July 2016 - Nursing Home Settlement
The Perron Law Firm recently settled a wrongful death case against a nursing home facility where a resident died as a result of an unexplained fall.
Mr. W was 76 years old when he suffered a stroke which left him paralyzed on one side and unable to communicate. He was admitted to the nursing facility for physical therapy and other treatment. He was evaluated by the nursing staff as a high risk for falls due to his partial paralysis and inability to communicate his needs. Shortly after his admission, Mr. W was found unattended on the floor of the TV room by housekeeping staff. There was no apparent injury from this occurrence; however, no additional steps were initiated in his care plan to prevent future falls. Mr. W was not given a body alarm to alert the staff of his attempts to get out of bed unassisted which they had reason to believe he would do. A second unexplained fall occurred a few days later. This second fall resulted in a broken femur which went undetected for several days. When the fracture was finally discovered, Mr. W underwent a high risk surgery which left him in a weakened state. He was returned to the same nursing facility where he died 10 days later.
The family brought a wrongful death lawsuit against the nursing home alleging the facility was negligent in not providing an adequate care plan to address his high risk of falls. The matter was settled during mediation.
January 2016 - Family Medical Leave Act
The Perron Law Firm recently settled a lawsuit based on a violation of the Family and Medical Leave Act (FMLA). The client was a nurse who had worked for several years for a home health care agency. She had a regular full-time job but the agency also employed if you nurses on a PRN or “as needed” basis. There was friction between the client and her supervisor which the client felt was related to an FMLA leave which needed to be extended. It was suggested that the client switch to PRN work to minimize conflicts with this particular supervisor, and the client agreed. Before she was scheduled to start working on a PRN basis, however, she was injured in a fall and needed to take FMLA leave for her own serious health condition. The employer did not object to the FMLA leave but refused to allow her to return to work when she was released by her Doctor. The client was told to apply for unemployment benefits and, a few months later, the employer sent her a letter stating she had been terminated. The employer essentially decided to place her on PRN status sooner than they had agreed and then claimed the client was never called in to work because no PRN work was available. Discovery by The Perron Law Firm, however, revealed that a replacement nurse was hired immediately after the client began her FMLA leave, the employer promptly placed an advertisement for a PRN nurse, and a new home health care nurse was hired the same time the client received her termination letter. The defense throughout the lawsuit, and at mediation, was that since the switch to PRN was agreed to before the FMLA leave and since nobody working on a PRN basis can expect any minimum amount of work, the plaintiff could never prove that the FMLA absence had anything to do with their decision not to give her any PRN work and and could not prove that the client lost wages she otherwise would have earned. The case nonetheless settled for an amount based upon the earnings of the PRN nurse hired to replace the client; and there was a separate payment of attorney’s fees and costs.
October 2015 - Employment Discrimination
The Perron Law Firm recently settled a race and age discrimination case against a St. Louis real estate management company for systematically firing all employees of color when it changed management. The employees of color were all replaced by younger Caucasian workers with less experience.
The case was mediated before a neutral after extensive discovery and depositions revealed a convincing discriminatory motive and intent on the part of management.
Some of the discharged employees were able to find new employment but with less favorable pay and benefits.
June, 2015 - Nursing Home Litigation
Adult children feel guilty about having to put their elderly parents in a nursing home. Mostly they are concerned about the care and treatment their parents will receive. We've all heard horrific stories about abuse and neglect resulting in catastrophic injuries, even death. Recent trends demonstrate that juries are not afraid to award large verdicts and even punitive damages in cases of gross negligence. There has been a demographic shift largely due to our aging population of baby boomers but also media attention and growing awareness of the inherent problems in nursing home facilities that employ semi-skilled CNAs who are overworked and underplayed. Gone is the notion that big damage awards are not the norm because the elderly have limited life expectancy and little economic loss.
The Golden years concept is gaining more acceptance among juries. The elderly deserve respect and the best care and treatment in their remaining years. The Missouri Omnibus Nursing Home Care Act establishes a minimum standard of care which nursing homes must meet and provides a patient "bill of rights" to protect all residents of nursing facilities from substandard care and treatment. The Perron Law Firm is proud of its record representing the families whose loved ones have been victims of nursing home abuse and neglect. We will continue to serve the bests interests of our clients and promote the notion that our elderly deserve the best possible care and comfort.
April, 2015 - Wage & Hour Litigation
The Perron Law Firm recently settled a wage and hour case involving multiple plaintiffs who were not paid for two 15 minute breaks during the work day in violation of the Fair Labor Standards Act. The plaintiffs were warehouse employees who were made to clock out and clock back in after each of two 15 minutes brakes. This practice had gone on for several years. The employer denied that these were breaks, contending they were two short lunch periods. The Perron Law Firm successfully settled the case against the employer on behalf of all plaintiffs.
