Yes, generally, according to EEOC guidance. Under most circumstances and subject to limited exceptions, federal law does not prevent your employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.
We’ve recently been barraged by people alleging that their employer has “illegally” or “unconstitutionally” mandated their employees’ vaccination. These potential clients want us to sue their employers for them. But federal law does not prohibit employers from following the suggestions made by public-health officials, like the Centers for Disease Control and Prevention. That guidance includes vaccination against COVID-19 for all eligible age groups.
In some circumstances, however, Title VII and the Americans with Disabilities Act (ADA) require employers to provide “reasonable accommodations,” or exceptions, for employees with a disability or a sincerely held religious belief, practice, or observance that prevents them from getting vaccinated for COVID-19. You would have to prove the need for accommodations.
But what’s a reasonable accommodation? And what does that mean for me?
A reasonable accommodation is a change made in a work environment to accommodate an individual with a demonstrated need. On that basis, someone who doesn’t get vaccinated due to a disability or a sincerely held religious belief or practice might be entitled to a reasonable accommodation—but only if it doesn’t pose an “undue hardship” on the operation of the employer’s business. For example, as a reasonable accommodation, your employer may (rightfully) ask you to wear a face mask, socially distance yourself from others, work an altered shift, get periodic tests for COVID-19, telework, or accept reassignment. The measures are scientifically proven to save lives.
What if I have a disability?
It depends. For one, your disability has to be covered by the ADA to qualify for reasonable accommodations. The Act defines a disability as "a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment." The regulations define "physical or mental impairment" as any physiological illness, disease, or condition. They also cover mental or psychological disorders.
But even under the ADA, your employer can still require individuals with a disability to meet safety-related standards—including COVID-19 vaccination—if the standard is job-related and necessary for the ordinary course of business. If you cannot meet such a safety-related qualification standard because of a disability, your employer can’t require compliance for that employee unless it demonstrates that you pose a “direct threat,” or significant risk of serious harm, to your own health or safety or that of others. If your employer concludes, based on an assessment of your individual circumstance, that you would pose a direct threat, they must decide whether a reasonable accommodation, like mask mandates and social distancing, would eliminate that threat.
What if I have a sincerely held religious belief?
You’re also entitled to reasonable accommodation. The legal definition of religion is very broad. And it protects beliefs and practices that may be unfamiliar to your employer. So your employer should generally assume that any religious belief is, in fact, sincerely held. But your employer is also entitled to request additional information if they have reason to question whether or not your belief is actually based on religion. So don’t make empty, insincere claims. Not wanting to do something is not the same as having a religious belief.
What if I’m pregnant?
Under Title VII, you’re entitled to certain adjustments if you’re pregnant and don’t want to get vaccinated for COVID-19. Similarly to reasonable accommodations, these options include telework, changs to your schedule, and mask-wearing if the employer makes them available to other employees.
Is it illegal for my employer to ask for documentation that I’ve been vaccinated?
No. Your employers’ collection of vaccine-related documentation does not constitute using, acquiring, or disclosing genetic information, as is prohibited by Title II of GINA, the federal statute preventing employees from using employees’ genetic information.
The bottom line? It’s generally not a civil-rights violation for your employer to mandate vaccination. And it’s the right thing to do. Get vaccinated. It protects you, your loved ones, and your community.
Visit https://www.vaccines.gov/ to find the vaccination site nearest you. Be a responsible citizen.[Permalink]
No. It does not.
Countless people barraged us with complaints durimg the coronavirus/COVID-19 pandemic that some private business supposedly violated their "free-speech" rights by requiring face masks. They're so offended they want to sue!
No, that's not an actual constitutional violation. The First Amendment applies to governments, not private businesses. This is basic constitutional law.
Even if a potential client offered us a million dollars, our answer would be the same.
And it isn't a "First Amendment violation" for governments to require that you wear a mask either during the pandemic. People compliantly wore masks during the last pandemic, in 1918. Because they weren't idiots. They wanted to live.
How far we have fallen as a society.
We don't understand where people are getting this idea, and getting all worked up about it. You should see the rants that people send to us—whining about rights that don't exist, without a care for their fellow citizens. People are self-destructive too. One terminally ill cancer patient wanted to sue because a hospital was requiring mask-wearing. The person was actually foregoing cancer treatment over this matter of supposed "deep principle."
When we patiently explained the law, and how the hospital is trying to protect its personnel and other patients, the response was, "LIBTARD!" Absolutely no regard for doctors and nurses who are putting their own lives on the line for others. (And who... wear masks to protect us.)
People should be worried about the deadly pandemic, and be trying to protect themselves and others. Rights come with responsibilities. You wear a seatbelt. Wear your mask.
And stop making up "constitutional" rights that don't exist just so you can get all self-righteous and endanger your fellow citizens while claiming to be a "freedom" lover. If you won't acknowledge science and protect others, you're not a "freedom" lover. You're just a selfish fool.
If you still don't believe us, then track down and call Rudy Giuliani. He's quite a lawyer.
No. The First Amendment generally applies only to governmental misconduct.
Twitter and Facebook are private companies. They have their own First Amendment right not to be associated with Trump. And they have the right to set their own terms of service, and to hold violators of the terms of service accountable.
Even if Twitter and Facebook were governments subject to the First Amendment, incitement to riot and commit violence—which Trump is caught on video engaging in—is not First Amendment–protected conduct. U.S. Supreme Court case law has long held that such activity is an exception to the protections of free speech.
No. The First Amendment restricts governmental action only.
We are contacted frequently by people complaining that Facebook, Twitter, Intagram, or other private corporate social-media companies supposedly violated their "free-speech" or "First Amendment" rights. These potential clients want us to "sue" these social-media companies for them.
But Facebook, Twitter, and Instagram are private companies. They are not the government. They can set their own rules on speech and there's nothing you can do about it. A court that tried to do something about it would be violating those companies' right to free speech. And conservative judges have ruled—and conservative politicians have insisted—that private corporations have a right to free speech.
Others contact us complaining that some private store violated their "free-speech" rights by requiring face masks during the pandemic, or barring political speech of one kind or another, or barring political speech generally.
There's nothing we can do about that legally, even if a client paid hourly rates out of pocket. We couldn't even file a complaint on that issue in good faith, the issue is so crystal-clear in the law. For some reason, there are broad misconceptions in the public about this—an assumption that we are free to say anything anywhere, anytime, in any forum, even private ones. That's just not true.
If clients can show is clear evidence that private, non-governmental actors are acting in concert or conspiracy with government actors to restrict speech, we might be able to bring a civil-rights-conspiracy claim. But that would be a rare exception to the rule above. The evidence would have to be strong.
Generally, yes. Ohio has a statute, R.C. 2307.60, under which crime victims may seek compensation from criminals who have injured them in their “person or property” unless such recovery is specifically excepted by law. A plaintiff is also entitled to seek attorneys’ fees and costs, as well as punitive or exemplary damages, if the law elsewhere permits them. But be mindful that some courts have found (wrongly in our view) that a one-year statute of limitations applies to these claims. To determine whether you have a case, you'll need to consult a lawyer. Chandra Law attorneys have handled the leading Ohio cases using the R.C. 2307.60 statute.[Permalink]
R.C. 2307.60 does not limit the crimes for which you can sue someone civilly, but does require that the act by which you’ve been victimized indeed be a criminal one (i.e., that it is actually prohibited by some criminal statute or ordinance). It also requires that you have sustained actual damages, and disallows recoveries that are “specifically excepted by law.” Still, the range of criminal conduct for which civil redress is available is incredibly broad, and may include various civil-rights and employment-related violations (e.g., sexual assault). You should consult an attorney to determine if your claim meets the statutory requirements.[Permalink]
This is the issue currently before the Ohio Supreme Court in Buddenberg v. Weisdack, which Chandra Law managing partner Subodh Chandra is handling on behalf of crime-victim Rebecca Buddenberg. Chandra has persuasively argued that crime victims can sue their criminal perpetrators, even if their crime was not dealt with by the criminal-justice system, and is optimistic that his position will prevail. A contrary result would be untenable, according to Chandra, because many crimes are not prosecuted at all, and because prosecutions can take so long that crime victims would effectively be denied their rights under R.C. 2307.60. Crime victims’ advocacy organizations across Ohio—including many representing sexual-assault survivors—voiced their support for Ms. Buddenberg and Chandra’s positio[Permalink]
The Pregnancy Discrimination Act precludes employers from discriminating against pregnant women, including hiring, promotion, and continuing their employment.
