Las Vegas Injury Lawyers Blog

The DC Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board's (NLRB) rule which, under the National Labor Relations Act (NLRA), requires businesses to post the statement of employee rights effective April 30, 2012. Under the posting rule, the NLRB required most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. Such rights included the right to unionize, as well as negotiate with their employers about the terms and conditions of their employment.

The posting was required to be in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers were also required to publish a link to the notice on an internal or external website if other personnel policies or workplace notices were posted there. Employers who did not comply with the posting requirement could be cited for an unfair labor practice. Additionally, the six-month period unions and employees have to file unfair labor practice charges would be extended to account for non-compliance.

The DC Circuit Court of Appeals felt a postponement of the effective date of the posting rule was warranted after two recent court decisions. In South Carolina, a federal trial court ruled the whole NLRB's posting rule was invalid and that the NLRB's power to create new rules was limited to those that are "necessary" to carry out the NLRA's provisions.

In Washington, D.C., a federal appeals court held the requirement to post was valid, however, the portions of the posting rule which made the failure to post an unfair labor practice and a basis for tolling the time period to file unfair labor practice charges were not valid. This decision was the one appealed to the DC Circuit Court of Appeals.

The NLRB has reaffirmed its commitment to the posting rule but has agreed not to implement the rule pending resolution of the appeal of the D.C. court's decision and the anticipated appeal of the South Carolina court's ruling.

Continue reading "DC Circuit Court of Appeals Enjoins NLRB Posting Rule" »

The Equal Employment Opportunity Commission has updated its policy on the use of criminal background checks by employers. Under the updated policy, it is now illegal for employers to deny employment to applicants based on arrest or conviction records -- including felonies, unless there's a direct correlation between the criminal record and the job being sought.

The new policy urges employers to not ask a job applicant about past convictions on an employment application. If a criminal background check is conducted and raises areas of concern, employers are urged to not reject an applicant outright. Instead employers are guided to give the job applicant an opportunity to explain, produce evidence that the background check is inaccurate, and/or show his/her conviction was expunged. Employers are also urged to hire an applicant if the previous criminal conduct is not related to the potential job or if the applicant has been fully rehabilitated.

The policy update was made because of the disparate employment opportunities available to people of color who have higher arrest and conviction rates than whites. Employers, however, are incensed. Many feel the new policy will make background checks more cumbersome and expensive. Some employers also fear the updated policy will expose existing workers and customers to potentially unsavory workers.
While some states have laws that preclude an employer from asking a job applicant about his/her past criminal conduct, Nevada is not one of those states. Nevada Revised Statutes (NRS) 449.176 through NRS 449.188 do allow an employer to conduct a fingerprint-based criminal history background check on each potential new employee if the business is a(an):
• Agency to provide personal care services in the home
• Agency to provide nursing in the home
• Facility for intermediate care
• Facility for skilled nursing
• Residential facility for groups
• Homes for individual residential care

Continue reading "EEOC Updates Allowable Criminal Background Checks; Employers Incensed" »

The first holding facility solely for transgender inmates is being established in Los Angeles. Expected to open by the end of May 2012, the holding facility will house transgender inmates until they are arraigned.

According to the Los Angeles Police Department (LAPD), the holding facility will also incorporate new rules focused on making transgender individuals feel safe and respected. Upon arrival, transgender inmates will no longer be pat down to determine their sex. After processing, both male and female clothing will be available to transgender inmates. Transgender inmates will be addressed by their preferred name, even if it is not their birth name. During their stay, they will also have the option to receive medical treatment, which includes hormone injections.

In 2007, the Transgender Working Group and the LAPD began to work to change the LAPD's policies toward transgender inmates. The new holding facility will prevent all transgender inmates from automatically being housed in male jail facilities. The LAPD stresses that the new holding facility will house transgender inmates only until they are arraigned. After arraignment, transgender individuals will be transferred to county jails which do not have separate transgender areas.

