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Minnesota dermatologist to pay $850,000 to settle Medicare fraud claim

(Transcribed by The Employment Law Group)

Tim Blotz (anchor): A local dermatologist must pay back nearly $1 million after he is busted for Medicare fraud. He was caught thanks to a colleague who turned him in. Our Jack Highberger spoke to that whistleblower’s lawyer tonight. Jack?

Jack Highberger (reporter): Yeah, so Tim this settlement comes after allegations of unnecessary procedures and outright Medicare fraud, all of it flying under the radar for over seven years until another doctor blew the whistle.

In the world of dermatology, it’s a pretty common procedure: Removing lesions that could be cancerous. But for Burnsville doctor Michael Ebertz, it allegedly became a window to fraud.

David Scher: He felt that Dr. Ebertz’ treatment of patients was not just medically unnecessary but could be harmful.

Highberger: It was Dr. Jeff Samuelson that first blew the whistle. A partner in the Burnsville practice, he noticed Ebertz was overbilling Medicare for a variety of procedures, including lesion removal.

Scher: After a while he began to look at the medical records, and determined that Dr. Ebertz was not only removing these lesions, but was also billing Medicare for them.

Highberger: Samuelson’s attorney tells Fox 9 Medicare only pays for the procedures if the lesions are malignant — and despite the fact most were benign, Ebertz would allegedly mark them as cancerous, making money in the process.

Samuelson quit the practice in 2014 and filed a lawsuit the next year. And on Friday, the U.S. Attorney’s office announced a settlement, [with] Dr. Ebertz and his company agreeing to repay taxpayers $850,000.

Scher: Doctors who are highly ethical, like Dr. Samuelson, have a very low tolerance for other professionals who engage in what they perceive to be fraud.

Highberger: And because of the way this lawsuit was structured, Dr. Samuelson was actually suing on the behalf of the United States.

Tim, Karen, back to you.

» View on Fox9.com

» Read TELG’s press release

[ADDITIONAL COVERAGE]

Dermatologist settles allegations brought by whistle-blower

From the Star Tribune (Dec. 2, 2017)

MINNEAPOLIS — Authorities say a Minnesota dermatology practice is paying $850,000 to settle allegations of falsely billing Medicare for procedures and other services.

Federal and state prosecutors accuse Skin Care Doctors and president and CEO Dr. Michael Ebertz of submitting false claims between January 2008 and December 2015.

A statement by a Minneapolis law firm says the agreement reflected a “business decision” by Skin Care Doctors and Ebertz to settle the matter in order to avoid the uncertainty and expense of litigation while continuing to serve patients. The statement says that while Ebertz and his practice cooperated in resolving the matter, they deny all allegations by prosecutors.

Authorities say the whistle-blower worked in the practice and will share in the recovery.

» View on StarTribune.com

» This coverage originated with the Associated Press and also was carried by Minneapolis Public Radio, CBS Minnesota, KARE11 (NBC), the CBS Minnesota, St. Cloud Times, and other local and national outlets.

Doctor blows the whistle on dermatology office’s alleged Medicare fraud

From the Pioneer Press (Dec. 1, 2017)

A Minnesota dermatologist and his practice are paying $850,000 to settle allegations of falsely billing Medicare for dermatology procedures, according to the U.S. attorney’s office.

The whistle-blower formerly was a physician in the practice, the office said.

Federal and state prosecutors took Skin Care Doctors and its president and CEO, Dr. Michael Ebertz, to court, alleging they submitted false claims. Skin Care Doctors has locations in Burnsville, Edina, Orono and St. Cloud.

“Medicare is a public trust. This resolution against both the company and its CEO safeguards that trust and restores needed funds to Medicare,” Assistant U.S. Attorney Ann Bildsten said in a statement. “This office is committed to taking necessary actions to rectify inflated billing to federal programs.”

» View on TwinCities.com

Whistleblower brings allegations of Medicare fraud to light

From the Lakeshore Weekly News (Dec. 1, 2017)

A whistleblower helped federal prosecutors bring a fraud case against a Twin Cities dermatology chain with offices in Burnsville, Orono, Edina and St. Cloud.

