Tennessee Law Blog

After the past few years the state of Tennessee and my office has seen more age discrimination cases. There is some debate as to why. The most commonly given reason I hear for the rise in job related age discrimination is that the work force is simply getting older. Whatever the reason for the rise in claims it is very unfortunate that it is occurring.

Under the law employers may not discriminate against employees in hiring, firing, or other terms and conditions of employment if they are 40 years of age or older. This law applies to all employers with 20 or more employees. Tennessee has some laws that applies to employers with less than 20 employees.

If you feel that you are being treated differently solely on the basis of you age it is important that you take every step necessary to protect yourself. It is not an easy task to prove age discrimination so it is advisable that you contact an attorney, the EEOC or both if you are uncertain as to what you should do.

Amendments to The False Claims Act in 1986 as well as Tennessee’s own Tennessee Medicaid False Claims Act (TMFCA) allow qualified whistleblowers to earn a portion of the government’s recoveries (called “qui tam provisions”) when whistleblowers, known as “relators,” appropriately report their company’s defrauding the government. Two examples of False Claims Act fraud found settlement in court and received media coverage this week for their substantial moneys awarded their whistleblowers who reported the fraud.

Military Contractor Fraud

A False Claims whistleblower led Justice Department officials to investigate from a company producing inferior-quality Kevlar cloth for our military’s combat helmets for the past 12 years. This military contractor fraud investigation led to a $2 million settlement after whistleblowers’ testimony during the False Claims Act lawsuit revealed that the company under military contract was knowingly producing inferior quality goods that did not meet military specifications. Instead, they wove up to 10% fewer than the minimum safety standard of 35 x 35 strands of Kevlar in order to save on production costs and time, that is, stealing federal tax dollars to provide an unsafe product to our troops.

Defense Department officials have not presented any evidence of troop from these inferior materials, but this could be due to the helmets the cloth was used in being phased out.

The two relators for this case had previously approached management concerned about the lives they were endangering by producing the inferior Kevlar. When that didn’t work, they sued.
From qui tam provisions under the False Claims Act, the two will receive $406,350 of the government’s award.

Health Care Fraud

A district sales manager for Merck finally found completion to her 7 year False Claims lawsuit alleging billing fraud by the drug pharmaceutical maker. But the wait was worth it. Merck, the U.S.’s third largest drug pharmaceutical company, agreed to pay over $400 million in one of the largest sums ever collected by various state and federal governments. The qui tam relator will receive about $68 million.

The relator in the Merck’s lawsuit had inside information about corporate practices--information the government relies on when it contracts with or subsidizes an industry. This is especially true in the health care industries, where whistleblowers have helped recover just under $9 billion (and to the $1.4 billion benefit of the relator).

In Merck’s case, the whistleblower reported that the pharmaceutical company was using unfair pricing practices to overcharge Medicaid (tax funded healthcare for the poor).

Working with a False Claims Attorney

One whistleblower can make all the difference in the immediate lives of soldiers or in the tax dollars available for bona fide health care programs. Relators can earn upwards of 30% of the total government fraud recoveries--just for doing the right thing. As an added bonus, federal and Tennessee law protects False Claims whistleblowers from retaliation, even if their case is not won.

But protections and payoffs only come if you appropriately file your False Claims lawsuit.

To speak with either myself, Attorney Jim Higgins, or of HHP’s Tennessee government fraud specialists, fill out our quick online form or call our Nashville, TN offices at (615) 353-0930.

There’s a certain conception of workplace discrimination that I’d like to correct in this week’s Tennessee Law Blog. Too often Tennessee workers whom HHP partner Attorney Rick Piliponis and I have met with do not realized that they were being discriminated against, though they were passed over for promotions or denied benefits, because no one was mean to them or made inappropriate comments.

There are two main requirements in Tennessee workplace discrimination lawsuits, and neither of them requires that your employer be mean to you. These two Tennessee workplace discrimination requirements are:

1. Protected class - Federal and Tennessee employment law prevents discrimination in the Tennessee workplace on the basis of race, color, religion, age, gender, or disability.
2. Financial loss – a determinable financial loss whether this is denial of time off, promotion, or transfer or other prejudicial treatment based on your protected class. If you quit your job because of workplace discrimination and found a higher paying one, then it will be difficult to demonstrate losses in a Tennessee discrimination lawsuit.

In fact, your Tennessee employer can be mean to you and can treat you unfairly and different from the other workers. Title VII and other federal and Tennessee discrimination laws only state that your employer can’t be mean or unfair because of your protected class. When your protected class causes you and others of your protected status to suffer unfair or unequal pay or perks, then you should speak with a Nashville, Tennessee discrimination attorney.

Disparate Impact and Tennessee Discrimination

On a basic level, workplace discrimination lawsuits are the same: they require proof of discrimination based upon a characteristic protected by law (protected class). Because they are similar, I am going to focus on workplace age discrimination, though age, sex, veterans’ status, and another characteristic protected by discrimination law when I discuss disparate impact.

