The federal minimum wage of $7.25 per hour is not currently scheduled to increase in 2012. Alabama, Georgia, South Carolina, and Tennessee are not scheduled to enact changes. In fact, Alabama, South Carolina and Tennessee do not have individual state minimum wage statutes and therefore follow the federal minimum wage. Georgia has a lower minimum wage of $5.15, so that it defers to the federal minimum wage when the federal law is applicable to an employer. However, the following states will increase the minimum wage in 2012: Arizona – $7.65 Colorado – $7.64 Florida – $7.67 Montana – $7.65 Ohio – $7.70 Oregon – $8.80 Vermont – $8.64 Washington – $9.04 States interpret the application of their minimum wage requirements differently.  Employers who have workers temporarily assigned to more than one state, or workers who regularly cross state boundaries to perform work in more than one state, should confirm whether or not…       Read More

The President is expected to sign a Conference Report approved by both the House and Senate to the National Defense Authorization Act for fiscal year 2012. The Conference Report addresses two issues important to employers.   I. EXPANDED USERRA RIGHTS.   First, the bill extends some USERRA right to members of the National Guard called up to conduct homeland security missions within the territorial United States. Current law does not extend the same protections enjoyed by National Guard members assigned overseas to members serving domestically. The amendment would exempt National Guard members assigned on such domestic homeland security assignments (often disaster emergencies) from USERRA’s 5-year limit on active military service, similar to the same protection for overseas assignments.   II. TRICARE AND THE OFCCP SCALED BACK.   Second, in December of 2010 the OFCCP  declared TRICARE providers to be government contractors or subcontractors subject to the OFCCP’s requirement to maintain…       Read More

Most workers’ compensation claims begin and end with the handling of a claimant’s physical injury.  However, many also deal with the handling of a claimant’s psychic injury. The Georgia Workers’ Compensation Act recognizes psychic injuries as compensable under O.C.G.A. §34-9-1. Like a physical injury, a psychic injury must meet certain criteria in order to be deemed compensable. In Georgia, a psychic injury is compensable only if it satisfies a two-prong test: (1) it must arise out of an accident in which a compensable physical injury was sustained; and (2) while the physical injury need not be the precipitating cause of the psychological condition or problems, the physical injury must, at a minimum, contribute to the continuation of the psychological   trauma.  Recently, the Courts indicated it could find a diagnosis of mild depression to be a compensable psychic injury. DeKalb Board of Education v. Singleton, 294 Ga. App. 96 (2008).  This…       Read More

In the event of a catastrophic injury, the Georgia Workers’ Compensation Act requires an employer/insurer to provide the injured employee with reasonable and necessary rehabilitation services. This often requires the employer/insurer to make structural modifications to an employee’s home. In extreme cases, an employer/insurer can be required to provide the employee with new housing, which creates questions as to who will hold title to the new home and who will be responsible for its maintenance.  Just last month, in Southern Concrete v. Spires, the Georgia Court of Appeals addressed whether an employer/insurer could meet its legal obligations by simply providing the injured employee with a life estate in a suitable home. A life estate is a possessory interest in property that is limited to the life of the person holding it. Upon the life tenant’s death, all interest in the property “reverts” to the grantor.  Spires was severely injured in…       Read More

In Georgia, it is well established that an employee is generally not acting in the course of his employment when traveling to and from work. However, one of the exceptions to this rule is the “special task” rule. This exception allows for an accident to be deemed compensable when the employee is engaged in a “special task” for the employer.  Batten v. Commercial Union Ins. Co., 147 Ga. App. 339 (1978). In Georgia, the emphasis on this exception is placed on the benefit to the employer, rather than any inconvenience of the off -premises journey to the employee. Harrison v. Winn Dixie Stores, Inc., 247 Ga. App. 6 (2000).  While there has not been substantial litigation on this issue in Georgia, it is important to note that the Courts have established certain fact patterns that do not amount to an employee engaged in a “special task” for purposes of the…       Read More

Additionally, the investigation should include determining the process undertaken in disclosing the information and any security provided by the receiving entities. Any agreements that the entities have in place would be relevant and should be obtained if possible and retained for your records. Of course, securing the information previously disclosed is the most important part of the mitigation process.  The covered entity should be sure to obtain documentation in this regard.  A letter from each recipient would likely suffice, but a better option would be to include a provision within an agreement with the recipients warranting that the information has been returned.  This can be included in the same agreement as referenced in our next mitigating step. OCR recommends that the disclosing entity obtain the recipient’s satisfactory assurances that the information will not be further used or disclosed. This can be accomplished verbally as mentioned above but should also be…       Read More

            “Digging up dirt” on a former employee who filed suit against your company can often provide useful ammunition to challenge their credibility.  Social networking sites can be a fertile garden for your digging, but how do you get access to the former employee’s social media site?  Is it legal to access their Facebook page, or are you setting yourself up for a claim of invasion of privacy?             Courts in Pennsylvania are showing us the way by holding that there is little expectation of privacy on a social media site.  If a party in a lawsuit posts information on his or her social media site, that information can fall within the zone of discovery.  “Only the initiated or foolish could believe that Facebook is an online box of secrets”, said Judge Richard Walsh, in an auto accident case, in which the Plaintiff alleged serious injuries.  Unfortunately for the Plaintiff,…       Read More

It is important to remember that, in the event of a use or disclosure in violation of the Privacy Rule, the disclosing covered entity will have the burden of demonstrating that all notifications were made as required by HIPAA or that the use or disclosure did not constitute a breach. Thus, the covered entity will have the burden of demonstrating that no “breach” has occurred as defined under the regulations. Accordingly, the covered entity must document the steps taken so that they can demonstrate, if necessary, that no breach notification was required following an impermissible use or disclosure of PHI. 74 FR 42740, 42746. Prior to performing the risk assessment, though, the covered entity should attempt to mitigate the harm to the individuals.  OCR stated in its guidance that covered entities should take immediate steps to mitigate an impermissible use or disclosure. OCR recognizes that there may be circumstances where…       Read More