The U.S. Attorney’s Office in Minneapolis announced on Friday, Dec. 1, that Skin Care Doctors and its CEO founder, Michael Ebertz, agreed to pay $850,000 to settle the case. The prosecutors had alleged the dermatology practice filed false Medicare claims between January 2008 and December 2015.

The whistleblower, Dr. Jeff Samuelson, worked with Washington, D.C.-based Employment Law Group and with Minneapolis attorney Susan Coler, along with Assistant U.S. Attorney Ann M. Bildtsen, to present their findings.

As a result of blowing the whistle, Samuelson no longer works with Skin Care Doctors. He now practices in California.

“Jeff took a tough stand against his boss and was pushed out of the SCD practice as a result,” said R. Scott Oswald, managing principal of The Employment Law Group. “He could have kept quiet and moved on, but instead he stood up for taxpayers and future SCD patients, achieving a measure of justice with the strongest whistleblower tool available for Medicare fraud — the False Claims Act. He’s a model of medical ethics and a beacon for doctors and other medical professionals who witness wrongdoing by their colleagues.”

Coler said Samuelson came forward like most whistleblowers out of a sense of right and wrong.

» View on SWNewsMedia.com

Fox 9 Minneapolis-St. Paul

Best Practices for Working with the Government (2018 Qui Tam Conference)

A Discussion with ACE Coordinators from DC, MD, and VA

Date: Feb. 27, 2018
Location: Washington, D.C.
Organized by: Qui Tam Section of the Federal Bar Association
TELG participant: R. Scott Oswald

Join the Federal Bar Association’s Qui Tam section as it provides fresh analysis on the rapidly changing landscape of False Claims Act (FCA) enforcement.

This panel discussion is part of a two-day conference featuring experienced FCA litigators from a variety of perspectives who will dive into advanced topics and discuss the latest developments, practices, and pitfalls pertaining to the FCA.

Among the many highlights:

A conversation with two giants of FCA litigation, one from each side of the aisle — John Boese and Jim Helmer, each of whom literally wrote the book on their area of practice.
Luncheon keynotes from Jessie Liu, U.S. Attorney for the District of Columbia, plus another government heavy-hitter to be announced.
Multiple panels in which ACE coordinators and other government attorneys will share practice tips and insights — including a discussion devoted solely to working with U.S. Attorney offices.
A deep dive on the standards for an FCA claim to proceed — a fast-changing area, as district courts begin to interpret the Supreme Court’s decision in United Health Services, Inc. v. U.S. ex rel. Escobar.

Other topics on a very rich docket: The value of experts in qui tam cases; advice on reaching (and announcing) settlements; and what to expect when a qui tam claim goes to trial.

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» To register for the 2018 Qui Tam Conference, which will include this panel discussion with Scott Oswald, click here

The Nuts and Bolts of FLSA Compliance and Litigation

Date: Jan. 23, 2018
Location: Charlottesville, Va.
Organized by: Virginia CLE
TELG participant: Nicholas Woodfield

This 2-hour CLE may be attended in person, via phone, or via webcast.

Wage and hour issues continue to be one of the hottest topics in the business and employment field. Lawsuits from employees are on the rise, and so are government audits targeting employers for potential wage and hour violations. Whether you are a management-side attorney, a plaintiff’s attorney, or just an occasional adviser to a business, this program is imperative for your practice.

This event will provide an efficient overview of the most important aspects of current Fair Labor Standards Act (FLSA) compliance and litigation, including the following topics:

Misclassification issues
Employee versus independent contractor
Joint employment
Part 541 white-collar exemptions
Mechanics of settlement
Retaliation
Department of Labor initiatives

TELG principal Nicholas Woodfield is a faculty member for this webinar, along with Mark Papadopoulos from IslerDare PC.

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» To register for this event, click here

Whistleblower Helps U.S. Taxpayers Recover $850,000 From Minnesota Dermatologist Accused of Medicare Fraud

The Employment Law Group® Law Firm Represents Doctor Who Alleged
Illegal Scheme by Former Boss at Skin Care Doctors, P.A.

