© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, … · Other factors: “trickle up” impact,...
Transcript of © 2016, Ogletree, Deakins, Nash, Smoak & Stewart, … · Other factors: “trickle up” impact,...
Title of Presentation
Hot Topics in Healthcare Employment Law
Presented by: Joseph T. Clees, Esq.
© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Increased volume of
legislation and regulation at
the national, state and local
levels, including ballot
referenda.
Title VII of the Civil Rights Act (“Title VII”)
American with Disabilities Act (“ADA”)
Age Discrimination in Employment Act (“ADEA”)
Family Medical Leave Act (“FMLA”)
National Labor Relations Act (”NLRA”)
Fair Labor Standards Act (“FLSA”)
Occupation Health and Safety Act (“OSHA”)
Employee Retirement Income Savings Act (“ERISA”)
Federal Insurance Contributions (“FICA”)
Federal Unemployment Tax Act (“FUTA”)
Section 1981 of the Civil Rights Act of 1966 (“Section
1981”)
Federal Employment Statutes
On May 18, 2016, DOL issued new FLSA regulations
that significantly increase the pay threshold for salaried
employee exemptions effective December 1, 2016
Executive, Administratrative, Professional
Current: at least $455 per week / $23,660 annually
12/1/2016: at least $913 per week / $47,476 annually
Highly Compensated Employee
Current: at least $100,000 total annual compensation
12/1/2016: at least $134,004 total annual compensation
New Federal Overtime Pay Exemption Regulations
New Federal Overtime Pay Exemption Regulations
Salary threshold will be more than double the current level
effective December 1, 2016
Up to 10% of the new salary threshold can be satisfied by
nondiscretionary bonus, commissions, incentive pay
Salary thresholds will be reviewed again and adjusted every three
years, next adjustment to take effect January 1, 2020
DOL will post new salary thresholds 150 days in advance of effective
date, so next adjustment will be posted by August 1, 2019
DOL intends to publish a Request for Information seeking
information about use of electronic devices by OT-protected
employees outside of scheduled work hours
New Federal Overtime Pay Exemption Regulations
Practical impact for employers
Opportunity to audit and reclassify positions at risk to avoid
“admission of liability”
Evaluate jobs likely to be impacted and consider salary
increase (work backwards from W-2)
Consider reclassification if increasing minimum salary to
$47,476 not an option
Other factors: “trickle up” impact, morale, etc.
Wage and Hour Litigation
Over last five years, wage and hour lawsuits have
outpaced all other employment lawsuits
Some Recent Settlements of Wage & Hour Collective
Actions
Cornn v. United Parcel Service (N.D.CA)($87 million)
Rosenberg v. Int’l Business Machines (W.D.CA) ($65 million)
In Re Albertson’s Inc. (D. Idaho)($53 million)
Under current administration, Wage and Hour Division
of DOL incredibly active
Mobile Technology and
Off-the-Clock Work Off-the-clock Claims
Mobile Technology provides Proof
Issues – compensable vs. de minimus
Smart Phone connectivity
24/7 email required (including scheduling)
Remote work on laptops or through server (paperwork)
Time spent waiting for systems to start
Meta data on document management systems and Word/Excel
programs
WHD/DOL gathering information
Religious Accommodation
EEOC v. Abercrombie & Fitch (S.Ct. 2015) Facts – “Look Policy” vs. religious head scarf
Some Increase in Accommodation Requests
post Abercrombie
Defining a “Sincerely Held Religious Belief”
Lower Burden Standard than ADA
Religious Accommodation -
Immunization Programs
State Laws on Influenza vs. Other Infectious
Diseases
Mandatory vs. Voluntary
Religious Accommodation Need for Balancing and Fact Specific Analysis
Best Practices
Remember Medical/Disability Issues
Sexual Orientation
Discrimination – Other Issues
OSHA Guide to Restroom Access for Transgender Workers Transitioning Employees use bathroom of choice
State Law Conflicts?