Am I protected from pregnancy discrimination if I'm not currently pregnant but plan to become pregnant?
In certain circumstances, you are protected from discrimination even if you’re not pregnant but are planning to become pregnant. If your employer is aware that you plan to become pregnant, that is not a legitimate basis to alter or change the terms of your employment based on any perceived ideas about what pregnancy will mean for you. While some courts say planning to become pregnant isn’t covered under the Pregnancy Discrimination Act, others say it’s clearly sex discrimination, because only women may become pregnant.
Are certain pregnancy-related medical conditions covered under the Pregnancy Discrimination Act?
There are conditions that can arise during pregnancy that are protected against discrimination. For example, the need for bedrest is one. Additionally, physical restrictions, such as limits on lifting certain weights are covered in part by the Pregnancy Discrimination Act. That can also potentially be covered by the Americans with Disabilities Act. If some aspect of pregnancy limits one of your major life activities, then you can have protection under the ADA as well.
Is the Pregnancy Discrimination Act effective in protecting pregnant women?
The Pregnancy Discrimination Act offers some protection for pregnant women. Sadly, people are treated differently because they are pregnant, are expecting to become pregnant, or are the parent of a small child. It still happens far too often. The Pregnancy Discrimination Act doesn't create criminal penalties where the government will step in and address these situations. But civil litigation is something that can fix it if there is evidence of the employer’s unlawful motive. It’s always on the individual who's subjected to the discrimination to take steps to vindicate her rights. Unfortunately, many people are unable to afford to hire private counsel or to find someone who is willing to take the matter on a pure contingency. This limits the effectiveness of the Act, given that it’s for private causes of action to resolve and attempt to fix violations.
What are some examples of pregnancy-based discrimination in the workforce?
There are several ways in which discrimination against a pregnant individual can manifest itself in the workforce. We’ve seen numerous cases of where women were treated differently because their employers believed that they knew what was best for the pregnant women. We’ve seen employers impose limitations (such as lifting certain weights) imposed on women who neither asked for nor needed reduced responsibilities. We’ve seen women terminated because their employer thought it would be better for them to stay home. As if a choice that women have is whether or not to earn a living.
There have also been cases where an employer refused to grant a temporary accommodation based on a pregnancy-related restriction. For instance, if someone has a certain condition that requires certain adjustments to her working conditions—like a delivery truck driver or a warehouse worker who must do a lot of heavy lifting—such as a restriction on lifting things over 25 pounds. If an employer would grant an accommodation to a non-pregnant employee for a temporary physical restriction, then they need to afford the same accommodation to a pregnant woman. For example, if a male employee injures his back in an ultimate Frisbee tournament, needs a few weeks to recover, and has to have limited duty because of restrictions during that recovery time period, an employer that grants that accommodation has to grant such requests to pregnant employees on a similar basis.
We’ve also seen people who’ve been denied the opportunity for promotion because it might include travel and the employer thinks that a pregnant mom or a mom just returning from maternity leave may not be as willing or excited about travel. The Pregnancy Discrimination Act is really about allowing the people who are pregnant to make decisions about what their work life is going to be instead of having an employer impose some set of circumstances based on outdated notions about what motherhood and parenting is.
Can an employer ask if someone is pregnant?
Employers are allowed to ask if someone is pregnant, but they can't make decisions based on the answer to that question. There’s no absolute prohibition on asking people questions about their medical situation whether it’s pregnancy or something else, but an employer cannot make decisions about whether or not to hire, promote, or terminate someone based on the answer to that question. In general, it’s best that they not ask, lest they be accused of having used the answer to that question to discriminate.
Can an employer fire me if I am temporarily unable to do my job due to a pregnancy?
Whether you can be fired because you’re unable to do your job while pregnant depends on a couple of factors. If people are unable to perform the core duties of their positions because of pregnancy, that’s something an employer can take into account. If people are unable to come to work, their employers are not required based on the Pregnancy Discrimination Act to keep the position open for them when they return. Other laws may step in to provide temporary protection for needed leaves of absence such as the Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave for people who are dealing with a serious medical condition. I'm sure you can imagine a scenario where a pregnant woman needs to go on bedrest for some period of time, is unable to appear at the office, and is unable to work remotely for some reason—when it’s not the type of job that could facilitate that circumstance.
But the Family and Medical Leave Act applies only in certain circumstances. FMLA eligibility requires that the employee have been employed with the company for 12 months, and have worked at least 1,250 hours during the 12 months before the start of FMLA leave. And the employer must one have 50 or more employees within a 75-mile radius of the worksite. Those requirements do not apply to small employers or new employees, and leave many workers unprotected.
For more information on the Pregnancy Discrimination Act in Ohio, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
An employer may not force a pregnant employee to take leave if the employee is able to perform her jobs duties while pregnant.
May I be fired for other purported reasons while I am pregnant?
You can absolutely be terminated or during pregnancy for other unrelated reasons. If an employee is stealing while pregnant the employer is not going to have too difficult a time demonstrating that the pregnancy wasn't the reason for the dismissal. It is always a concern for employers who are terminating someone who falls within a protected class whether it's pregnancy, religious minority, or someone who is otherwise covered by an anti-discrimination law on employment. It always is and should be a legitimate consideration about whether the basis for the termination is truly based on some act or failure to act by employee as opposed to a prohibited characteristic. They would fire a non-pregnant employee for doing the same thing then it is clear that Discrimination Act is not going to step in and say, “You get to keep your job as soon as you're pregnant.” That's not how it works.
May my employer require a doctor’s note for any leaves I might take during the pregnancy?
If your employer requires a doctor's notes for any absence from the office then they can also require it for procedures due to your pregnancy. For example, if you were absent from the office to get an ultrasound then yes a doctor's note indicating that you were in fact obtaining medical treatment during that time is permissible. If an employer requires a doctor's note for any type of extended leave from the office, such as medical leave based on bed rest or another condition. If you had cancer and you needed to provide a note indicating that you need a certain time off to obtain chemotherapy treatments. If an employer generally requires a doctor's notes for absences from the office or to demonstrate that a person is fit for duty then they can do that.
The employer can do that on the same terms as it does with non-pregnant employees and that typically comes up in scenarios where you've got someone who's engaged in a very physical type of job such as a police officer, a position that requires the use of a ladder, or things of that nature just to demonstrate that the person is fit for duty. If there's a legitimate question about that, if the pregnant employee has demonstrated no inability to continue their jobs duties, then singling someone out for special justification for their desire to continue working is not acceptable. However, if the pregnant employee is requesting changes to their duties or a lighter duty then an employer is permitted to request a doctor's note.
Are men protected under the Pregnancy Discrimination Act if their partners are pregnant?
No. men are not protected by the Pregnancy Discrimination Act on behalf of their partners.
May an employer ask me if I intend to become pregnant at an interview?
There's no prohibition on asking a prospective employee if they intend to become pregnant. However, from an employer's perspective it is unwise to ask an employee a question about pregnancy status. That would reasonably be construed by the employee as playing into the employer's decision about whether or not to hire or promote the person. It is best not to ask such questions but the mere fact that a person was asked the question in an interview is not going to be enough to prove that pregnancy discrimination occurred. The information has to be taken into account when making the hiring decision in order to be actionable.
May I be retaliated against for reporting pregnancy discrimination?
Like all acts regarding discrimination in the workplace the pregnancy discrimination act prohibits retaliation for engaging in the protected conduct or opposing what an employee reasonably believes to be discrimination. However, it is not uncommon for employees who have reported misconduct in the office to be retaliated against. In many cases it's easier to prove that the retaliation for opposing protected or prohibited conduct took place than proving the underlying conduct itself.