January, 2015 - Yo Yo Financing
The Perron Law Firm takes aim at used car business and 'yo yo financing.' Marty Perron recently won a case against a local used car dealership for unlawful practices under the Missouri Merchandising Practices Act. Yo yo scams allow the customer to drive the car off the lot after a deposit is made. The consumer is called back and told financing has fallen through requiring them to return the car. The dealer often keeps the deposit or offers unreasonably high financing terms. These predatory practices exploit the most vulnerable consumers.
May, 2014 - Melissa Coday/Supreme Court Opinion
In a recent decision the Supreme Court of Missouri issued an Opinion reversing a ruling that a client of The Perron Law Firm was required to repay thousands of dollars in unemployment benefits. Martin L. Perron and The Perron Law Firm entered their appearance in January, 2011 and fought to overturn five separate overpayment and penalty determinations. Mr. Perron sat with the client through several administrative hearings, wrote briefs filed with the Labor and Industrial Relations Commission, the Courts of Appeals and The Supreme Court before the case was argued in Jefferson City in October, 2013. The client had failed to report some part-time earnings while she received unemployment following her layoff from her full-time job, and there never was any question that she need to pay some of those benefits; The issue was the amount of the penalty assessed against the client, which Perron argued was unjustified under the circumstances and not authorized by the law. The Supreme Court agreed.
This was not the first time The Perron Law Firm successfully pushed back against overly aggressive attempts to collect unemployment benefits. In 2012, in Crawford v. Division of Employment Security, the Supreme Court again agreed with Perron’s argument and held that the State could not demand repayment of an alleged overpayment of unemployment benefits where the unemployed claimant did nothing wrong.
September 2013 - Wrongful Discharge Claim Available to Contract Employees, Not Just At-Will Employees: Keveney v. Missouri Military Academy
In a recent Missouri case, a teacher under a written employment agreement alleged he was terminated because he requested that his superiors report to family services evidence that a student was being physically abused. He alleged his superiors refused to report this, told him his job would be jeopardized if he reported it, and terminated his employment the same day. Although the circuit court dismissed the wrongful discharge claim and claims for punitive damages and emotional distress, the jury awarded $13,300 in damages for breach of contract, which the employer appealed.
In his cross appeal, the employee asserted that wrongful discharge claims should be available to contract employees and, alternatively, that contract employees should be able to obtain punitive damages and damages for emotional distress under a whistleblower breach of contract claim.
The Supreme Court of Missouri found compelling reasons to allow contract employees to pursue such an action.
If an employee is discharged for refusing to violate a public policy requirement, a breach of contract action fails to vindicate the violated public interest or to provide a deterrent against future violations.
It is inconsistent to allow an at-will employee to pursue an action for wrongful discharge while denying a contract employee the same right, because this illogically grants at-will employees greater protection from these tortious terminations, due to an erroneous presumption that the contractual employee does not need such protection.
Applying these principles, the court held in Keveney that contract employees can pursue a claim for wrongful discharge. The Court also found that the terminated employee had satisfied the requirement that he allege his discharge was caused by his refusal to perform an illegal act or engage in conduct that violates public policy.
May, 2013 - The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older.
Most of us wouldn't think 55 was so very old. Yet that was Mr P's age when he was terminated from a factory job he held for over 25 years. Age discrimination can take many forms. The employers reasons are often concealed by other legal causes. In the current job market employers are devising ways to eliminate older workers in favor of younger, less experienced workers who they can pay less and demand more. In an effort to cut costs management targets older employees to shrink their department budgets.
The problem is employers have stacked the deck because they control what is put in an employees' personnel file. Often the decision to fire someone begins months before the employee is actually terminated. It may start with a private meeting between the employees supervisor (s) and HR while the employee is not present. The discussion is usually followed up by giving the worker a performance achievement plan (PAP). While seemingly innocent, the PAP is designed to put the worker on the path to eventual termination. Why? Because the expectations are unreasonable and/or beyond the employees ability given the circumstances.
Having failed to meet the requirements of the PAP, the employer now has a legitimate reason for firing the worker. This is important should the employee file a lawsuit. The employer can now point to a neutral reason for discharging the worker which they say had nothing to do with his age. Once a neutral cause is advanced, the burden of proving a discriminatory motive then shifts to the employee.
Often this burden of proof is very difficult because the employer is in control of the evidence and is unwilling to release relevant information even when obliged to do so under civil rules of procedure. They only way to obtain it is through rigorous discovery and taking of depositions to disclose the underlying motive.
Once a discriminatory motive has been shown, an employee is entitled to recover compensatory damages and punitive damages. Compensatory damages include back pay for loss of income,emotional distress, and attorney's fees arising from the employer's violation of the ADEA. Punitive damages serve to punish an employer who has acted egregiously by forcing the employer to pay additional damages to the victim.
