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Staff

October 20, 2020 By Staff

Santee Christian College to Pay $225,000 Over Federal Violations on Recruiting

San Diego Christian College in Santee will pay $225,000 to resolve allegations that it compensated a student recruiting company in violation of a federal ban on incentive-based compensation, the Department of Justice announced Monday.

The university’s settlement resolves allegations that it hired student recruiting company Joined Inc. between 2014 and 2016 to recruit prospective students to SDCC and paid the company a share of the tuition SDCC received from enrolled, recruited students.

Title IV of the Higher Education Act prohibits institutions receiving federal student aid from compensating student recruiters with a commission, bonus, or other incentive payment based on the recruiters’ success in securing student enrollment, according to the Department of Justice.

“Higher education enrollment decisions should put students first,” said Acting Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s Civil Division. “Offering recruiters financial incentives to enroll students undermines students’ ability to make educational decisions in their own best interests.”

The settlement stems from a lawsuit brought by an unnamed whistleblower, who will receive $33,750 of the settlement proceeds, according to the DOJ.

In a statement, a college spokesman said Tuesday: “Due to the anticipated costs of prolonged litigation as well as the distraction from the pursuit of its mission, SDCC’s Board of Trustees decided that it is in its best interest to come to this resolution. In addition to denying the allegations of the complaint, SDCC assures its students, faculty, staff, alumni, stakeholders, and the public that at no time did it submit a “false claim” to the government nor misuse federal taxpayer funds. This settlement concludes the government investigation into SDCC’s relationship with [Maurice] Shoe,”  co-owner of Joined Inc., a California-based student recruiting company.

Reuben Guttman, who represents the whistleblower, told Times of San Diego that his client
lives on the West Coast.

“The case named three defendants: Oral Roberts, North Greenville University and San Diego Christian,” Guttman said. “This marks the third settlement, and approximately $3 million has been recovered.”

He said the settlement with San Diego Christian was small because it reflects the school’s financial condition and ability to pay.

“The settlement is being paid in installments,” Guttman said.

Neil Sanchez is special agent in charge of the U.S. Department of Education Office of Inspector General’s Southern Regional Office.

“Today’s settlement is a result of the hard work and effort of the Office of Inspector General and the Department of Justice to protect and maintain the integrity of the Federal student aid programs,” Sanchez said. “We will continue to work together to ensure that Federal student aid funds are used as required by law. America’s taxpayers and students deserve nothing less.”

Source: The Time of San Diego, https://timesofsandiego.com/education/2020/10/19/santee-christian-college-to-pay-225000-over-federal-violations-on-recruiting/

October 20, 2020 By Staff

California University To Pay $225,000 For Allegedly Violating Ban On Incentive Compensation

Department of Justice, October 19, 2020

WASHINGTON – San Diego Christian College (SDCC), based in Santee, California, will pay $225,000 to resolve allegations under the False Claims Act for submitting false claims to the U.S. Department of Education in violation of the federal ban on incentive-based compensation, the Justice Department announced today.    

Title IV of the Higher Education Act (HEA) prohibits any institution of higher education that receives federal student aid from compensating student recruiters with a commission, bonus, or other incentive payment based on the recruiters’ success in securing student enrollment.  The incentive compensation ban protects students against admissions and recruitment practices that serve the financial interests of the recruiter rather than the educational needs of the student.

“Higher education enrollment decisions should put students first,” said Acting Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s Civil Division.  “Offering recruiters financial incentives to enroll students undermines students’ ability to make educational decisions in their own best interests.”

“Colleges should be places for students to learn and grow, not places to be taken advantage of by recruiters watching out for the own financial interests,” said U.S. Attorney Peter M. McCoy, Jr. for the District of South Carolina.  “This office will continue its efforts to protect students against illegal recruiting practices.”

“Today’s settlement is a result of the hard work and effort of the Office of Inspector General and the Department of Justice to protect and maintain the integrity of the Federal student aid programs,” said Neil Sanchez, Special Agent in Charge of the U.S. Department of Education Office of Inspector General’s Southern Regional Office.  “We will continue to work together to ensure that Federal student aid funds are used as required by law. America’s taxpayers and students deserve nothing less.”

The settlement, which was based on SDCC’s ability to pay, resolves allegations that between 2014 and 2016, SDCC hired Joined, Inc., a California-based student recruiting company, to recruit students to SDCC.  The United States contended that SDCC compensated Joined with a share of the tuition that SDCC received from the enrollment of recruited students, in violation of the prohibition on incentive compensation. 