Disparate impact occurs when corporate policy creates a situation in which members of a protected class are put at a disadvantage. Often, this discrimination is unintentional, though it often takes legal representation to force the company’s hand and provide backpay for wages, promotions, or other moneys Tennessee employees would have earned if they weren’t a member of a protected class.

Disparate impact developed through a 1971 Supreme Court case that decided:

“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

Disparate impact is not always easy to detect. Its standards are applied to all employees, though it indirectly discriminates as can be shown through losses in pay or promotion. A famous case of this involved providing incentives that put workers 40 years of age or older at a distinct disadvantage.

Mr. Smith Goes to Washington

Age discrimination as an unintended effect of employment policies was the basis of the 2004 Supreme Court case Smith, et al. v. City of Jackson, Mississippi, et al. Mr. Smith and other police officers in the lawsuit were over 40 years old, a characteristic protected by law under ADEA (Age Discrimination in Employment Act). While the City of Jackson did not mention age as a requirement for its benefits, a new policy it enacted put older officers at a disadvantage.

City officials wanted a positive revision to their police officer pay program. They wanted to retain the new officers they had recruited, so they offered wage increases to all officers and dispatchers, though a larger wage increase to those police officers with less than five years of service. This had the effect of putting employees with more than five years at a disadvantage--and most of these employees were 40 or older. Although on paper no specific group was being discriminated against and although city officials might never have meant to put older employees at a disadvantage, protected workers found themselves not being paid fairly.

Nashville, Tennessee Workplace Discrimination Attorneys

If you believe you have been a victim of age or other employment discrimination in Nashville or anywhere in Tennessee, the Nashville employment attorneys at Higgins, Himmelberg & Piliponis at (615) 353-0930 or fill out our contact form to speak with a qualified Tennessee discrimination attorney about the possibility of a discrimination lawsuit.

This last fiscal year (10/01/06 – 09/30/07), federal False Claims lawsuits (which I’ve previously written about here, here, and elsewhere) recovered over $2 billion in taxes through settlements and judgments, according to figures released last week by the U.S. Department of Justice.

Of this amount, $1.45 billion was recovered by False Claims lawsuits initiated by qui tam whistleblowers who themselves were awarded $177 million last year. These whistleblowers, known as “relators,” are offered special legal protections including anonymity during initial proceedings and anti-retaliation protections regardless of the district court’s judgment in the False Claims lawsuit.

Under the 1986 False Claims Act Amendment, relators are awarded 15% - 25% (and in some cases more) of the government’s recoveries. Corporations who knowingly defraud the federal government ("false claims") are liable for up to thrice the government funds falsely billed plus $5,500 to $11,000 for each false claim. Since the passing of the 1986 amendment to the False Claims, over $20 billion has been recovered.

About half of the total federal recoveries are from Medicare and Medicaid fraud. The remaining portion of False Claims recoveries are from false billing to the federal government, whether the Department of Defense or other government entity. In recent years, Lockheed Martin, Conoco Phillips, PacifiCare Health Systems, OfficeMax, Oracle, and Hewlett-Packard have all been brought to court from qui tam relator’s whistleblowing.

In the 2006 fiscal year, federal qui tam relators were awarded over $190 million. Tennessee False Claims relators receive an even larger percentage of qui tam awards, usually between 25%-33% of the decision or settlement.

Contact HHP if you have information on Medicare/Medicaid or other false claims receiving federal or Tennessee state funds and wish to speak with a Nashville qui tam lawyer about taking action as a False Claims whistleblower.

Leaving the Tennessee Mornings studio earlier today, I realized there were still a few points that I wasn’t able to cover on-air concerning Tennessee non-compete contracts.

Unfortunately, I still don’t have the time right now to go into most of them. Besides, each contract is unique.

Instead, what I would like to do for you Tennessee Law Blog readers is emphasize one essential point underlying the validity of any Tennessee covenant not to compete (another name for a non-compete contract) and the basis for valid disputes and negotiations. However intuitive the following might seem in the often counterintuitive Tennessee Law, the essence of any non-compete is whether the contract answers the following in the positive or the negative:

Is the non-compete clause/contract fair?

Continue reading "Tennessee Mornings Follow-Up: TN Non-Compete Contracts" »

This coming from The City Paper, a former Tennessee executive for Iasis Healthcare, one of Tennessee’s largest health care companies, has blown the whistle in a False Claims lawsuit.
Jerre Frazier worked for Iasis in Franklin, Tennessee for four years, becoming vice president for ethics and compliance and as its chief compliance officer. During this time, Frazier discovered that many of the top Iasis executives had previously worked for Nashville-headquartered HCA, a for-profit hospital chain which itself was guilty of defrauding the government through Medicare fraud totaling $1.7 billion (yes, a b as in bullion and in boy that’s a lot of money).

