Wednesday, October 31, 2012

A Defense for Employers to Fight FMLA Abuse

Don Knapp, Esq.

Under the Family and Medical Leave Act (FMLA), eligible employees can take up to twelve weeks of unpaid leave per year for a variety of reasons, including caring for close family members with serious health conditions.  An employee may use paid sick, personal or vacation leave as part of the FMLA leave.  An employer may not interfere with an employee’s exercise of this right and they cannot terminate an employee for taking FMLA leave.
Employers were without much recourse against employees who exploit the FMLA, until a 2012 Seventh Circuit decision.

In Scruggs v. Carrier Corp., the Seventh Circuit recently held that employers may terminate employees who are suspected of violating the FMLA as long as the employer has an “honest suspicion” or “honest belief” that the leave was being abused.  In other words, an employer can defeat a claim by the employee if they show that the employee did not take the leave “for the intended purpose.”

In Scruggs, an employee was fired after an investigation showed that he did not leave his house on a day that he claimed he was taking his mother to a medical appointment.  The investigation consisted of a private investigator hired by the employer to provide surveillance on the employee.  After being fired, the employee sued arguing that he did take his mother to her appointment and that the employer did not conduct a thorough investigation.  The Seventh Circuit ruled that the employer’s honest belief of abuse was sufficient to rule in their favor.  The decision provides some comfort to employers and allows them to more aggressively police employees abusing the FMLA. 

The Sixth Circuit similarly held this year, in Seeger v. Cincinnati Bell Telephone Co., that an employer can fire an employee as long as there is an honest suspicion of abuse.  The Sixth Circuit also ruled that an employer cannot rely on suspicion alone – some form of investigation must be conducted.  In Seeger, the Plaintiff’s co-workers saw him at a local Oktoberfest festival, walking unhindered despite his supposed back injury, and informed their employer.  This was sufficient to support the employer’s honest belief.

One thing is for sure – employers can now rest easier knowing they have a way of combatting employee abuse of the FMLA.

Tuesday, October 30, 2012

Tomb of the Unknown Soldier

Jim Fausone
Veterans Disability Lawyer

The men who guard the Tomb of the Unknown Soldier are staying in place during Hurricane Sandy.  We expect so much of our men and women in the military. I pass along this news story because it gives me goose bumps.  I hope it does for you as well.

Monday, October 29, 2012

New York Bill Will Allow The DMV to Indicate Veteran Status On Licenses and IDs

Kristina Derro
Veteran Advocate

New York Governor Andrew Cuomo recently signed legislation which allows New York State's Department of Motor Vehicles to add a mark indicating veteran status on both driver’s licenses and or non-driver IDs. This legislation allows veterans of the United States Armed Forces to request the veteran status mark on their identification, if so desired.
The veteran designation on driver's licenses and other forms of ID is desirable for many reasons, one of which is that many local businesses on New York state offer certain discounts on ticket prices and other items to military veterans. The legislation will allow veterans to show their status in a convenient manner, without having to carry additional forms of ID.  The law takes effect in a year, and in order to obtain the veteran mark, applicants must submit proof of honorable discharge to the DMV.

Governor Cuomo stated that veterans have made "invaluable sacrifices" for the state of New York and for the nation and that, in turn, the government wants to do something for them “We are proud to help distinguish them as veterans.”

New York Senator Greg Ball, who co-sponsored the bill, stated that identifying veterans in order to offer services and support is an ongoing issue and he hopes this designation mark will help expedite that process and allow government officials to help connect veterans to a variety of services available to them. The bill was first proposed by Bill Linder of Copiague, Lt. Commander, U.S. Navy (retired).

Though the emblem is just one small mark, it is hoped that veterans will feel the move as a way to acknowledge their sacrifice.

Kentucky currently offers the veteran mark, as does Missouri, where DMV officials report that they have received positive feedback from the veterans who opted to have the emblem placed on their license. They hope more veterans will take advantage of the emblem.

In Kentucky, Governor Steve Beshear directed the Kentucky Transportation Cabinet to work to issue new licenses with the emblem without charging for them, allowing vets to get their new license without having to wait until the next renewal period.