For more information on Forcible Leave During Pregnancy, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form..[Permalink]
You can be laid off from your job while pregnant as long as the pregnancy was not a factor in making the layoff decision. If the company is laying off the last 15 people hired and you're one of those last 15 people then the pregnancy isn't going to protect you from being part of that layoff. However, if the company decides to only lay off the pregnant women then we have a problem. In general there's no prohibition on pregnant employees being subjected to workplace decisions based on pregnancy. You don't get some sort of special protection. It's not a shield.
What factors support a viable pregnancy-discrimination lawsuit?
There are several factors that can make up a pregnancy discrimination lawsuit. It's always important to document any conversations that an employee has with the people making decisions about that person's employment. Ohio is a single party consent state for audio recording. Unless your workplace has special rules in the employee handbook or otherwise posted regarding a prohibition on recording people in the workplace then Ohio law is not going to prohibit it. Having actual evidence that pregnancy discrimination occurred is always better than a he said/she said situation, where it's just between the two participants to a conversation to say what occurred.
The most effective cases in a discrimination context are going to include hard evidence about what happened and an audio or video recording is a great way to demonstrate what actually occurred. Similarly, if a conversation takes place and an employee follows up by email saying, “Well you told me that because of my pregnancy I wasn't going to be given X Y or Z promotional opportunity.” documenting that is one additional way to show what actually happened. In a scenario where it's just one person's word against another, it's extremely difficult to carry an employee's burden of proving that the discrimination occurred.
How difficult is it to prove pregnancy discrimination against an employer?
There are different factors in the difficulty to prove pregnancy discrimination. Timing is an important characteristic and an important component of any type of proof. If you announce that you're pregnant and two days later you're demoted. The timing is suspicious there and one way you can show it is one of the circumstances that surround a decision. The better way to be able to prove that discrimination occurred is to have a recording of some kind. Other hard documentation such as emails or text messages that show that the pregnancy was part of the decision to do something to an employee in the workplace. It's always the employee’s burden to set forth the prima facie case of discrimination. You have to show evidence to suggest that your pregnancy was improperly considered as part of an employment decision.
For more information on Layoffs During Pregnancy In Ohio, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form[Permalink]
By Subodh Chandra
My experience in addressing healthcare-fraud cases arises from my service as a federal prosecutor in the United States Department of Justice. In the U.S. Attorney's Office for the Northern District of Ohio, I was assigned specifically to oversee the investigations of and prosecute healthcare-fraud cases. I also served on a multi-agency, multi-governmental Healthcare Fraud Task Force that included representatives of the FBI, U.S. Department of Health & Human Services Office of Inspector General, State Medical Board of Ohio, Ohio Attorney General’s Office, and others.
My years at the Justice Department prosecuting allegations of healthcare fraud including pursuing significant violations of the federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b); the healthcare-fraud statute, 18 U.S.C. § 1347; and the mail-fraud and wire-fraud statutes.
Many of my healthcare-fraud and other federal criminal prosecutions resulted in guilty pleas, following extensive negotiations, while others went to trial, resulting in convictions.
These experiences have given me significant insight into how federal prosecutors put together healthcare-fraud cases, starting when an FBI agent or a representative of the Office of Inspector General of the US Department of Health & Human Services comes to the prosecutor suggesting there is a healthcare-fraud allegation worth investigating. I know how to evaluate the case and determine whether it's something that the federal government would be extremely interested, moderately interested, or not interested in pursuing. Because I handled the federal criminal prosecutions for healthcare fraud, I’m also experienced with how they put the case together, what kind of evidence is needed, and what kinds of evidence would defeat a potential claim of healthcare fraud.
I’ve also worked with the U.S. Department of Justice attorneys responsible for affirmative civil enforcement. Their job is to handle those healthcare-fraud cases that are serious enough that the Department of Justice requires a representative to track and recover money on behalf of the U.S. government but not sufficiently serious that criminal charges are filed. Those attorneys work in parallel with federal prosecutors, or the investigations often happen in parallel with the criminal prosecutor taking the lead.
Because I worked with them, I have a sense of what they are looking for: what minimum dollar thresholds they're interested in before they will pursue a False Claims Act case, what types of alleged schemes interest them most, and what types of alleged offenses are too hard to prove.
In the course of my work as a federal prosecutor, I secured dozens of convictions of individuals and companies for healthcare-fraud schemes. I received special recognition from FBI director Robert S. Mueller, III for “demonstrated excellence” in a series prosecutions for healthcare fraud and violations of the anti-kickback statute.
It's a deep well of experience that our office now uses in different types of cases.
Here are the types of people that we represent. Individuals or company owners who are being investigated for healthcare fraud or variations of healthcare fraud like mail fraud, wire fraud, conspiracy, or aiding and abetting healthcare fraud.
Sometimes, we represent individuals who had other representation but a trial is approaching and they want an attorney who is not afraid to try a case. Some clients were represented by other attorneys, were convicted, and want to appeal—or the prosecutors are pursuing other healthcare-fraud convictions or a conviction on multiple counts. Sometimes, it’s someone who has been convicted and already been through an appeal but wants to bring a claim for ineffective assistance of counsel or what is known as a “collateral attack” on the conviction following the direct appeal process.
We also represent people who believe they have found a fraud scheme that would be valuable to the government itself. These might be individuals thinking about bringing a False Claims Act case on behalf of the United States government. A private party has come to us believing that there is a significant healthcare-fraud issue that is of concern to them., with significant potential losses. The individuals who come to us ready to blow the whistle on healthcare fraud are often either current employees or former employees. Sometimes, these are people who have come to know about fraud through some other means. We help analyze and understand whether this is something that might interest the federal government where fraud is involved with government money through the Medicare, Medicaid, Tricare programs, or the Veterans Administration.
We work with individuals who are thinking about blowing the whistle to help them understand if they have a good case. Then we help them develop a draft disclosure statement required under the False Claims Act to go to the government, give them a preview of what it is that we're about to file, and file the complaint with the government to launch the initial investigation to determine if there is a fraud.
Finally, sometimes entities want us to do an internal investigation to see whether healthcare fraud occurred. That might be a corporation or it might be a private practice.[Permalink]
The False Claims Act, 31 U.S.C. §§ 3729–3733 enables private individuals to alert the government to fraud, including healthcare fraud—and then also get a share of any recovery that might occur from the government obtaining a settlement or a judgment for that healthcare fraud.
This is complicated and we would never recommend anybody try to do it on their own because the statutory scheme and procedures are extremely technical and complicated. The individual brings the suit in the name of the federal government. If, for example, you were bringing a healthcare-fraud suit against Dr. Smith for billing for services not rendered then you would bring that suit as, “United States of America, ex rel. [Whistleblower’s Name] v. Dr. Smith.” It's filed in the name of the U.S. government, which the False Claims Act permits. (These are also called qui tam suits, which means “in the name of the crown.”
Once the complaint is developed, filed, and fully investigated, the federal government takes over through the local U.S. attorney's office, or the U.S. Department of Justice in Washington, D.C. They will start investigating the allegations in the complaint, ask for any evidence the claimant has (possibly interviewing the whistleblower). This can take many months. In fact, depending on the complexity of the matter, it can take years for them to complete an investigation.
The False Claims Act also includes a provision against retaliation. If a current employee blows the whistle or opposes healthcare fraud, and then that individual faces retaliation—including being fired for blowing the whistle—then there's a separate cause of action for False Claims Act retaliation that we can bring on a client’s behalf.
What constitutes a false claim regarding healthcare?
Defining what constitutes a false claim regarding healthcare can be complicated. The cleanest way to think about it is, a false representation being made by a healthcare provider to the government that results in money improperly going out of government coffers and into the pocket of the person that made the misrepresentation, or to somebody else. For example, imagine that a physician is billing for services that weren't rendered at all. If it’s a genuine accident in billing, then that’s not a false claim because unintentional mistakes do occur. But, if there’s a pattern then the idea that it was just a mistake comes across as an excuse. It’s going to be a false claim because a false claim has to be a knowing act.
What are the common healthcare scams or fraud cases that you see?
The most common healthcare fraud we see would be billing for services that weren't rendered—phantom patients for example. If you saw patient John Doe on March 30th but patient John Doe doesn't exist in your practice or patient John Doe came in the previous month but didn't come at the time you were billing for services.
