IRS Private Letter Ruling Approves Student Loan Repayment Feature in 401(k) Plan

Originally published by Haynes and Boone Benefits Group.

A recently released IRS Private Letter Ruling (the “PLR”) describes a potential approach for an employer to integrate a student loan repayment program with the employer’s defined contribution plan. As described in the PLR, the employer proposed to amend its 401(k) plan to permit employees to enroll in a voluntary student loan benefit program (the “Program”) under which the employer would make a nonelective contribution to an employee’s account under the plan for each pay period during which the employee made a student loan repayment equal to a specified amount of eligible compensation. The IRS ruled that, based on the conditions described in the PLR, the Program did not violate the Internal Revenue Code’s “contingent benefit” prohibition (i.e., an employer cannot offer a benefit, other than a matching contribution, that is contingent upon the employee making contributions to a 401(k) plan). The PLR did not address what impact such a program would have on nondiscrimination and coverage testing.

While the PLR does provide some insight into how the IRS might view these programs, it is important to note that the PLR may only be relied on by the taxpayer who requested the ruling. Before adopting a similar program, employers should consult with employee benefits counsel.

View PLR No. 201833012.

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Social Media for Lawyers: Looking Good, Doing It Right

Originally published by Bruce Vincent.

Some lawyers and law firms dismiss social media in terms of marketing, but it can be a difference maker if you know where to be online and what to do once you get there. Identifying your best audience and presenting yourself as a problem solver is the first step in making social media a valuable […]

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Laws for Bicyclists

Originally published by Herrman & Herrman, P.L.L.C..

As bicycling continues to be the fastest growing mode of transportation in, more cities like McAllen are accommodating riders on their commutes. While bicyclists have the same rights as drivers in the state of Texas, they also have the same responsibilities. Whether you are enjoying a leisurely ride or you are commuting to and from work in rush hour, knowing the rules is necessary to stay safe on the road.

Laws for Bicyclists

Following these rules can help reduce your risk of being fined or worse, being involved in an accident.

• Travel in the same direction as traffic, never against it
• Obey traffic signs, including red lights and stop signs
• Observe others’ right-of-way
• Pay attention to lane markers
• When riding at night, use a light on the front and a red reflector or red light on the back of your bike
• Signal your turns: For a left turn, stretch your left arm out to the left. For a right turn, stretch your right arm out to the right. When stopping, hold your left arm downward.

General Bicycle Safety

While there is no Texas helmet law, some cities and counties do require cyclists to wear helmets. It is always best to wear a properly fitted helmet to reduce the chance of injury or even death in case of an accident. Always plan your trip ahead of time to avoid any dangerous roads, and check your tires and breaks before leaving the house. Ride as far to the right as you can, and be on the lookout for vehicles making right turns.

Riding at Night

Riding at night poses more risks for bicyclists, but you can take precautions to keep yourself safe when it is dark out. In addition to equipping your bike with a light on the front and either a red light or a red reflector on the back of your bike, you should wear bright colors or reflective clothing while riding at night. This will help drivers see you on the road and can prevent an accident. When possible, try to take a route that is well lit to assist in seeing potholes or other road hazards.

Tips for Drivers

When driving, be on the lookout for cyclists, especially at intersections. When you are passing a cyclist, be sure to give them plenty of room, and move to another lane when possible. As cycling becomes more common, it is important to familiarize yourself with cyclists’ hand signals so you will know when they are turning and stopping.

 

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Police Body Camera Footage Proves Pivotal in Murder Conviction of Officer

Originally published by [email protected].

Police body camera evidence is a relatively new and powerful tool in criminal trials. Footage has helped expose improper DWI arrests and heavy-handed police tactics. In a recent murder trial, the video footage helped secure the murder conviction of a Texas officer accused of shooting a 15-year-old dead.

Police officers are seldom convicted of murder over fatal shootings in the course of their employment. In the case of Balch Springs police officer Roy Oliver, the body camera footage changed that, reported the Texas Tribune.

Oliver fatally shot 15-year-old Jordan Edwards in April 2017. The police officer stated a car with teens inside was departing from a party and moving in an aggressive manner toward officers when he fired into the car.

The Tribune noted the next day the officer changed his statement when his police chief saw the police bodycam video. Oliver admitted the car was moving away from police. The evidence was clear from bodycam footage.

After he changed his story, Oliver was fired and charged with murder. During an eight-day trial in August, jurors were shown footage from the bodycams on the chests of Oliver and his partner. The evidence proved crucial to the prosecution brought by the Dallas County District Attorney’s Office.

The jury witnessed the officer firing five rounds into the car as it was moving away from the officers. One of the bullets killed Edwards.

The video likely played a pivotal role in a guilty verdict handed down by the jury after 13 hours plus of deliberation. The jury found Oliver guilty of murder and not guilty of two counts of aggravated assault. He was sentenced to 15 years in prison.

Bodycams are becoming the norm for police officers in Texas and throughout the country. The Tribune noted five of the six Texas cities with a population above 500,000 have already deployed the cameras in their police departments. El Paso is the only large city not to have equipped its officers with bodycams and they will be arriving soon.

The widespread use of police bodycams gives both prosecutors and defense attorneys a powerful tool in criminal cases.

