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• posted: Sep. 28, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Janie Ratliff-Sweeney

Those practitioners who are approved to treat up to 275 patients addicted to opioids with suboxone must take heed of the new reporting rule that goes into effect October 27, 2016.  The new reporting rule requires doctors who are authorized to treat the higher patient limit of over 100 (but not in excess of 275 patients) with suboxone to submit to the Substance Abuse and Mental Health Services Administration (“SAMHSA”) on an annual basis certain information related to being approved to treat the higher number of patients.

A summary of the annual reporting requirements is as follows:

• The annual report must be submitted within 30 days following the anniversary date of the practitioner’s request for patient limit increase approval.
• The annual report must contain the following information:
• The annual caseload of patients by month;
• Number of patients provided behavioral health services and referred to behavioral health services; and,
• Features of the practitioner’s diversion control plan.

The rule also permits SAMHSA to check reports it receives from the practitioners prescribing under the higher patient limit against other data sources to determine whether discrepancies exist and, if discrepancies are found, the practitioner may be required to submit additional documentation.

Lastly, failure to submit the reports (or deficiencies in the reports submitted) may be deemed a failure to satisfy the requirements for the patient limit increase and may subsequently result in SAMHSA’s approval for that practitioner to treat an increased number of patients to be withdrawn.

Janie is a member at Hemmer DeFrank Wessels. She has helped numerous health care providers in Kentucky and Ohio stay compliant with new and existing laws and regulations. You can reach Janie at jratliff@hemmerlaw.com.

 

• posted: Sep. 22, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Scott R. Thomas

When I was a little kid on vacation in Virginia Beach in 1961.  I saw a public fountain marked “Colored Water.”  I ran up to use it, expecting a rainbow to flow out of the faucet.  But it was just regular water, cool and clear.  I thought it was false advertising.  My mother had to explain to me what it really was.  Didn’t understand it then.   Don’t understand it now.

Racism isn’t out in the open now the way it was in my youth.  The hate is more subtle.  Since the events in Ferguson, Missouri, much has been written about encounters between black people and white police officers.  Determining a person’s motivation and intent is difficult in a factually complex setting involving decisions affecting life and death that have to be made in split-seconds.  But what about decisions that are made over a period of weeks or months at your local zoning board?

Naturally, your local zoning board is not promulgating ordinances that openly discriminate against people of color.  Some zoning boards have tried to achieve that objective by enacting zoning which targets the poor.  Statistically, people of color make up a greater portion of low-income groups, as compared with their percentage representation in the public at large.  For the modern discriminator then, attacking the poor where they live and shop seems an attractive way to achieve an unlawful goal.  A zoning board with discriminatory intent might, for example, place limits on the number of apartments or multi-family dwellings in its jurisdiction or create zones where the kinds of retail business that serve the low-income community would be prohibited.

Zoning boards who engage in this kind of discrimination know that the deck is stacked in their favor.  Typically, an ordinance enjoys a presumption of validity.  The person contesting the ordinance has the heavy burden of showing “beyond fair debate,” that the zoning classification denies them an economically viable use of their land without substantially advancing a legitimate interest in the health, safety or welfare of the community.  Columbia Oldsmobile, Inc.  v. Montgomery (1990), 56 Ohio St. 3d 60, 62, 564 N.E.2d 455, 457, certiorari denied (1991), 501 U.S. 1231, 111 S. Ct. 2854, 115 L. Ed. 2d 1022.  The zoning board also knows that the legal battle is expensive.  The people adversely affected by the ordinance are unlikely to have the resources necessary to bring that fight.

When affected property owners, whether aggrieved individuals or a business, do mount that fight, they often find a sympathetic ear at the courthouse.  Regardless of the presumption, a zoning ordinance must still bear a real and substantial relation to the public health, safety, morals or general welfare to advance a legitimate governmental interest.  Westlake v. Given (May 12, 1983), Cuyahoga App. No. 45407.  A zoning official may find it awkward trying to explain to a judge how keeping poor people from residing and shopping in the community advances the public welfare.  A judge in New Jersey noted the cruel irony of these discriminatory efforts, i.e., that the communities have courted industries to move there yet enact laws making it impossible for the lower paid employees of those industries to live in the community where they work.

The fact that an ordinance does not expressly target the poor or people of color will not save it from judicial scrutiny.  Judges have developed a nose for discrimination and will sniff it out.  When they find it, they strike it down as repugnant.  In July, for example, a federal court struck down a North Carolina law, saying its facially-neutral provisions deliberately “target African-Americans with almost surgical precision” in an effort to depress black turnout at the polls.  A Wisconsin law that sharply restricted the locations and times at which municipal voters could cast their ballots was struck down as an obvious effort to hamper voting in neighborhoods whose residents were predominantly black.  Courts are willing to look behind the words of the ordinance to find the real intent.