Another example of healthcare-fraud schemes that interests the government is upcoding. There is a coding manual defining how particular patients’ types of service are supposed to be billed. For example, if it’s a 30-minute exam then there's a specific charge Medicare allows for that. But if a particular doctor seeis the patient for only 30 minutes, and charges for 60 minutes for a higher payment code, that's called upcoding.
The same is true for the billing of items. For example, if there is a particular medical device that is actually given and yet there a charge for an item that is more expensive—that’s upcoding too.
We also see what’s called unbundling of services. This is where there are particular services rendered by physicians that in the standard codes are supposed to be billed together, at a discount, but a physician starts charging for them separately. If it's happening as a pattern that the government can identify, they come down pretty hard on it.
Another example is where medical practices submit duplicate claims; they’re billing more than once for the same service.
Another example is excessive services or a situation where something is not medically necessary and yet a medical professional is providing it anyway. It might be unnecessary, excessive, or they performed a much more expensive procedure when something less expensive was available.
One of the schemes I've handled as a federal prosecutor is a kickback scheme where a payment is exchanged for referrals. For example, physician A refers to physician B who does a particular type of treatment and then physician A gets some sort of kickback for the referral.
The idea of a “finder's fee” in medicine is strictly, ethically, and legally prohibited. It’s a criminal act in the medical field because the theory is that if kickbacks are allowed then there's a greater risk of harm to patients and unnecessary services being rendered because physicians won't be pure of heart in thinking about how they’re going to refer somebody out for care. It also adds to the overall cost of healthcare. In their modern incarnation, kickback schemes are often thinly disguised. One of the kickback schemes that I personally prosecuted (resulting in about two dozen convictions) was a situation where laboratories were providing kickbacks to physicians, chiropractors, and podiatrists in return for referrals thinly disguised as “rental payments.” The amount being paid for the use of an office once a month or twice a month was a huge amount. You wouldn't have expected to see thousands of dollars changing hands if that was a legitimate bonafide rental payment.
An area in which the federal government is engaged in increasing healthcare-fraud scrutiny is telemedicine, where physicians provide services remotely by telephone or video and authorize prescriptions, referrals, or durable medical equipment (DMEs). The government has indicted telemedicine cases and secured convictions amid allegations that the services are not genuine or authorized by law; prescriptions, referrals, and DMEs are not medically necessary, and that the fees paid to physicians are kickbacks.
The government also investigates situations where medical records appear suspicious to it because there seems to be a replication of data from across multiple records. Investigators suspect providers are copying and pasting the same information into an electronic medical record to justify a service that probably wasn’t rendered—and then billing on a mass scale.
For more information on the False Claims Act and Healthcare Fraud, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
By Subodh Chandra
One of the federal prosecutors who mentored me when I served in the Justice Department used to say, “The difference between white-collar crime and street crime is that in a street-crime case you know a crime was committed, you're just trying to figure out who did it. In a white-collar-crime case you know who did it, you're just trying to figure out whether or not it’s a crime.” The main way one tries to determine whether a case is a criminal act of healthcare fraud is by discerning the provider’s intent. The federal or state governments are only rarely going to find a smoking gun of intent where one hears a physician audio or video recorded saying, “Let's defraud the government and do it this way.” Instead intent is going to be inferred from all of the documents, circumstances, and witnesses, including employees. They’ll be asked questions about what they knew, statements that the provider may have made, suspicious behavior in which the provider may have engaged, and what the employees observed.
Many of the healthcare-fraud cases in which we've been involved either as plaintiffs’ counsel on a False Claims Act case, or while defending an accused provider, have involved former employees as whistleblowers. Sometimes those whistleblowers are credible and sometimes they're not. Sometimes they're disgruntled people who were trying to retaliate against a physician for holding them accountable for poor performance. Sometimes they’re both disgruntled and right about fraud. A lot of the government's focus is going be on the credibility of any whistleblowing witnesses and what the documents show. What do the records show? Do the records look normal compared to large data sets? Many healthcare-fraud cases are identified by the health-insurance companies, including government insurance companies like Medicare, running these big data tests.
For example, we were involved in a case where a cardiologist was off the charts in terms of the number of stents he was giving and the number of interventional procedures the cardiologist engaged in that paid significantly more than what the average cardiologist would be receiving. That’s going to be a red flag for the government and it’s going to draw that anomalous dataset to the attention of special agents who will start investigating.
One of the biggest challenges I faced as a federal prosecutor and when doing criminal-defense work in healthcare fraud is that it takes time for providers to come to terms with what they've done. They may have started cheating a little innocently at first, then because of financial or special needs in their family they start to do more and more until they get caught. Sometimes it takes them time to come to terms with what they’ve done and that's a process of negotiating with the government and trying to get as much free information as one can to evaluate the strength of the government’s case. Some federal prosecutors will let you look at the evidence and determine what’s there. Others are more cruel and will say, “Your client knows what he did and he needs to plead guilty.” The client says, “I didn't do anything. I have no idea what they're talking about.” Then the defense attorney is stuck in the middle having a challenging time advising the client about what to do. Some providers have extraordinary resources and want to fight everything.
Then, because those discussions happen pre-indictment, you won’t learn until after they’re indicted, and you start getting the criminal discovery (documents) to which your client is legally entitled—but a good deal isn’t on the table anymore. That's when you start finding out that this healthcare provider is cooked. Sometimes we determine that our client is innocent. We fight for them all the way—but statistically, the odds generally favor the government in these cases.
When I was a prosecutor, we would rarely prosecute medical-necessity cases because they were too hard to prove; they're more like malpractice cases. Those wouldn't be viewed as a criminal case unless there was something like a kickback involved or someone was harmed. Nowadays, the federal government is much bolder. They have a lot of friendly judges on the bench—a lot of ex-prosecutors. The prosecutors may feel that they have a home-court advantage and they'll press some cases that really shouldn't be pressed criminally. That puts individuals and families in the difficult spot of deciding whether to roll the dice in a trial against the government because failing to plead guilty and “accept responsibility” under the federal sentencing guidelines can result in a much more severe sentence by a factor of several years. The main thing that drives the federal sentence is the amount of the loss—combined with the issue of whether you accepted responsibility and whether the government can pile on additional charges.
For more information on viability of a healthcare-fraud case, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
Knowing if you have a whistleblower claim is tricky. A whistleblower claim is fairly narrowly defined in the legal sense. While many federal statutes and a couple of Ohio statutes try to protect whistleblowers, each one has a very narrow set of definitions. The First Amendment protects whistleblowers who are public employees but to a surprisingly limited extent. Whatever the employee is blowing the whistle on has to be a matter that doesn't ordinarily fall within the job duties of the employee to report and is also a matter of public concern. There are narrow definitions as to what constitutes a whistleblower.
Generally, a whistleblower is someone who is reporting on some form of serious illegal conduct, or some form of conduct that could cause serious bodily injury, harm, or death to someone in the workplace. That person can be a whistleblower and is then entitled to protections. That's the common theme across these statutes.
Unfortunately, the Ohio whistleblower statute, Revised Code 4113.52, then creates a set of procedures that one has to follow that aren't practical or are difficult to accomplish. By the time the whistleblower comes to learn of these requirements because they contact us, it’s too late; we're not in a position to help them because they've already been fired. They don't qualify as a whistleblower because they didn't do the exact things that were required under the statute.
What are the most common types of whistleblower cases you see?
Among the most common whistleblower cases we see in our practice are First Amendment-retaliation cases where a public employee whose job is not ordinarily to blow the whistle steps forward and reports an issue of significant public concern. That could be reporting on corruption and self-dealing by public officials, reporting sexual harassment, gender or race discrimination, or reporting other types of illegal retaliation. It could be reporting a threat to public safety such as in our Cleveland Hopkins International Airport-whistleblower case, in which our client reported that the airport was not following agreements it had made with the FAA on clearing runways, and having sufficient snowplows to be able to do that. The most common thing we see is in the First Amendment-retaliation context but that mostly applies to public employment.
We also see whistleblower cases under Air 21, which protects people who are blowing the whistle in the aviation industry. There are all kinds of federal statutes regarding reporting safety violations in private or public employment putting workers or the public at risk. We also see situations where whistleblowers are reporting on other types of illegal activity. Usually, it has to be a felony or something that's going to cause severe bodily harm or death.
Sexual-harassment reporting is another big area for whistleblowing. We see that all the time in the private and public sectors.
What is the False Claims Act as it relates to whistleblower cases?
In most False Claims Act cases, the government has the opportunity to pursue or decline the case. But a False Claims Act retaliation claim belongs to the individual. Whistleblowers get to continue to pursue that even if the government declines to pursue the other parts of the case. If you face retaliation you may still be able to get compensation depending on the amount of damages that you have and how strong your case is.
We have succeeded in securing whistleblower-retaliation compensation even when the government has viewed the underlying False Claims Act case as not worth aggressively pursuing.
Am I ever too late to bring a whistleblower claim?
Statutes of limitations place a hard stop on whether you have a whistleblower claim.
There are some statutes where it’s difficult to timely bring a whistleblower claim. Under the Ohio whistleblower statute, Revised Code 4113.52 which only applies to instances of felony misconduct, or risk of serious bodily injury or death, you must pursue a claim within 180 days of the retaliation. There are other statutes, such as federal Title VII employment claims involving race discrimination, sexual harassment, gender discrimination, or religious discrimination where you have 300 days in Ohio to file with a claim with the EEOC; in some states it's only 180 days. Then there are other claims that might have a statute of limitations of 10 days, 30 days, six months, or a year. In Ohio, you have no more than two years on a First Amendment-retaliation claim from the time of the retaliation.
If you're coming to us with only 30 days left before the statute of limitations is over (or even with a 90-day “right-to-sue” letter from the EEOC, we're probably not going to take your case unless it's really, clearly great, without any need for investigation. Most cases require us to invest a lot of time in investigation before we're ready to file and write a complaint we can confidently stand behind. That’s what good, careful, reputable lawyers do. The earlier you seek counsel, the better because that gives successful lawyers the time to investigate the claim properly, give you feedback on whether you've got a good claim, and then maximize its value.
For more information on Whistleblower Claims In Ohio, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
The decision about whether or not to blow the whistle is one of the most difficult decisions any individual makes. Most people understand the likely cost in the context of employment: they are going to be in deep trouble if they blow the whistle. If their relationships are not already poisoned with their supervisors at work, then they will be. There is a high risk of retaliation even though the law protects against it.
There's always a high risk of it because that’s human nature.
People get angry when they're either being wrongfully accused of something, there’s a misunderstanding, and especially if they're being rightfully accused of something. We've seen cases where the underlying allegations were lodged in good faith, seemed spot on, but turned out to be incorrect; there was then a successful retaliation claim because the person who was accused wrongly retaliated.
Anyone considering being a whistleblower needs to think long and hard about it. We have been proud and honored to represent some really distinguished whistleblowers who had a great deal of courage. People who faced and endured retaliation and suffered because of it; they were ultimately vindicated. It’s a long process when you bring a retaliation claim. It’s very rare that it's over just like that; it requires patience.
In our experience, besides thinking about the consequences of blowing the whistle, the whistleblowers we've represented or the people who are thinking about blowing the whistle will ultimately do what they do when they come to terms with their own conscience.
Is this the right thing to do now? If you're just doing it because you think you're going to make some money on it through litigation, please don't call us; your character is off. We don't want to talk to you and your case is always going to blow up in your face. There should be financial compensation associated with being a whistleblower and we're proud to represent people who have been compensated and are going to be compensated. It’s how we earn our living. At the end of the day you have to ask yourself what’s the right thing to do:
Those kinds of things are the considerations that weigh heavily in the people who eventually decide to blow the whistle.
We’ve talked to people over the years who we’ve counseled and have explained all these risks and they decide not to. But they’re few and far between. Usually by the time somebody calls, they understand that there are going to be risks. They just need to hear the specifics articulated to them, and once it has been, they need to think about it, talk to their families, engage with their consciences, maybe pray on it, and then make a decision.
Usually, that decision has been that people do the right thing and they take the risk and blow the whistle. It's been rare that we’ve had people who have not ultimately seen justice come out in their favor.
Probably the final and most important consideration for a whistleblower or someone who’s thinking about being whistleblower is, will your conscience will be clear either way? If you blow the whistle, go through the proper legal process, do everything right, and somehow justice isn't done for you. Could you live with that? Even though it would be hard? Could you live with that because you weighed more heavily on the scale the idea of doing what was right—those are our best clients. The ones who, even though they are suffering, can stay in the zone, stay focused on what’s right, because their conscience is clear and they’re ready for any result.
For more information on Becoming a Whistleblower In Ohio, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
The short answer is: not much. But a little.
A statute that requires you to do handstands and backflips through rings while meditating and levitating—and all in a certain order—before you are protected is usually not much comfort.
Ohio’s whistleblower statute—Revised Code 4113.52—is designed to protect employees from retaliation for reporting their employers’ (or their fellow employees’) criminal conduct.
But while broad in concept, the actual statute contains noteworthy procedural and substantive restrictions that severely limit its effectiveness.
Protection is available for reporting only certain narrow types of criminal offenses, and only if the reporting is done in the specific ways prescribed in the statute and after a “reasonable and good faith effort to determine the accuracy” of the reported information. An employee’s failure to make such an effort, indeed, can subject the employee to discipline.
Broadly speaking, an employee is eligible for protection (against termination, demotion, transfer, and certain other listed disciplinary actions) if he or she becomes aware of a violation of
Assuming the employee identifies an offense satisfying those conditions, the employee, to enjoy the Ohio whistleblower statute’s protections, must
After receiving the oral and/or written report, the employer is required, within 24 hours, both to either correct the violation or make a reasonable and good-faith effort to do so and to notify the employee of such correction or efforts to correct. If the employer does not do both these things, the employee may file a detailed written report with one or more of the following:
The Ohio whistleblower statute prohibits an employer from disciplining, or retaliating against, an employee for reporting criminal conduct in the manner the statute authorizes, or for taking steps to ensure the accuracy of the information so reported. It also authorizes a civil action against the employer (if brought within only 180 days of the discipline or retaliation) for injunctive and monetary relief, including attorneys’ fees and costs, for violations of this prohibition. It is the employee who may be subject to discipline, however, “for reporting information without a reasonable basis to do so …”
Unfortunately, in our experience, not all deserving whistleblowers appear able to meet the statute’s exacting procedural and timing requirements. It is unclear, for example, whether and how ex-employees can take advantage of the statute, since the prescribed internal reporting mechanisms are no longer available to them. And can an employer avoid liability by terminating an employee after receiving his or her oral report but before receiving his or her required written report?
Employees considering blowing the whistle should familiarize themselves with the statute and take care to ensure that its requirements are met. They should also consider whether other state or federal remedies, including industry-specific whistleblower-protection statutes, may be available to them.
The Chandra Law Firm has the knowledge and experience to assist employees in navigating these complex and nuanced issues.[Permalink]
First, some brief background.
Article II, Section 4 of the Constitution provides:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Although that clause in Article II—which addresses the presidential executive branch—is silent on the question of whether an impeached and convicted president may become president again, Article I, Section 3 answers the question squarely:
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
Article I addresses Congress—the people's branch.
And when the people's branch has spoken and determines that a president should be impeached and removed from office, that judgment may, or perhaps inherently will, include a judgment that the president is no longer eligible for federal office.
So if the House and Senate address the issue in the articles of impeachment—we will undoubtably be done with the offending president.
The Framers of the Constitution may have been unenlightened on race. But they thought of this one.
Yes. We review severance agreements and provide advice based upon them for a fixed fee. Please contact the office at 216.578.1700.
Be careful about signing an agreement with out the benefit of counsel. You deserve to know what all of your rights are—and whether the employer is trying to take advantage of you.
Yes. We have experienced civil-rights lawyers admitted in multiple jurisdictions or who can become admitted in federal courts around the country for the purposes of a case.
Our willingness to take on police-brutality or other misconduct cases outside of Ohio is directly proportional to the damages and injuries that a victim has suffered. Sometimes, clients find it valuable to bring a lawyer in with an outside perspective to challenge entrenched interests. Where we think it makes sense or local rules require it, we will identify seasoned local practitioners to help who are familiar with the local federal court and its judges.