Discrimination for Medical Condition
Most workers in the United States are considered "at will" employees. This means they can be fired at any time, for any reason, unless that reason is illegal. State and federal laws generally prohibit discrimination based upon race, gender, age, or a disability which can be accommodated. And retaliation against workers for exercising their rights is not allowed. These prohibitions apply whether the employee has an employment contract or works at will.
The Missouri Human Rights Act, for example, makes it illegal to discriminate in any aspect of employment because of an individual’s race, color, religion, national origin, ancestry, sex, disability or age. The Act further prohibits employers from denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.
Sometimes an employer will try to cover up unlawful conduct by creating some other problem or conflict, a "pretext," to use to justify a discharge or refusal to hire. The Perron Law Firm recently settled a lawsuit under the Missouri Human Rights Act on behalf of an employee who was fired because of his wife’s medical disability. The employer presented a legal reason the worker’s part-time job at another company, for the employee’s termination. The Perron Law Firm was able to show however that the employer’s decision was motivated by the rising cost of the wife’s cancer treatments.
January, 2013 - Pro Bono Cases
Martin and Maria Perron continue to take pro bono cases for clients who cannot afford to retain paid legal counsel.
Some of these cases have a wider impact beyond the individual clients they serve.
In particular is the case of Ricky Arnaz Crawford. This case was featured in the St. Louis Post Dispatch: http://www.stltoday.com/business/local/mentally-ill-dardenne- prairieman-challenges-unemployment-bureaucracy/article_a446380e-6897-11e1-b989-0019bb30f31a.html#.T891Rr38at4.Mr. Crawford suffered from medical conditions all of his life. This health problem made school and work a challenge; yet Mr. Crawford was able to hold down a job as a dishwasher for many years until he was laid off. After being laid off he applied and was awarded unemployment benefits. Shortly after applying for benefits his doctor believed his disability was more severe and encouraged him to apply for Social Security benefits, which he did. The Social Security Administration, however, determined that his condition was not serious enough to warrant disability benefits. While that decision was being appealed, Mr. Crawford continued to look for work and did some odd jobs from time to time. After a hearing an Administrative Law Judge determined that Mr. Crawford was in fact disabled and eligible for Social Security benefits. The Social Security Administration took into account his unemployment benefits and appropriately deducted those amounts when calculating his retroactive Social Security benefits. The Missouri Division of Employment Security then went back and reviewed their earlier determination and found that Mr. Crawford was unable to work and was therefore ineligible for unemployment benefits going back to the time he was first awarded benefits. The Division further held that Mr. Crawford was overpaid benefits and demanded that Mr. Crawford repay those benefits even though he had done nothing wrong, and the benefits had already been used to reduce his Social Security payments. Martin Perron appealed Mr. Crawford’s case to the Labor and Industrial Relations Commission but the case was affirmed. He appealed to the Missouri Court of Appeals, Eastern District, and when that was not successful, he applied for transfer to the Missouri Supreme Court, which agreed to hear the case. Mr. Perron presented the oral argument to the Court in May of this year. The Missouri Supreme Court reversed the decision of the lower court and the Labor and Industrial Relations Commission in finding that the Dept. of Employment Security could not force claimants to pay back overpayments they received due to administrative error and not because of anything they did wrong.
June, 2012 - Age Discrimination
If you are over 40 and been turned down for a promotion in favor of a younger employee, repeatedly asked to work harder and faster or moved around from different job assignments you have never previously worked on, this may be a subtle form of age discrimination.
Age discrimination is treating an employee less favorably because of his or her age. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Age discrimination is not easy to prove. You can take some preemptive measures to protect yourself. Keep a journal of changes in the place that directly impact you, ask questions of your HR representative to show you are concerned about your job performance and volunteer for advanced training whenever possible.
If you believe you have been a target of age discrimination, you should file a complaint with the local Employee Equal Opportunity Commission or the Missouri Commission on Human Rights.
April, 2012 - Civil Rights Violations
A woman is kicked and punched by a police officer because she "smarted-off" when she tried to tell him she could not move a stalled vehicle in the road. A minor traffic violator is arrested and hauled to jail without any formal charges being filed against him and detained overnight. What do these incidents have in common besides police abuse? In each case, the victim sought redress through the federal civil rights statute known as United States Code Section 1983.
U. S. Code Section 1983 is a law that allows people whose constitutional rights have been violated by government officials the chance to sue those officials in court and recover money damages. The Perron Law Firm has successfully represented individuals whose civil rights have been violated including those mentioned in the above examples.
U.S. Code Section 1983 was passed in 1871 after the American Civil War as part of the federal government’s effort to rid the nation of violence and discrimination against African-Americans.
The law states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Today the law helps protect all different kinds of people by providing a remedy for a wide array of civil rights violations.