———-

Jeff Samuelson,
WhistleblowerSAINT PAUL, Minn. (December 1, 2017) — A dermatologist’s whistleblower lawsuit recovered $850,000 for his fellow taxpayers, as the U.S. government settled fraud claims against a Minnesota skin-care practice and its owner, whom it had accused of false billing and unnecessary surgical procedures.

The Employment Law Group® law firm represented the whistleblower, Dr. Jeff Samuelson, with the assistance of local attorney Susan Coler of Halunen Law.

In his lawsuit, Dr. Samuelson alleged that Michael J. Ebertz, a dermatologist and owner of Skin Care Doctors, P.A. (SCD), based in Burnsville, Minn., profited by knowingly treating many patients’ benign skin lesions as if they were pre-cancerous — and then billing Medicare, the government insurance program, for procedures that weren’t medically necessary and shouldn’t have been reimbursed by taxpayers.

According to Dr. Samuelson’s complaint, Dr. Ebertz also used other methods to profit illegally from his patients’ visits — and urged other doctors in the practice to follow his lead, which they refused to do. Dr. Ebertz’s patients were unaware of the manipulation, according to Dr. Samuelson, who was a part-owner of SCD at the time but was forced out after uncovering the scheme.

Dr. Samuelson now practices dermatology in California.

After investigating Dr. Samuelson’s claims, the U.S. government largely echoed his accusations and negotiated a settlement in which Dr. Ebertz denied wrongdoing yet agreed to pay $850,000 on his own behalf and for SCD. He also agreed to pay Dr. Samuelson’s attorney fees, and to stop billing Medicare for the disputed practices.

“This settlement is an important statement about the proper conduct of medicine,” said David L. Scher of The Employment Law Group, who was Dr. Samuelson’s lead attorney in the case. “When people visit a clinic such as SCD, they must be treated based on sound medical judgment — not based on how much money they can generate for a doctor’s bank account.”

The United States was represented in the case by Assistant U.S. Attorney Ann M. Bildtsen and members of the Office for the U.S. Attorney for the District of Minnesota. Dr. Samuelson brought the lawsuit under the federal False Claims Act (FCA) and will receive a reward of $153,000 for his whistleblowing.

The FCA, originally signed into law by President Abraham Lincoln in 1863, makes it illegal to deceive the federal government for financial gain. In addition to steep penalties for violators, it includes a “qui tam” provision that allows whistleblowers to file a legal complaint on behalf of taxpayers and — if they prevail — to receive a share of the proceeds.

“Jeff took a tough stand against his boss, and was pushed out of the SCD practice as a result,” said R. Scott Oswald, managing principal of The Employment Law Group. “He could have kept quiet and moved on, but instead he stood up for taxpayers and future SCD patients, achieving a measure of justice with the strongest whistleblower tool available for Medicare fraud — the False Claims Act. He’s a model of medical ethics and a beacon for doctors and other medical professionals who witness wrongdoing by their colleagues.”

“Along with Jeff and local counsel Susan Coler, we’re grateful to AUSA Bildtsen and her aggressive team in Minneapolis, and to Acting U.S. Attorney Gregory G. Brooker,” noted Mr. Scher. “They recognized the harm to Minnesota citizens, as well as to federal coffers, and they moved smartly to hold Dr. Ebertz to account.”

» Read Dr. Samuelson’s original complaint in the case, filed in 2015

» Read the settlement announcement from the U.S. Attorney’s Office for the District of Minnesota

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About The Employment Law Group

The Employment Law Group® law firm represents employees who stand up to wrongdoing in the workplace. Based in Washington, D.C., the firm takes cases nationwide.

About Halunen Law

Based in Minneapolis, Minn., Halunen Law represents employees, consumers, and whistleblowers in actions against corporations that have committed wrongdoing.