The allegations resolved by the settlement were brought in a lawsuit filed under the qui tam, or whistleblower, provisions of the False Claims Act by Maurice Shoe, the co-owner of Joined.  The Act permits private parties to sue on behalf of the government for false claims and to receive a share of any recovery.  As part of today’s resolution, the whistleblower will receive $33,750.

This matter was investigated by the U.S. Attorney’s Office for the District of South Carolina and the Civil Division’s Commercial Litigation Branch.  Investigative assistance was provided by the Office of Inspector General of the Department of Education.

The claims resolved by the settlement are allegations only, and there has been no determination of liability.  The case is captioned United States ex rel. Shoe v. San Diego Christian College, No. 6:16-cv-01570 (D.S.C.).

Source: https://www.justice.gov/opa/pr/california-university-pay-225000-allegedly-violating-ban-incentive-compensation

October 20, 2020 By Staff

Virtual Attorney Seminar: False Claims Act: Offense and Defense

Description

Each year private citizen suits under the False Claims Act have returned billions of dollars to Federal and State treasuries. These suits leverage the government’s compliance enforcement resources and provide bounties to those individuals or entities – known as relators – who initiate them.

Who has standing to bring these suits? How are they investigated and put together? What are the pleading requirements and what role does the government play in overseeing this litigation. These issues along with relevant ethical concerns will be discussed from both the Relator and the Defendant perspective.

It is a program of particular interest to plaintiff counsel’s seeking to explore new litigation opportunities, and defense counsel, in-house and insurance counsel who work with clients who do direct or indirect business with the government and are subject to liability under the False Claims Act. It is a program of particular interest to those in the healthcare, education, and defense arenas or for those involved with any client operating in whole or in part with government monies.

The False Claims Act, involving cases filed under seal on behalf of the government, presents unique challenges under the ethical rules. The program will explore these challenges with an eye toward the applicable ethical rules and considerations.

Presenter:

Reuben Guttman, Rguttmn@gbblegal.com, is a founding member of Guttman, Buschner & Brooks PLLC (GBB). His practice involves complex litigation and class actions.

The International Business Times called Mr. Guttman “one of the world’s most prominent whistleblower attorneys,” and he has been recognized as a Washingtonian Top Lawyer by Washingtonian Magazine. His has been counsel in cases brought under the Federal False Claims Act that have returned more than $5.5 million to the government. A February 19, 2015 profile of Mr Guttman by the Boston Globe’s STAT NEWS referred to him as the “Lawyer Pharma Loves to Hate.” Citing a $98 million recovery from Community Health Systems, Inc., Law 360 named Mr. Guttman a “Health Care MVP” and profiled him in a December 1, 2014 article.

In addition to his work on behalf of workers and whistleblowers, Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications. He has appeared on ABC Nightly News, CNN, BBC World News, and has been quoted by major news sources including the New York Times and the Wall Street Journal. His cases have been discussed in several books.

He has been a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for Emory Law School’s Kessler-Eidson Trial Techniques Program. He is currently the Senior Advisor to the Emory Law Corporate Governance and Accountability Review (ECGAR). He is a National Institute for Trial Advocacy (NITA) faculty member and co-author, with J.C. Lore of Rutgers Law School, of Pretrial Advocacy, to be published by NITA in 2021.

As part of a U.S. State Department program in conjunction with the Emory law Center for Advocacy and Dispute Resolution, he has been one of five visiting professors at Universidad Panamericana in Mexico City, training Mexican Judges and practitioners on oral advocacy and trial practice. He has been a guest lecturer at a number of universities including John Hopkins, the University of Pennsylvania, Jiao Tong University in Shanghai, Peking University in Beijing and Renmin University in Beijing. In 2006, the Dutch Embassy in China invited him to share his perspectives with experts in China about changes to the nation’s labor laws. He also traveled to China and trained Shanghai fraud prosecutors on investigations.
Mr. Guttman earned his law degree at Emory University School of Law, (1985), and his Bachelor’s Degree from the University of Rochester, (1981), and he is a founder of the website www.whisleblowerlaws.com.

