What do you think about strip searches?

Published at: 01:04 pm - Tuesday April 17 2012

The US Supreme Court decided a few weeks ago that strip searches are to be allowed for any arrested individual,

Salim Pujani, Attorney

Salim Pujani, Attorney

regardless of the offense, and without reasonable cause. Arguments were made that housing someone in a jail’s general population could contribute to a dangerous situation if that person has weapons, drugs, or other contraband on their person. The potential danger outweighs a person’s right to privacy, concluded the Justices.

As privacy rights have been eroding over the last decade in this country, this ruling throws one more discretion to the authorities by extending their ability to make decisions which affect a prisoner’s human dignity. If the person has been wrongfully arrested, or arrested for a minor offense such as a traffic violation, the strip search is still allowably conducted, and the arrested person has no recourse for the degradation and humiliation they may experience. Are so many people who are bringing in dangerous contraband being housed in the general population of jails that there is no other way to prevent drugs and weapons from entering the jail other than these strip searches?

Personally, I look forward to the rehearing that will be petitioned and a re-assessment of this ruling and its particulars in regards to the Fourth Amendment. While it is true that we need to keep our country’s jails as safe and drug-free as possible, and that there are other reasons to perform strip searches besides this contraband, it is also true that individual liberty must be preserved and that all persons are considered innocent in the eyes of the law until proven guilty. Therefore, we should not treat our citizens as criminals until they have proven themselves to be so, and we should not throw away their rights to human dignity in such a cavalier fashion.

I think the Supreme Court Justices have overstepped their bounds in issuing power to the authorities’ discretion to perform strip searches to any arrested person. What do you think?

Posted in: current events, legislation, Supreme Court by admin Comments Off , , , , , ,

Injustice for 9/11 First Responders

Published at: 08:09 pm - Thursday September 22 2011

The ten year anniversary of September 11, 2001, has been a sobering reminder to everyone about one of the most tragic and impactful events of

Salim Punjani, Attorney

Salim Punjani, Attorney

our nation’s recent history. And although the anniversary is sobering every year, this year there is a new light shining on the situation which causes me to evaluate the anniversary differently. I have had the opportunity in the last month to meet someone whose life was personally affected by the events not only of 9/11, but off the ensuing travesty about the treatment for those daring citizens who responded to Ground Zero and aided their fellow Americans in a time of dire need.

The Zadroga Bill (111-H 847) was passed by the US Congress in December of 2010 nearly 2 years (22 months) after being proposed. The bill allows for first responders to the 9/11 crisis to appeal to a federal program which would “provide medical monitoring and treatment” and to petition the government for compensation for other expenses. While our government officials hemmed and hawed, stalling the bill from passing by filibustering it on the Senate floor and delaying the decision until the last moment before they broke for holiday vacation, the valiant men and women who sifted through tons of poisonous rubble were left to suffer and wait.

However, once passed the Act was amended so that it does not cover the most prominent medical issue the first responders seem to disproportionately be experiencing: cancer. At the time politicians felt justified in not providing for cancer treatments under the bill because it was the consensus that there was a general lack of scientific evidence that the cancers they were developing were a result of the exposure to thousands of toxic chemicals present at Ground Zero.  When John Stewart of Comedy Central’s The Daily Show covered this in July, he appropriately titled the segment “I thought we took care of this S@#t” and made the comparison that regardless of how a first responder’s cancer originated it should be treated.

I absolutely agree. As Stewart states, what’s the worst case scenario? That a person who dedicated time and energy as a rescue and clean-up worker and develops horrific medical conditions which may not be able to be directly attributable to the toxic exposure they suffered is able to have their cancer treatments paid for by a federal program. In my opinion, caring for and assisting those who have suffered so much physical, emotional, and psychological trauma is the least we can do to repay them for their sacrifice.
Earlier this month the weekly medical journal The Lancet published a study which found that New York City firefighters who were integral in the 9/11 response process have a higher incidence of cancer when compared with those firefighters who were not exposed to the toxins. “I’ve been to 54 funerals of firefighters since 9/11 and 52 of them are cancer-related,” says John Feal in an ABC article earlier this month. John is a former NYC firefighter and founder of the FeelGood Foundation. It seems like common sense to him that response to Ground Zero and the high rate of cancer in NYC firefighters are related. Apparently, The Lancet study has also caused excitement in the politicians who were essential in drafting and passing the Zadroga bill, because a mere 5 days after it was published a petition was drafted to add cancer to the list of covered diseases. I applaud and commend these Congresspeople for their dedication to seeing that each deserving citizen receives the desperately needed medical treatment without delay.