Nor can zoning boards take refuge in the defense that they are implementing the will of the people of the community.  In many situations, the zoning board may be relying on sentiments expressed by residents in a survey used to develop a “master plan.”  Americans are entitled to have opinions, even discriminatory ones.  Unlike the man in the street, however, the zoning board is an arm of the government and must adhere to a higher standard, a constitutional standard.  The zoning board, as a steward of the community and its future, cannot pander to the sentiments of residents who would exclude people they consider “low class” or “undesirable.”  If zoning boards shirk their duty and adopt the prejudices of some residents, that racially-motivated ingredient will stain the ordinance and remain there for a court to wring it out.

In Warth v. Seldin, Supreme Court Justice Douglas wrote that “the American dream teaches that if one reaches high enough, and persists, there is a forum where justice is dispensed.”  Fortunately, courts are available in Ohio and Kentucky where the light of day can expose thinly-veiled efforts to discriminate against the poor and people of color.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you.  Scott’s direct line is 859.578.3862.  You can email him at sthomas@HemmerLaw.com.  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

• posted: Aug. 16, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Scott R. Thomas

Dean Wormer thought probation made sense for the Delta Tau Chi fraternity.  Many companies think a probationary period also makes sense in the employment context.  Employers who share that philosophy will create a probationary period—30 days, 6 months or a year, depending on the kind of business, the employer’s needs, etc.  During that period, a new employee is “on probation.”  Some employers will also create a probationary period in a special instance later in the employment.  This special period might arise, for example, as part of a disciplinary process, allowing the company to send a message that the employee is on thin ice.  In other circumstances, an employer might establish a probationary period when an employee embarks on a new career path, perhaps shifting from the engineering department to marketing, or being assigned supervisory responsibilities.

For all the good you can say about probationary periods, I don’t like ’em.

When you ask an employer why they like a probationary period, the typical response you get is along the lines of: “Well, if the employee is not working out or is just not a good fit for us, we can just let the employee go and there’s no big headache about it because it’s done during the probationary period.”  There’s two big problems with this, right off the bat.

First, the odds are the employer and employee may have opposite impressions of the probationary period.  The employer thinks he can fire the employee with no questions asked.  The employee, on the other hand, is apt to think “Hey, I’m a probationary employee because I’m new.  I’m going to be getting lots of coaching and training in this six month period.  Because the company knows I’m new, they know I’m going to make some mistakes in the beginning as I learn the ropes.  I’m not going to be punished for making mistakes, as long as I learn from them and improve.”

Both points of view are reasonable.  Hopefully, the company has set out its probation program in detail in the Employee Handbook or some other formal, written policy.  Frequently, the necessary guidance is not there in black and white.

Second, and perhaps more important, the company that uses a probationary period puts its “at-will” employment policy at risk.  The “at-will” employment doctrine reflects the concept prevailing in Ohio and Kentucky that an employee can be discharged—or quit—for any legally permissible reason without liability.  When a company makes an implied promise that is inconsistent with the “at-will” concept, that defense may be lost.  Here, the argument is “I could be fired during the probationary period without any cause.  Therefore, once I complete the probationary period, the employer can only fire me ‘for cause.’”

With that in mind, the employer who wants to discharge an employee with “no big headache” simply needs to understand that she can do that right now!  Naturally, we’re not talking about discharging someone for an impermissible reason, e.g., race, creed, etc.  But if John is a slow learner, or Mary is not a self-starter, the company is not legally obliged to carry them on the payroll.

When a company has a 90-day probationary period and discharges an employee on Day 145, the employee may argue: “There was no basis for firing me.  If the company wanted to fire me without cause, they should have done it while I was on probation.  Since they didn’t, and they have no reason now, I can only infer that my employment was terminated because of my [insert your favorite constitutionally-protected class here].”  If you want to know if your company is vulnerable to this kind of attack, ask yourself “What is the difference between an employee on Day 89 and Day 91?”  If you don’t know the answer—and the answer isn’t clearly written down somewhere—you may be at the mercy of an employee claiming their discharge was pretextual.  At a minimum, you may have to spend a lot of money convincing someone that the discharge was lawful.

On the flip side, a company that discharges an employee during a probationary period is not immune from claims that the discharge was discriminatory.   The fact that the discharge occurred during probation is no shield against claims of unlawful discrimination or retaliation for the exercise of a statutory right.  Given that there is no real “he-was-on-probation” defense, the value of having a class of probationary employees in the workforce is dubious.

Some employers will object to these ideas.  These folks will say: “You need to see how a person performs in the workplace before you can make a judgment as to whether they can be a valuable, long-term employee.”  To them, I say that your probationary employee is on his best behavior.  That behavior is going to change on Day 91.  Once probation is over, the employee will feel “I’m in!”  That’s when some employees will start to let things slide.  Probation doesn’t help you identify undesirable employees, it merely postpones the date when that behavior will become manifest.