For more information on police-misconduct cases, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.
Generally, and with few exceptions—no.
An Ohio political subdivision like a city or school district facing a personal-injury or negligence claim will avail itself of the broad grant of immunity from liability for damages related to any injury, death, or other loss resulting from its acts or omissions, or those of its employees. R.C. 2744.02 first grants political subdivisions immunity from such tort claims, then carves out several exceptions to that immunity, and then carves out exceptions to several of those exceptions. Even if a claim survives a 12(b)(6), the school can still avail itself of several defenses available under R.C. 2744.03. And even if a claim is successful, R.C. 2744.05 generally caps damages at $250,000 for anything beyond the plaintiff’s “actual losses.”
Immunity: The statute starts with a broad grant of immunity “for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” (R.C. 2744.02(A).)
Exceptions: Notwithstanding the general grant of immunity, R.C. 2744.02(B) imposes liability for negligent conduct resulting in injury, death, or loss to person or property in specified situations:
Defenses: Despite those carveouts from immunity, R.C. 2744.03 provides several very broad defenses. Most relevant for our purposes are the defenses that the conduct:
The individual tortfeasor also enjoys personal immunity unless:
Damages: Even when a plaintiff can survive all that, the court will still limit damages. Compensatory damages are unlimited for “actual losses” such as medical expenses, wages, and property damage, but they are offset by any insurance benefits the plaintiff is entitled to receive. Compensatory damages are also capped—except in wrongful-death cases—for other damages, such as attorney’s fees, pain and suffering, mental anguish, and “any other intangible loss.” Punitive damages are prohibited.
You'll want The Chandra Law Firm LLC on your side as you navigate all of the defenses the government has at its disposal for harms it has caused you. You can reach our firm, which serves clients throughout Ohio and the nation, by calling 216-578-1700 or by filling out our online contact form.
At Chandra Law, your case is our cause.®
We take on police-misconduct cases that range from false arrests to charges that aren’t warranted by the evidence at all, which are sometimes brought in retaliation for exercise of rights, such as the First Amendment right to free speech. Cases range from those all the way through the use of excessive force, including deadly force and wrongful death. We typically take cases in which victims of police misconduct have experienced some serious harm.
What Are Some Examples of Police-Brutality Cases?
Unfortunately, as a society, we are starting to learn more about police brutality as more citizens have access to video cameras in their cellphones. Even though police abuses have been taking place for a long time, the public is becoming increasingly aware of the circumstances in which officers use excessive force. Take, for example, the situation with Eric Garner in New York, who was selling loose cigarettes. It was a petty offense and perhaps, at most, a citation should have been given. But the idea of grabbing and manhandling someone to the ground, to the point where he can’t breathe, is excessive.
The Fourth Amendment to the U.S. Constitution protects us from unreasonable searches and seizures. Included among unreasonable searches and seizures are instances of the use of excessive force. The Supreme Court has held that police officers, although they have the right to make lawful arrests, do not have the right to use excessive force in apprehending suspects. Courts will give a great deal of deference to police officers in using an amount of force proportionate to the situation, but there are circumstances where courts will deem force excessive. An example of that is where there is no threat to the officer or to the public and yet the officer uses deadly force. That is illegal and it is considered an unreasonable search and seizure under the Fourth Amendment.
Is Taser or Stun-Gun Use Considered a Violation of My Civil Rights or Excessive Force?
The use of a Taser or a stun gun can be considered an application of excessive force. You have to keep in mind that one of the reasons police departments started purchasing and using Tasers and stun guns was to avoid using more deadly force, like their guns. What happens is that sometimes the Tasers and stun guns are being used when they don’t need to be used. They can result in serious injury or death to the individuals who are shocked by them. There are many examples around the country of people who died when a stun gun or a Taser was used against them, so it all depends on the circumstances in which the Taser is used.
If the Taser is being used to subdue someone who is acting violently, courts are likely to permit the Taser use, even if the person who had been stunned by the Taser wound up being seriously injured or died. It all depends on the individual facts and circumstances, as to whether or not the Taser use is appropriate.
How Does a Court Determine Whether Excessive or Deadly Force Was Ever Justified?
Civil court cases involving excessive force are incredibly difficult to pursue. First of all, the legal standard is difficult. The U.S. Supreme Court has held that we are not permitted to second guess police officers using 20/20 hindsight. What matters is the objective reasonable belief of the officer at the scene, in that moment. An officer who reasonably perceives that he or she is under threat or that other members of the public are under threat, is permitted to use force up through deadly force. It all depends on the nature of the threat. The standard is “objective reasonableness.” If the officer perceives that he or she is under threat, even if it is because the officer has PTSD from service in Iraq, that subjective belief is considered legally irrelevant. (Although we see increasingly conservative courts apply a subjective standard of whatever the officer claimed was going through his mind—even if it’s not reasonable—rather than the objective standard.)
If there is video of the situation, it really helps. Increasingly, we see dashcam video and bodycam video from the officers, which enables us to establish whether the use of force was objectively reasonable under the circumstances. It helps our firm screen out a lot of cases where family members of people who have succumbed to police violence come to us believing that something illegal took place against their loved one but when we obtain the footage and we review it, we determine that it doesn’t cross the “objectively reasonable” standard.
Sometimes, on the other hand, when we review these videos, we are able to establish that the use of force was excessive. Having undeniable proof really helps.
For more information on police-misconduct cases in Ohio, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
After a report of sexual harassment, the employer is responsible for protecting the worker from additional sexual harassment and protecting the worker from retaliation for having complained. They are also responsible for finding ways to accommodate the worker, within reason. For example, if your boss has sexually harassed you, the boss needs to be counseled or disciplined for doing so. Sometimes, we see the employee being transferred to a job they don’t want to do—and that is retaliation. The boss should be disciplined and that might include transfer to somewhere else. Unfortunately, we rarely see employers do what is right in these circumstances.
Who can potentially be held liable in a sexual-harassment case?
Different law firms have different philosophies on who they want to go after in a sexual-harassment case. Some law firms only want to sue the employer. We take a broader approach; we want to bring to the table, in a lawsuit, every single person who is responsible. It requires a lot more work but it is, in our considerable experience, a better way to ensure that justice is done. Under federal law, you can only sue the employer in a sexual-harassment case. If that employer is a small business, it may mean that you wind up suing them and they go out of business, and you are left with no remedy.
Even if we are bringing a federal lawsuit, we also bring state-law causes of action or we will file in state court. We will sue not only the employer but also the individuals who are involved in either the harassment or the retaliation. Those other individuals are often sued under an aiding-and-abetting legal theory. By bringing them to the table, we are sometimes able to sow division between the employer and the employees. Sometimes, that forces the other side to go get separate counsel because of conflicts of interest.
If you are pursuing everyone, you have the potential for recovery from multiple sources. Whenever we file a case, unless the factual picture changes, we are prepared to take that case to the end, if necessary. In a jury trial, it tells a much better story if everyone who is responsible is forced to be on the other side of the table and has to show their face in court every day.
How can someone help preserve evidence for their sexual-harassment case?
Our dream clients are the ones who have gathered all the documentation, have made audio recordings, and have preserved every text message, email, and social-media chat. If you think there may have been witnesses to your harassment, give us a list of names. If they are low-enough-level employees, we might be able to interview them before we file suit. There is no conflict of interest associated with us gathering that evidence.
The best clients are the ones who create a chronology and organize themselves before contacting a lawyer. The volume of calls that our boutique firm receive exceeds 30 a day. The clients who impress us the most are those who have really done their own homework and are able to be advocates for themselves. Evidence comes in two forms: either documentary, which can include videos, or testimonial. If it’s testimonial, tell us who is going to say what and tell us how to reach them.
What happens if someone was a hesitant or unwilling participant in their harassment?
We have handled sexual-harassment cases where the victim of sexual harassment had been in either a flirtation or a relationship with the person who is pursuing them but decided to break it off. The other person just won’t accept “no” as an answer. That’s still sexual harassment because it is now unwanted. If the behavior is sufficiently severe and pervasive as to effectively alter the conditions of employment, then it is sexual harassment. Does it make it harder to prove? Yes, and that’s why the documentation is very important.