The State of Nevada has approximately 25 to 50 thousand transgender residents. Though Nevada does not have any separate detention facility for transgender inmates, Nevada is making progress on transgender issues. In October 2011, Nevada became the fifteenth state to afford protection to transgender individuals when the Nevada Legislature passed a bill to protect transgender individuals from workplace discrimination. This new bill also protects transgender individuals from housing and public accommodations discrimination. The Nevada business community hopes, that as with the Gay rights protection bill passed in 1999, the transgender rights protection bill will increase the number of transgender individuals that visit Las Vegas and other parts of the state.

Continue reading "LAPD Starts First Prison Program for Transgender Inmates" »

The Supreme Court recently denied review of an Eighth Circuit employment tax case where a Minnesota man was convicted of failing to account for and pay employment taxes, sentenced to four years in prison, and fined $75,000. McLain v. United States, U.S., No. 11-937, 3/19/12.

Francis McClain managed a nurses staffing agency. From 2002 to 2005, McClain did not file Form 941 - Employer's Quarterly Federal Tax Returns - or pay any federal employment taxes. McClain did file the appropriate form to and pay his Minnesota employment taxes.

In court, McClain argued that the staffing agency was not liable for employment taxes because the nurses were independent contractors, and if they weren't he did not have the requisite intent (mens rea) to know to be liable for the delinquent employment taxes. The district court held that 26 U.S.C. § 7202 is violated only when an employer "willfully fails" to account for and pay employment taxes. That McClain paid a tax that Minnesota only deemed due if his nurses were employees portends that McClain not only knew his nurses were not independent contractors but also that he knew he was liable for employment taxes.

McClain was found guilty of nine counts of failing to account for and pay employment taxes. McClain appealed his sentence, arguing that considering his compliance with Minnesota tax law was an abuse of discretion.

The Eighth Circuit Court of Appeals upheld the district court's holding. The Supreme Court denied review.

Continue reading "Supreme Court Denies Review of Eighth Circuit Employment Tax Case" »

The California Supreme Court has held that while an employer is required to make it possible for an employee to take scheduled breaks, it is not liable if the employee chooses to work through those breaks.

Employees at Dallas-based Brinker International, the parent company of Chili's, Maggiano's Little Italy, and other eateries, filed suit when they missed their breaks to work.

In a unanimous vote, The California Supreme Court held that California Labor laws do not order an employer to ensure employees cease all work during meal periods. Instead, an employee is at liberty to use the time as they choose.

Under the California Labor Code an employer is required to provide an uninterrupted, 30-minute, duty-free break in which an employee can come and go as he or she pleases. This break must be scheduled no later than five hours into an employee's shift. However, if an employee works more than one five hour shift, an employer is not required to provide an additional 30-minute break.

An employer must also provide an employee who works a 31/2 hour to 6 hour shift with a 10-minute rest break, and a second 10-minute break if the employee works a 6 to 10 hour shift.

The court also said that the 30- minute break must be scheduled no later than 5 hours into an employee's shift. An employer is not required to give a worker a second 30-minute break if his or her's employee works more than 10 hours.

Previously the California high court had held that employees who are denied their rest and meal breaks face greater risk of work-related accidents - especially low-wage workers who engage in manual labor. In 2001, California became one of only a few states that impose a monetary penalty for employers who violate these laws, requiring employers to pay one hour of wages for a missed half-hour meal break.

In Nevada employers must provide employees a meal break of at least 30 minutes when the employee works 8 hours. Employers must also provide employees a 10 minute break for each 4 hours worked. Nev. Rev. Stat. 608.019. There is no federal law requiring employers to provide such breaks.

Continue reading "California High Court holds Employers Do Not Have to Babysit Employees for Breaks" »

In 2007 and 2008, Corey A. Hill and Edward Dorsey were arrested for selling crack cocaine. Before they were sentenced, the Fair Sentencing Act (FSA) went into effect.

Under the Anti-Drug Abuse Act of 1986, individuals convicted of distributing smaller grams of crack cocaine received sentences similar to those for individuals convicted of distributing higher amounts of powder cocaine. Under the FSA, these disparities were corrected.