In my practice and experience with the law, I have seen the tragedy and devastation which families have to suffer when a loved one is injured. Every single death of 9/11 was preventable. Every single person lost is a hero. And every first responder who attempted to save lives or recover from the rubble what can never be replaced has been asked to wait their turn for recognition and repayment. The current petition to add cancer to the list of covered diseases is reparation for a situation which shouldn’t have existed to begin with, but I am glad that at least the correcting steps are being taken.

If you are a first responder who needs help, or to give to the first responder relief effort, please visit the following sites:

The Feel Good Foundation – www.feelgoodfoundation.com
“No responders left behind.”

The National Fallen Firefighters Foundation - http://www.firehero.org/
“…leads a nationwide effort to remember America’s fallen firefighters.”

US First Responders Association – http://www.usfra.org/
“…share knowledge and expertise as well as form a fellowship between members with a primary focus on: Training, Tactics, Safety, Education and community outreach.”

Give Forward – http://www.giveforward.com
“The easiest way to help a loved one in need.”

Guide to Charity Donations – Office of the Attorney General – http://www.ag.ny.gov/
“This giving guide is an important resource for anyone planning to contribute to a charity, and will help ensure that hard-earned dollars go where intended.”

In loving memory of: Edwin Ortiz.
July 17, 1954 – July 4, 2011

Edwin Ortiz

Edwin Ortiz, Fallen First Responder

Posted in: current events, Life long injury, Litigation, September 11, Unions, Workers' comp by admin Comments Off , , , , , , , , ,

The NFL Changes Florida’s Worker’s Comp System

Published at: 06:08 pm - Thursday August 11 2011
Salim Pujani, Attorney

Salim Pujani, Worker's Compensation Attorney

This summer, the spotlight on NFL news has extensively covered the lockout and negotiations toward a collective bargaining agreement. Therefore, Floridians may have missed the local news pushed through by NFL teams and of far greater significance to everyday citizens of the Sunshine State. I’m referring of course to house bill 723, the “Reciprocity Statute,” signed into law by Gov. Rick Scott on June 16th, and which went into effect July 1.

Until the enactment of this bill, Florida law did not include professional athletes in the worker’s compensation system, so pro football (and other sports) players had the option to shop around states where they “worked” (played) in order to claim worker’s comp for any injuries. In that situation, the team ownership, like any employer, would have to abide by local worker’s comp laws. This structure has allowed many athletes to file in California, which has arguably the most liberal worker’s compensation laws, and allowed team ownership as employers to opt-out of the worker’s comp system in Florida.

Generally, traveling employees who become injured in the course of their job duties file for worker’s comp in the state where they suffered the injury. In the new bill, HB 723, the legislature and Gov. Rick Scott have passed a new standard preventing the injured from pursuing a claim in another state. Now, employees on an out-of-state trip for less than 10 consecutive days or 25 days in a year will file a worker’s comp claim in Florida and are entitled to compensation as if injured in Florida. Of course, this does not apply to professional athletes alone, but to every Florida employer and employee. Therefore, anyone traveling outside the state for their job who suffers an injury must then waive any preferences of jurisdiction which may have been afforded them by filing in the state where the injury occurred.

