Professional Liability Matters

November 14, 2017 Cyber-Liability

Congress Considering Federal Cyber Breach Laws

Huge cybersecurity breaches at major retailers caught the attention of the public and have made headlines. Now, more recent breach at one of the major credit reporting agencies has the attention of Congress. 48 states and the District of Columbia already have some form of legislation governing security breaches. These statutes typically begin by laying out who is subject to the requirements, such as businesses and information brokers, and what information is considered protected “personal information.” The laws then outline what constitutes a breach, the …

November 13, 2017 Risk Management

Microcaptives Create Headaches for Professionals

Captive insurance companies have long been a popular vehicle for companies that require insurance in areas where it is hard to find coverage. Although the IRS has been somewhat suspicious of captives for some time, it was not until the past several years that microcaptives, or captives for smaller companies, apparently piqued the interest of the IRS. After the Tax Court issued an opinion over the summer, several other similar cases have gone to trial and await opinion. The result of these cases will have …

November 6, 2017 Employment Practices Liability

Performance Evaluations: A Lesson on Documentation

Cases turn on the evidence. In the case of an employment discrimination or retaliation claim, the key may lie in the employee file maintained by the employer. One common piece of documentation created and maintained by many employers is performance evaluations. In Walker v. Verizon, a federal district court in Pennsylvania ruled on a case illustrating how important documentation can be in defending these claims.

The common legal framework in an employment discrimination and/or retaliation lawsuit has three steps. A plaintiff must first establish a …

October 25, 2017 Employment Practices Liability

Bad Back? You’re Fired.

Employers rely upon employees to get the job done. Usually, the “job” requires the employee’s physical presence at work. But injuries and medical conditions throw a wrench in the works. Most employers are at least generally aware of the implications of various federal and state laws governing treatment of employees with medical conditions and injuries. Yet, there is plenty of gray area where employers may be subject to liability. Take for example the recent decision in Severson v. Heartland Woodcraft, Inc. where the Seventh …

October 16, 2017 Trial Tactics

Recusal: Use it or Lose it

Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer. However, the Pennsylvania Supreme Court recently ruled that waiting too long to decide on a motion to recuse may result in the request being untimely.

In Lomas …

October 9, 2017 Agents and Brokers / Risk Management

Guilt by Association

Making a referral is most often understood as a recommendation as to the quality of that professional’s services or products. In turn, there are different tort theories that are recognized in many states for negligence in doing so, and potential liability for the actions of a referred professional. What is far less common is to allow liability to flow through several parties even absent independent conduct or a theory of agency.

A recent New Jersey Appellate decision appears to do just that by holding a …

September 28, 2017 General

We Need Your Vote!

Attention blog readers! We are proud to announce that Professional Liability Matters has made it to the voting round in The Expert Institute’s “2017 Best Legal Blog Contest.” Over the past month, this contest received thousands of nominations, which were then narrowed to the “most exciting, entertaining, and informative legal blogs online today.”

To vote for this blog, visit The Expert Institute’s contest page here and click “vote” for Professional Liability Matters.

Only one vote is allowed per IP address, so please try voting on …

September 26, 2017 Employment Practices Liability

Lactation = Medical Condition under Federal Law

There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (“PDA”) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employee’s post-pregnancy lactation and need to nurse her newborn.

Hicks worked for the Tuscaloosa Police Department, on the narcotics task force and “exceeded expectations” according to a performance review given prior to her medical leave. Once pregnant, she was …

September 19, 2017 Cyber-Liability

It’s the Little Things That Count in Cybersecurity

Today it seems as though cyber-security protections are always a half-step behind hackers. For every patch that quietly protects from one type of ransomware, there’s another WannaCry infecting a major company or financial institution. Of course, cyber-security is an important concern for all businesses, including professionals, a point which is still gaining awareness across the country. As these less technologically sophisticated businesses learn more about the importance of cyber-security in the modern world, it can be easy to forget that there are many everyday protections …

September 12, 2017 Employment Practices Liability

FMLA Causation Standard Slides Down

Navigating the waters of employee leave is tricky business for employers. At the federal level, FMLA requires “covered” employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The question of the appropriate causation standard that must be proven in an FMLA claim is not unanimous among the Circuit Courts. In Woods v. START Treatment & Recovery Centers, the Second Circuit put its stake in the ground.

FMLA claims mainly come in two varieties: interference and retaliation. Generally speaking, …