However, it remains to be seen whether body cameras will moderate police behavior. A comprehensive study published in 2017 suggested the cameras were having little impact, reported ABA Journal.

The Washington DC-based study suggested the best estimate was bodycams would lead to about 75 more use-of-force incidents with the adoption of body-worn cameras per 1,000 officers.

Murder is one of the most serious crimes you can be convicted of in Texas. It’s important to hire experienced Dallas criminal defense lawyers who have won acquittals in many murder cases. Call us at (214) 720-9552.

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The border between two lawsuits

Originally published by David Coale.

A Dallas and a Midland case both dealt with aspects of the same oil-and-gas exploration project. Predictably, after the litigation proceeded for several years, the issue of whether the Midland litigation mooted the Dallas matter reached the Fifth Court, which reviewed (among other matters) the doctrines of waiver (based on allegedly “unequivocal writings and admissions,” and also drawing on election-of-remedies principles, res judicata, and collateral estoppel. The Court found that the Dallas action could proceed; its opinion illustrates in detail the operation of these important doctrines that police the borders between pieces of litigation (although the related issue of judicial estoppel does not appear to have been in play). TRO-X LP v. Eagle Oil & Gas Co., No. 05-17-00052-CV (Aug. 31, 2018).

 

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Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry

Originally published by Seyfarth Shaw LLP.

By James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of  safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.

According to the Bureau of Labor Statistics (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states “employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to an aging population, leading to greater demand for healthcare services.”

The top categories of this increased employment are: General Medical and Surgical Hospitals, Offices of Physicians, Nursing Care Facilities (Skilled Nursing Facilities), Health and Personal Care Stores, and Outpatient Care Centers. Also included are Healthcare Social Workers and Home Health Aides. Many nurses and hospitals are unionized, which can lead to an increased push for government enforcement and involvement.

Regulators have begun to target workplace violence in healthcare settings. California OSHA has led the regulatory wave by issuing new, onerous regulations that require employers to create a Workplace Violence Prevention Plan, train employees, and maintain a Violent Incident Log. Federal OSHA has yet to promulgate a new workplace violence in healthcare standard (see Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries), but the Agency has targeted healthcare employers with General Duty Clause citations.

For example, in Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015), Judge Phillips issued an opinion affirming a General Duty Clause citation to a home health care services employer which alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior. After complaining that the client made her feel uncomfortable, the employee was fatally stabbed by the client at his home. Judge Phillips determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions. The case is illustrative of the increasingly close eye the Agency is placing on workplace violence, and the unique and challenging environment employees face in health care.

Moreover, healthcare systems worldwide share health policy and regulatory goals for ensuring quality care and patient safety, mitigating fraud, cyber threats, and the challenge of data protection.  Cybersecurity and data risk management continue to be a major concern.   Additionally, challenges in the health care industry, such as staffing shortages will remain an issue.

We have previously noted many workplace safety and violence trends in the healthcare sector, including with regard to the propensity of employees to suffer ergonomic injuries while treating and lifting patients. Here are some of our previous related blogs on these topics: Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry, NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers, OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting, Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill Client, and OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers, and Healthcare Industry Receives New Fact Sheet on Musculoskeletal Disorders in Nursing and Residential Care Workers.

Each of these areas should be closely watched and targeted moving forward by healthcare employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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Western District denies Summary Judgment

Originally published by Thomas J. Crane.

An engineer worked for Texas Commission on Environmental Quality or 23 years. Shiyan Jiang was never in any trouble until in 2014, he was assigned a new boss, Kim Wilson. The new boss believed Mr. Jiang placed some papers in a permit folder that did not belong there. The plaintiff then filed a complaint alleging discrimination based on age and ethnic origin. The supervisor then found many more things wrong with the long-time engineer, including raising his voice and disputing settled policy matters. Ms. Wilson placed the engineer on probation. During the probation, he had two meetings with supervisors. No incident occurred after the second meeting, yet, the supervisor recommended termination.

Mr. Jiang filed suit as Jiang v. Texas Commission on Environmental Quality, No. 17-CV-00739 (W.D. Tex. 8/13/2018). The TCEQ moved for summary judgment. The Western District court noted that there was evidence that some other co-workers raised their voices on occasion. Other co-workers sometimes placed draft documents into a permit folder. And, others debated policy with their supervisors. Mr. Jiang submitted a statement on his behalf in responding to the motion for summary judgment. The employer tried to argue that Jiang’s Declaration was based on subjective belief. But, his testimony was corroborated by co-workers. The employer then argued that the co-worker affidavits were based on subjective belief. But, noted the court, the co-workers presented facts to support their beliefs.

The court also noted that two other senior employees were placed on probation or issued written warnings after they complained about age discrimination. And, the court noted  that Mr. Jiang complained about race discrimination at the second probation meeting. The very next day, the supervisor recommended he be terminated. That is a very close nexus indeed between opposing discrimination and then suffering an adverse personnel action. The court found that viewing all this evidence in totality, a jury could infer a pattern of behavior of retaliation against persons who complaint about discrimination. It found that there were issues of fact regarding the employer’s articulated reasons for the termination. So, the court denied the employer’s motion for summary judgment. See the decision here.

The judge ruled correctly. The affidavits of co-workers, if supported by factual observations, are much more than mere “subjective” belief.

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