The emblem consists of the word "VETERAN" printed vertically on the right border of the driver's photo.  Until the law takes effect, the DMV plans to revise application forms to manage the requests for the veteran status mark. The review of honorable discharge documentation must now be processed manually at the DMV, adding to the backlog at offices statewide.

Friday, October 26, 2012

Legal Training

By:  James G. Fausone

Kristina Derro, of Legal Help For Veterans, PLLC, was a panelist at the “First Annual Veterans’ Legal Assistance Conference” for the University of Detroit Mercy School of Law.  The program was focused in helping lawyers serve those who have served.  The topics covered included veterans law update, researching military documents, development in PTSD, MST and TBI, veteran treatment courts and veteran housing resources.

Attorney Derro is a frequent lecturer and author on veteran disability topics.  No higher honor exists than when a law school asks an attorney to train other lawyers.  Kristina is a subject matter expert and has the ability to communicate complicated regulatory and legal matters in an understandable fashion. 

The program in Detroit on October 25, 2012 is just another example of her skill set.

Tuesday, October 23, 2012

Jobs for Vets

Brig. Gen. Carol Ann Fausone (Ret)
Veteran Advocate

Last week, four of the largest U.S. manufacturers announced their plans to start training military veterans for factory jobs. General Electric Co (GE), Alcoa Inc, Boeing Co and Lockheed-Martin Corp said they will all provide financial support to the “Get Skills to Work Coalition,” which will initially train 15,000 veterans to be hired by the four companies.

The program will get its start in January at Cincinnati State Technical and Community College in Ohio, near a major GE Aviation factory, and be rolled out to nine more U.S. cities over the course of 2013. While the founding four companies already employ a combined 64,000 veterans, there are more jobs out there that need filling. It is estimated that 600,000 manufacturing jobs in the U.S have gone unfilled due to lack of skills training and companies being unable to find workers for high-tech, high-speed factories.

Combine the vacant 600,000 manufacturing jobs with the 1,000,000 oil and gas industry workers nearing retirement and you can see why the “Get Skills to Work Coalition” is a program that is headed nowhere but up.

Monday, October 22, 2012

Gov. Snyder Signs Walsh Bill Establishing Business Court

Paul Bohn, Esq.

Circuit courts around the state will now include a dedicated business court.  John Walsh, Speaker Pro Tempore of the Michigan House of Representatives, sponsored House Bill 5128 creating such court.
Governor Rick Snyder signed the bill into law on October 16th and it is now Public Act 333 of 2012.
The law establishes a business court in every circuit court with three or more judges.  This new court has jurisdiction over cases involving business or commercial disputes when the amount in controversy exceeds $25,000.
The law continues the mission of making Michigan more attractive to businesses.  The establishment of a business court creates a speedier method of resolving disputes between businesses, ensuring job creators will not be tied up for years in court cases.
The Michigan Legislature has been striving to make Michigan a prime location for businesses looking for a new home.  This new business court will provide an effective and low-cost means by which business disputes can be resolved in a shorter period of time.
John Walsh, in addition to his duties as a Michigan Representative, is an attorney with Fausone Bohn, LLP in Northville.
To learn more or read the press release, please visit:

Thursday, October 18, 2012

In State Tuition Fiasco

Jim Fausone
Veteran Disability Lawyer

At times we make the simple things too hard. Here is an example. A veteran is denied in state tuition status in North Carolina. She lived in the state for years and has paid taxes and owned a home. What caused the inability to qualify for the lower in state college tuition rate was because she was out of state in Iraq and in Texas. Both moves were necessitated because of active duty orders for herself or her husband.

Army Sgt. Perez believes her treatment demonstrates that University of North Carolina does not value military service. She finds it ironic that the administration at UNC at one time considered granting in state tuition status to illegal immigrants. It is reported that more than 5000 veterans are in the UNC system.

Perez appealed the decision to a 15-member panel at the school's vice chancellor's office, where her request was denied. She said she later learned that the denial was based on the fact that she had not paid income tax in North Carolina in the years in which she was in Iraq and Texas.

