The National Law Forum

When Coworkers Invade Your Space re: Personal Privacy in the Workplace

Invasion of personal privacy in the work place concerns all of us, but can you sue for that? A Connecticut trial court recently addressed this compelling privacy issue. A Board of Education employee sued her coworkers for intentional infliction of emotional distress and for invasion of privacy. The employee alleged that her co-workers had, for several months, gathered together without her knowledge or permission to open and read her personal materials that she had stored on her work computer. The Waterbury Superior Court held that the employee had not stated a claim for intentional infliction of emotional distress, as the alleged conduct was only “undesirable and inappropriate”, and thus did not meet the “extreme and outrageous” standard of an intentional infliction of emotional distress claim. However, the court held that the employee had stated a claim for invasion of privacy, since her coworkers’ uninvited intrusion into her personal material was behavior that a reasonable person would find highly offensive. Referencing a 2009 District of Connecticut case, where the court held that employees have a reasonable expectation of privacy for their work emails, the Waterbury Superior Court noted that although the employee’s computer was a work computer, and not a personal device, this fact did not preclude her from bringing an invasion of privacy claim.

The right of privacy was first recognized by the Connecticut Supreme Court in 1982, when the Court adopted the standards for invasion of privacy listed in the Restatement (Second) of Torts. The Restatement explains that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.” 3 Restatement (Second), Torts, Invasion of Privacy § 652B, p. 378 (1977). Following the Restatement, Connecticut law now categorizes four classes of invasion of privacy: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of the other’s name or likeness; 3) unreasonable publicity given to the other’s private life; or 4) publicity that unreasonably places the other in a false light before the public. Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 127-28 1982). A few years later, a Connecticut Appellate Court adopted the invasion of privacy damages listed in the Restatement (Second) of Torts. In that decision, the court held that a plaintiff who has established a cause of action for invasion of his privacy is entitled to recover damages for: 1) the harm to his interest in privacy resulting from the invasion; 2) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and 3) special damages of which the invasion is a legal cause. Jonap v. Silver, 1 Conn. App. 550, 557 (. 1984)

This raises an interesting legal question. If a plaintiff’s claim is found to have fulfilled the standards of an invasion of privacy claim, yet not the standards of an intentional infliction of emotional distress claim, what damages can the plaintiff recover? An intentional infliction of emotional distress claim must involve “extreme and outrageous” conduct, while an invasion of privacy claim must involve conduct that is “highly offensive to a reasonable person.” It seems incongruous that a plaintiff is unable to recover for emotional distress under an intentional infliction of emotional distress claim, yet is able to recover for “mental distress” arising from an invasion of privacy claim. However, it appears that courts have determined that conduct qualifying as invasion of privacy needs to meet a less stringent standard of distress than conduct qualifying as intentional infliction of emotional distress. If this is true, then it makes sense that a plaintiff could be unable to recover for emotional distress under an intentional infliction of emotional distress claim, while still being able to recover for mental distress under a less stringent invasion of privacy claim.

ARTICLE BY

Bruce H. Raymond

Raymond Law Group LLC

Connecticut Workplace Privacy Law

Important Recommendations from the MedPAC March Report to Congress, Part Two

Earlier we have discussed the recommendations of the Medicare Payment Advisory Commission (“MedPAC” or the “Commission”) with regard to fee-for-service (“FFS”) payment systems. Today’s post will discuss the Commission’s recommendations with regard to making FFS payments site-neutral, as well as its status reports on Medicare Advantage (“MA”) and the Medicare prescription drug program (“Part D”).

Similar Services in Different Settings

Inpatient and outpatient hospital rates for 2016 would receive an update of 3.25% per the Commission, provided that changes would be made to equalize payments for similar services provided in different care settings, making them site-neutral. Certain conditions treated both in skilled nursing facilities and in inpatient rehabilitation facilities would receive site-neutral payments, for example. Payments under the long-term care hospital payment system would also be reduced for patients who are not characterized as chronically critically ill, so that the payment rate would then be similar to what acute care hospitals receive.

