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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

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Thought Leadership

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GDPR Top 5 Actions You Should Take Now

The EU's General Data Protection Regulation (GDPR) went into effect on May 25th. As most organizations are aware, the GDPR applies not only to EU businesses but also many companies in the U.S. While the deadline is quickly approaching, most organizations are still grappling with the implications of the regulation on their business. Even if your readiness efforts are behind the curve, the GDPR Top 5 Actions You Should Take NOW will help you begin your efforts towards compliance and help mitigate your organization's risk in the short-term.

Click here to download the checklist.

Chris Lazarini Examines Employee v. Independent Contractor Issue

Securities Litigation Commentator

Publications

February 22, 2017

Bass, Berry & Sims attorney Chris Lazarini examined a case in which the plaintiff claimed to be an employee of Northwestern Mutual and therefore protected under New York's minimum wage and overtime laws; Northwestern argued the plaintiff was an independent contractor, not an employee, and, therefore, exempt from protection of the labor laws. The court, considering five different factors, found the plaintiff to be an independent contractor. 

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Rose vs. Northwestern Mutual Life Ins. Co., No. 14-CV-3569 (E.D. N.Y., 12/12/16) 

Under New York law, determining whether one is an employee or independent contractor turns on the degree of control exercised by the purported employer. Factors to consider include whether the worker: (1) works at his own convenience, (2) may engage in other employment, (3) receives fringe benefits, (4) is on the employer's payroll, and (5) is on a fixed work schedule. 

In this putative class action, Plaintiff alleged violations of the New York minimum wage and overtime laws. Defendant moved for summary judgment, arguing that Plaintiff was an independent contractor, not an employee, and, therefore, was exempt from the labor law's protections. The Court finds that Plaintiff is an independent contractor and dismisses the action. 

Under New York law, the critical inquiry in determining whether an employment relationship exists rests with the degree of control the purported employer exercises over the work performed. After granting Plaintiff months to conduct discovery, the Court finds no factors supporting an employment relationship. Rather, multiple factors weigh against that finding. First, no facts support Plaintiff's claim that Defendant controlled when and where Plaintiff was to work. Requiring one to be at a job site, at certain hours, and to attend regular meetings, the Court holds, are factors to consider, but none is conclusive. Here, they are outweighed by Plaintiff's ability to control the time he devoted to his duties and the location in which he performed them. Second, Plaintiff could work for other companies and was free to sell competitors' products where those products offered lower premiums than Defendant's. This absence of exclusivity, the Court finds, weighs against an employment relationship. Third, Plaintiff did not receive health or other insurance benefits from Defendant, he worked on a commission basis only and Defendant did not withhold taxes from Plaintiff's compensation. Fourth, the Court rejects Plaintiff's argument that Defendant's use of training materials, guidebooks, and marketing materials were indicia of control. Those materials merely offered advice on how to be a successful salesman. Finally, the Court points to Plaintiff's contract with Defendant, in which he agreed that he was an independent contractor as another factor supporting the absence of an employment relationship. While Defendant's label is not dispositive, when combined with the other factors, the Court has little trouble concluding that no employment relationship existed. 

Northwestern Mutual Investment Services, LLC, was also a Defendant. The Court granted summary judgment in its favor, finding Plaintiff never obtained a license to sell its products and never interacted with any of its agents.


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