She said that her family could not afford the out of state tuition rates at UNC because the GI Bill only paid the in state rate, so she has enrolled at a private college instead.

The UNC appeal board wins the knucklehead award of the week. The decision makers at the University of North Carolina system failed to use any common sense.

Read more:

Mortality Rates

Brig. Gen. Carol Ann Fausone (Ret)
Veteran Advocate

According to a military trauma study presented at the 2012 American College of Surgeons Annual Clinical Congress, soldiers who sustained chest injuries in Afghanistan and Iraq have higher mortality rates than soldiers in Korea and Vietnam.

The study compared chest wound mortality rates from the Civil War (63% mortality), WWII (10%), Korea (2%) and Vietnam (3%) with those sustained in Iraq and Afghanistan. Soldiers in Iraq and Afghanistan that suffered chest wounds had a mortality rate of 8.3%, a 5.3% increase over Vietnam. The study did not include soldiers killed in action.

Why the increase?

Capt. Katherine M. Ivey, MD, a presenter of the study, explains that this number reflects the fact that more wounded soldiers are being removed successfully from the battlefield and finding their way to treatment in hospitals. “We have the capability now of moving sicker patients from theater to the United States that we didn’t have before,” stated Ivey.

With more and more wounded soldiers being excavated from the battlefield the mortality numbers are increasing simply due to the surge in treated patients. The 5.3% increase in mortality rates since Vietnam is a misleading figure. In truth, with improvements in battlefield triage, wounded soldiers that would normally return home in months are now being returned home in days or weeks.

To learn more or see the original article, please visit:

Monday, October 15, 2012

Military Presidential Preference

James G. Fausone
Veteran Advocate

According to a recent military poll, the vast majority of the U.S. military favors Mitt Romney over President Obama in the upcoming election. The reasoning behind the soldiers’ choice was unexpected however, as the 3,100 active and reserve troops surveyed all but ignored the war in Afghanistan as an issue of concern, and focused mostly on the economy and the candidates’ character.

The poll consisted of a secure email survey of active-duty National Guard and reserve members who are subscribers to the Military Times newspapers. As a whole, this population is older and more senior than the military at large, but represents the professional core of the all-volunteer force. When polled, the group identified ‘pocketbook’ issues as the most important and stated they had more faith in Romney’s tax plan helping them in that regard.

Despite the polls results, Obama has gained some recognition in the surveyed group due to the death of Osama Bin Laden, however the majority of the group felt that Obama mismanaged the handling of Libya after Moammar Gadhafi was removed, resulting in the death of a U.S. Ambassador.

“If you’re not an effective manager….you can’t run anything else,” Bowe, a Marine military police captain stated.

Military polls have been critical of Obama and his handling of the defense budget and national security strategy, while Romney has disappointed some with his lack of details regarding his plans.

Either way the military is paying attention. “I’ve heard them talk about the election quite a bit,” stated Bowe. “They’re more dialed in than some might think.”

Friday, October 12, 2012

Multimillion Fraud Award

Mark Mandell, Esq.

In this era of increasing health care costs and budget constraints, allegations of Medicare fraud need to be aggressively pursued to maintain the integrity of the system.  On October 15, 2007, Gale Bryden filed a lawsuit against her former employer, Wyoming Medical Center (WMC), under the whistleblower provisions of the False Claims Act.  Ms. Bryden alleged that WMC had committed Medicare Fraud.

Specifically, Ms. Bryden stated that WMC submitted requests to Medicare for reimbursement that were inconsistent with patient records, changed the admission status of patients without a physician order, and billed Medicare for unnecessary inpatient admissions.

The United States conducted an extensive investigation and found evidence to support the allegations of fraud.

The WMC settled this case with the United States and must pay $2.7 million in damages arising from the alleged fraud.  Ms. Bryden, as compensation for filing the case and assisting the United States in its investigation, will receive a share of this settlement.  The assistance of citizens like Ms. Bryden is essential to combat this abuse of the system.  Corporations allegedly seeking to increase profits at the expense of taxpayers can expect aggressive investigation.