Medicare Advantage

The Commission made some of the same recommendations in 2015 about MA as it did in March 2014, namely that hospice care should be integrated into the MA benefit package and bidding rules should be improved. According to MedPAC, Hospice inclusion in MA would increase coordination of care as well as innovation in end-of-life care, in addition to promoting accountability. The Commission also believes that employer group MA plans should be more consistent with comparable nonemployer plans in terms of payment, and the application of the national average bid-to-benchmark ratio for nonemployer plans to employer plans could achieve this goal. The Commission also recommended a decrease in benchmarks to equalize the payment system between MA and the FFS program enough to where neither is favored.

As for access to MA, MedPAC found that 99 percent of all Medicare beneficiaries have access to an MA plan. The report also found that data from a quality bonus program shows that plans are responding favorably to the measure by paying closer attention to quality measures that form the basis of these payments.

Medicare Part D

MedPAC made no recommendations as to Part D. It found high participation in the plan, with premiums remaining stable over the past year. The Commission did note an increase in spending between 2007 and 2013, which it attributed to two trends: (1) an overall shift towards the use of generic drugs, which affects the benefit spending that plan sponsors base premiums on, and (2) reinsurance payments have grown every year at an average rate of 16 percent.

ARTICLE BY

Christopher J. Shaughnessy

McBrayer, McGinnis, Leslie and Kirkland, PLLC

New York Lawmakers Agree on Brownfield Law Extension With Less Drastic Changes to Tax Credits

In a departure from his budget proposal, the Legislature negotiated changes with the Governor to extend the tax credits for New York’s Brownfield Cleanup Program (BCP) with relatively modest changes to BCP eligibility requirements. The Governor’s budget proposal would have limited the lucrative “tangible property” tax credit, which is the credit based on a percentage of the cost of constructing a new development on a Brownfield site, to (i) properties located in an environmental zone, (ii) properties to be utilized for affordable housing, or (iii) “upside down” properties – where the remediation of the property is projected to cost more than the value of the remediated property. Under the bill agreed to with the Legislature, however, those limits (with modifications) will apply only to properties located in New York City. In other words, outside of New York City, eligibility for the tangible property tax credit will remain available to all developers that otherwise qualify under the BCP, as per existing law.

The news for New York City-based developments is also not all bad. The final bill adds a fourth category of properties eligible for the tangible property tax credit for “underutilized” properties – to be defined by regulation, and the criteria for upside down properties were loosened so that a property can qualify if the remediation is projected to cost over 75 percent – rather than 100 percent – of the value of the remediated property. Despite these revisions, the New York BCP will continue to provide significant tax incentives to developers seeking to clean up and redevelop contaminated sites and the extension will resolve the uncertainty over the future of the program that existed for several years.

Other changes include:

“Grandfathering” of Existing Tax Credits: Amendments to the law as they relate to all eligible tax credits are tied to the dates by which a Brownfield site is accepted into the BCP and obtains a Certificate of Completion (COC) from the Department of Environmental Conservation (DEC).
- Existing provisions related to the tax credits would remain applicable to those sites that either (i) were admitted into BCP prior to June 23, 2008 and obtained their COC by December 31, 2017, or (ii) were admitted into the BCP between June 23, 2008 and July 1, 2015 (or the date by which DEC proposes regulations defining “underutilized,” whichever is later) and obtained a COC by December 31, 2019.
- Amendments related to the tax credits are applicable to those sites that are accepted into the BCP between July 1, 2015 (or the date by which DEC proposes regulations defining “underutilized,” whichever is later) and December 31, 2022, so long as they obtain a COC on or before March 31, 2026.

Definition of “Brownfield Site”: The amendments redefine “Brownfield Site” to mean “any real property where a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by [DEC] that are applicable based on the reasonably anticipated use of the property.” This is a welcome change which ties eligibility to cleanup objectives and moves away from the prior vague definition that required the presence of contamination that “complicates” redevelopment.

Creation of a New EZ Program: The amendments empower DEC to adopt regulations to implement a program for “the expedited investigation and/or remediation” of brownfield sites (BCP-EZ program) provided the developer agrees to take no tax credits associated with the program. The EZ Program, however, appears to provide a minimal departure from existing remediation and public notice requirements, and thus may not actually provide for an expedited investigation as advertised. One area where a more expedited process may work is for Track 4 – restricted use – cleanups where the applicant the applicant would be allowed to use site-specific data to demonstrate that the concentration of the contaminant in the soils reflects background conditions and, in that case, a contaminant-specific action objective for such contaminant equal to such background concentration may be established.