To learn more, CLE information or to register visit: https://www.celesq.com/programs/view/false-claims-act-offense-and-defense

October 20, 2020 By Staff

ON-Demand Podcast: Covid-19 Whistleblower and Qui Tam CLE: Collecting Evidence & Making the Claim

Learn the latest on Mastering Bad Faith & Covid-19 Litigation with this convenient, 24/7 On-demand Seminar & Complimentary Podcast. Register to obtain CLE & MCLE credit, online access to complete course & reference materials, and attend this on-demand seminar. YOU MAY LISTEN FROM ALMOST ANY TYPE OF COMPUTER OR IPOD. ACCESS TO THE RECORDING AND MATERIALS DOES NOT EXPIRE.

Benefits:

Over the past two decades, nearly $30 billion has been recovered through Qui Tam cases under the False Claims Act. The demand for attorneys in this surging area has become even stronger as the federal government has spent over $6 trillion in response to the rapid spread of the Coronavirus, or Covid-19. As it becomes apparent that some recipients of the funds are not adhering to requisite protocols, there is an immediate need for attorneys to represent clients in this lucrative area of law. There is also a tremendous need for attorneys fluent in class action litigation & defenses for parallel matters stemming from Qui Tam claims. In particular, attorneys must be fluent on complaints, defenses, litigation strategies, discovery and government incentives, among others. The faculty for this seminar features three of the nation’s leading authorities in this practice. Registration includes online access to course and reference materials.

Agenda:

Covid-19 Whistleblower and Qui Tam CLE: Collecting Evidence & Making the Claim:

a. Legal Issues involving the Coronavirus/Covid-19

b. Earning Fees from Whistleblower, Qui Tam and False Claims Actions

c. Filing Winning Complaints

d. Latest Developments in Qui Tam & Whistleblower Claims

e. Obtaining Large Rewards through Government Incentives

f. Key Procedural Distinctions in Retaliation Claims

g. Overcoming & Responding to Defenses

h. Effective Use of Key Documents & Evidence

i. Cutting-edge Strategies in False Claim Cases

j. Ethical Issues

k. Parallel Class Actions

l. Class Certification

Recorded Question & Answer Session

Biography of Seminar Faculty:

1. Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts. The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications and his commentary has appeared in Market Watch, American Lawyer Media, AOL Government, Accounting Today, and the Jerusalem Post. In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). In 1992, he advised President-elect Clinton’s transition team on labor policy and worker health and safety regulation. Mr. Guttman earned his law degree at Emory University School of Law, where he has been appointed as a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program.

2. Shauna Itri is a Partner at Seeger Weiss LLP, where she has been leading litigation teams in complex fraud cases in both state and federal courts for over a decade. Her nationwide practice has focused on representing plaintiffs in various settings including securities and consumer class actions; antitrust; and cases involving patient harm. Shauna also has extensive experience representing whistleblowers in False Claims Act lawsuits, and tax and securities whistleblowers with claims under the IRS and SEC whistleblower programs. Ms. Itri is a nationally recognized speaker and has published numerous articles on representing whistleblowers and litigating Qui Tam claims. She served on the litigation teams working on the multi-billion-dollar lawsuits brought against BMW, General Motors, Ford Motors, and Mercedes for allegedly disguising the actual emission levels of their diesel engine cars. The settlement figure in these cases make them the largest auto-related consumer class-action settlement in U.S. history. Ms. Itri was a member of trial team of False Claims Act case which settled for $120 million, in two cases that alleged that a defendant defrauded the government by providing kickbacks to nursing homes. Ms. Itri was part of a litigation team that worked extensively with the Department of Justice and State Attorneys General across the nation representing whistleblowers in a series of False Claims Act cases against drug companies for fraudulent Medicaid and Medicare drug pricing which has led to more than $3 billion in recoveries. She is a graduate of Stanford University and Villanova University.

3. Jennifer A. Riley is a Partner at Seyfarth Shaw LLP, where she defends companies facing class actions, collective actions, pattern or practice lawsuits, and other types of representative proceedings, ranging in size from dozens to tens of thousands of claims. For nearly two decades, Ms. Riley has defended companies faced with significant complex litigation matters. As such, she works on the forefront of the developing law in an ever changing arena. Ms. Riley regularly develops strategies for navigating some of the largest challenges faced by corporate America today and counsels employers confronted with a range of complex employment law theories that span from claims of discrimination or sexual harassment to myriad types of alleged wage & hour violations. She is a regular speaker and presenter regarding developments in the law and challenges on the horizon. Ms. Riley has extensive litigation experience. She has represented clients facing bet-the-company cases in a wide range of complex civil litigation matters in federal and state courts across the country. Ms. Riley has served as trial counsel in federal court bench trials, jury trials, and arbitration proceedings. She has successfully defended a multitude of actions by securing dismissal, defeating class or collective action certification, prevailing on summary judgment, and structuring and securing approval of complex and multiparty settlements and consent decrees. Ms. Riley also routinely counsels employers to navigate thorny employment issues, including through investigations and terminations. she is a graduate of the University of California at Berkeley School of Law.