If you have questions or have witnessed Medicare fraud, contact the experienced fraud team at Fausone Bohn, LLP.  Call us at (248) 380-0000 or visit our website at

To read the original article, please visit:

Thursday, October 11, 2012

McCotter Staffer Charges Taken Under Advisement

By Matthew Worley

Attorney Mark Mandell represents Paul Seewald – a former Thaddeus McCotter staffer charged with 9 misdemeanor election fraud counts and one felony conspiracy charge.

At the preliminary exam Thursday, Mr. Mandell argued that Mr. Seewald merely signed the nominating petitions as a circulator – which, if convicted, is a misdemeanor.  He argued that the Attorney General has failed to show evidence sufficient to support the felony charge as against Mr. Seewald.

Judge Sean Kavanagh, after hearing the argument, decided to take the matter under advisement before issuing a ruling.

Mark Mandell, a partner at the law firm of Fausone Bohn, LLP in Northville, is defending Mr. Seewald against these fraud and conspiracy allegations.

If you have questions regarding fraud or other legal issues, contact Mark Mandell at 248.380.9976 or

To read the Detroit Free Press article, please visit:

Judge Takes Charges in McCotter Fraud Under Advisement

By Matthew Worley

Mark Mandell represented Paul Seewald in Livonia District Court today.  Mr. Seewald is charged with 9 misdemeanor election fraud counts and one felony conspiracy count.

These charges stem from Mr. Seewald’s alleged connection to the possible fraud of nominating petition signatures for the reelection campaign of U.S. Congressman Thaddeus McCotter.

At the Preliminary Exam on Thursday, Mr. Mandell called Congressman McCotter to the stand.  Mr. McCotter testified that Don Yowchuang, another defendant in the case, was the one who had been delegated the responsibility of collecting and filing the petition signatures with the Secretary of State.

During his closing argument, Mr. Mandell argued that the Attorney General had failed to show probable cause on the felony conspiracy charge against Mr. Seewald.  Probable cause is required for the case to go forward to trial.  After hearing the argument, Judge Sean Kavanagh decided to take the matter under advisement prior to making a ruling.

Mark Mandell, a partner at the law firm of Fausone Bohn, LLP in Northville, is defending Mr. Seewald against these fraud and conspiracy allegations.

If you have questions regarding fraud or other legal issues, contact Mark Mandell at 248.380.9976 or

To read the Detroit News article about the hearing, please visit:

Women Veteran's Health

By General Carol Ann Fausone (ret)

In early October, the VA announced that it would begin work on closing the ‘gender gap’ in preventative health and screening services offered by the VA. For years, female veterans have felt unwelcome in VA hospitals and clinics as if they weren’t real veterans; finally, change is coming.

Dr. Patricia Hayes, chief consultant for Women Health Services for the Veterans Health Administration, stated that the VA plans to hire more gynecologists and other female health specialists in order to make female veterans feel more welcome at VA clinics and hospitals.

“We recognize that there has been a tremendous influx of women. We have beefed up and accomplished a lot, and we recognize we are still facing a large challenge ahead,” said Hayes, “They felt unwelcomed and invisible. We are changing that culture.”

In 2008, only 33% of VA health care facilities offered care to women, while today over 90% do. The VA has also extensively trained over 1,500 primary-care providers on comprehensive women’s health, a 40-hour program, training 35-40 providers at a time. The training covers topics such as birth control, and abnormal bleeding, but also addresses mental health issues such as PTSD in women and an overview of maternity care.

Recent surveys show that the VA’s strategy is working; based upon survey results from both males and females, veterans feel that VA health care exceeds the care offered in the private sector.

Dr. Hayes feels confident, “Word is getting out among women veterans that we have great care and more systems and services in place to make them feel comfortable using the VA.”

To learn more or see the original article, please visit:

Wednesday, October 10, 2012

2013 COLA Estimated 1.3%

Brigadier General Carol Ann Fausone (ret.)
Veteran Advocate
The VA has revised its estimate on how long it will take the department to process a cost-of-living adjustment (COLA) in disability and survivors benefits, giving Congress until December to approve an increase that would appear in January 1 payments.