It’s OK, Whistleblowers Will Always Have SOX

By R. Scott Oswald

Based on arguments Tuesday at the U.S. Supreme Court, corporate whistleblowers are headed back to a world in which their main protection against retaliation will be the stalwart Sarbanes-Oxley Act of 2002, also known as SOX.

The stronger medicine of the Dodd-Frank Act, meanwhile, likely will be available only to employees who have reported wrongdoing to the U.S. Securities and Exchange Commission (SEC) before being fired or otherwise punished.

The upshot: While some whistleblowers still have reasons to report internally, others may run first to the SEC simply to preserve their legal options.

Even the court’s liberal justices seemed unfazed by such an outcome, which would roll back six years of SEC policy and dozens of lower-court precedents that had applied Dodd-Frank to internal whistleblowing — including the opinion of the U.S. Court of Appeals for the Ninth Circuit in Digital Realty Trust, Inc. v. Somers, the case argued on Tuesday.

“What’s the big deal?” shrugged Justice Stephen Breyer, presenting SOX as an adequate backstop against retaliation. In essence, he and his colleagues couldn’t find adequate reasons to ignore a clearly stated — if legally confounding — definition of “whistleblower” within the Dodd-Frank Act.

The definition, which requires Dodd-Frank whistleblowers to report to the SEC, “says what it says,” said Justice Elena Kagan, even as she noted that Congress may have intended to protect a larger group. “And you have to have a really, really severe anomaly to get over that.”

Oral arguments aren’t a reliable indicator of final vote tallies. Still, Tuesday’s session was notably one-sided: Literally none of the justices seemed to support the expansive view of Dodd-Frank that was pressed by whistleblower Paul Somers — not even Justice Ruth Bader Ginsburg, who wrote the 2014 opinion in Lawson v. FMR LLC, a case that broadened whistleblower protections under SOX.

Indeed, Digital Realty may turn out to be the evil twin of Lawson, in which ambiguous statutory language also was applied literally, but to the benefit of whistleblowers.

“If the statute gives a definition,” said Justice Ginsburg, echoing her Lawson logic, “you follow the definition in the statute unless it would lead not merely to an anomaly, but to an absurd result.”

Easy Ride for Employers

Arguments in the case started slowly, as the justices gave a relatively free rein to the voluble Kannon K. Shanmugam of Williams & Connolly, who argued for Digital Realty Trust. The Dodd-Frank Act, he said, aims both to reward and to protect whistleblowers — and it provides a clear definition of “whistleblower” that applies equally to both situations.

Skating past the fact that the SEC and numerous courts have found that this definition thwarts the law’s aim of encouraging internal disclosures, Mr. Shanmugam painted a world in which the only downside of Dodd-Frank is that it might be too generous to whistleblowers, since a literal reading of the statute would protect them from retaliation for activity entirely unrelated to their SEC report — possibly indefinitely.

The court’s conservative justices remained entirely silent as the liberal wing picked around the edges of Mr. Shanmugam’s argument but inflicted little harm; the advocate sat down with a hefty seven minutes remaining for rebuttal.

At the lectern for Mr. Somers, Daniel L. Geyser of Stris & Maher had a much harder time. Evidently thrown by Justice Breyer’s early “no big deal” comment, he struggled with skepticism from Justice Sonia Sotomayor before Justice Neil Gorsuch piled on with a textualist critique of Mr. Geyser’s main point — that Dodd-Frank facially protects internal whistleblowing because it forbids retaliation for actions taken under SOX, which protects such whistleblowing.

But “how much clearer could Congress have been [with its definition]?” asked Justice Gorusch — perhaps rhetorically, yet still badgering Mr. Geyser to reply with specific language. The advocate struggled to comply, and remained off-balance for several minutes as he weathered attacks from both wings of the bench.

Later in the session, Justice Gorsuch also challenged Mr. Geyser’s backup argument: That even if the law isn’t clear, the SEC’s interpretation demands deference. Not so, said Justice Gorsuch, if the SEC formed its interpretation without adequate notice to the public. Again Mr. Geyser was drawn into the weeds, again to his disadvantage — all the more so because Justice Breyer offered unexpected backup to Justice Gorsuch.