We have successfully resolved cases where there was initially consent and later on there wasn’t. We are going to approach them with a little more skepticism because we need to be able to show that it did, in fact, become a sexual-harassment case. We are going to have to be able to refute the other side’s claim that everything was consensual.
For more information on Employer’s Responsibility in A Sexual-Harassment Case, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
In my career, I have represented all sides of these issues. Early in my career, I represented the cities of Los Angeles and Beverly Hills in defending high-profile police excessive-force cases and felt very strongly, in the cases where I represented officers, the officers had done what they had done properly. Many of the police-misconduct cases that are brought are meritless because police have a very difficult job and they are there to protect us. It is difficult and really quite problematic to try to always second-guess them under such unsafe conditions.
But when we entrust officers with badges and guns, there is sometimes the unfortunate effect that some police officers believe they can do no wrong and then other police officers cover for them. That is an unfortunate byproduct of a paramilitary culture in which they cover for one another because of the fear that if they “rat someone out,” people aren’t going to watch their backs on the job. This becomes a very serious problem when one is trying to investigate a police-misconduct case because you don’t have other witnesses. We are now in an era where video footage is becoming increasingly available: citizen video footage, dashcam footage, bodycam footage, and footage from nearby buildings. We are able to obtain accountability for more instances of police brutality than we used to. That’s a good thing.
It was important to me when I left public service as Cleveland's law director that ordinary citizens affected by civil-rights violations—including police misconduct—have access to the same quality of representation to fight for their rights as big corporations.
Many people, if there is an instance of police excessive force by an individual officer or officers, believe that the first thing they need to do is to sue the city that employs that officer. What they don’t understand is that you cannot simply sue the city that employs the police officer without a particular type of evidence that is quite challenging to obtain. You might be able to sue the police officer and succeed, if the use of force was truly excessive and violated clearly established law, but suing the actual municipality is much more problematic. The U.S. Supreme Court has imposed a rule that to hold the city accountable, the use of force must have been the product of a custom, policy, pattern, or practice by the municipality.
If it was a onetime incident of excessive force that violated the police department’s written rules, you may not be able to hold the city liable. You may be limited in your ability to recover from the city. By doing a proper investigation and asking for public records, you may be able to show that the officer’s conduct is part of a broader pattern of misconduct by that officer or other officers, which is the product of unconstitutional policies either formal or informal. That is often extremely difficult to prove. This is an area that requires serious experience to litigate properly. You can’t go to just an ordinary personal-injury lawyer. Police-misconduct litigation requires particular experience because it is quite easy for the defense to derail these cases early on, and then the victims of excessive force never get justice based on legal technicalities.
It’s quite depressing for us, as people who focus our practice in this area, to see some other lawyers fumble these cases because they lack the experience to do them correctly. Just because someone was a victim of police misconduct or brutality doesn’t mean that obtaining justice for them is easy. It’s not.
For more information on police-misconduct cases in Ohio, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
A false arrest occurs when police arrest someone without probable cause to arrest them. Probable cause is a very low standard in the law. It means that a person might have committed a crime, not that they definitely did. As long as the officer has some reason to suspect that a crime was committed, and especially if that officer has a warrant that was issued by a judge, it’s going to be very difficult to bring a claim for false arrest. Malicious prosecution is a related doctrine that perhaps has some more potential power. That is a circumstance where you can show that there was not only a lack of probable cause or reasonable grounds to believe the allegations that were made against an individual but there was malice in continuing a criminal or civil legal proceeding.
We handle both malicious prosecution and false-arrest cases. Sometimes, we are able to prove malice by showing that there was an unconstitutional motive behind why it is that the person is wrongly accused. For example, they were exercising their First Amendment rights. This might be where someone is being questioned by police officers and they choose to remain silent. They might be required to give their name but beyond that, they start mouthing off and saying obnoxious things to the officer, and refuse to answer any other questions. It is still constitutionally protected behavior.
As Americans, we have a First Amendment right to criticize our government and that includes police officers. While it may not be wise to run your mouth to a police officer who is carrying a badge and a gun, we have a right to do that. There are instances where you see officers get angry and then wrongfully arrest someone who has criticized them. Those are instances in which we see false arrests and malicious prosecution come up.
How Long Can Police Legally Hold Someone Without Pressing Any Charges?
The rules regarding holding a suspect vary significantly by the jurisdiction. The issue of whether it’s unconstitutional to hold someone for very long is going to be determined on a case-by-case basis.
When Can Police Enter A Building Conduct An Investigation And Make An Arrest Without A Warrant?
There are doctrines known as hot pursuit and exigent circumstances, where an officer who is in hot pursuit of someone to protect the public may be given a pass on conducting a warrantless pursuit and entry. In general, to enter the building and make an arrest, the officer is supposed to be outside of the building and arrange for a warrant to be obtained.
What Is The Statute Of Limitations On Cases Against Law Enforcement?
The statute of limitations for all constitutional litigation, civil-rights litigation, or federal claims for violation of the federal constitution is tied to the analogous statute of limitations for that state. In Ohio, the statute of limitations for personal injury is two years and therefore, the statute of limitations for bringing a federal civil-rights action under Title 42, Section 1983 of the United States Code is two years from whatever the date of the incident is. There are important state-law causes of action that we use in such cases that have only a one-year statute of limitations, however. So we really want people to call us early.
People need to speak with an attorney as soon as possible after the incident occurs. If they do so, it enables us to methodically investigate the case and seek, fight for, and obtain public records that will help prove the claim. If we can’t, we are going to lose important state-law causes of action. Everyone who has been the victim of unconstitutional conduct needs to act as quickly as possible. If they are going to contact an attorney they should gather as much documentation as they can of what has occurred. They shouldn’t assume that experienced, accomplished attorneys are available to just drop everything and look at it; it is going to take some time to analyze it and come up with a recommendation.[Permalink]
The First Amendment to the United States Constitution primarily protects our right to free speech, against government interference. Without the right to free speech and free expression, we are not Americans. None of our other rights would matter if we weren’t able to speak up to protect them. It also protects freedom of religion, the right not to see the government establish an official religion, the freedom of the press, the freedom of the media to communicate and receive information, the right of the people to peaceably assemble, and the right to petition our government for a redress of grievances.
Those are the precious rights contained in the very First Amendment to the Constitution and we see them violated every single day. We see governments who retaliate against people for exercising those rights. That is the type of litigation that we pursue to help people get a remedy for these violations of their rights.
What Are Some Examples of Cases Where the Government Has Violated People’s Rights?
We represented a police chief who had spoken to a government agency about the mayor of his community insisting that he fire all of the white police officers. That’s illegal race discrimination and the chief didn’t feel his officers had done anything wrong that would merit their being fired. He stood up to the mayor and the mayor began retaliating against him, especially after he reported it to the Equal Employment Opportunity Commission. Here, you have an instance of both a First Amendment retaliation for reporting the misconduct but also retaliation for opposing race discrimination.
We see many examples of people who spoke their minds to police officers and then endured arrest for doing so. We have a case where an individual posted a parody Facebook page of the Parma Police Department and the police retaliated against him with trumped up charges of having interfered with their operations. That’s another example of First Amendment retaliation.
The First Amendment applies only to governmental action—not behavior by private employers, private companies, or private, non-government individuals—unless they acted in concert with government actors.
Does the First Amendment apply to private companies or individuals' conduct?
Generally, no. The First Amendment applies only to governmental action. So it’s only governmental action that we can address using the First Amendment, including applying it to the states through the 14th Amendment of the Constitution.
People call us all the time complaining about their private employers or private businesses (like Facebook or Twitter) violating their supposed "free-speech" or "First Amendment rights." That's not really a thing and there's nothing we can do about that.
The only exception would be if you can show evidence that private, non-governmental actors are acting in concert or conspiracy with government. (And you can't speculate about that or assume that.)
What results do clients generally expect when pursuing a First Amendment case?
In First Amendment litigation, we typically are trying to pursue for our clients money damages for emotional harm, and punitive damages for what’s happened to them. There might be some economic damage, although we have found that it is relatively rare. It’s usually the emotional trauma associated enduring retaliation, which is not insignificant, but it’s intangible. Punitive damages seek to punish the individual government actors. You generally can’t obtain punitive damages from a government entity but you can seek it from the individuals who engaged in that violation. The idea is to try to punish them and deter them from doing that in the future.