CLE Credit: Rossdale CLE is a national leader in attorney education and has trained thousands of attorneys, paralegals, and other legal professionals.

Learn more at https://www.mcssl.com/store/legalresourcesinc/catalog/product/29aaead722c8417dabf0b37b00a97efe

October 10, 2020 By Staff

What the Gov’t Can Still Do to End Pandemic

By Caroline Poplin, MD, JD
Of Counsel and Medical Director

When it comes to the coronavirus, I have good news and bad news. The good news is that there are two things we can and should do to fight the virus without locking down the country again, even though we are now way behind the starting line. The bad news? Success requires action from the federal government.

Provide Essential Equipment

First, government must ensure adequate supplies of tests (including swabs and reagents), and standard personal protective equipment by invoking the Defense Production Act (DPA). It appears that the ventilator shortage has been resolved, at least for now, by the one-time use of the DPA for one contract — with General Motors — and medical advances in treating the virus that reduce the need for ventilators.

However, the dire shortage of tests, and slow turnaround times, are a continuing problem as the virus surges again. As recently as last month, the federal government was planning to close seven testing sites in Texas — including in two hotspots, Houston and Dallas — at the end of June. After serious bipartisan pushback from the state, the feds agreed to a 2-week extension for five of the sites.

The ongoing shortage means tests are limited to patients with symptoms, or a doctor’s note — those we could presume would be positive. But the people we really need to test are pre-symptomatic or asymptomatic carriers who might be shedding virus while going about as usual in their communities for up to 2 weeks. That is why we need lots more tests ASAP, so we can test the asymptomatic people in a hotspot, especially as cases climb in 39 states.

We also need to remove barriers to testing. Currently, uninsured people have to pay market price for the test, and are supposed to self-quarantine for 2 weeks, regardless of whether that costs them 2 weeks’ pay or even their jobs. Instead, COVID-19 tests and treatment should be free and available to all, without penalty or citizenship questions.

The president’s insistence that the virus will just “go away” soon, his obsession with optics (such as keeping official case numbers low by limiting tests, without, of course, affecting the true incidence of disease), his bald lie that 99% of cases are “harmless,” and his effort to distance himself from blame for the catastrophe, have all made the problem worse.

The fact that the U.S. is also still short of personal protective equipment (PPE) — N-95 masks, face shields, gowns, gloves, and eye protection for all those who need them — is outrageous and dangerous. As of July 13th, more than 780 healthcare workers had died of COVID-19, a tragic loss for the individuals and their families, but also for Americans who needed their care to recover.

To solve this problem, the federal government (FEMA, perhaps) should have ordered a massive supply of PPE from domestic manufacturers, using the DPA, which President Trump has used hundreds of thousands of times to order vital military products. It should have negotiated a fair price — cost plus maybe 5% profit — then sold the supplies at cost to whoever needed them. The process would be completely transparent, with no unseemly profiteering.

Instead, the process for obtaining PPE has been chaotic and corrupt: states find themselves bidding against one another and the federal government, hospitals have seen supplies they ordered seized by the federal government. A more expensive, ineffective, unaccountable process is hard to imagine. Meantime, the number of cases is soaring.

Protect Essential Workers

Because of the continuing shortage of PPE, it has largely been limited to hospitals and nursing homes where there are already known COVID patients. But the best way to reduce the spread of the virus is to test, and provide PPE, where outbreaks are most likely. That includes places in which people are breathing hard or cannot work at a distance, such as at large manufacturing plants with fast assembly lines where work stations are close together. Whenever people look carefully at such places — meat processors, chicken processors, warehouses like those run by Amazon — we find outbreaks. Protection of workers is necessary for them, of course, but also for us.

Many essential workers must work just to make ends meet. If the plant reopens and they are offered a job and decline for any reason — including fear of illness — workers lose their unemployment benefits. If they are forced to self-quarantine, they are not paid. If they complain, they are fired. So they come in even if they are sick. Because President Trump has declared these businesses essential, state and local authorities cannot easily close them down for cleaning. And many owners refuse to release any information to workers or the authorities: how many workers are sick, how many have died, or who they are.

