Litigation

And the False Claims Act Makes Three – 3rd Circuit Applies the More Employer-Friendly Title VII Retaliation and ADEA “But-for” Test in Determining Whistleblowing Retaliation Claim

January 17, 2018
By Paul W. Mengel III
She was a director of marketing for a drug company who had received a performance improvement plan to address issues related to her relationships with co-workers and supervisors. But she had also raised concerns about the company’s purported “off-label” use of drug products, which is the unapproved use of an approved drug or the use of a drug for purposes other than those that have been approved by the FDA. She eventually resigned and later alleged that she was constructively discharged in violation of Pennsylvania state law. She also asserted a claim that she had been retaliated against, in violation of the False Claims Act (“FCA”), for her protected whistleblowing activities with regard to the off-label activities.
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Intern or Employee? DOL Adopts Courts’ “Primary Beneficiary” Analysis for Determining When Your Unpaid Intern Will Be Deemed an Employee Under the FLSA

January 10, 2018
By Paul W. Mengel III
The use of unpaid interns is a common practice across many industries, especially in the D.C. Metro area. And the question recently addressed by the Ninth Circuit is not a new one: under what set of circumstances does an unpaid intern in the private sector cross the line and become an employee under the Fair Labor Standards Act (“FLSA”) and thus become entitled to compensation?
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D.C. Circuit Weighs in on Employee’s Right to Union Representation at Disciplinary Meetings

August 23, 2017
By Paul W. Mengel III
In a recent ruling, the U.S. Court of Appeals for the D.C. Circuit has shed light on the scope of an employee’s right to union representation at an investigatory interview conducted by the employer. The prior case of NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975) confirmed that an employee must be allowed to bring a union representative to any investigatory interview that he or she is required to attend, if the employee reasonably believes that the interview could result in disciplinary action.
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Restaurant Industry Headed To U.S. Supreme Court Over Tipping Practices

August 18, 2017
By Matthew E. Feinberg
In 2014, the U.S. Department of Labor (“DOL”) Wage and Hour Division launched an aggressive enforcement initiative aimed at ensuring companies in the restaurant and food service industry comply with the federal minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act (“FLSA”). Plaintiff-side employment lawyers took note immediately and began advertising to their target audience. It is not surprising, therefore, that servers, bartenders, and seasonal or event staff have advanced employee complaints based on alleged improper wage- and tip-payment practices with increased frequency, exposing the restaurant industry’s unique vulnerability to the complex and nuanced requirements of the statute.
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Contractor Execs Not Subject to Individual Whistleblower FCA Claims, Says Federal Judge

May 3, 2017
By Paul W. Mengel III
In a recent Memorandum Opinion, T.S. Ellis, III, U. S. District Judge for the Eastern District of Virginia, has ruled...
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