February 2012 - Unfair Collection Practices
When Peggy G. was sued by Royal Finance, a debt collection agency, she knew she did not owe the claimed debt. Ms. G was an elderly widow who had not used any credit cards for many years. She hired The Perron Law Firm who represented her in the collection case and filed a countersuit alleging violations of the Federal Unfair Debt Collections Practices Act. After nearly a year of litigation and court appearances, the debt collector dropped the lawsuit shortly before trial. Then The Perron Law Firm went on the offensive and filed a lawsuit for malicious prosecution against Royal Finance claiming that the debt collector violated the law by bringing a baseless lawsuit. The trial court found for Royal Finance despite Ms. G’s testimony that she never owed the debt and the lack of any defense of the part of Royal Finance. The Perron Law Firm appealed the trial court’s decision to the Missouri Court of Appeals which reversed the trial court and found that Ms. G had presented sufficient evidence that Royal Finance violated the debt collection law because it knew or should have known she did not owe the money. The case settled before it was heard by the Missouri Supreme Court.
February 2012 - Wrongful Discharge/Employment Discrimination
Ms.Q was employed as a quality control specialist for a manufacturer of sophisticated equipment. She had been working for the company about 5 years when she discovered she was pregnant. The company did not have any maternity leave policy but they did comply with the Family Medical Leave Act. Ms. Q was scheduled for a cesarean procedure sometime in mid- July of 2009. Her doctor told her she would not be able to return to work for at least three weeks. With the help of the company’s Human Resource Director, Ms. Q filled out the necessary documentation for FMLA leave. Because she did not know the exact date when she would deliver and could not therefore give an exact return date, the H.R. Director instructed her to put approximately on the company forms. Ms. Q delivered her child in late July. Her physician did not release her to go back to work until the last week of August. When she returned to work with her doctor’s release, she was told she had been terminated for job abandonment ; she had not returned within three weeks of her delivery and had not contacted the company explaining her failure to return. The company contested her claim for unemployment benefits and a deputy with the Division of Employment Security determined she was disqualified since she was fired for misconduct.
The Perron Law Firm filed an appeal with the Division of Employment Security and requested an in-person hearing. At the hearing it was argued that Ms. Q was following the directions of the H.R. Director when she put approximately on the company forms and had good reason to believe this was be sufficient should she need additional leave.
The Perron Law Firm also argued that Ms. Q did not intentionally violate any rule or procedure of the employer and therefore her discharge could not be the result of misconduct. The Appeals referee reversed the decision of the deputy and Ms. Q was granted her unemployment benefits.
The Perron Law Firm also filed a lawsuit under the Missouri Human Rights Act alleging the company had fired Ms.Q as a result of her pregnancy and thus interfered with her rights under the statute. After several months of litigation and depositions, the company agreed to a confidential settlement which took into account Ms.Q’s past and future lost earnings.
Mandatory Arbitration Clauses
Mandatory arbitration clauses can take away a consumer's right to a trial by jury without their informed consent. These clauses legally bind the consumer to arbitrate their disputes with the seller even though they may not have learned of this mandatory provision until after their dispute occurred.
Before signing an agreement for goods and services, find out if there is a mandatory arbitration clause. Most likely there is, and if so, you may ask for its removal or consult with an attorney. Remember, arbitration clauses don't benefit the consumer. They are a convenient vehicle to bypass your rights and leave you little protection against wrongdoing.
Employee Whistleblowing/ Wrongful Termination
Many states, including Missouri, prohibit an employer from discharging an employee because the employee has either reported or threatened to report wrongful or illegal conduct by the employer or its representatives. This law applies to private companies as well as government agencies and not-for-profit corporations.
The Perron Law Firm recently secured a settlement on behalf of an employee of a not-for-profit corporation after he was wrongfully terminated. The employee discovered misconduct and mismanagement by the director and was about to take steps to report this behavior when he was fired.
Courts and some legislatures recognize a strong public policy interest in protecting employees who want to report illegal and wrongful conduct but are afraid of retaliation. Whistle-blower laws protect the employee who wishes to do the right thing.
Every year more and more Americans end up in skilled nursing facilities because we are all living longer. Increasingly large portions of our economy are devoted to the health and custodial care of the elderly, as well as chronically disabled and handicapped individuals. There has been a corresponding expansion of regulations designed to maintain minimum standards. Government agencies try to enforce these standards by regular inspections and responding to specific complaints. But abuse and neglect still occur. Sometimes individuals are reluctant to draw attention to injuries suffered by their loved ones because they are afraid they themselves will be criticized for allowing a family member to be placed in a vulnerable position. Actually, just the opposite might be true. Looking the other way when someone has been hurt is avoiding responsibility. In order to be part of the solution, not part of the problem, it may be necessary to consult with an attorney familiar with nursing home regulations and experienced in the examination of medical records and similar documents.