Doesn’t this sound like working conditions of a century ago — workers forced to risk their lives for a pittance to goose the profits of wealthy owners who risk nothing and can easily afford to pay for PPE and change the configuration of work stations? Upton Sinclair described such conditions in the meat-packing industry in “The Jungle,” published in 1905.

Such activities by employers are illegal now. In the early part of the last century, states passed workers’ compensation laws, requiring employers to compensate workers for injuries and illnesses contracted at work. In 1935, Congress passed the Labor Relations Act, a key New Deal measure which required companies to bargain about wages and working conditions with workers elected by unions. Over the years, unfortunately, anti-union employers have found ways — in Congress and the courts — to water down these protections, but they are still good law.

In 1970, Congress passed, and President Nixon signed, the Occupational Safety and Health Act to specifically address worker safety on the job, and created an agency (OSHA) to enforce it and issue standards to address specific problems. Employers’ responsibilities under the act include providing a safe workplace and finding and correcting safety and health problems. That sounds clear enough, doesn’t it? However, as a government lawyer for 10 years (FDA, Environmental Protection Agency), I learned that success of laws like these requires agencies like OSHA to promulgate well-reasoned regulations, to provide the regulated community with details, and to vigorously enforce compliance.

The agency lays out the responsibilities of employers in its pamphlet, “Workers’ Rights“: “Employers have the responsibility to provide a safe workplace. Employers MUST provide their employees with a workplace that does not have serious hazards and must follow all OSHA safety and health standards [boldface original]. Employers must find and correct safety and health problems.”

Under the Trump administration, not only has OSHA failed to issue regulations to protect workers from this particularly contagious virus, but instead has assured employers that “good faith efforts” are enough. Worse, Senate Majority Leader Mitch McConnell (R-Ky.) is demanding a 5-year liability shield for all employers in the bill he is now negotiating in the Senate. That tells me that some employers will fail to take necessary measures (“Too expensive! Impractical!”) unless they are held legally responsible for preventing COVID in the workplace. By contrast, the House bill passed in May would require OSHA to put issue an emergency safety standard to protect workers.

The Bad News

When it comes to the coronavirus, I have good news and bad news. The good news is that there are two things we can and should do to fight the virus without locking down the country again, even though we are now way behind the starting line. The bad news? Success requires action from the federal government.

Provide Essential Equipment

First, government must ensure adequate supplies of tests (including swabs and reagents), and standard personal protective equipment by invoking the Defense Production Act (DPA). It appears that the ventilator shortage has been resolved, at least for now, by the one-time use of the DPA for one contract — with General Motors — and medical advances in treating the virus that reduce the need for ventilators.

However, the dire shortage of tests, and slow turnaround times, are a continuing problem as the virus surges again. As recently as last month, the federal government was planning to close seven testing sites in Texas — including in two hotspots, Houston and Dallas — at the end of June. After serious bipartisan pushback from the state, the feds agreed to a 2-week extension for five of the sites.

The ongoing shortage means tests are limited to patients with symptoms, or a doctor’s note — those we could presume would be positive. But the people we really need to test are pre-symptomatic or asymptomatic carriers who might be shedding virus while going about as usual in their communities for up to 2 weeks. That is why we need lots more tests ASAP, so we can test the asymptomatic people in a hotspot, especially as cases climb in 39 states.

We also need to remove barriers to testing. Currently, uninsured people have to pay market price for the test, and are supposed to self-quarantine for 2 weeks, regardless of whether that costs them 2 weeks’ pay or even their jobs. Instead, COVID-19 tests and treatment should be free and available to all, without penalty or citizenship questions.

The president’s insistence that the virus will just “go away” soon, his obsession with optics (such as keeping official case numbers low by limiting tests, without, of course, affecting the true incidence of disease), his bald lie that 99% of cases are “harmless,” and his effort to distance himself from blame for the catastrophe, have all made the problem worse.

The fact that the U.S. is also still short of personal protective equipment (PPE) — N-95 masks, face shields, gowns, gloves, and eye protection for all those who need them — is outrageous and dangerous. As of July 13th, more than 780 healthcare workers had died of COVID-19, a tragic loss for the individuals and their families, but also for Americans who needed their care to recover.

To solve this problem, the federal government (FEMA, perhaps) should have ordered a massive supply of PPE from domestic manufacturers, using the DPA, which President Trump has used hundreds of thousands of times to order vital military products. It should have negotiated a fair price — cost plus maybe 5% profit — then sold the supplies at cost to whoever needed them. The process would be completely transparent, with no unseemly profiteering.