The attorney seemed grateful when his time expired, and he readily surrendered the lectern to Christopher G. Michel, assistant to the U.S. Solicitor General, who also argued for the SEC’s whistleblower-friendly interpretation of Dodd-Frank.

Mr. Michel had a clearer presentation and a better rapport with the bench, yet it was during his argument that the likely outcome became clear. Justice Kagan, Justice Ginsburg, and Justice Samuel Alito all focused on what it would take for the Supreme Court to ignore a statutory definition — and all set the bar higher than a mere “anomaly.”

It was here that Justice Ginsburg mentioned the “absurd result” standard; Justice Gorsuch pounced and extracted a damaging concession from the eager-to-please Mr. Michel.

“You agree you don’t have an absurdity here?” asked the newest justice. A literal reading of the “whistleblower” definition, while not preferred by the SEC, is “not an absurd reading, right?”

“We’re not arguing that it’s absurd,” admitted Mr. Michel. “That — that’s correct, Justice Gorsuch.”

And with that, the opinion of all the justices seemed to gel: They had a standard, and both sides seemed in agreement on its application.

When Mr. Shanmugam reappeared for rebuttal, he did a brief victory lap on the “absurdity” standard and — facing no resistance — sat down without exhausting his time allotment.

While we’ll await the result, it seems clear that the court favors a narrow interpretation of Dodd-Frank’s anti-retaliation measure. Regardless, the law retains some incentives for internal whistleblowing: In particular, a requirement for certain employees to report internally before they can claim a whistleblower reward, and an implied promise of a higher reward for reports that are first made internally.

Still, corporate whistleblowers must face the fact that, while they may be rewarded under this law, they may no longer be protected by it unless they file quickly with the SEC. The tradeoff will likely promote an increase in SEC claims and, possibly, some conscious violation of internal disclosure protocols. Employers must live with this perversity, since it’s the natural outcome of the result they sought in this case.

In the meantime, most employees who would have claimed Dodd-Frank protection will still likely be protected against retaliation under SOX — as long as they file a complaint within its shorter statute of limitations.

—–

R. Scott Oswald is managing principal of The Employment Law Group, P.C., which is based in Washington, D.C. He represents whistleblowers under SOX and Dodd-Frank, but he was not involved in Digital Realty Trust, Inc. v. Somers.

(Note: This version has been slightly edited from the version published by Law360.)

Statutes of Limitations for Discrimination Claims

By R. Scott Oswald

What is a statute of limitations? Simply put, it is the prescribed deadline for taking a particular legal action — most often, for filing a complaint. If you don’t meet the deadline, you have likely forfeited your right to take the action. Sometimes a court will consider special circumstances, but generally that’s a long shot.

Below are the statutes of limitations for the most commonly used federal anti-discrimination laws. It’s not an exhaustive list, but it covers a lot of ground. Remember: If a deadline falls on a weekend or a federal holiday, you can file your claim on the next business day.

If you have any doubts about statutes of limitations — and, frankly, even if you don’t — it’s best to check with an attorney. This list is not a substitute for individualized legal advice.

QUICK LINKS TO DEADLINES FOR EACH LAW

Title VII of the Civil Rights Act of 1964

The first comprehensive civil-rights law to protect employees, Title VII provides a template for several other federal anti-discrimination statutes that are enforced by the U.S. Equal Employment Opportunity Commission.

Type of discrimination covered

Discrimination based on race, color, religion, sex and national origin, plus (via the Pregnancy Discrimination Act of 1973) pregnancy, childbirth, and related medical conditions.

Forbids retaliation?

Yes, for retaliation based on a complaint of discrimination; filing of a discrimination charge; or participation in a discrimination investigation or lawsuit.

Forbids harassment?

Yes, when harassing behavior explicitly or implicitly affects an individual’s employment; unreasonably interferes with an individual’s work performance; or creates an intimidating, hostile, or offensive work environment.

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s Equal Employment Opportunity (EEO) Counselor.
All others: File a charge with the Equal Employment Opportunity Commission (EEOC).