This new legislation heavily favors the employer’s needs and concerns while imposing yet another limitation on injured workers, especially those who regularly travel out of state as a part of their business duties. Whereas previously an injured person had the right to file in another state that might have afforded them different rights in their compensation claim, the injured employees are now prevented from taking advantage of benefits or advantages not provided by Florida’s worker’s compensation system. For example, other states may allow a greater period of time for an injured worker to collect indemnity benefits, or a longer statute of limitations to file a claim of injury before they are no longer eligible. In other states, Florida insurance companies may not have the same amount or level of influence on treatment as they do if the person is treated in Florida. Particularly, in Florida, after an employee has begun to receive indemnity benefits, in some circumstances an insurance carrier can unilaterally stop benefits if it is their opinion that the injured employee is not entitled to those benefits. Elsewhere, the insurance carrier may have to effectively request permission from the court in order to cease benefits once they’ve begun. Basically, the rights of the injured employee may be restricted or limited by having no choice other than to file in Florida’s system because of this new law.

If an employee is likely to be injured in the course of their job duties, like professional athletes are, the likelihood of multiple claims and the potential increase of both cost and confusion are virtually guaranteed. In addition, the currently strained worker’s comp system in Florida will be inclined to absorb additional claims, and fringe expenses may increase from the time and effort that employees of the system will have to spend in additional work needed to process out-of-state claims.

I assume that because of this new structure professional athletics will no longer be able to opt-out of the worker’s compensation system – which may be good news for their insurance companies – but the question remains whether forcing any employer with nationally travelling employees into a single state’s overburdened system is a good decision in the long run. Whenever rights are taken from individuals and power is given to a collective force it causes me to take notice, and further drives my passion to fight for justice for every injured person in Florida.

Posted in: Compromise, Contracts, current events, NFL, Workers' comp by admin 2 Comments , , , ,

Drug Testing in Worker’s Compensation Claims

Published at: 08:06 pm - Wednesday June 01 2011
Salim Punjani
Salim Punjani, Attorney

When someone is injured at work, the worker’s compensation system exists to help them cover expenses and recover from the injury. It is a compromise between protecting the rights of the employer and the rights of the employee, making sure that neither is given too much leniency and that neither infringes on the rights of the other.

The worker’s compensation system includes provisions to allow a workplace to become a Drug Free Workplace: §440.102. In order to be considered a Drug Free Workplace an employer must notify employees and job-applicants in writing of the specific drug free workplace policies and procedures, then the employer may test applicants during the hiring process as long as they maintain consistency in testing everyone. Employers may also test current employees based on reasonable suspicion, to confirm ongoing fitness for duty, and to follow-up on employees who have entered into drug rehab programs since the beginning of their employment with the company.

As an attorney who practices worker’s compensation law, I come across questions of drug testing when an employee feels their claim has been falsely denied, or when an employer feels that a claim should be denied. Because the worker’s compensation system exists to find middle ground which is fair to both, every situation is unique, but they’re all worth examining against the law to make sure that the law is being upheld.

For example, in some cases the employer may not follow the prescribed procedures for collecting the material for analysis of drug usage, or the sample may be mislabeled or otherwise contaminated. In this kind of situation, where an employee is determined to have a “false positive” for drug use, that person is entitled to a confirmation test. If this is not performed, and they are subsequently fired or denied worker’s compensation benefits, they may have a claim against the employer.

On the other side, if an employer tests an employee in a worker’s compensation claim, but later finds out that the employee lied on the test paperwork or used illicit procedures to “beat” the test and fraudulently receive worker’s compensation benefits, that employer is entitled to fire the employee, possibly recoup expenses through civil litigation, and report the person to the Bureau of Worker’s Compensation Fraud for prosecution. Committing worker’s compensation fraud is a 1st degree misdemeanor under Florida state law.