Instead, the process for obtaining PPE has been chaotic and corrupt: states find themselves bidding against one another and the federal government, hospitals have seen supplies they ordered seized by the federal government. A more expensive, ineffective, unaccountable process is hard to imagine. Meantime, the number of cases is soaring.

Protect Essential Workers

Because of the continuing shortage of PPE, it has largely been limited to hospitals and nursing homes where there are already known COVID patients. But the best way to reduce the spread of the virus is to test, and provide PPE, where outbreaks are most likely. That includes places in which people are breathing hard or cannot work at a distance, such as at large manufacturing plants with fast assembly lines where work stations are close together. Whenever people look carefully at such places — meat processors, chicken processors, warehouses like those run by Amazon — we find outbreaks. Protection of workers is necessary for them, of course, but also for us.

Many essential workers must work just to make ends meet. If the plant reopens and they are offered a job and decline for any reason — including fear of illness — workers lose their unemployment benefits. If they are forced to self-quarantine, they are not paid. If they complain, they are fired. So they come in even if they are sick. Because President Trump has declared these businesses essential, state and local authorities cannot easily close them down for cleaning. And many owners refuse to release any information to workers or the authorities: how many workers are sick, how many have died, or who they are.

Doesn’t this sound like working conditions of a century ago — workers forced to risk their lives for a pittance to goose the profits of wealthy owners who risk nothing and can easily afford to pay for PPE and change the configuration of work stations? Upton Sinclair described such conditions in the meat-packing industry in “The Jungle,” published in 1905.

Such activities by employers are illegal now. In the early part of the last century, states passed workers’ compensation laws, requiring employers to compensate workers for injuries and illnesses contracted at work. In 1935, Congress passed the Labor Relations Act, a key New Deal measure which required companies to bargain about wages and working conditions with workers elected by unions. Over the years, unfortunately, anti-union employers have found ways — in Congress and the courts — to water down these protections, but they are still good law.

In 1970, Congress passed, and President Nixon signed, the Occupational Safety and Health Act to specifically address worker safety on the job, and created an agency (OSHA) to enforce it and issue standards to address specific problems. Employers’ responsibilities under the act include providing a safe workplace and finding and correcting safety and health problems. That sounds clear enough, doesn’t it? However, as a government lawyer for 10 years (FDA, Environmental Protection Agency), I learned that success of laws like these requires agencies like OSHA to promulgate well-reasoned regulations, to provide the regulated community with details, and to vigorously enforce compliance.

The agency lays out the responsibilities of employers in its pamphlet, “Workers’ Rights“: “Employers have the responsibility to provide a safe workplace. Employers MUST provide their employees with a workplace that does not have serious hazards and must follow all OSHA safety and health standards [boldface original]. Employers must find and correct safety and health problems.”

Under the Trump administration, not only has OSHA failed to issue regulations to protect workers from this particularly contagious virus, but instead has assured employers that “good faith efforts” are enough. Worse, Senate Majority Leader Mitch McConnell (R-Ky.) is demanding a 5-year liability shield for all employers in the bill he is now negotiating in the Senate. That tells me that some employers will fail to take necessary measures (“Too expensive! Impractical!”) unless they are held legally responsible for preventing COVID in the workplace. By contrast, the House bill passed in May would require OSHA to put issue an emergency safety standard to protect workers.

The Bad News

Unfortunately, the Republican party decided years ago that the federal government should be made so small that, per Grover Norquist, he could drown it in the bathtub. The president treats the government like an extension of the Trump Organization: he can do as he pleases — squeeze it for money, reward his friends, and punish his enemies. At the same time, he is not responsible for anything. No Republican will stop him.

Instead, Republicans are certain that everything can be handled more efficiently (at least more profitably!), by private enterprise operating in a totally deregulated free market.

Really??

Now we know.

The Good News

The federal government has the authority, the mandate, and the resources to ultimately defeat COVID19, although it will cost more — in money and in lives — than if we had had a responsible government in January 2020.

But, alas, it appears we must wait for relief until January 2021.

Caroline Poplin, MD, JD, is an attorney and internist in Bethesda, Maryland. She is a former staff internist for the National Naval Medical Center, and currently practices medicine part-time at the Arlington Free Clinic in Virginia. She is also of counsel at Guttman, Buschner & Brooks, a law firm which pursues Medicare and Medicaid fraud.

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