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Professional Liability Matters

Seeking Your Nomination
Attention blog readers! This year, the ABA Journal is publishing their first ever “Web 100” celebrating the best of the legal industry on the web. In order to be named, we’ll need your help. For years, Professional Liability Matters has been your source for trends, regulations, decisions, and breaking news impacting the professional liability community. Our goal is — and always has been — to educate you about the professional liability landscape and provide resources to help professionals avoid pitfalls and to defend those professionals in the event of a lawsuit. If you feel Professional Liability Matters is one of the best legal blogs today, click here to nominate us.  The nomination deadline for the contest is July 30th.

POSTED JULY 14, 2017 2:13 PM
Accommodation for the Mark of the Beast
Most employers know of the requirement to adjust any aspect of the working environment which may conflict with an employee’s religious beliefs. At the federal level, under Title VII, an employer must make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.  But what are religious accommodations? What proof may an employer request in order to establish that the employee is being sincere? The 4th Circuit recently examined a religious accommodation scenario that ended in an award of nearly $600,000 in damages and other benefits to the employee.

POSTED JULY 11, 2017 2:48 PM
The ADA and the Internet
Most employers and business owners are generally aware of the requirements set forth by the ADA to accommodate accessibility to buildings and facilities by individuals with disabilities. These guidelines may impact the type of material used or the design of entrances, doorways and the like. However, how many business owners understand that these regulations also govern the Internet? The advancement of technology continues to make it easier for consumers to purchase goods and services without venturing outside. While websites allow companies to market to more consumers, the use of Internet services also expose employers and business owners to liability of the site isn't compliant with the ADA. The Southern District of Florida addressed this issue in Gil v. Winn-Dixie Stores, Inc.

POSTED JULY 06, 2017 1:43 PM
High Court Hands Victory to Secondary Debt Market
In Justice Neil Gorsuch’s first written opinion for the Supreme Court, he handed down a major victory for the secondary debt market by ruling that debt buyers do not fall under the definition of “debt collector” for purposes of the FDCPA. Under the FDCPA, debt collectors are subject to strict requirements when attempting to collect debts and violating these rules leads to significant liability. Until now, a split among the circuits existed as to whether the term “debt collector” includes entities that purchase debt originally owned by another party.  The Supreme Court therefore granted writ in Henson v. Santander Consumer USA, Inc. in order to resolve the inconsistent application across jurisdictions.

POSTED JUNE 27, 2017 1:30 PM
Workplace Violence: How to Maintain a Safe Work Environment
The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many laws that protect employment interests. Reportedly, every year, approximately 2 million Americans fall victim to workplace violence. According to OSHA and the Bureau of Labor Statistics Census of Fatal Occupational Injuries, homicide is the fourth highest cause of workplace fatalities in the United States. The scope of what and how workplace violence may occur is broad. It can involve conduct between employees, employees and customers, and employees and non-employees (e.g. a spouse). Given the serious nature and risk associated with workplace violence incidents, it is imperative that employers take steps to prevent such acts from occurring.

POSTED JUNE 16, 2017 5:39 PM
Heavy Scrutiny of Employment Agreements
Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.

POSTED JUNE 13, 2017 3:19 PM
Isolated Racial Slur Triggers Hostile Work Environment Claim
One strike, you’re out? The isolated use of a racial slur may be enough to establish a hostile work environment claim. While the Second Circuit did not squarely answer the question in the affirmative, in Daniel v. T & M Prot. Res., LLC, the court allowed the claim to proceed. To establish a hostile work environment claim, a plaintiff must show: that the workplace was permeated with discriminatory intimidation that was sufficiently severe to alter the conditions of the work environment and that a specific basis exists for imputing the conduct that created the hostile environment to the employer. So what does severe or pervasive mean in this context? Can an isolated incident rise to the level of pervasive?

POSTED MAY 24, 2017 2:24 PM
Hiring Decisions and the NFL Draft
You can learn a lot about reputational harm and hiring decisions from the NFL. A college football player potentially lost millions recently as his draft stock tumbled in the wake of a rape investigation weeks before the NFL Draft. Granted, the player was selected in the first round, but at a lower pick than originally projected. Reportedly, numerous teams called the player within 48-hours of the disclosure of the investigation to hear his version of events. Some teams reportedly administered a polygraph test to the player. But what's enough? What steps must an employer take to investigate potential employees? A related question: what's the potential reputational cost to the employer? These are critical employment decisions.

POSTED MAY 23, 2017 3:14 PM
Debt Collectors Earn Win on FDCPA Claim for Stale Debt
Debt collectors recently won an important victory in the U.S. Supreme Court, which ruled that filing a stale claim in bankruptcy court does not run afoul of the Fair Debt Collection Practices Act (the “FDCPA”). Although the Opinion does not affect a debtor’s potential claim for sanctions under frivolous filing rules, it does remove at least one potential avenue for recovery.

POSTED MAY 17, 2017 2:22 PM
PA Supreme Court: Attorneys Still on the Hook
Attorneys are expected to act as zealous advocates for their clients. As such, attorneys often pursue claims on behalf of their clients even when the legal theory of recovery is unclear or the facts developed in discovery favor a defense verdict. In some cases, however, attorneys may pursue recovery even where they know that the claims are without merit or the theory of liability is contrary to an established rule of law. When an action is clearly frivolous, the defendants may be entitled to bring an action of their own against both the plaintiffs and counsel for wrongful use of judicial proceedings.

POSTED MAY 11, 2017 2:40 PM

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