One exception which can create a grey area in a worker’s compensation claim is a positive result for prescription medication in the drug test. Under FL law, the employer must inform the person being tested as to what drugs will be evaluated by the test, and the person has to reveal when submitting to the test what medication, vitamins, or other substances they might be taking. This communication creates an opportunity on both sides to be forthcoming with information. The issue may arise if someone from another state with different prescription medication laws is involved in a worker’s compensation claim in Florida. If their prescription is legal under their own state statutes, but illegal under Florida’s, what will be the outcome of evaluating their worker’s compensation claim? A perfect example of this is the medicinal marijuana laws which have been enacted in 16 states and Washington DC. Currently under Florida law, a person prescribed medicinal marijuana in another state could be denied a worker’s compensation claim filed in Florida. To my knowledge, this has yet to be an issue, but we can expect to see it arise in the future, similar to the way that interstate laws about other prescription medications have been addressed. The Council of State Governments Knowledge Center has reviewed several interstate drug laws, and discusses how doctors and law enforcement are beginning to work together to prevent misuse of prescription medications. The questions are posed: who is abusing interstate prescription laws, and who has medically valid claims? What rights will Florida have to protect their own citizens’ rights in the face of the rights of citizens of other states?

On our own turf, Gov. Rick Scott recently signed an executive order submitting state employees to randomized drug testing, which many consider questionable under the Drug Free Workplace statute. Typically, employers must have documented reasonable suspicion in order to drug-test an employee unless the person is in a safety-sensitive position; specifically a position where they may be a risk to public safety. The American Civil Liberties Union (ACLU) is protesting the constitutionality of the order, which was scheduled to go into effect last week, and it will be interesting to keep watch on whatever developments unfold in upcoming months.

The bottom line is: workers have the right to a safe workplace, balanced with the responsibility to perform the duties they were hired for to the best of their abilities. Employers have an obligation to provide a workplace that is safe and fair. If these rights and responsibilities come into conflict or question, especially in the case of someone’s injury, legal guidance is necessary to sort through the details. Usually, the issue of drug testing in workers compensation claims is straightforward under the law, but there are times when the complications of grey areas of law create a potential violation of someone’s rights – whether it’s the employer or the employee. In all cases, upholding the rights of each under the law is the most critical thing.

Posted in: Compromise, current events, Workers' comp by admin 4 Comments , , , ,

The Playstation Network Crash: Revising Class Actions

Published at: 05:05 pm - Monday May 16 2011
Salim Pujani, Attorney

Salim Pujani, Attorney

It’s now been a few weeks since the Sony Playstation Network (PSN) was shut down by Sony Online Entertainment because of unknown hackers’ invasion of nearly 75 million customers’ private information, including names, addresses, birthdays, usernames, passwords and possibly credit card numbers. To many PSN users, it probably seems closer to a year. As expected, lawsuits are starting to emerge, and with nearly 75 million customers’ private data compromised, class action lawsuits will likely be filed. Ironically, the recent U.S. Supreme Court decision, AT&T Mobility LLC. v. Concepcion, 2011 U.S. Lexis 3367 (April 27, 2011), could have theoretically prevented these lawsuits.

On April 27, 2011, the Supreme Court, in AT&T, decided in a 5-4 vote that companies can enforce contracts that restrict customers and/or employees from coming together and suing a company in a class action lawsuit. The Court reasoned that the Federal Arbitration Act of 1925 preempts state laws that prohibit the enforcement of contracts that include language that prevents parties from filing a class action lawsuit. It is no surprise that the Court favored the Federal Arbitration Act over class actions, however, at the same time, the Court is effectively restricting people’s access to courts. For example, in a large-scale situation, such as the crashing of the Playstation Network, which affects a lot of different people—but each person’s monetary damages are only minimal—it is unlikely that an individual will be able to find adequate representation, without filing a class action lawsuit. Justice Breyer, dissenting in AT&T, acknowledged that “requiring consumers to arbitrate disputes individually could deprive them of their claims because the suits would not be worth enough to attract a lawyer.”

In the end, this decision restricts consumers’ rights as it is another win for corporations. The next time you sign up with a cell phone provider, apply for a loan or even accept your next job, double check the contract and agreement, because you may be waiving your right to filing a class action lawsuit.