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

In general, you can expect an EEOC investigation and some conclusion about the validity of your claim. Then you will face a decision about whether to pursue the matter further.

Federal employees: Based on your informal complaint, your agency’s EEO Counselor may attempt to resolve the matter internally. If that fails, the EEO Counselor will issue a Notice of Right to File, after which you should file a formal complaint with the EEOC within 15 days. The EEOC will conduct an investigation, which should not last more than 180 days, then offer you a hearing before it issues its decision on whether discrimination occurred. You can appeal the EEOC’s decision, and so can your agency. At the end of the process you may accept the outcome or continue with a claim in federal court. Also, if the EEOC fails to meet certain deadlines along the way, you may quit the process and file a lawsuit. (This is fairly common.)
All others: The EEOC will open an investigation and notify your employer within 10 days. The agency may promote a mediated settlement, but that’s voluntary for both parties. Based on its investigation, the EEOC may issue a Letter of Determination finding reasonable cause to believe that discrimination has occurred. In such a case, the agency will invite both parties to join the agency in an informal process known as “conciliation.” If conciliation fails to resolve matters, the EEOC may opt to file a lawsuit on your behalf in federal court — which is fairly rare — or it may issue you a Notice of Right to Sue, in which case you have 90 days to file your own lawsuit. Alternatively, if the EEOC’s investigator can’t conclude that discrimination likely occurred, the agency will issue a Dismissal and Notice of Rights — which also allows you to file a lawsuit within 90 days.

Age Discrimination in Employment Act

Signed into law in 1967, this statute works broadly the same as Title VII (above).

Type of discrimination covered

Discrimination based on age, if the victim is 40 or older.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 20 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above (view).

Title I of the Americans with Disabilities Act

The ADA works broadly the same as Title VII (above) in its anti-discrimination provisions. In addition, it requires certain employers to provide reasonable accommodation of disabled employees and, in the case of businesses that serve the public, to provide access to all. It became law in 1990.

Type of discrimination covered

Discrimination based on regarding an employee as having a physical or mental impairment, or based on an employee’s record of being so impaired.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees. Federal government employers are not covered.

How to start legal action

Federal employees: No action available — proceed under the Rehabilitation Act (view).
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above, but only for non-federal employees (view).

Equal Pay Act

The Equal Pay Act was signed into law in 1963. Unlike Title VII and similar laws, it does not require victims of discrimination to pass through the EEOC, which was created after the statute was passed. Instead, it is enforced via the regular judicial system. Victims of sex-based pay discrimination may choose to file claims under both the EPA and Title VII.

Type of discrimination covered

Wage discrimination between men and women who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Forbids retaliatory harassment — that is, harassment based on an action protected under this law (such as a complaint of discrimination).

Type of employer covered

All employers.

How to start legal action

File a complaint in federal or state court.

Statute of limitations (deadline for initial action)

Two years from receipt of the last discriminatory paycheck.

What happens after initial action?

The process will follow regular civil procedure, possibly resulting in a trial.

Section 1981 of the Civil Rights Act of 1866

Section 1981 specifically targets race discrimination. Like the Equal Pay Act, it is enforced via the regular judicial system. Victims of workplace racism may sue under both Section 1981 and Title VII.

Type of discrimination covered

Discrimination based on race.

Forbids retaliation?

Yes. Although the statute is not explicit, the Supreme Court held in CBOCS West, Inc. v. Humphries that employees may bring retaliation claims under Section 1981.

Forbids harassment?

Yes, the Civil Rights Act of 1991 amended Section 1981 to make employers liable for racial harassment that affects working conditions.

Type of employer covered

All employers except the federal government.

How to start legal action

Federal employees: No action available — proceed under Title VII (view).
All others: File a complaint in federal or state court.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: Four years from the last incident.

What happens after initial action?

The process will follow regular civil procedure, possibly resulting in a trial.

Section 501 of the Rehabilitation Act

The Rehabilitation Act of 1973 provides similar rights for federal employees as the ADA provides for non-federal employees. The two laws are not identical, but their anti-discrimination provisions have mostly been harmonized.