When Congress left for a pre-election break, legislation was left in limbo regarding COLA benefits and veterans were under the impression that they would not be able to see an adjustment in their January 1 checks. Although the potential COLA increase has not been calculated, the Congressional Budget Office estimates it being at a minimum 1.3 percent, affecting 3.9 million struggling veterans.

Although the deadline for Congress to act in order to get the 1.3% COLA increase into January 1 checks hasn’t been firmly established, it is estimated that the drop-dead date for change is the week of December 3rd.

As far as reasons why it has been taking so long to approve a COLA change, a senior Senate Republican aide stated it may be because of large voice-vote bill packages. The COLA was included with dozens of other bills and because many Senators didn’t have enough time to review the bundled bills, the voting was postponed to avoid mistakes and snap judgments.

Since there seems no apparent attempt to block the passage of the 1.3% COLA change for 2013, all veterans can do now is hope that Congress acts before it’s too late.

Wednesday, October 3, 2012

Employer’s Right to Terminate

Don Knapp, Esq.

According to a Federal Appeals Court decision in Casias v. Wal-Mart, the Michigan Medical Marihuana Act (MMMA) does not prohibit a private employer from firing an employee who fails a drug test.

Joseph Casias was a Wal-Mart employee who was injured on the job.  He was taken to the emergency room by his manager to receive treatment.  Since he was injured at work, Mr. Casias was administered a standard drug test as required by Wal-Mart’s employee drug use policy.  Mr. Casias tested positive for marijuana and was fired the following week.

Mr. Casias filed suit against Wal-Mart for wrongful termination.  As a registered marijuana user under the MMMA, Mr. Casias believed that he was protected from disciplinary action for violating his private employer’s drug use policy.

The case was removed to federal court and the Sixth Circuit upheld the firing of the Plaintiff.  The court reasoned that if the MMMA was allowed as a defense in a private employment action, Michigan businesses would be prohibited from disciplining employees who violate the company’s drug use policy.  The judge stated that such a far-reaching result, if intended, would have been expressly enacted in the law and is not in line with the plain language of the statute.

The holding that the MMMA does not regulate private employment continues the general rule of at-will employment in Michigan.  This preserves private employers’ ability to terminate employees for violating stated drug use policies, thus allowing employers to maintain a skilled and quality workforce imperative for businesses to run efficiently.

In other words, while the MMMA may prevent a criminal conviction for possession of marijuana, it will probably not protect from an employer who discovers that an employee has a medical marijuana card and terminates that employee.

This case illustrates that the MMMA does not provide anyone with carte blanche protection.  Individuals who wish to obtain a concealed weapons permit or who live in federal housing are not protected by the MMMA. 

Of course, since this is a federal court decision, it is not binding on Michigan courts.  It does, however, provide guidance on the interpretation of the MMMA.  If you have questions on MMMA or employment matters, contact Don Knapp at (248) 380-0000 ext. 3213.
To read the Sixth Circuit case opinion, please visit:

Monday, October 1, 2012

Development with Brownfield Assistance

Paul Bohn, Esq.

The former Northville Psychiatric Hospital property may soon be seeing some changes.
The Township Board of Trustees has unanimously voted to create a Brownfield Redevelopment Authority to redevelop the property.  The Brownfield Authority, or Tax Increment Financing, captures taxes from the property after development takes place and the property increases in value.  These captured taxes pay for the improvements made on the property.

According to Paul Bohn, Northville’s environmental attorney, the authority could raise more than $80 million over 30 years.  The cost for cleaning up the property, including demolishing all the vacant buildings on the property, is estimated to be roughly $29 million.

The property is currently owned by developer REIS.  The redevelopment plan includes building a new University of Michigan hospital on the site as well as other commercial and retail development.  Construction on the hospital will begin in 2013 and it should open the following year.

According to the consent agreement, REIS will get half of the revenue produced by the Brownfield authority to be used to improve the property.

This agreement will allow the township to begin improving the long-vacant property and making it useable to Northville residents.

Paul Bohn, who advises the township on environmental matters, is an attorney with Fausone Bohn, LLP in Northville.  If you have questions on brownfield, development or environmental matters, call Mr. Bohn at (248) 380-0000.