Hill and Dorsey appealed arguing that the 10 year mandatory sentences under the Anti-Drug Abuse Act could not be given to individuals sentenced after the FSA took effect. The 7th U.S, Circuit Court of Appeals denied their appeal holding that convictions handed down before the FSA went enacted, would be sentenced under pre-FSA guidelines, even if handed down after the FSA went into affect.

The U.S. Supreme Court is now considering whether the ruling by the 7th U.S. Circuit Court of Appeals is correct. Hill and Dorsey have argued they should receive reduced prison time per the FSA guidelines because Congress did not intend for judges to impose sentences under the old mandatory when it was clear the law was about to change. The 7th Circuit Court of Appeals continues to hold that "people who committed the same offense on the same date and may have done so with each other, [are] expected to get comparable punishment if they were comparably situated as to criminal history, and the solution that's being urged undermines that."

Hill and Dorsey's argument has been bolstered by the Justice Department, which no longer supports the 7th Circuits opinion. A ruling by the high court is expected by the end of June.

Continue reading "U.S. Supreme Court May Split on Crack Cocaine Sentencing" »

The U.S. District Court in the Northern District of California has granted a motion for two non-U.S. workers to continue a class-action lawsuit against their India-based information technology provider, Tata Consultancy Services, Ltd., and its parent firm, Tata Sons, Ltd. The Court certified two classes: one consisting of all non-U.S. citizens who were employed by Tata in the U.S. any time from Feb. 14, 2002, through June 30, 2005, and who were sent to the U.S. after Jan. 1, 2002; and a California class asserting California Labor Code violations, consisting of all non-U.S. citizens who were employed by Tata in California at any time from Feb. 14, 2002, through June 30, 2005, and who were sent to California after Jan. 1, 2002. Vedachalam v. Tata America International Corp., 06-cv-00963, U.S. District Court, Northern District of California (Oakland)

This ruling was consistent with a 2009 decision by the Ninth Circuit Court of Appeals in Northern California which denied a motion by Tata to compel arbitration of the lawsuit in India and to dismiss the nationwide class-action lawsuit.

In the case in dispute, two non-U.S. citizen employees, Gopi Vedachalam and Kangana Beri, were sent to the U.S. from India to do software projects. Before they could receive a paycheck, Vendachalam and Beri alleged that Tata forced them and other non-U.S. citizen employees to sign over their federal and state tax refunds to Tata. The two men also alleged that Tata deducted their Indiana salary from their U.S. pay depriving them of California wages. Both actions are a violation of California Labor Law.

The Immigration and Nationality Act (INA) allows U.S. employers, including in the State of Nevada, to hire foreign workers on a temporary or permanent basis to perform certain types of work. The U.S. Department of Labor's (DOL) Employment and Training Administration (ETA) generally grants certification to employers to hire foreign workers in cases where there are insufficient qualified U.S. workers available and willing to perform work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.

Continue reading "U.S. Courts Have Jurisdiction to Hear a Class-Action Lawsuit brought by Non-U.S. Citizens Against a Foreign-Based Employer" »

Cited for speeding, Malaika Brooks, seven months pregnant, refused to sign the speeding citation. A Seattle police offer then pulled out a Taser and asked Brooks if she knew what it was. Brooks said she did not. Brooks then told the three officers present that she was pregnant, less than 60 days from giving birth, and needed to go to the bathroom. Brooks also continued to refuse to sign the speeding citation. After discussing whether Brooks should not be tasered on her stomach, the officers tasered the pregnant woman three times and dragged her out of her car.

In Maui, the police responded to a domestic dispute call. When the officers tried to arrest the husband, the wife stepped in front of her husband. When the wife's breasts pushed up against the officer, the officer tasered the wife without warning.

Both ladies sued their respective police departments for excessive force.

In determining whether police officers are immune from suit, the Ninth Circuit applies the "immunity test." The judges first determine whether an officer violated a plaintiff's constitutional right. Then, if a violation is found, the judges then determine whether the constitutional right was "clearly established in light of the specific context of the case" at the time of the events in question.

In both cases, the Ninth Circuit found that the plaintiffs' Fourth Amendment rights were violated as neither of the women posed any threat to the safety of the officers.