Posted in: class action lawsuits, Litigation, Playstation Network by admin 1 Comment , ,

Wisconsin Budget Crisis: A Lesson in Economics and Legal Rights

Published at: 07:04 pm - Friday April 08 2011
Salim Punjani

Salim Punjani, Attorney

I have been following the protests in Wisconsin regarding the collective bargaining rights of public sector employees. A Los Angeles Times article caught my attention last week after it discussed an appearance by Michael Moore’s on the Colbert Report regarding these same issues. Political beliefs and satirical hosting aside, Moore’s guest spot at Mr. Colbert’s interview desk turned into an interesting debate about corporate tax breaks, the free market, and the rights of public sector workers.

First, a recap of the Wisconsin debate. Wisconsin’s budget is in the red, like many others in America, so the legislature developed and debated a bill that would cut benefits and collective bargaining rights for public sector employees, including teachers and government workers; however, firefighters and police officers are exempt. The democrats in the Wisconsin State Assembly tried to block the measure by refusing to appear in person, but republican lawmakers found a loop hole and passed the bill. It is still being debated in the legal system. After a Dane County Judge basically barred the enforcement of the law, Attorney General J.B. Van Hollen has asked the Wisconsin’s Supreme Court to throw out the lower court’s ruling.

The law basically says to a public sector worker, “in order to make up for a budget shortfall, we need to cut your benefits or we need to raise your taxes in order to pay for them.” Governor Scott Walker suggests that by requiring state workers to contribute approximately 6 percent of their salaries towards pensions and making it the state employees’ responsibility to pay about 13 percent of their health insurance costs, it would save the state approximately $30 million this year and $300 million in the next two years. Without taking sides, I decided to look at the economic and legal implications of the law.

On one hand, the bill tackles an issue that needs to be dealt with: governments need money to provide for many services and programs, but Wisconsin’s supply is dwindling. In addition to the forced choice between taxation and benefit cuts for public sector workers, the protestors cite the fact that corporations are receiving tax breaks. This is an obvious point of contention, but if you think about the fact that lower taxes could lead to job creation, it does seem like a viable option. The “trickle-down” economics theory hypothesizes that providing tax breaks and other monetary incentives to corporations will help the overall economy by creating jobs and spurring growth. While Wisconsin seems radical for taking this approach, it has worked in the past.

The other side of the debate has to do with general legal protections, not limited to the virtual abolition of benefits and bargaining rights. The public sector workers are trying to fight for their benefits against lawmakers who believe that the state’s budget is being drained by them. Moore said during his appearance that “the money’s all there.” The argument forced a stalemate of discussion in Wisconsin’s government, which the democrats thought might halt the bill, but it was later passed.

But it raises the question: how can a public sector employee protect his or her rights if the state’s legislature can pass a bill without the input of the person meant to represent them? This story set startling precedents in government power, no matter whose side you agree with.

What do you think about the issue? Did the government overstep their boundaries, or did they have to do so in order to protect the state’s budget? Should unions and public sector workers maintain their power even in times of economic distress? Leave a comment and let me know what you think.

Posted in: collective bargaining, Compromise, current events, Unions by admin Comments Off , ,

Litigation and NFL Contract Disputes

Published at: 03:03 pm - Tuesday March 22 2011

Salim Punjani

Salim Punjani, Workers Compensation Attorney

Nine billion dollars. That’s the number nine followed by nine more zeroes. That’s the total revenue that the National Football League made last year. That number is what led to the decertification of the NFLPA and what could lead to no football next season.

As written in Dan Smith’s blog, the trouble between the players and the owners is how to divide the $9 billion dollars in revenue. The owners wanted to renegotiate their contracts with major television broadcasters, such as DirecTV, CBS, Fox, and NBC all the while extending the length of the season from 16 games to 18 games. The players don’t want this to happen, but the owners do. More games equal more money.

High profile football players such as Peyton Manning, Tom Brady, and Drew Brees are just three of the ten players that have been named as plaintiffs in the antitrust lawsuit against the NFL. On April 6th, Brees and his cohorts will go before a judge Susan Richard Nelson of Minnesota to try and prevent the owners from locking out the players for the 2011 – 2012 season.