Instead of establishing a probationary period, take more time in the hiring process.  If a reference doesn’t return your five phone calls, there’s a message there.  If you can’t verify key facts on a resume, take it as a sign.  If the applicant leaves important questions blank, consider it an omen.  Instead of putting the company’s at-will shield at risk, invest some more time in screening the applicants up front.

The probationary period’s utility in a disciplinary context does not justify the risks.  Consider the employer who says: “Pete, you’ve been late four times in the last two weeks.  I’m not going to stand for it anymore.  You’re on probation for 30 days.  If you’re late again, you’re out the door.”  Of course, Pete shows up on time every day during the probation period.  And just as predictably, Pete shows up half an hour late on Day 35.  You drop the boom.  What does Pete say?  “Oh, no you don’t.  I completed my probation.  That wiped the slate clean.  You have to start over again and put me on probation again or give me some kind of progressive discipline.”

I’m not saying Pete will win that argument but who wants to waste the time and money fighting about it?  The sad part is that probation is not a required part of the solution.  No employment law anywhere requires any employer to put someone on probation.  The empowered employer need merely tell Pete “You’ve been late four times in the last two weeks.  You’re on notice, buddy.  Be late again at your peril.”  Then, if Pete is late seven days later—or 37 days later—the employer can make a decision without worrying about whether it’s a probation violation.  Besides, who wants to create the paperwork to establish a probation calendar, and then monitor that calendar?

If despite these points, you feel that a probationary employment period meets your organizational needs, take precautions to ensure it can be defended.  Carefully review your Employee Handbook to confirm that it spells out the details of your program with precision.  Underscore that the existence of the probationary period does not alter the at-will character of the post-probation employment.  You may also want to create a form for your supervisors to use when imposing probation so that your process will be consistently applied.  Periodic supervisor training will also enable you to set consistent ground rules, e.g., the duration of probation, the frequency of probation, the kinds of undesired behaviors suitable for correction through probation, etc.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these and other employment law waters.  Scott’s direct line is 859.578.3862.  You can email him at sthomas@HemmerLaw.com.  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

• posted: Aug. 16, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Kyle M. Winslow

In the context of a subcontractor contract for a construction project, pay-if-paid clauses allow a general contractor to not pay a subcontractor if the owner did not pay the general contractor. While the pay-if-paid clause has not been adopted by the AIA, the typical clause will look something like this:

Subcontractor acknowledges that all payments to Subcontractor are absolutely contingent on Contractor’s receiving payment from Owner. Subcontractor expressly agrees to accept the risk that Subcontractor will not be paid for work performed by Subcontractor if Contractor, for whatever reason, is not paid by Owner for such work.

Pay-if-paid clauses are common and many states permit their enforcement. Other states deem them invalid. With the exception of 2015 unpublished Court of Appeals opinion, Kentucky law offers very little guidance on their enforceability. In Dugan & Meyers Construction Company v. Superior Steel, Inc., et al., 2015 Ky. App. Unpub. LEXIS 3 (Ky. Ct. App. Jan. 9, 2015), the Court of Appeals vacated a trial court judgment and remanded the matter for a new trial due to the trial court’s failure to explicitly instruct the jury with regard to the pay-if-paid clause in a construction contract. While the Court did not provide a detailed analysis, it stated that pay-if-paid clauses are “essentially conditions precedent to performance under the contract.” Thus, the Court of Appeals implicitly recognized the validity of these clauses.

Pay-if-paid clauses are obviously dangerous to subcontractors because they require them to assume all of the risk of owner non-payment. The existence of the clause, however, does not have to end payment discussions. A not well-known law of contracts offers subcontractors a sword in the event that a general contractor invokes the shield of a pay-if-paid clause.

The prevention doctrine is a generally recognized principle of contract law which says that if a party prevents or hinders fulfilment of a condition to his performance, the condition may be waived or excused. Stated another way, the prevention doctrine operates to void pay-if-paid clauses if the subcontractor can show that the general contractor’s actions contributed to the owner’s nonpayment.

For example, in Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717 (4th Cir. 2000, the Court found that the general contractor misled lenders regarding the cost of design changes. By misleading the lenders, the general contractor made it less likely that the lenders would arrange additional financing to cover the cost of the design changes. Thus, the general contractor hindered the fulfillment of the condition precedent (payment by owner), and the Court voided the pay-when-paid clause. While the Moore Court considered a pay-when-paid clause, the same analysis could apply to a pay-if-paid clause.

The moral to the story is that a pay-if-paid clause is not the be all and end all of a payment dispute. While Kentucky implicitly approved the clauses, they’re generally disfavored and the prevention doctrine can allow the Court an opportunity to avoid enforcement of the often unfair clauses.

Kyle M. Winslow is a trial attorney with Hemmer DeFrank Wessels PLLC. He represents construction professionals on many aspects of public and private projects, including the preparation and enforcement of mechanic’s liens and bond claims, contract negotiation, arbitration, and the litigation of contract disputes. He is licensed to practice law in Kentucky, Ohio, and Indiana.