May 08, 2015

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Plaintiffs in DC cell phone litigation avoid knockout punch, for now "Can cell phones cause brain cancer?" With that question, which he did not answer, Judge Weisberg of the Superior Court for the District of Columbia began a 76-page discourse on the admissibility of the testimony of eight plaintiffs' experts in the DC cell phone litigation. The Court excluded the testimony of some of the Plaintiffs' experts and did not exclude the testimony of others. The Court, based on the extensive record before him, clearly found the scientific evidence too inconclusive for any scientist to say to a reasonable degree of scientific certainty whether cell phones can cause brain cancer. The Court's opinion included this sobering plea to other branches of government to do the research necessary to figure this out: Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discover thirty or forty years from now that the early signs were pointing in the right direction. As the inconclusive results of the IARC Monograph make clear, more research is necessary to answer definitively the fundamental question of carcinogenicity. If the probability of carcinogenicity is low, but the magnitude of the potential harm is high, good public policy dictates that the risk should not be ignored. See Richard Posner, Catastrophe: Risk and Response (2004). The court recognizes, however, that policy debates of this kind do not belong in the judicial branch.
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Misclassification of employees as independent contractors under FSLA A headline in the Christian Science Monitor caught my eye the other day: "Are you an independent contractor? Probably not, Labor Department says." The article goes on to discuss a new Department of Labor ruling concerning the misclassification of employees as independent contractors. The new ruling, Administrator's Interpretation No. 2015-1, dated July 15, 2015, states in its introduction that: Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, in part reflecting larger restructuring of business organizations. When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers’ compensation. Misclassification also results in lower tax revenues for government and an uneven playing field for employers who properly classify their workers. Although independent contracting relationships can be advantageous for workers and businesses, some employees may be intentionally misclassified as a means to cut costs and avoid compliance with labor laws. This rings true, as I have seen a number of workers compensation cases in which regular employees certainly seem misclassified as 1099 independent contractors. Usually this involves construction subcontractors who hire mostly undocumented workers. This particular administrative interpretation, however, deals directly with the definition of who is an employee under the Fair Labor Standards Act, not with workers' compensation law. The courts have developed a multi-factor test to determine whether a worker is an employee or an independent contractor under the FSLA. The factors typically include: (A)...

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