then — I mean, what’s some good advice from the employee side? You’re going to have a co-panelist on your panel.
Sargeant: Right. My co-panelist is going to be Roshni Shikari of Correia & Puth — they do employee-side, and we are working collaboratively on our presentation.
From the employee side, the advice I would give is, first of all, if you work on a federal contract you need to talk with your medical provider about some alternative treatments, because you’re probably not going to be able to get workplace protection for medical marijuana use.
If that’s not an issue — if you don’t work in a federal contracting situation — [and] if you have been through the certification process for medical marijuana and you have whatever approvals, and a doctor’s prescription and so forth, you should proactively raise it if you work for an employer with a drug testing policy. You should communicate with HR and go through that accommodation process.
Oswald: Just like in any ADA case, I’ve got an obligation to let my employer know?
Sargeant: Right, if you’re going to need an accommodation.
Oswald: Bernadette, thank you.
Sargeant: You’re welcome!
Oswald: [Turning to camera] And we look forward to seeing you on October 29, 2019, from 6:00pm to 9:15pm at the D.C. Bar headquarters — “Changing Currents in Employment Law.”
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Bernadette C. Sargeant is a partner at Stinson LLC.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
Changing Currents 2019: Panel Preview – B.Y.O. Device Policies
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Welcome everyone — we are here with Barbara Johnson. She will be speaking at this year’s “Changing Currents in Employment Law” at the D.C. Bar on October 29, 2019.
[Turning to interviewee] Barbara, welcome.
Barbara L. Johnson: Thank you!
Oswald: So I was interested, in looking at your bio, just how varied your experience has been. You’ve just gone from BigLaw to opening up a much smaller shop. Give us a sense of, you know — behind that decision, what was going on?
Johnson: As much as I had enjoyed my time at BigLaw — had amazing experiences there — I really missed the day-to-day advice work and being able to talk to clients, be in the trenches dealing with them. And the reality is that the economic model for BigLaw doesn’t really lend itself to that very well. So now I’m counsel with a woman- and minority-owned firm. There are seven of us, which has worked out really well.
Oswald: My guess is that you can be a little more nimble.
Johnson: Yes!
Oswald: Tell us a little bit about counseling employers — especially on your [panel] topic, which is Bring Your Own Device to Work. What are some of the things that an employer should think about before they institute a policy like this?
Johnson: Well, first of all they need to have a policy, because many employers just kind of let this happen. You know, employees start using their own laptops, using their own cell phones and iPads, or whatever, and they don’t really think about it. And then the challenge is that the employee has access to all the employer’s confidential information — and what happens when that employee leaves? What system does the employer have in place to get that information back?
Oswald: So this isn’t something that employers should just allow through happenstance. It’s something where they need to actually think about what they want to do in advance.
Johnson: Yes, including things as simple as having employees use personal e-mail addresses, right? As opposed to the information being housed on the company’s server. So there are lots of aspects of this. As well as the employee thinking, you know, “This is my device, so what do you mean you’re going to wipe out all of this information when I leave? Because my kids’ pictures are on there — what’s up with that?”
So just thinking through, and educating the employee about what to expect as well.
Oswald: So for an employer thinking about putting in such a policy, [what are] a few things that you give to — advice you give to clients right at the outset, as they’re thinking about such a policy?
Johnson: Mainly to be proactive, and mainly to ensure that the employee understands that the information that is housed on their personal device is the company’s information. And [also] putting in place, I advise, the technology that will allow you to erase that company information from the personal device if and when the employee leaves your employment.
Oswald: Give us a sense of your panel and some of the things you’ll be talking about at “Changing Currents 2019.” If I’m in the audience, what am I going to see?
Johnson: What you’re going to hear about is some of the best practices. First of all, the pros and cons of allowing employees to use their personal devices. And then, if you decide that you are going to implement a bring-your-own-device-to-work policy, some of the issues that you need to look at. Some of the Fair Labor Standards Act issues as far as employees working off-the-clock, where you have hourly employees that are answering e-mails and working away — yes, so there are lots of issues to be thinking about and those are some of things that you’ll hear about.
Oswald: That must be a counselor’s nightmare, right? Having someone responding — an hourly employee responding to e-mails off time. What do you tell an employer [if] they want that employee to be responding? What do they do, under those circumstances, with the Fair Labor Standards Act?
Johnson: Well, you need to have some way of recording the time, unless it’s de minimis — if it only is taking a couple of minutes. But if you know that an employee is doing more than just a de minimis amount of work, you really do need to have some way of capturing that time and managing those expectations, right? So you know that there are people who are going to e-mail someone at 10 o’clock in the evening: Is that really what you want? You need to be thinking through those after-hours kinds of issues.
Oswald: Training managers and others in the policy: Is that important?
Johnson: Absolutely. It’s that communication, because the fact that there’s a policy in place really doesn’t mean much if nobody’s looked at it — if the employees are not aware of it
Oswald: So Barbara, tell us a bit about your background before you became a lawyer. I saw that you were a chemist?
Johnson: I was a chemist before I went to law school. I was very fortunate because I met some people, they’re both attorneys, and they convinced me that this was a good thing to do. And before you knew it I was in law school and I was hooked.
Oswald: Barbara, thank you.
Johnson: You’re welcome — thank you!
Oswald: [Turning to camera] We look forward to seeing all of you at “Changing Currents in Employment Law” this year on October 29, 2019, beginning at 6 o’clock at the D.C. Bar.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Barbara L. Johnson is the founder of BLJohnson PLLC.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