However, since the constitutional right to not be tasered was not clearly established in the context of the cases, and the law was not clear regarding tasering at the time of the incidents, the officers were entitled to qualified immunity in the excessive force claims.

This holding could now expose police offers, which use stun guns when there is no imminent threat of harm, to civil liability.

Continue reading "Ninth Circuit Court of Appeals: Tasering is Excessive Force and Violates 4th Amendment" »

Benjamin Hawkins, from Florida, was on vacation in Las Vegas with his family. John Massie, from Utah, was also in Las Vegas. After the two men encountered each other at the O'Sheas casino, Massie was dead, and Hawkins is now awaiting arraignment on an involuntary manslaughter charge.

An inaudible video of the two men's encounter from the O'Sheas security camera has given both the prosecution and the defense many aspects of this case. The problem, these aspects are subject to interpretation and are being interpreted differently by both sides.

In the video, the 46-year old Massie leaves a restroom at O'Sheas. He then stands by a door near the food court. Moments later, 38-year old Hawkins leaves the restroom and begins to head to a gaming table to meet up with his wife and friends. As Hawkins passes Massie, the two have words. Hawkins begins to walk away when Massie takes three steps, coming up behind Hawkins. Hawkins spins around and punches Massie, slamming his head onto the casino floor. Massie dies as a result of the head trauma caused when his head his the floor.

Hawkins says Massie was intoxicated and bumped into him in the restroom. As he passed Massie, Massie began talking trash to him, called him a racial slur, and then aggressively approached him. Though an O'Shea casino security guard says that is what Hawkins told him, a Las Vegas Metropolitan Police (LVMP) detective says Hawkins and a witness told LVMP that Massie only called Hawkins a "black guy." Hawkins also told the LVMP that when he punched Massie, he was not angry, but scared for himself, his wife and family, and friends.

The Las Vegas police charged Hawkins with involuntary manslaughter after originally considering charging him with murder. Hawkins is pleading self-defense. An arraignment hearing is set for April 23, 2012.
Under the Nevada Revised Statutes (NRS), involuntary manslaughter is "the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner." NRS 200.070
Under NRS 200.200, a defendant successfully proves they acted in self-defense when it is shown that:
1. The danger was so urgent and pressing that, in order to save the person's own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.

Involuntary manslaughter is a category D felony, which carries a punishment of 1 to 4 years in prison, and a $5 thousand fine. NRS 200.090

Continue reading "Las Vegas Tourist Claims Self-Defense in Punching Death" »

Stanmore Cooper, a pilot, was diagnosed with HIV in 1985. Since the Federal Aviation Administration (FAA), at that time, did not issue medical certificates to HIV-positive pilots, Cooper grounded himself. In 1994, however, Cooper decided to apply to the FAA for a medical certificate so he could resume flying. Because his application did not disclose his HIV status, his medical certificate was approved.

In 1995, Cooper disclosed his HIV status to the Social Security Administration (SSA), and received long-term disability benefits from August 1995 to August 1996. By 1998, Cooper decided he wanted to resume flying, so he applied to the FAA for a new medical certificate. Cooper again did not disclose his HIV status and, again, was approved. In 2000, 2002, and 2004 Cooper applied and received medical certificates again without disclosing his HIV status.

In 2002, the Department of Transportation--the FAA's parent agency--launched "Operation Safe Pilot" (OSP), a joint criminal investigation with the SSA to identify "medically unfit" individuals who had improperly obtained FAA medical certifications to fly. Cooper's HIV status was revealed when the SSA gave the FAA information on his long-term disability benefits. The FAA revoked Cooper's pilot certificate. Subsequently, Cooper was indicted on three counts of making false statements to a government agency. Cooper received two years of probation and was fined $1 thousand when he pled guilty to one count of making and delivering a false official writing.

Cooper then sued the FAA, SSA, and Transportation Department alleging that they violated the Privacy Act and their violation caused him mental anguish and severe emotional distress. Cooper did not allege their disclosures caused him any economic loss.

The Privacy Act allows recovery for "actual damages." The district court interpreted "actual damages" to apply only to damages for economic loss. Cooper did not allege any damages for economic loss therefore Cooper could only recover damages for mental and emotional distress if the FAA, SSA, and Transportation Department waived their right to immunity. None of the government entities had consented to do so, therefore the district court held for the government.

The 9th Circuit Court of Appeals reversed, holding that "actual damages" in the Privacy Act included damages for economic loss as well as for mental and emotional distress. Therefore, the government's waiver was expressed through the Privacy Act. The government appealed to the Supreme Court who held the 9th Circuit Court of Appeals interpretation of "actual damages" was incorrect.

The Supreme Court reasoned that though the term "actual damages" had been given different constructions when used in the context of various different statutes, without an express statutory definition it is ambiguous. "Actual damages" under the Privacy Act did not specifically and expressly include damages for mental and emotional distress. Therefore, the doctrine of sovereign immunity protected the three government entities from any tort liability since disclosing Cooper's HIV status was done in the act of performing their official duties.

Continue reading "Supreme Court finds Privacy Claim is Barred by Sovereign Immunity" »

Four Las Vegas, Nevada defendants were sentenced up to 37 months in federal prison for running a multi-million state and federal unemployment compensation scam. Francisco Garcia, the leader of the unemployment compensation scam, received 37 months, Efrain Garcia and Nabora Garcia received 24 months, and Eloy Garcia received 15 months.

Under the unemployment compensation scam, the four defendants had illegal immigrants, who were aware non-U.S. citizens were not entitled to unemployment benefits, use fake Social Security numbers to submit almost 600 fraudulent unemployment compensation claims. The claims were filed by phone or online which doesn't require proof of citizenship. The defendants then had the State of Nevada mail out the unemployment benefits to the defendants, not the illegal immigrants. Over an almost two year period, the defendants collected $4.4 million in state and federal unemployment compensation benefits.

The investigation of the unemployment benefits scam was a joint operation among several agencies - the Employment Security Division, the IRS Criminal Investigation, and the U.S. Department of Labor's Inspector General. According to the Las Vegas special agent in charge at the IRS, it was "greed and a money paper trail" that ultimately led to the defendants undoing. "With Nevada's unemployment rate a record highs, the scam not only taxed the system economically, it also "disrupted the entire unemployment benefits program," said Steve Zuelke, who runs the fraud unit for the Nevada Employment Security Division. "And considering that the defendants obtained over $4 million illegally in amounts less than $1 thousand, the extent of this fraud was staggering," said Nevada U.S. Attorney Daniel Bogden.

According to the Department of Labor, 11% or $20 billion unemployment compensation payments are improper. Since the scam was revealed, Nevada is checking all unemployment benefits claimant applications against the Social Security Administration.

All four defendants, who were found guilty of money laundering, mail fraud, and/or false representation of a Social Security number, are required to make restitution.

Continue reading "Major Sweeps Lands Four Las Vegas, Nevada Defendants in Prison for Unemployment Fraud" »

In determining parental rights, the State of Nevada ascribes to the doctrine of "what's in the best interest of the child." Therefore, when a petition to terminate parental rights is filed, the burden of proof is on the petitioner to present clear and convincing evidence that termination is in the child's best interest and that parental fault exists.

In IN RE: the Parental Rights as to C.C.A., a Minor. Charles C.L.A. v. The State of Nevada Division of Child and Family Services, Department of Health and Human Resources; and C.C.A., a minor child was removed from the care of his biological father and subsequently placed in the legal custody of the State of Nevada, Division of Child and Family Services (DCFS). DCFS eventually petitioned the district court to terminate the biological father's parental rights. After a bench trial, both sides submitted their closing arguments in writing, after which the district court entered a summary order terminating the biological father's parental rights.

The termination order stated the biological father's parental rights were terminated because he ...

1. abandoned the minor child by not providing support or communicating with the child;
2. did not provide proper parental care;
3. was an unfit parent;
4. had not corrected the circumstances, conduct, and conditions which led to the removal of the minor child;
5. would be a physical, mental, or emotional risk to the child if the child were in his custody; and
6. had only made token efforts to avoid creating the above circumstances and conditions.
No evidence or explanation was attached to the order. The biological father appealed.

It is well-settled that termination proceedings implicate a parent's fundamental rights in the care and custody of his or her child. NRS 128.005(1) and (2); Matter of Parental Rights as to D.R.H., 120 Nev. 422, 426-27, 92 P.3d 1230, 1233 (2004); Matter of Parental Rights as to C.J.M., 118 Nev. 724, 732, 58 P.3d 188, 194 (2002). To guard the rights of the parent and the child, the Nevada Legislature created a statutory scheme intended to assure that parental rights are not erroneously terminated, and that the child's needs are protected, unless there is clear and convincing evidence. NRS 128.005(1) and (2)
The district court deferred ruling on the termination petition until it received the parties' written closing arguments. Thus, the court did not make any oral findings on the record. The subsequent written termination order does not reference any specific facts or evidence presented by the parties during the bench trial, just the statutory grounds required to terminate a parent's parental rights. Without a record of clear and convincing evidence, the biological father's parental rights cannot be terminated. The district court decision is reversed, and the case remanded back to the district court to enter its findings on the record. IN RE: the Parental Rights as to C.C.A., a Minor. Charles C.L.A. v. The State of Nevada Division of Child and Family Services, Department of Health and Human Resources; and C.C.A., No. 56723, S. Ct. Nev. (April 05, 2012)
Las Vegas Family Law Attorney Andre Lagomarsino focuses on family law, employment law, and Fair Labor Standards Act cases in Las Vegas and the state of Nevada. If you need sophisticated legal advice, contact Parker Scheer Lagomarsino, immediately.

Continue reading "Without Clear and Convincing Evidence, Parental Rights will not be Terminated" »

Slips and falls are a part of everyday life. If you slip and fall on the premises of a business, such as a Las Vegas hotel or nightclub, it is important to take steps to protect your rights. Here are six tips:

1. Document the scene: As soon as you can, start taking pictures of the full accident scene. If you are alone, ask a friendly witness to help. Take down the names of any witnesses and their contact information. Make a note of any witnesses who also may be taking pictures. Document the condition of and any items in the area where you fall. Also note if there are no noticeable safety items or warning signs. Save a sample of any perishable or nonperishable item that may have caused your slip and fall.
2. Your clothes are important: Do not wash or wear your clothes after a slip and fall. Store them in a sealed plastic bag, then store the bag in a dry, cool spot.
3. File an Accident Report: Before you leave the premises, make sure the business owner, manager, or someone in charge takes your accident report, and gives you a copy. Before you sign it, read it. If there is video surveillance in the store or area, send an evidence preservation letter demanding the business to preserve all video of the incident.
4. Seek Medical Attention: Go to your personal physician or a hospital ER to have your injuries diagnosed and treated. If possible, have images taken of any present and potential injuries.
5. Do not Give a Statement: Remember, you are not legally required to give or sign a statement after a slip and fall. If anyone representing the business, including the business' attorney and/or insurance company, asks for a statement, politely decline and refer them to your attorney.
6. Seek the Advice of an Experienced Slip and Fall Attorney: Businesses are required to take reasonable steps to protect their patrons from injury. If a dangerous condition is reasonably foreseeable, but a business fails to take action, they can be negligent and liable for damages. An experienced attorney can assess your situation, provide legal representation, and make sure any claim is filed timely.

Continue reading "Las Vegas Slip and Fall Attorney Gives Tips" »

It's become a common sight. Airline passengers single file through security metal detectors. Seemingly random, Transportation Security Administration (TSA) employees select certain passengers for a hand-wand body scan. Airport security checks flow seamlessly, until some passenger balks. The Ninth Circuit Court of Appeals has held airline passengers have the right to balk against security checks, but if they want to fly, they must consent to some form of a security check. Even if it includes a full-body-pat-down.

When Keith Russell paid cash for a last minute flight from Seattle, WA to Anchorage, AK, and had no luggage to check, an Alaska Airlines ticket agent flagged him to the Drug Enforcement Administration (DEA) agents as a potential drug courier. A DEA check revealed Russell had prior drug and firearm-related convictions, and also had been implicated in a prior drug investigation in Alaska.