The allegations in the present False Claims lawsuit against Iasis Healthcare is that these executives from HCA brought their dirty business with them. Specifically, the False Claims charges are that Iasis compensated doctors for their referrals and for performing unnecessary medical services that were charged to Medicare. In return, doctors received discounted rent for office and lab space from Iasis.

Iasis owns 15 hospitals, none located in Tennessee, along with other medical facilities. If the court sides in his favor, Frazier will be awarded 15-30% of the government’s total recoveries (remember that b-illion number above) for blowing the whistle on Iasis and helping the federal government reclaim its stolen Medicare funds. The percentage depends on if the Department of Justice will pursue this matter or turn it over to private qui tam attorneys.

Walter Klepacz went to sleep last week with a clean conscience and roughly $1.466 million richer.

A few years ago, Klepacz was working as Quality Assurance Manager for Crane, Co., a manufacturer of various machine fittings and parts, when he began asking questions about some shady business practices for obtaining government contracts, honest questions that led him to be fired.

Klepacz knew there were specific regulations regarding government contracts, laws regulating who gets the project and the quality of materials sold to the military and where they were produced, and he knew his employer was bending and sometimes breaking these laws. He knew Crane, Co. knew it was selling substandard valves to the U.S. Navy and other parts that would be used in combat. They also were manufacturing a portion of these substandard parts with materials from outside of the United States in violation of the Berry Amendment and Buy America Act. What Klepacz didn’t know until he met with a workplace lawyer was that not only was his firing illegal but he could also file a lawsuit on behalf of the U.S. to recover the moneys Crane, Co. had made by defrauding the government.

U.S. District Court Judge Kenneth Hoyt found Crane, Co. had acted illegally with its use of government money, and Klepacz was rewarded for his actions as a few dozen brave Americans are every year through whistle blowing and filing a False Claims Act.
Click if you suspect your employer of defrauding the government and would like learn more about filing qui tam cases. We are located in Tennessee but work with firms throughout the country. Click to speak with a workplace lawyer.

It’s not been publicized, but it’s earned honest citizens around the country tens and hundreds of thousands of dollars for blowing the whistle and protecting fellow Americans. It’s kept on the q.t., but the Department of Justice relies on it for the protection for our tax dollars. It’s the fear of every corrupt corporation. It’s called “qui tam” from a Latin phrase meaning “to sue for the king as well as for oneself,” and it’s time word got out.

As of the last fiscal year, the U.S. has recovered over $6 billion as a result of the False Claims Act lawsuits, of which over $960 million has been paid to qui tam whistleblowers. Under the False Claims Act, a corporation guilty of defrauding the government can be sued for three times the government’s damages plus $5,500 to $11,000 per instance of fraud. The qui tam whistleblower, who has firsthand knowledge of the corporate abuse and files with an attorney, is entitled to 15% to 30% of these awards.

The number of qui tam cases is increasing.

Too often those in the private sector see the government as one big cookie jar. Corporations and employees lose little sleep charging for services never performed or for equipment never installed because they believe government bookkeeping agencies are too big or slow to find the error. Some believe government won’t care or think they aren’t doing anyone (except that vague idea of the taxpayer) any direct harm. While computer manufacturers, military contractors, and oil companies have all been brought to trial by qui tam whistleblowers, the biggest culprit is the health care industry. And here harm from corporate fraud abounds.

Tennesseans suffer more than just financially when federal tax dollars are misused. Last year, because of a qui tam case involving shocking mistreatment and neglect of elderly veterans in two Tennessee veterans’ homes, these abuses, including one homicide, were made public. In another False Claims Act case, a Tennessee oncologist guilty of defrauding Medicare, TennCare and BlueCross and BlueShield was found to have been diluting chemotherapy medications given to her cancer patients and instructing her nurses to give only partial doses of medications to patients. She has sentenced to over fifteen years’ imprisonment for actions.

There are a number of provisions protecting qui tam whistleblowers from retaliation from their employer. The first step in any qui tam claim is to contact a qualified attorney, such as myself or my HHP associates, to begin the filing process.

Here are some common questions I receive from an employee being harassed at the work place are: How do I stop it? What do I do? Should I quit? Should I just stay quiet?

The answers to these questions vary with each situation. There are a few things we must consider. For the purposes of this blog, however, I well tell you where we always start. Is the behavior actually sexual harassment? There are some cases that are obvious but often the behavior can be more in a grey area.

To give you some guidance, as to what is sexual harassment, the EEOC defines sexual harassment as:

* unwelcome sexual advances;
* requests for sexual favors;
* other verbal or physical conduct of a sexual nature-when:

o submission to such conduct can be either explicitly or implicitly a term or condition of an person's employment or academic success (man or woman), or

o submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting such individuals, or

o the conduct has the purpose or effect of unreasonably interfering with an individuals work or academic performance or creating an intimidating, hostile, or sexually offensive working environment.