Type of discrimination covered

Discrimination based on regarding an employee as having a physical or mental impairment, or based on an employee’s record of being so impaired.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Forbids retaliatory harassment — that is, harassment based on an action protected under this law (such as a complaint of discrimination).

Type of employer covered

Federal government.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.

All others: No action available — proceed under the ADA (view).

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.

All others: No action available.

What happens after initial action?

Same basic process as Title VII above, but only for federal employees (view).

Uniformed Services Employment and Reemployment Rights Act

USERRA is one of two federal statutes that prohibit workplace discrimination against veterans; the other, the Vietnam Era Veterans’ Readjustment Assistance Act, isn’t limited to Vietnam vets but is still substantially narrower than USERRA and is used less often.

Type of discrimination covered

Discrimination based on past, present, or future qualified military service.

Forbids retaliation?

Yes — no reprisals allowed for actions protected under USERRA (such as filing a complaint).

Forbids harassment?

Yes, USERRA was amended in 1991 to recognize claims of harassment.

Type of employer covered

All employers.

How to start legal action

Federal employees: Either file a complaint with the Veterans’ Employment and Training Service (VETS) at the U.S. Department of Labor, or file a complaint directly before the Merit Systems Protection Board (MSPB).
All others: Either file a complaint with VETS, or file a complaint directly in federal or state court.

Note: Unlike the EEOC with many other discrimination claims, VETS is not a necessary step in the USERRA process.

Statute of limitations (deadline for initial action)

USERRA is an unusual law: It does not have a statute of limitations — not even the default “catch-all” that usually applies when no deadline is specified. It is possible, however, for courts to invoke a doctrine known as laches to dismiss claims that are delayed excessively for no good reason. As a result, it’s best to act as soon as possible.

What happens after initial action?

For complaints filed directly with the MSPB or in a federal or state court, the regular procedure for that venue will apply.

If a victim of discrimination chooses to involve VETS, VETS will investigate the case and try to resolve it. If that fails, victims are entitled to request a referral to government lawyers who will evaluate each case and decide whether to pursue it at taxpayer expense. Federal employees are referred to the U.S. Office of Special Counsel, which may bring cases before the Merit Systems Protection Board. Other employees are referred to the U.S. Department of Justice, which may bring cases in federal court.

Even if they get nowhere with VETS and their government referral, victims still can continue or appeal their own cases in the appropriate forum.

Family and Medical Leave Act

The FMLA requires most larger employers to provide employees with leave for specific situations, and it now includes some special rules for military families. Its accompanying anti-discrimination provisions, however, aren’t enforceable against the federal government.

Type of discrimination covered

Discrimination based on the exercise of rights under the FMLA.

Forbids retaliation?

Yes, for retaliation based on taking FMLA leave, requesting or participating in an investigation, or opposing workplace practices that violate the FMLA.

Forbids harassment?

The FMLA prohibits interference with any employee’s ability to take statutory leave, so harassment is prohibited to the extent that it constitutes such interference.

Type of employer covered

All private-sector employers with 50 or more employees; all public-sector employers.

How to start legal action

Federal employees: No action available — proceed under a different law, such as the Rehabilitation Act (view), if possible. Employees covered by a collective bargaining agreement may have other options.
All others: Either file a complaint with the Wage and Hour Division of the U.S. Department of Labor (seldom effective), or file a complaint directly in federal or state court.

Note: As with VETS and USERRA, the FMLA’s individual right of action doesn’t depend on going through the Department of Labor.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: For an action in court, the deadline is two years from the last incident — or three years, if the employer is found to have been “willful” in its violation. For a complaint before the Wage and Hour Division, the only requirement is filing “within a reasonable time,” which prudent employees will interpret as “without delay.”

What happens after initial action?

For complaints filed in a federal or state court, the regular procedure for that venue will apply.

If a victim of discrimination chooses to involve the Department of Labor, an investigation will follow. The department may hold administrative hearings or decide to litigate in federal court on behalf of the employee, although that is rare in FMLA cases.

Genetic Information Nondiscrimination Act

GINA was passed in 2008 and is rarely litigated — so far. Its provisions generally follow the pattern of Title VII (above).

Type of discrimination covered

Discrimination based on genetic information.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above (view).

Executive Order 11246, as amended

Executive Order 11246, originally signed in 1965, conditions the awarding of federal dollars on an enforceable pledge by contractors not to discriminate on grounds that have expanded over 50 years. It’s not a law, but its penalties — including possible ineligibility for federal contracts — make it just as effective. Because it doesn’t provide a right to sue, it’s rarely used by individual employees, but it’s the only federal anti-discrimination tool to explicitly prohibit private-sector bias based on sexual orientation and gender identity. (The EEOC and most courts believe that Title VII implicitly prohibits such bias via its ban on sex discrimination.)

Type of discrimination covered

Discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.

Forbids retaliation?

Explicitly forbids retaliation for inquiring about, discussing, or disclosing the pay of self or others. It may be viable to claim other types of retaliation as a form of discrimination.

Forbids harassment?

Not addressed explicitly, but it may be viable to claim harassment as a form of discrimination.

Type of employer covered

About 500,000 companies that receive money via federal contracts. Some religious companies are exempted from enforcement with regard to religious bias, but not other types of discrimination. The U.S. Secretary of Labor can make certain other exemptions on a case-by-case basis.

How to start legal action

File a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor.

Statute of limitations (deadline for initial action)

180 days from the date of the alleged discrimination.

What happens after initial action?

First the OFCCP will determine whether the complaint would be better pursued by the EEOC under Title VII (view); if so, it will refer the case. If the OFCCP keeps the case, it conducts an evaluation and tries to resolve the matter via an informal “compliance conference” with the accused employer. If that doesn’t work, it may refer the case either to the Department of Labor for administrative hearings, or to the Department of Justice for litigation in federal court. Because these proceedings amount, at bottom, to a dispute between the government and its contractor, any benefit to individual employees will be hit-or-miss. Still, there may be a measure of vindication.

W.Va. Casino Raids Tip Pool To Fund Time Off, Dealers Say

A West Virginia casino owned by Penn National Gaming Inc. got hit with a workers’ wage suit Wednesday as dealers alleged that the casino breaks state and federal law because it relies on a pooled tip fund to finance payment of future paid time off that employees may never receive.

Lead plaintiff Linda Barrick, a dealer at the PNGI subsidiary Hollywood Casino at Charles Town Races in West Virginia, asserted in her complaint that tips collected at the casino accrue in a pool to be distributed according to the number of hours each employee works, but that the casino dips into the fund without notifying dealers to finance payment of future paid time off on days when the common pool generates higher wages.

Hollywood Casino’s method of tip-dipping is based on a written contract that dealers must sign, according to Barrick. She brought the suit as a proposed class action asserting claims for breach of contract and violations of the West Virginia Wage Payment and Collection Act, as well as a collective action under the federal Fair Labor Standards Act.

“As a result of defendants’ knowing and willful failures to pay plaintiff and other similarly situated employees and former employees at a rate commensurate with federal minimum wage requirements, defendants are liable to plaintiff and other similarly situated employees and former employees for violations of the FLSA and the WPCA,” Barrick’s suit said.

Whistleblowing Across America

The Interplay Between State and Federal Law

Date: Mar. 22, 2018
Location: Clearwater, Fla.
Organized by: ABA Employment Rights and Responsibilities Committee
TELG participant: R. Scott Oswald

In recent years, several states have enacted new whistleblower protection laws or strengthened existing statutes. This panel will provide an overview of recent developments in state whistleblower protections for public and private sector employees and discuss the interplay between federal whistleblower protection laws and state common law wrongful discharge remedies.

TELG managing principal R. Scott Oswald is a speaker on this panel, along with Monique Gougisha Doucette from Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and moderator Jeffrey Heller from BP America, Inc.

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» To register for the 2018 Midwinter Meeting of the ABA’s Employment Rights and Responsibilities Committee, which will include this panel discussion, click here