Russell gave consent for a DEA agent to search his bag. He also consented to have his person searched and voluntarily spread his arms and legs to facilitate the search. The DEA agent gave Russell a standard operating search, which included lifting up his groin area. When the DEA agent felt something hard and unnatural, Russell was arrested. The police later recovered 700 Oxycodone pills from Russell's underwear. Russell moved to suppress the evidence.

The district court identified five factors that determine whether a person's consent to search is voluntary:

1. Whether the defendant is in custody;
2. Whether the arresting officers have drawn their guns;
3. Whether the arresting officers Mirandize the defendant;
4. Whether the defendant is told he has a right to not consent; and
5. Whether the defendant is told a search warrant can be obtained.

At the time of the search, Russell was not in custody, was told he could leave, and no guns were drawn. Though Russell was not told a search warrant would be obtained if he did not consent, there was no need to give him a Miranda warning since he was not yet under arrest. The district court found Russell's consent (twice) to a full-body-pat-down search was therefore voluntary.

The district court further found the full-body-pat-down search which included Russell's groin area was reasonable since 1) Russell knew the officers were looking for drugs, and 2) Russell had ample opportunity to object both before and during the search and did not.
Last, the district court noted that narcotics are often hidden on the body in locations that make discovery more difficult, including the groin area. The search did not extend inside the clothing, and it was not conducted by a female officer.
The Ninth Circuit Court of Appeals upheld the district court's denial of Russell's motion to suppress.

Continue reading "Ninth Circuit Court of Appeals Rules Airline Passengers Consent to Full-Body-Pat-Downs" »

In Holiday Retirement Corporation V The State Of Nevada Division Of Industrial Relations, the Supreme Court of the State of Nevada held an employer is required to acquire knowledge of an employee's permanent physical impairment before a subsequent injury occurs to qualify for reimbursement from the Subsequent Injury Account for Private Carriers.

Holiday Retirement Corporation hired a couple as co-managers of a retirement residence. At the time the wife was hired, Holiday was not aware that the wife had had two back surgeries, including one to treat an on-the-job injury. While working for Holiday, the wife reinjured her back. An MRI revealed the prior back surgeries, and that the wife needed another back surgery. After surgery, Holiday put the wife on modified work duty restrictions. A year later, she and her husband quit.

The wife's permanent partial disability (PPD) evaluation showed the wife had a 35% whole person impairment, with 75% of the impairment due to the Holiday injury. She was awarded compensation. Holiday's insurer sought reimbursement under NRS 616B.587, arguing that the wife's compensation was based on her combined injuries and would be less if she just received compensation for only her Holiday injury.

The State of Nevada Division of Industrial Relations (DIR) denied the insurer's request for reimbursement. Under NRS 616B.587(4), an insurer is not entitled to reimbursement if the insurer " had knowledge of the 'permanent physical impairment' at the time the employee was hired or if the employee was hired after the employer acquired such knowledge." Because Holiday did not have knowledge of the wife's prior permanent physical impairment until after she was injured working for Holiday, no reimbursement was allowed.

Holiday appealed to the DIR and then the District Court, both of which affirmed the original DIR determination. Holiday appealed to the Supreme Court of Nevada.

"The language in NRS 616B.587(4) is plain and unambiguous. The "critical difference" between an employer who retains a permanently physically impaired worker before a subsequent injury occurs and one who retains a permanently physically impaired worker after the subsequent injury has already occurred. In the former situation the potential for liability remains contingent; in the latter, the potential for liability is certain. Permitting reimbursement in the latter situation is akin to "providing employers an option to buy casualty insurance to cover a casualty that has already occurred."

District Court affirmed. Holiday Retirement Corporation V The State Of Nevada Division Of Industrial Relations, No. 54968, Sup. Ct. Nev., (April 05, 2012)

Continue reading "A Nevada Employer Must Have Knowledge of an Employee's Previous Injury to Receive Reimbursement " »