Best Practices
Dress Code
Personnel Records and Systems
Customer/Co-Worker Relationships
Expansive Interpretations of “Joint Employer”
Browning-Ferris Industries of California, Inc. (NLRB
decision issued Aug. 27, 2015)
Modified joint employer test under National Labor Relations
Act, which previously required “direct and immediate”
control over terms and conditions of employment
Joint employment can exist even if the right to control is
attenuated or indirect, and regardless of whether the right is
actually exercised
Section 7 rights to engage protected
concerted activity.
Applies to all employees
Social media/termination examples.
New Requirements from NLRB
Handbook Reviews – New Requirements from NLRB
Longstanding policies now in employee handbooks
should be reviewed:
Confidentiality provisions
Conduct rules
Interaction with third parties (e.g., media)
Conflicts of interest
Social media
Off-duty access
At will disclaimers
Workplace decorum
Ambush election statistics Year 1
4.2% increase - 2,792
Healthcare - 372
Transportation - 195
Construction - 188
Manufacturing - 1512
Average 25 Days from Petition to Election
day
28
Organizing Tactics and Issues
SALTS and Ebola
Staffing, California Law, staffing studies Staffing Committees (VOICE)
No mandatory OT
Guaranteed Shifts/No Cancellation
No floating
Wages, pensions and cost-free insurance
The standard Lutheran Heritage
Access, Solicitation/Distribution and Purple
Communication (email, other?)
Protected Concerted Activity/loss of protection
Confidentiality and conduct
Social Media regulation
Workplace investigations and Banner Health
Whole Foods and Flagstaff MC (recording)
BFI (joint employer) and Miller & Anderson
What is next?
Use of Severance Agreements – New Developments
Longstanding provisions now under attack by
administrative agencies
Litigation premised on employer interference with
employees’ right to communicate with EEOC, SEC,
NLRB and other administrative agencies
Use of Severance Agreements – New Developments
Longstanding policies now under attack by
administrative agencies:
Duty to cooperate
Non-disparagement
Non-disclosure requirements
General release language
Broad covenant not to sue
Certification of no charge filings
Cooperation prohibition (no cooperation with coworkers)
No-rehire provisions
Sexual Orientation /Transgender Issues
Title VII of Civil Rights Act
Prohibits discrimination because of an individual’s sex
EEOC Interpretation
December 2012: EEOC adopts Strategic Enforcement Plan
that includes coverage of lesbian, gay, bisexual and
transgender individuals under Title VII’s sex discrimination
provisions
March 1, 2016: EEOC publishes Fact Sheet listing recent
EEOC litigation regarding Title VII and LGBT-related
discrimination
EEOC Wellness Program Rules
On May 16, 2016, the EEOC issued final rules
on employer wellness programs, effective 2017 Wellness program cannot offer financial incentives in excess of 30%
of total cost of self-only coverage
30% limit does not apply to smoking cessation programs that merely
ask about tobacco use, but do apply to programs that include a medical
exam
Under ADA, wellness program should be provided to all employees
and provide reasonable accommodation to employees with disabilities
absent undue hardship
Notice requirements to participating employees; restrictions on
disclosure of information obtained
Executive Orders Applicable to Federal Contractors
Executive Order 13706 (Sept. 7, 2015) Requires certain federal contractors have to provide employees
with up to 7 days of paid sick leave per year (for covered
contracts entered into on or after January 1, 2017)
Executive Order 13658 (Feb. 12, 2014) Creates minimum wage for employees of federal contractors
that increases annually, $10.15 per hour for 2016
Physician Issues
Covenants not to Compete
Human Resource Oversight of Employed Physicians
Other Issues
The Future….
Federal minimum wage increase
Paid family leave
Right to work
EEOC - background, salary, unemployment
discrimination
Weingarten rights to non-union
employees
1. Appeared on Newlywed Game repeatedly whacking
husband on the head with cards.
2. Appeared on Survivor swinging from a tree limb.
3. Appeared on Price
Is Right spinning the
Big Wheel for prizes.
What Happened Next?