Thus far, the public perception of the NFL lockout hasn’t really been good for anybody, but in my eyes the players are slight winning the favor of the public more than the owners are. The players want to play. There is no question about that, but they don’t want two extra games added on to the season and they want their fair share of the $9 billion dollar industry. If the judge rules in the player’s favor then the 2011 season will begin as planned. If this happens the players can also continue to sue their owners while still getting paid. If the judge rules in the owner’s favor however, there will be no 2011 season and the players will not get paid.

Incoming rookies such as Cam Newton are also being affected by the lockout. Currently, in-coming rookies are required to sign with a team for no shorter than six years, but do not have a salary cap. If there is a lockout though, there would be a salary cap for in-coming rookies, but would only be required to sign with a team for 4 years before becoming a free agent.

It’s been a tough spot for rookies because the NFLPA has said—then denied it said—that high profile draft picks who are invited to the 2011 draft to not attend. It puts the rookies in a bind because they want to be loyal to their future co-workers and teammates, but every college football player dreams of flying to New York to signed with an NFL team and shake Roger Goodell’s hand.

Ultimately, having no 2011 season is not good for anybody. Hundreds of millions of dollars is likely to be lost already because the NFL and the player’s association failed to come to an agreement before the collective bargaining agreement expired.

When dealing in litigation it’s important to remember not only your own needs, but also the needs of the person sitting across the table from you. No agreement will be made without compromises from both parties. Whether it is mediation or an actual trial, there needs to be some sort of resolution to a claim that affects so many people.

Posted in: Compromise, Contracts, Litigation, Mediation, NFL by admin Comments Off , , ,

NFL Brain Trauma Reflects Workers’ Comp Injuries

Published at: 06:03 pm - Thursday March 17 2011
Salim Punjani

Salim Punjani, Workers Compensation Attorney

It’s Sunday in mid September and you know what that means—football. Each fall thousands of people pack stadiums and millions of Americans gather around their television sets to dazzle at LaDainian Tomlinson’s agility, marvel at Ray Lewis’ strength and speed, and to watch Tom Brady throw a 60 yard pass as his hair flaps in the wind. More recently though, the NFL is getting more attention for the lasting effects that the game has on its players, particularly concussions.

It would be naive to say that football has not always been a violent sport. Since its inception the safety of its players has always been a concern. In fact, in 1905, 18 players died and 159 were critically injured, which prompted President Theodore Roosevelt to demand that the league make the game safer. Thus, stringent rules such as “roughing the passer” and the requirement to wear pads and a helmet were put into place to protect players, but as technology has evolved so has the game.

Tacklers, instead of hitting with their chest plate and wrapping an opponent with their arms, is more often than not, putting their heads down and leading with their helmet. Not only is this the improper way to tackle, but it can also lead to serious injuries that, if not treated properly, can last a life time.

While the league has focused on concussions and brain damage that are caused by helmet-to-helmet hits, it is important to know that concussions can be caused by any blunt hit to the head or by having your head jerked violently, such as what could happen in a car crash. If you’re working on the job and you get injured it’s important that you consult your doctor right away if any of these symptoms persist: headaches, confusion, amnesia, ringing in the ears, nausea, slurred speech, and fatigue are all symptoms of a concussion and should not be ignored. Most people who get concussions don’t even realize it because the symptoms may not appear until days later.

According to Section 440.015 of the Florida Statutes, the purpose of Florida workers’ compensation law is to assure a quick and efficient delivery of disability and medical benefits should an employee get injured on the job. Just like knowing how to tackle properly, it’s important to know how to file a workers’ compensation claim should you get injured while working. It needs to be done within 30 days of the existing date of the injury otherwise your claim could be denied.

The probability of receiving life long treatment to an on site injury varies based on the extent and severity of the injury, but it is plausible if you’re not able to perform your regular duties. Ex-football players who are now battling with depression, memory loss, and sudden bouts of rage are speaking out against the inherent brutal nature of the sport, but it’s a reminder to anyone that any forced trauma to the head should be dealt with as soon as possible because the long-term effects are not worth the risk.

Posted in: Brain injury, Life long injury, NFL, Workers' comp by admin 1 Comment , , , ,