Inclusion of Class 2 Sites: The amendments allow in class 2 Superfund sites that are being remediated by non-culpable volunteers. Previously, such sites were deemed ineligible even if the party seeking to remediate the site had no role in the contamination.

Change In DEC Oversight Costs: The amendments eliminates the payment of DEC oversight costs for volunteers, and permits a flat fee charge to participants.

Related Service Fee: The amendments address a perceived problem related to the computation of service fees charged to the Brownfield applicant by a related party and the calculation of tax credits. The concern was that these service fees could be inflated as a way to increase the remediation or site preparation costs, and result in associated increases in the ceiling of eligible tangible property credits. The amendments provide that such service fees cannot be claimed as eligible site preparation or remediation costs until they are earned and actually paid, and the portion of the tax credits related to such fees cannot be claimed until the taxable year when the subject property is placed into service. This limits the use of such fees as a way to inflate costs that are used to calculate the ceiling for tangible property credits. That ceiling is deemed to be the lesser of $35 million for residential/commercial projects ($45 million for industrial projects) or three times the amount of eligible site preparation and onsite groundwater remediation costs.

Definition of Eligible Site Preparation Costs and Groundwater Remediation Costs: The definition of eligible “site preparation” and “onsite groundwater remediation” costs is critical because these costs are eligible for tax credits that range from 28 to 50 percent of such actual costs, and, as noted, those costs are often used as the basis for calculating the ceiling for a project’s tangible property tax credits. The amendments provide a more specific and detailed description of eligible costs, requiring such costs to be necessary to implement a site investigation or remediation, or to qualify for a COC. Eligible costs include those related to excavation, demolition, engineering and environmental consulting costs, legal costs, transportation and disposal of contaminated soil, physical support of excavation, and dewatering.

Increased Tangible Property Tax Credit Percentage and Changed Definition: The amendments limits the tangible property credit to only costs for tangible property with a useful life of at least fifteen years. Certain projects, however, will be eligible for a higher percentage tangible property credit, which in a general sense is a tax credit calculated based on a percentage of the cost of constructing the building on the Brownfield site. Under existing law, that percentage is either 10 or 12 percent. Under the amendments, that percentage can be increased in five percent increments, and total as much as 24 percent of the development costs, with five percent bonuses for sites that are cleaned up to Track 1 standards (highest level of cleanup), located in En-zones or a Brownfield Opportunity Area (BOA), or developed for manufacturing or affordable housing.

ARTICLE BY

Steven C. Russo

Robert M. Rosenthal

Greenberg Traurig, LLP

The Data Security and Breach Notification Act of 2015

On March 25, 2015, the United States House of Representative, Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade approved draft legislation which would replace state data breach notification laws with a national standard. This draft legislation comes on the heels of the President’s call for a national data breach notification law. The proposed legislation is identified as the “Data Security and Breach Notification Act of 2015.”

The overview of the draft provides that “Data breaches are a growing problem as e-commerce evolves and Americans spend more of their time and conduct more of their activities online. Technology has empowered consumers to purchase goods and services on demand, but it has also empowered criminals to target businesses and steal a host of personal data. This costs consumers tens of billions of dollars each year, imposes all kinds of hassles, and can have a lasting impact on their credit.” Like many existing state laws, the proposal would require companies to secure the personal data they collect and maintain about consumers and to provide notice to individuals in the event of a breach of security involving personal information.

The draft legislation contains several key provisions:

Companies would be required to implement and maintain reasonable security measures and practices to protect and secure personal information;
The definition of personal information is more expansive than most state breach notification laws, including home address, telephone number, mother’s maiden name, and date of birth as data elements;
Companies are not required to provide notice if there is no reasonable risk of identity theft, economic loss, economic harm, or financial harm;
Companies would be required to provide notice to affected individuals within 30 days after discovery of a breach;
The law would preempt all state data breach notification laws;
Enforcement would be by the Federal Trade Commission (FTC) or state attorneys general; and
No private right of action would be permitted.

The measure must now be formally introduced in the House of Representatives before further action can be taken. Notably, similar measures introduced in the past in an effort to nationalize data breach response have all failed. However, given the number of individuals affected by, or likely to be affected by, a data breach and the fact identity theft has topped the FTC’s ranking of consumer complaints for the 15th consecutive year, support for a national data breach notification law has never been stronger.

