By Don Benson, Esq. The Second Circuit issued an opinion on February 16, 2016, holding that “Hispanic” is a race for the purposes of both 42 U.S.C. §1981 and 42 U.S.C. § 2000e, Title VII. Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). The Court rejected the employer’s argument that promotion of a white Hispanic candidate over a white non-Hispanic candidate cannot be racial discrimination.  The employee could bring a claim  under  § 1981 or Title VII: Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII. Plaintiff sued the Village of Freeport, N. Y., alleging race discrimination under both statutes  because the former mayor failed to…       Read More

Written by: Bradley R. Coppedge, Esq. Special care must be given to planning for a special needs child.  “Special Needs”, for our purposes, means a child (whether an adult or minor) who at birth or subsequently thereafter is mentally, physically, emotionally or developmentally impaired or disabled to such degree as would enable the child to be eligible, or potentially eligible, for means-tested public or governmental benefits or assistance. I. Estate Planning for a parent of a disabled or special needs child. A parent who has a special needs or disabled child has basically three (3) planning options in implementing the parent’s estate plan: (1)        Effectively disinherit the child, and allow the child to rely solely on public benefits.  This is not as harsh as it may sound in that if the parent’s wealth is modest, the child’s needs great, and there are other children to provide for, this may be…       Read More

HBS Partners Jo Jagor and Ryan Donihue will be joining Dr. Mitchell Gardiner for a A Simulated Dental Malpractice Court Case Presented Live at the 2017 Hinman Dental Meeting. They will be presenting on March 24th from 2:00-5:00pm. Using an actual dental malpractice case, this program will portray what really takes place in the courtroom between a defendant dentist and malpractice lawyers. Meeting attendees will get to see and hear the examination and trial testimony of the dentist by two of Atlanta’s premier malpractice attorneys. Question and answer periods will allow attendees to better understand procedures and the types of questioning common in court. A jury of dentists will determine the outcome.

Written by: Dale E. Slemons, Esq. As you know, one of the most important avenues to control the medical costs and overall exposure of your workers’ compensation claims is to utilize the control given to Employers by O.C.G.A. 34-9-201, which requires that the Employer maintain a valid Panel of Physicians. As you may know the statute requires that you list at least six physicians or professional associations or corporations of physician who are reasonably accessible to the Employee, among other additional requirements. While we recommend periodic verification of your Panel providers be part of your routine, we also like to inform you when information is obtained that may invalidate your Panels. In that regard, we wanted to take this time to let you know that Dr. Michael Kalson, of Academy Orthopedics, LLC has retired. If you have Dr. Kalson listed individually on your Panel of Physicians, you may want/need to…       Read More

Written by: Brian Mallow, Esq. In a major victory for employers/insurers, the Georgia Supreme Court today reversed a Court of Appeals decision that significantly limited the application of the “willful misconduct” defense in Georgia workers’ compensation cases. The case involved a cell tower technician, Adrian Burdette, who was seriously injured while attempting a controlled descent (similar to repelling) from a cell tower. Prior to beginning his shift, Burdette’s supervisor instructed the entire work crew to climb down the tower and not to use the controlled descent method. Then at the end of the shift, the crew’s team leader explicitly instructed Burdette multiple times to climb down the tower, but Burdette refused and insisted that he would use the controlled descent method instead. Shortly after Burdette began his controlled descent, he fell and sustained serious injuries. Burdette filed a claim for workers’ compensation benefits. A hearing was held before an ALJ,…       Read More

By: Michael Memberg, Esq. The Georgia Workers’ Compensation Act provides that no compensation shall be allowed for an injury caused by an employee’s willful misconduct, including the willful failure or refusal to use a safety appliance or perform a duty required by statute. On paper, the law reads like an employee has to diligently follow every safety policy, regulation, or law on the books or face a denied claim. However, Georgia law does not hold an employee’s negligence against him, no matter how gross. Furthermore, as the saying goes, “stupidity is no defense.” As a result, courts have time and again found that mere violations of safety policies, or even statutory violations like speeding, do not qualify as “willful misconduct” that would bar a claim. By that same token, there is a question whether texting while driving is “willful misconduct” contemplated by the statute, although we would certainly argue that…       Read More

Written by: Sam Crochet, Esq. In-house counsels are facing growing pressure to perform risk assessments and address internal policies to avoid data breaches for a new reason (as if they needed one). Data breach plaintiffs, depending on the state, may now find their cases welcome in state courts despite struggling to prove a clear “injury” in federal court. The Supreme Court’s 2016 Spokeo v. Robins decision established a plaintiff’s federal court “standing” necessitated actual injury as opposed to mere statutory violation. The Spokeo decision led many in-house counsels to believe lack of an “injury in fact” could prevent Plaintiffs from pursuing data breach lawsuits. However, recently, the 9th Circuit Court backed an Ikea shopper’s argument her zip-code-collection claim against the retail giant should simply remain in state court as opposed to disappear altogether despite failing to show a real injury. The three judge panel decided concrete harm had not been…       Read More

Written by: Richard Sheinis, Esq. A mistake is nothing more than an opportunity to learn. Of course, you have to take advantage of that opportunity. Children’s Medical Center of Dallas failure to take that opportunity has led to a HIPAA civil monetary penalty of $3.2 million. In 2010, Children’s filed a report with OCR indicating the loss of an unencrypted, non-password protected BlackBerry at the Dallas/Fort Worth Airport on November 19, 2009. The BlackBerry had the ePHI of 3,800 individuals. In 2013, Children’s filed another breach report with OCR in which they reported the theft of an unencrypted laptop. The laptop contained the ePHI of 2,462 individuals. An OCR investigation revealed Children’s failed to implement a risk management plan, despite a recommendation to do so, and they failed to implement encryption on all laptops, work stations, mobile devices and removable media until after the laptop was stolen. Children’s failure to…       Read More

By: Bradley R. Coppedge, Esq. If you’ve read any materials on estate planning, you’ve likely heard of these trusts. For example, you see a lot on-line, in AARP magazine, and in The Wall Street Journal. There exists a significant amount of commentary and recommendations on using these trusts along with a very simple Will known as a “pour over” Will. While they are very common in many parts of the country, Revocable Living Trusts are not used as frequently in Georgia or Alabama. Most of the commentary on Revocable Living Trusts comes from articles and books written by financial planners or attorneys outside of the Southeast. The primary purpose of a Revocable Living Trust in most states is “to avoid probate”. However, probate is a relatively simple and inexpensive process in both Georgia and Alabama, and several other southeastern states, when you have a proper Will which names an executor, waives…       Read More

Written by: Richard Sheinis, Esq. Vizio, Inc., one of the world’s largest manufacturers of internet connected televisions has agreed to pay $2.2 million to settle charges by the Federal Trade Commission and the New Jersey Attorney General that it installed software on its TVs to collect viewing data on 11 million consumer TVs without the consumers’ knowledge. Vizio TVs have a “Smart Interactivity” feature which enabled the collection of consumers’ second by second viewing data, including video from consumer cable, broadband, DVD, over the air broadcasts and streaming devices.  Even worse, Vizio facilitated appending  demographic information to the viewing data, including age, sex, income marital status, household size, education level, home ownership, and household value, and then sold this information to third parties, according to FTC allegations. Here is my question, how much money did Vizio make by selling this information to third parties?  Isn’t a $2.2 million fine a…       Read More