In some cases we are also pursue injunctive relief for our clients—that is, a court order to stop the government from engaging in continuing misconduct.
Typically, we do not want to bring the civil claims regarding police misconduct or brutality until the criminal case is resolved.
The primary reason for that is there is a U.S. Supreme Court case called Heck v. Humphrey that holds that if the resolution of the criminal case will necessarily decide the issue of whether force was excessive, then you can’t even pursue that civil case. If you want to bring a claim for excessive force against a police officer and you are charged with a crime of violence, the crime of violence with which you are charged could preclude the use of force you claim is excessive from being found by a court to be excessive. If you wind up pleading guilty or no contest to that criminal charge, or are convicted of it by a jury, your civil claim is automatically going to be extinguished.
What we will often recommend to our clients, as long as there is time before the statute of limitations runs out, is to work with their criminal-defense attorney to resolve whatever it is that they are being charged with and then worry about a civil claim. In the meantime, we can try to quietly investigate what happened. We do not want to draw too much attention to the fact that there may be a civil claim coming. Because unscrupulous prosecutors will sometimes double down, or insist on a release of civil liability before they will drop charges.
There is a legal-ethics opinion from the Supreme Court of Ohio’s Board of Professional Conduct that advises that it’s unethical for a prosecutor to demand a release of civil liability from someone they are prosecuting, if there is no probable cause to support the charges to begin with. If there is no probable cause, then the prosecutor should not be expecting the person that they are prosecuting to sign a release of civil liability before dropping charges or cutting a plea deal. (Unfortunately, we see prosecutors violate this all the time.)
If you still have a criminal case against you, you should share that ethics opinion with your criminal-defense attorney and urge him or her to raise this ethical issue with any prosecutor who is demanding a release of civil claims in exchange for dropping the case.
In our view, any demand of a release of civil liability by a prosecutor is completely unethical, because it uses the coercive arm of the state unfairly, improperly, and where it doesn't belong, in the criminal-justice realm, for the private gain of third parties like police. But it happens all the time and the U.S. Supreme Court thus far seems to tolerate this immoral practice.
For more information on Impact of Police Misconduct Civil Case on a Criminal Case, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.[Permalink]
Workplace sexual harassment is the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace. The idea behind sexual harassment is not to eliminate all flirtation or all expression of romantic or sexual interest between one human being and another. The key is that it should not be unwelcome. Once you ask or express interest, if there is no reciprocation, stop. If it is hostile, pervasive, or persistent, we are in the realm of sexual harassment.
What steps should someone take if they've been sexually harassed in the workplace?
Sometimes, the very person doing the sexual harassing is the person to whom you are supposed to report the sexual harassment. If your boss is sexually harassing you and you are in a small business without an HR Department, to whom are you supposed to report the sexual harassment? The reason people get so uncomfortable about taking the steps that are required to protect themselves is that the practical reality of life is that people understand that they are putting themselves at risk of retaliation.
If it’s your boss harassing you, ask him or her to stop and make it really clear, kindly and respectfully if you can, that you are not interested. Talk to the boss’s boss. If you’ve got a human-resources department, report it to them. But keep in mind: the human-resources department is rarely if ever your friend. Recognize that you are still risking retaliation. You should have some proof of the harassment. If it’s possible, audio record what takes place. Keep in mind that some workplaces have an anti-recording policy and they will retaliate for you violating that too. You also need to ensure that you are in a state where only one party’s consent is needed for making an audio recording. In Ohio, all that is needed is one party’s consent.
The steps that need to be taken are reporting the sexual harassment and trying to develop some proof of it. If there are harassing text messages and emails that have been sent to you, make sure that you’ve secured the emails off site. If you are fired, you will find yourself without access to the evidence. If there are text messages and they are on a company phone, take screenshots of them and email them to yourself, preferably using a private email address.
If you don’t report the harassment, your employer can’t be held liable.
You have to report it and where the employer can be held liable is if the employer fails to act or if the employer retaliates. Retaliation cases are easier to prove than the underlying sexual-harassment cases. If we can show a sudden change in posture towards you by the company after you have reported, it makes a retaliation case easier to prove.
For a retaliation case, the underlying sexual harassment doesn’t have to be proved. The retaliation case can be proved because people are retaliating against you for complaining about something in good faith. The earlier that you contact an attorney to advise you through the harassment you are experiencing, the better. Sometimes, we are approached by people who have been harassed, reported it, and been retaliated against but we don’t have enough information to prove it. It breaks our hearts that that case really isn’t going to go anywhere because the employer is going to come up with some pretextual excuse as to why it did what it did.
In Ohio, the statute of limitations for filing a court case in state court for sexual harassment is six years, which is very generous. But if you want to try to get government intervention, you have to file with the Equal Employment Opportunity Commission within 300 days in Ohio of the improper conduct. In some jurisdictions, it’s 180 days. If you blow that time, then you are not going to have the ability to have someone launch a government investigation into what happened and you can’t file a federal lawsuit. You might still be able to file a state lawsuit.[Permalink]
Although we prefer checks, our invoicing system is now set up to accept credit cards. Please call us for more information.[Permalink]
Generally not, even if you believe that civil-rights issues arise from those proceedings.[Permalink]
We do not handle immigration-related cases, unless you seek to reverse a criminal conviction because a court did not provide proper warnings to you regarding immigration consequences like deportation.
We have had success at that.
We would need a court transcript proving that occurred.
No, we handle only white-collar-criminal-defense matters like fraud, embezzlement, money laundering, economic espionage, trade-secret theft, or public-corruption cases.
For civil-rights police-misconduct cases that have parallel criminal cases, we may consider your matter after criminal charges have been cleared. If we think you have a promising civil-rights-misconduct case, we may make referrals to competent criminal-defense counsel, or on rare occasion, handle the criminal-defense matter ourselves.
A guilty plea or conviction may eliminate your ability to bring a civil-rights claim for government or police misconduct.
A guilty plea or conviction related to your interaction with the police may eliminate your ability to bring a civil-rights claim for government or police misconduct related to that incident. We would need to know what the plea is for to determine whether a civil-rights claim is precluded.[Permalink]
As much as we would like to do so, we generally do not—on a contingency-fee basis—handle civil-rights claims that involve an unlawful police stop or search of a car or home without a showing of serious harm or injury resulting from the search, or unless the claim is added on to other, more significant claims.
The reason for this is that we have found conservative federal courts generally hostile and resistant to such civil-rights claims, even when the police misconduct at issue is blatant and violates the Constitution. In addition, federal courts are generally hostile to claims with low money damages or what they perceive as low emotional damages— even though citizens know how hurtful such invasions of privacy can feel.[Permalink]
No, unless the accident resulted in death or catastrophic injury. Depending on the facts and circumstances, we may get involved in such cases.[Permalink]
No, unless there is clear, provable evidence of racial discrimination.[Permalink]
Depending on the matter, we charge hourly, fixed, and contingent fees.
For certain types of civil-litigation matters, we charge a "contingent" fee—that is, we get paid our fees only if you recover financially.
For other civil matters, we charge hourly or structured fixed fees.
For white-collar criminal matters, we charge either hourly or fixed fees, because attorney ethics rules deem contingent fees in such matters to be unethical.
Our hourly rates range depending upon the lawyer's experiences. Please call us for more information: 216.578.1700
Generally not, although for fees to be agreed upon we can advise you regarding whether the conduct about which you are concerned violates ethical, constitutional standards, or other laws; or draft complaints to disciplinary authorities. This will rarely lead to a financial recovery.
Prosecutors and judges are generally entitled to absolute prosecutorial immunity from being sued personally for their work.
Our firm thus almost never files civil lawsuits against judges or prosecutors for their legal work.
You may wish to write the disciplinary counsel in your jurisdiction with your complaint about the judge or prosecutor.
If the prosecutor’s conduct also involves misconduct by police officers or other law-enforcement agents, we may be interested in your case, depending on all the facts and circumstances. Police officers are not absolutely immune but are sometimes entitled to something called qualified immunity, which can get them out of being sued.