ARTICLE BY

Jason C. Gavejian

Jackson Lewis P.C.

Workplace Privacy Blog

Register for the ABA’s National Institute for New Partners – April 17, 2015 in Washington, D.C.

If you are a new partner or are on the cusp of becoming a new partner, register today for the ABA’s National Institute on New Partners.

At this unique one-day Institute, you will:

•	Network with new partners throughout the country, comparing and contrasting their firm’s business and professional development practices with your own.
•	Learn from top practitioners as they divulge key considerations for new partners, from ownership issues to pitfalls, finances to business development.
•	Meet and socialize with your colleagues during breakfast, lunch and concluding reception. All for the cost of about one billable hour!
•	Hear from our distinguished Invited Keynote speaker Ted Olson, a partner at Gibson, Dunn & Crutcher. Among other accolades, he was selected by Time magazine in 2010 as one of the 100 most influential people in the world and he is one of the nation’s premier appellate and United States Supreme Court advocates. He has argued 61 cases in the Supreme Court, including the twoBush v. Gore cases, Citizen United v. Federal Election Commission, and Hollingsworth v. Perry, the case affirming the overturning of California’s Proposition 8 banning same sex marriage.
•	Receive 4 hours of CLE credit, including 2.75 hours of ethics credit.

Register for the ABA's National Institute for New Partners – April 17, 2015 in Washington, D.C.

If you are a new partner or are on the cusp of becoming a new partner, register today for the ABA’s National Institute on New Partners.

At this unique one-day Institute, you will:

•	Network with new partners throughout the country, comparing and contrasting their firm’s business and professional development practices with your own.
•	Learn from top practitioners as they divulge key considerations for new partners, from ownership issues to pitfalls, finances to business development.
•	Meet and socialize with your colleagues during breakfast, lunch and concluding reception. All for the cost of about one billable hour!
•	Hear from our distinguished Invited Keynote speaker Ted Olson, a partner at Gibson, Dunn & Crutcher. Among other accolades, he was selected by Time magazine in 2010 as one of the 100 most influential people in the world and he is one of the nation’s premier appellate and United States Supreme Court advocates. He has argued 61 cases in the Supreme Court, including the twoBush v. Gore cases, Citizen United v. Federal Election Commission, and Hollingsworth v. Perry, the case affirming the overturning of California’s Proposition 8 banning same sex marriage.
•	Receive 4 hours of CLE credit, including 2.75 hours of ethics credit.

President Obama Urged to “Ban the Box” for Federal Contractors

In a letter this past week, nearly 200 interest groups urged President Obama to issue an executive order “banning the box” for federal contractors and to implement other “fair chance” hiring reforms protecting ex-offenders. “Ban the box” refers to a movement that has swept across state and local legislatures in recent years requiring contractors (and employers more broadly) to remove the check box from job applications asking whether prospective employees have a criminal history.

To date, several state and local jurisdictions have “banned the box” for contractors, including California (for construction contractors), Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY) (for human services contractors), Pittsburgh (PA), and Syracuse (NY). Delaware and Madison (WI) have “encouraged” the same.

In addition, six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers (either expressly or implicitly covering government contractors).

At the federal level, the Office of Federal Contract Compliance Programs (OFCCP) also has issued a directive on criminal background checks. The Directive cautions contractors that the consideration of criminal records in hiring or other personnel decisions may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964.

If President Obama issues an executive order that “bans the box” for federal contractors, the executive action will add to an already growing patchwork of laws and orders restricting criminal background checks on job applicants and employees of government contractors. Stay tuned to see what the President decides.

ARTICLE BY

Connie N Bertram

Daniel L. Saperstein

Proskauer Rose LLP

Receive Exclusive NLR Discount to Inside Counsel’s Superconference – May 11-13 in Chicago

All NLR readers get an exclusive $150 discount off current rates through April 30th.
Register today!

The 15th annual Inside Counsel SuperConference, May 11-13, 2015 in Chicago is the can’t miss conference for legal professionals.

