Wrongful Termination

We are often contacted by people who have been fired from their job and who want to know if they have a potential lawsuit against their employer for wrongful termination. It is important to remember that Nebraska is an at-will employment state. That means that if your private employer fires you, and you are not part of a union and do not otherwise have a written contract, your employer may generally fire you for any reason, as long as that reason is not illegal or in violation of certain public policies. In other words, your employer can be the world’s biggest jerk, have had no reason for firing you, and your firing can be completely “unfair,” but in most cases there is no legal remedy for your firing. The most common exception for this general rule is when your employer has violated your civil rights. Therefore, when you’ve been let go by your employer, you may want to ask yourself these questions before contacting the lawyer:

1) Is a union involved, or did you have an employment contract with your employer?

2) Was your firing on account of your race, color, religion, national origin, sex, age, physical or mental disability (or perceived disability), marital status, genetics, service in the uniformed services, or any other classification protected by law?

3) Was your firing in relation to having recently been injured at work or making a workers compensation claim?

4) Have you complained about not being paid overtime, minimum wage, or similar concerns?

5) Have you reported your employer to any authorities because of illegal conduct or unsafe working conditions?

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

www.knudsenlaw.com

jlust@knudsenlaw.com

Managing Partner

Federal court compels arbitration in nursing home dispute despite unavailability of the NAF

Earlier this month in Jones v. GGNSC Pierre, LLC, the U.S. District Court for the District of South Dakota agreed with arguments made by the Knudsen Law Firm, compelling the parties to arbitrate pursuant to their arbitration agreement despite the unavailability of the named National Arbitration Forum (NAF).  Arbitration agreements naming the NAF are rapidly being challenged nationwide as a result of that entity’s unavailability under the terms of a recent consent judgment with the State of Minnesota.  In Jones, the Court noted the parties’ arbitration agreement incorporated the NAF Code of Procedure, but found no reason to believe that specification was integral to the agreement, relying instead on the parties’ primary promise to resolve any future disputes “exclusively by binding arbitration” and “not by a lawsuit or resort to court process.”  The Court also noted the agreement’s severance clause as further evidence of their intention to arbitrate if a portion of the agreement was unenforceable.  

Kevin R. McManaman

krm@knudsenlaw.com

402/475-7011

Arbitration in favor of Nursing Home

The AHCA reported the following this week.

February 12, 2010 Vol. VIII Issue 6
Long Term Care
Arbitrator Rules In Favor Of Nursing Home In Negligence Action, Awards
Attorney's Fees

An arbitrator rejected February 4 a complaint against a nursing home for
medical malpractice and other allegations, finding "the great weight of
the evidence" suggested the resident in question "died of natural causes
while on her nocturnal ventilator."
Pursuant to the arbitration agreement executed as part of the admissions
process, the arbitrator also awarded the nursing home, as the prevailing
party, attorney's fees totaling over $259,000. The cost of the
arbitration was split between the two parties.

Jason Bring and Robert Strang of Arnall Golden Gregory LLP defended the
nursing home defendants in the three-day arbitration. "The attorney's
fees represented a major victory for the defendants, and their award
demonstrates that these cases are not without risk for the plaintiffs,"
Bring said.
The surviving spouse and estate of Mae Frances Holmes Reed initially
sued Heritage Healthcare of Savannah, LLC, which operates the nursing
home where Reed resided, in a Georgia trial court.
The nursing home sought to enforce the parties' arbitration agreement
and filed suit in a South Carolina federal district court. The claimants
then conceded that the case should be arbitrated and the district court
entered an order compelling arbitration.

The complaint alleged that Reed died because her nocturnal ventilator
was not connected per her physician's orders. The complaint relied on an
affidavit of a certified nurse assistant (CNA) who worked for Heritage
Park but who was terminated roughly two weeks after Reed's death.
According to the CNA, the ventilator was not connected and the nursing
home engaged in a conspiracy to cover up the incident.
The arbitrator found, however, that the evidence demonstrated Reed's
ventilator was connected and operating appropriately. The arbitrator
also noted that no other witnesses came forward to corroborate the CNA's
allegations.
"In addition, [the CNA's] credibility was seriously undermined by
inconsistent statements that she made and by the lack of plausibility of
her accounts," the arbitrator said.

Nebraska New Hire Reporting Act Now Includes Independent Contractors

Effective January 1, 2010, the definition of "employee" under the Nebraska New Hire Reporting Act, for the first time, expressly included "independent contractors." Nebraska law requires all employers to report any newly hired or rehired employees, including, their name, address, social security number, and the date of hire or rehire, within 20 days of the date of hire or rehire.  Nebraska employers must now perform new hire reporting when hiring independent contractors.  This is required regardless of how little money is involved because there is no de minimis standard like the $600 threshold for 1099-MISC.  Also, independent contractors who are paid after January 1, 2010 need to be reported, regardless of how long the employer has done business with the contractor in the past. 

For reasons unknown the Nebraska amendment adding "independent contractor" to the definition of "employee" did not include a definition of the term "independent contractor."  Other states have expressly adopted such a definition, and the Nebraska's website (www.nenewhire.com/) has described an independent contractor using the definition used by other states as "an individual who provides goods or services to an employer under terms specified in a contract or within a verbal agreement for compensation that is reported as income other than wages and who is an individual, the sole shareholder of a corporation, or the sole member of a limited liability company.”  However, Nebraska did not adopt that language in its statute, and as of this writing (February 2010) there are no regulations or proposed regulations addressing this oversight.  The precise language of the law requires a hiring or rehiring report for any contractor providing goods or services for compensation, with nothing in law expressly limiting that to individuals, sole proprietors, or single member corporations or LLCs. 

Submitting a copy of an employee’s W-4 form, with a notation of the date of hire or rehire, is typically be sufficient for the requirements of this Act.  However, employers may now want to consider using the new federal Form W-9 which has been revised to now require such independent contractors providers to list their first and last names, and FEIN or SSN.  Importantly, employers need to submit their reports using the social security number of self-employed individuals, even if they operate with a company having a FEIN.  Therefore, while employers may ask independent contractors to complete the new Form W-9, if the individual’s social security number is still not known after reviewing the W-9, the employer should ask the independent contractor for it.  If refused, the employer is probably best to decline to hire the contractor.  Employers are advised to seek advice from their attorney on how to proceed given the unanswered questions arising from this amendment.

Kevin R. McManaman

krm@knudsenlaw.com

402/475-7011

The CLASS Act

The Community Living Assistance Services and Supports (CLASS) Act is
currently in both the House and Senate healthcare reform bills. Its
purpose is to increase access to long-term care.

The CLASS Act would create a voluntary long-term care and disability
benefit for workers. Panelists at a briefing on January 5, 2010 state
that more actions need to be taken to overcome problems facing the
field. Those panelists agree the bill benefits the long-term care field
but they suggest other ways to improve the industry as a whole.

One of the panelist identified the need for expanding the long-term care
workforce and providing increased education and training. Another
panelist stated there should be additional funding available for
existing programs to strengthen the relationship between family
caregivers and formal caregivers.

Supporters of the Act state that it will help seniors and the disabled
pay for things such as in-home caretakers all while supposedly lowering
the federal budget deficit. The Congressional Budget Office (CBO) says
that over the first decade the CLASS Act would lower the federal deficit
by $72.5 billion. Others state that the CBO used some creative math to
come up with that "savings" and that after the first decade of the
program, costs would actually increase.

The CLASS program is voluntary and open to all Americans and various
government analysts estimate that 2-6% of those eligible will sign up
for the program. CMS' analysis of the CLASS provision in the House bill
finds that there is a significant risk that the CLASS program will
become unsustainable and is at risk for failure. CMS calculated that
the CLASS program's premiums could initially be as high as $180 a month.

James Firman, President and CEO of the National Council on Aging, has
countered the critics in a letter to the Wall Street Journal stating
that there are several safeguards within the CLASS Act to guarantee that
the program is solvent over a 75 year period after the addition of an
amendment of Sen. Judd Gregg (R-NH) that the critics fail to mention.
He states that few understand that the program would be self-funded,
would promote personal responsibility, would create a new private
supplemental market and would prohibit taxpayer dollars being used to
pay for benefits. Firman says that the CLASS Act also has the potential
in health reform to bend the Medicaid cost curve downward.

www.knudsenlaw.com

Your Therapy Allowance is Shrinking, Healthcare Reform Already!

Long term care residents started fresh this year with their
annual allowance for therapy on January 1, 2010. This is due to the
expiration of Medicare Part B therapy exceptions. The spending limits
are $1,860 for combined speech and physical therapy, and $1,860 for
occupational therapy. But how long will the allowance really last? If,
however, healthcare reform should pass, it would extend the therapy caps
exceptions process.

When a resident exhausts the therapy benefit, it causes a
problem for the resident who needs the therapy and the nursing home
which provides it. The options the residents have are not very appealing
but they include: the resident privately funding the therapy; the
facility could continue to provide the therapy with the expectation it
will be reimbursed when the bill passes; or it could altogether suspend
the therapy. Another option is to send a resident to a hospital
outpatient facility where there is no limit on the therapy because
Hospitals are not subject to the therapy caps rule. However, there can
be many problems transporting residents who may be frail or unwilling.
The resident who most likely would feel the impact of the allowance cap
would be someone who suffered a high-acuity event, such as a stroke or
hip or knee replacement, and needs intensive, short-term therapy.

Although there is no cause for alarm just yet, with each day
that passes residents and nursing homes are stuck with the dilemma of
what happens next. At this point it seems that the best option for
residents in need of regular therapy is for Congress to pull together
and pass the healthcare bill. As each day passes, the health needs of
residents are depending on it. Some are optimistic in swift action by
Congress, such as Peter Clendenin, executive vice president for the
National Association for the Support of Long Term Care, stating "I think
they'll [Congress] get to it early this month, but we're sort of hanging
out there until that gets done." The Senate bill would extend the
exceptions process for one year, while the House bill would extend it
for two.

Thus, whether or not you are a fan of healthcare reform,
this is at least one reason you may consider supporting it.

Michael Khalili

mwk@knudsenlaw.com

www.knudsenlaw.com

Royal College of Physicians Releases New Report Regarding Use of Feeding Tubes for Terminally Ill Patients

According to a recent report from the Royal College of Physicians,
tube-feeding may not be the most beneficial option for feeding
terminally ill patients.

The report, which is entitled 'Oral feeding difficulties and
dilemmas: A guide to practical care, particularly towards the end of
life,' was issued by the Royal College of Physicians and the British
Society of Gastroenterology in early January in order to address the
appropriateness of feeding tubes for patients approaching the end of
life. According to the report, hand feeding, modified if necessary,
should be the primary aim of a nutrition strategy for terminally ill
patients. In addition, the report states that even in situations where
tube feeding is necessary, oral intake should be additional whenever
possible. The report also makes several other recommendations,
including the recommendation that a risk management approach be used to
evaluate all patients deemed to have "unsafe swallow." Additionally,
the authors of the report recommend that there be a clear agreement
between the parties involved regarding the aims of any nutritional
regimen.

According to the Royal Academy of Physicians, the report was
prepared to respond to the lack of consensus among physicians and others
regarding the appropriateness of artificial nutrition and hydration in
certain situations.

Laura Troshynski

www.knudsenlaw.com

Red Flags Rule update

The Red Flags Rule could be held to not apply to the health care setting
based on a federal court ruling exempting attorneys.

http://www.mcknights.com/advocates-urge-ftc-to-exempt-healthcare-from-re
d-flags-rule-following-federal-court-decision/article/163019/?utm_source
=feedburner&utm_medium=feed&utm_campaign=Feed%3A+McKnights+%28McKnights+
Home%29&utm_content=Google+Feedfetcher

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

www.knudsenlaw.com

jlust@knudsenlaw.com

Managing Partner

Ms. Lust is a charter fellow in the Litigation Counsel of America
http://www.trialcounsel.org <http://www.trialcounsel.org/> and is
admitted in Colorado, Nebraska and South Dakota. Circular 230
Disclosure: Pursuant to recently-enacted U.S. Treasury Dept Regulations,
we are now required to advise you that, unless otherwise expressly
indicated, any federal tax advice contained in this communication,
including attachments and enclosures, is not intended or written to be
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penalties under the Internal Revenue Code or (ii) promoting, marketing
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FW: NSHHRA Update re Nebraska New Hire Reporting Act - please send to the membership.

Nebraska New Reporting Requirements Now Include Independent Contractors

Effective January 1, 2010, the definition of "employee" under the
Nebraska New Hire Reporting Act, for the first time, expressly included
"independent contractors." Nebraska law requires all employers to report
any newly hired or rehired employees, including, their name, address,
social security number, and the date of hire or rehire, within 20 days
of the date of hire or rehire. Nebraska employers should now perform
new hire reporting when hiring independent contractors. This is
required regardless of how little money is involved because there is no
de minimis standard like the $600 threshold for 1099-MISC. Also,
independent contractors who are paid after January 1, 2010 need to be
reported, regardless of how long the employer has done business with the
contractor in the past.

For reasons unknown the Nebraska amendment adding "independent
contractor" to the definition of "employee" did not include a definition
of the term "independent contractor." Other states have expressly
adopted such a definition, and the Nebraska's website
(www.nenewhire.com/) describes an independent contractor using the
definition used by other states as "an individual who provides goods or
services to an employer under terms specified in a contract or within a
verbal agreement for compensation that is reported as income other than
wages and who is an individual, the sole shareholder of a corporation,
or the sole member of a limited liability company." However, Nebraska
did not adopt that language in its statute, and there are no current
regulations addressing this oversight. Therefore, the language of the
law requires broad reporting, and employers must report hiring or
rehiring any contractor providing goods or services for compensation,
with nothing in law expressly limiting that to individuals, sole
proprietors, or single member corporations or LLCs.

Submitting a copy of an employee's W-4 form, with a notation of the date
of hire or rehire, is typically be sufficient for the requirements of
this Act. However, employers may now want to use the new federal Form
W-9 which has been revised to now require such independent contractor
service providers to list their first and last names, and FEIN or SSN.
Importantly, employers need to submit their reports using the social
security number of self-employed individuals, even if they operate with
a company having a FEIN. Therefore, while employers should ask
independent contractors to complete the new Form W-9, if the
individual's social security number is still not known after reviewing
the W-9, the employer should ask the independent contractor for it. If
refused, the employer is probably best to decline to hire the
contractor.

Employers are advised to seek advice from their attorney on how to
proceed given the myriad unanswered questions arising from this
amendment.

<http://www.knudsenlaw.com/Att_Bio_KRM.htm>
<http://www.knudsenlaw.com/>

Kevin R. McManaman

krm@knudsenlaw.com <mailto:krm@knudsenlaw.com>

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

www.knudsenlaw.com

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)