SuperConference 2014 played host to a diverse and senior level audience of participants:

More than 80 In-House Counsel experts comprised our speaker faculty – GCs, AGCs, and executives
More than 80% of attendees were In-House Counsel
More than 65% of attendees were senior level and above

The annual InsideCounsel SuperConference, for the past 14 years, has offered the highest value for educational investment within a constructive learning and networking environment. Legal professionals will gain the opportunity to elevate the quality of their performance and learn ways to become a strategic partner within his/her organization. In two-and-half days attendees earn CLE credits, network with hundreds of peers and legal service providers and hear strategies to tackle corporate legal issues that are top of mind throughout this comprehensive program. SuperConference is presented by InsideCounsel magazine, published by Summit Professional Networks.

Receive Exclusive NLR Discount to Inside Counsel's Superconference – May 11-13 in Chicago

All NLR readers get an exclusive $150 discount off current rates through April 30th.
Register today!

The 15th annual Inside Counsel SuperConference, May 11-13, 2015 in Chicago is the can’t miss conference for legal professionals.

SuperConference 2014 played host to a diverse and senior level audience of participants:

More than 80 In-House Counsel experts comprised our speaker faculty – GCs, AGCs, and executives
More than 80% of attendees were In-House Counsel
More than 65% of attendees were senior level and above

Pay-to-Play Law on Gov. Christie’s Desk Poses Potential Threat to National Parties

A little-noticed sentence in a bill sitting on New Jersey Governor Chris Christie’s desk could, if it becomes law, threaten to curtail the ability of national party committees to raise money from Wall Street and financial industry executives. The Republican and Democratic Governors Associations, the Republican National Committee, the Democratic National Committee, and the federal congressional party committees could all be impacted.

New Jersey State Investment Council rules prevent the state pension fund from hiring an investment management firm if, within the two years prior, certain executives and professionals at the investment firm made a covered “political contribution or payment to a political party.” The term “political party” means “any political party or political committee organized in the State” but does not include “a Federal or national campaign committee or a non-State political committee.”

The bill recently passed by the state legislature, however, would change that. The bill—which we flagged when it was making its way through the legislature—provides: “Regulations adopted by the council that address political contributions shall apply equally to contributions to any federal or national committee or a non-State political committee as to any other committee covered thereby.”

This poorly drafted provision could be read to apply only to political parties “organized in the State” such as the federal account of a New Jersey political party. But it could also be read to apply to all federal or national party committees such as the RGA and the DNC. Indeed, on passage, a sponsor stated that “the legislation would require the investment council to put in place a rule prohibiting firms it selects to invest pension funds from making contributions to any national political organization.”

The statute could therefore restrict federal and national political contributions in ways that reach further than any other pay-to-play law in the country. Moreover the State Investment Council chairman suggested that the state would have to liquidate existing investments if executives from those investment firms made contributions to national party organizations, even if the contributions were permissible at the time.

Governor Christie has not said whether he plans to sign the bill. If the law passes, the State Investment Council may promulgate regulations interpreting the law more narrowly. And even if the law is interpreted to bar contributions to federal party committees and groups like the RGA and DGA, it seems highly vulnerable to challenge on First Amendment and federal preemption grounds. But in the meantime, as we approach a Presidential election, the political contributions of many on Wall Street and in the financial industry could be chilled and fundraising for national party committees may take a hit.

ARTICLE BY

Zachary G. Parks

Covington & Burling LLP

The National Law Forum

When Coworkers Invade Your Space re: Personal Privacy in the Workplace

Like this:

Important Recommendations from the MedPAC March Report to Congress, Part Two

Similar Services in Different Settings

Medicare Advantage

Medicare Part D

Like this:

New York Lawmakers Agree on Brownfield Law Extension With Less Drastic Changes to Tax Credits

Like this:

The Data Security and Breach Notification Act of 2015

Like this:

Register for the ABA’s National Institute for New Partners – April 17, 2015 in Washington, D.C.

Like this:

Register for the ABA's National Institute for New Partners – April 17, 2015 in Washington, D.C.

Like this:

President Obama Urged to “Ban the Box” for Federal Contractors

Like this:

Receive Exclusive NLR Discount to Inside Counsel’s Superconference – May 11-13 in Chicago

Like this:

Receive Exclusive NLR Discount to Inside Counsel's Superconference – May 11-13 in Chicago

Like this:

Pay-to-Play Law on Gov. Christie’s Desk Poses Potential Threat to National Parties

Like this: