Florida Health Care Association

2013 Annual Conference

The Westin Diplomat Resort & Spa

Session #12 Journey Through the Complex World of Labor/Employment Law

Monday, August 5 10:45 a.m. to 12:45 p.m.

Regency 2

Upon completion of this presentation, the learner will be able to:

comprehend recent developments in employment law such as discrimination and

retaliation under various federal and state statutes;

understand the current legal issues surrounding social media use in the workplace;

comply with new federal and state agency initiatives related to employment law; and

formulate personnel policies and practices that comply with current legislation and agency

views.

Seminar Description:

Prepare to travel through the complex and rapidly changing world of labor and employment law!

Exciting destinations will include a tour of issues surrounding social media and other workplace

employment policies that have resulted in liability for employers, as well as recent twists and turns

of employment law topics such as discrimination and retaliation. The flight will also highlight

alarming federal agency initiatives of the NLRB an

-will employment provisions, criminal background checks, constraints on investigations

into employee complaints, plus union dues checkoff and union negotiation over discipline issues.

During the journey, explore the preventive approach to labor relations and receive practical human

resource and bargaining tips, with an interactive style of presentation.

Presenter Bio(s):

Mike Miller, Partner with Kunkel Miller & Hament, has served as Labor Counsel to Florida Health

Care Association since 1984, representing member companies in labor and employment matters.

He also serves as General Counsel to the Florida Association of Professional Employer

Organizations. He is Board Certified in Labor and Employment law and has been rated "AV" and

-

attorneys who have attained a high degree of peer recognition and professional achievement.

John Hament is a partner in the law firm of Kunkel Miller & Hament. He advises and represents

employers in matters relating to discrimination, retaliation, collective bargaining negotiations,

arbitrations, mediations, union organizing campaigns, unfair labor practices, strikes, wage and hour

law, OSHA and administrative state and federal court proceedings. He is a member of the Florida

Bar and is Board Certified in Labor and Employment Law.

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1

for

Florida Health Care Association2013 Annual Conference & Trade Show

August 5, 2013

Presented byMichael R. MillerJohn M. Hament

Gail E. FarbMagdalene Center

Suite 20215438 N. Florida Avenue

TAMPA, FL 33613(813) 963-7736

Orange Professional CentreSuite 200

235 N. Orange AvenueSARASOTA, FL 34236

(941) 365-6006

SunTrust Bank BuildingSuite 405

12751 New Brittany Blvd.FORT MYERS, FL 33907

(239) 278-1600SATELLITE OFFICE

230 Water StreetP.O. Box 865

APALACHICOLA, FL 32329(850) 653-1600

WWW.KMHLABORLAW.COMEmail: Info@KMHLABORLAW.COM

No Juries Allowed On Board!

• Waiver of jury trial in application (Wyndham Worldwide)Clear wordingProminent placementRight to consult counsel

• Pilot AdvisoryUse jury trial waiver in applicationAlternative - enter into mandatory arbitration agreement for implied waiver

• Avoidance of jury trial to minimize uncertainty of outcome

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EEOC Guidance on criminal background checks

• Consider several factorsNature and gravity of offenseTime lapseNature of job sought

• To prevent “disparate impact” on males or minorities.

• Individualized assessment of candidates

EEOC lawsuit against Dollar General

• Automatic bar against employment based on certain convictions

• Automatically revoked offer based on old drug conviction

• Did not consider applicant’s post-conviction employment record

• Automatically revoked offer based on conviction erroneously reflected in report

• EEOC alleged “discriminatory impact”: blacks rejected at a higher percentage rate than non-blacks

EEOC lawsuit against BMW

• BMW hired new subcontractor and required existing employees to undergo background check

• Disqualified existing employees based on old convictions

• Did not consider they had satisfactorily performed their jobs for years

• Alleged “discriminatory impact”: employee pool was about 55% black, but black employees were screened out at 80% rate

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Florida laws supporting or requiring criminal checks

• Section 768.096, Florida Statutes: defense to negligent hiring claims encourages background checks

Florida laws supporting or requiring criminal checks

• Florida laws pertaining to certain health care workers require background checks (“Level 2”)

Automatic disqualification of candidates awaiting final disposition; found guilty or pleaded to certain offenses; or adjudicated delinquent of certain offenses (§§ 408.809(4); 435.04(2))

AHCA/Department of Health reviews background check and makes final decision, not employer (§ 435.07)

Florida laws supporting or requiring criminal checks

• Florida laws pertaining to certain health care workers require background checks

AHCA/DOH decides whether to grant exemption (§§ 435.06(2)(a); 435.07)

AHCA/DOH considers many factors in deciding whether to grant exemption (§§ 435.07(3)(a); Fla. Admin. Code § 59A-35.090(5))

Certain convictions permanently disqualify candidates (§ 435.07(4)(b))

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Tension between EEOC Guidance and Florida law

• EEOC: employer not shielded from liability because it adopted background check to comply with state law

Tension between EEOC Guidance and Florida law

• Pilot Advisory

Comply with state and federal laws/regulations

Decide what specific positions require criminal check and why

Decide what specific offenses disqualify a candidate and why

Develop written policy/train employees

Consider giving disqualified applicant opportunity to provide relevant information

Pilot Errors in I-9 Protocols May Be Costly

• I-9 Document Abuse Cases Are Expensive

Advantage Home Care, LLC (NJ home health agency)

Required lawful permanent residents to provide more or different documents than U.S. citizens

Settled: $1,633 back pay to charging party, back pay to other potential victims, $46,575 civil penalties to U.S., anti-discriminatory training of HR staff, 3 years reporting and compliance monitoring by DOJ

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Pilot Errors in I-9 Protocols May Be CostlyHolliswood Hospital (NY)

Required lawful permanent residents to provide more or different documents than U.S. citizens

Settled: $1,182 back pay, $5,000 civil penalties to U.S., anti-discriminatory training of HR staff, 18 mos. reporting and compliance monitoring by DOJ

University of California San Diego Medical Center (CA)

Requested non-citizen employees to provide specific documentation in verification and reverification processes

Settled: $115,000 civil penalties, implementation of non-discriminatory practices

Pilot Errors in I-9 Protocols May Be Costly

ComForcare In-Home Care & Senior Services (OR)

Failed to provide naturalized citizen employee with written tentative nonconfirmation in E-Verify

Demanded employee and non-U.S. citizens produce specific List A documents

Settled: $524.96 back pay, $1,210 civil penalties to U.S., anti-discriminatory training of HR staff, 18 mos. reporting and compliance monitoring by DOJ

Pilot Errors in I-9 Protocols May Be Costly

• Prohibited Discriminatory Acts by Immigration and Nationality Act (INA)

Citizenship or immigration status discrimination

National origin discrimination

Unfair documentary practices during Form I-9 process (or document abuse)

Retaliation

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Pilot Errors in I-9 Protocols May Be Costly• To Avoid I-9 Document Abuse:

Do Not request employees produce more documents than required (only require one from List A or one from both Lists B and C)

Do Not request a particular document such as “green card” (employee may choose from Lists)

Do Not reject documents that reasonably appear to be genuine and relate to employee presenting them

Do Not treat different groups of applicants differently

Comply to Avoid Penalties

• Civil penalties: $110 to $1,100 for each violation for failure to properly complete, retain, or make available for inspection

• Employee completes Section 1 after accepts offer of employment and no later than first day of employment

• Employer completes Section 2 within 3 business days after employment begins (employee’s Day 4), unless hired for fewer than 3 days

Comply to Avoid Penalties

• Do not require Social Security number on I-9 unless participate in E-Verify

• Retain completed I-9s for later of 3 years after hire or 1 year after employment ends (electronic storage permitted)

• May copy documents presented by employees (must keep for all employees, if keep at all)

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Comply to Avoid Penalties

• Since May 7, 2013, use new 2-page I-9 for all new hires and reverification

Not needed for existing employees

Added optional extra data fields - employee’s telephone number and email addresses

Allows foreign passport information

• Spanish version may be used only in Puerto Rico

Pilot Advisory:

• Train personnel on current I-9 requirements

• Use current I-9 form

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Social Media – Adverse Personnel Actions

• Employee social media activity may be protected by National Labor Relations Act (NLRA)

• NLRA applies to union and non-union workplaces

• NLRB focus on: adverse personnel actions and personnel policies

• “Protected Concerted Activity” definition

Social Media – Adverse Personnel Actions

• Examples of protected concerted activity:

Facebook complaint about supervisor and working conditions (Bettie Page Clothing)

Facebook discussion of complaint of co-worker (Hispanics United of Buffalo)

Facebook posting attacking manager that included profanity (Pier 66)

Facebook discussion deemed “concerted” where another employee hit “like” (Triple Play Sports Bar & Grille)

Social Media – Adverse Personnel Actions

• Examples of not protected concerted activity:

Facebook posting that employer did not appreciate its employees and was tyrannical was not “concerted” because individual gripes (Report of NLRB Acting General Counsel 8/18/2011)

Facebook posting where employee complained about co-worker overcharging customers for drinks not “protected” because only tangentially related to terms and conditions (Report of NLRB Acting General Counsel 1/24/ 2012)

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Social Media – Adverse Personnel Actions

• Examples of not protected concerted activity (cont’d):

Facebook posting by newspaper reporter employee including “you stay homicidal Tucson” was unprofessional, thus “unprotected” (Report of NLRB Acting General Counsel, 8/18/2011)

Social Media – Adverse Personnel Actions

• Pilot Advisory: Considerations before employee discipline

Individual gripe

Discussions with others, especially co-workers

Related to wages, hours, terms or conditions of employment

Union activity or legal compliance

Topic previously discussed

Policies Implicated by Social Media Use

• Policies implicated by social media use:

Social MediaNon DisparagementConfidentiality Professionalism Anti-Harassment/Discrimination Media

• Pilot Advisory:

Consider implementing Social Media PolicyNLRB issued sample social media policy (Walmart)Review other policies for legality

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At-Will Clauses Should Not Chill Unionization

• NLRB scrutinizes at-will clauses in handbooks

• NLRB develops a test

Does at-will clause explicitly restrict Section 7 activities?Could at-will clause restrict Section 7?Was at-will clause a response to union activity?Is at-will clause applied to restrict activities?

• Pilot Advisory: Identify who can alter the at-will relationship

Investigation “Gag Orders” are disfavored

• NLRB clamps down on confidentiality

• Pilot Advisory

Retrain employees who conduct investigations

Eliminate blanket confidentiality rules

NLRB found blanket requests for confidentiality violate employees’ Section 7 rights

EEOC follows NLRB’s lead

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Unpaid Internships in the Balance

• FLSA lawsuits for overtime and minimum wage filed by unpaid interns claiming to be employees increasing (Black Swan)

Costly

May not waive FLSA rights

Unpaid Internships in the Balance

• Internship similar to training that would be given in school

• Internship experience for benefit of intern

• Intern does not displace regular employees, but works under close observation of a regular employee

DOL’s test to see if unpaid intern is an employee:All six elements must be satisfied

• Employer provides training and derives no immediate advantage

• Intern not necessarily entitled to a job at the conclusion of the internship

• Mutual understanding that intern not entitled to wages

Unpaid Internships in the Balance

• In June 2013, New York federal court (Black Swan case) applied these factors to determine that unpaid interns were employees

However, unlike the DOL, the court evaluated facts/factors based on the totality of the circumstances.

• Pilot Advisory: Employers should review their internship programs

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Wind Shear Ahead in Wellness Programs?

• Affordable Care Act (ACA) guidelines regarding nondiscrimination for wellness programs

• ADA and ADEA may apply

• Pilot Advisory

Evaluate effects of rewards and incentives on individual employees

Provide alternative standards for employees who do not meet health goals

Nursing Mothers Without Privacy May Claim Retaliation

• FLSA protection against retaliation and constructive discharge (Salz v. Casey’s Mktg. Co.)

• Pilot Advisory

Adopt breastfeeding policy allowing for breaksProvide private place to express breast milk, not the bathroom

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Nursing Mothers Without Privacy May Claim Retaliation

• Comply with time and space requirements for expressing breast milk (Miller v. Roche Surety & Casualty Co.)

• Lactation discrimination under Title VII’s pregnancy discrimination

• Pilot Advisory

Engage in interactive process with employee

Evaluate applicability to exempt employees, too

“Have It Your Way?”Accommodating Religion In Flight

• Failure to accommodate faith-based dress code (Fries Restaurant Management)

• Prove “undue hardship” to avoid accommodation

• Contrast quantum of accommodation required for religion versus disability

“Have It Your Way?”Accommodating Religion In Flight

• Pilot Advisory

Accommodate religious request, if no undue hardship

Review anti-discrimination, grooming/dress code and attendance policies for possible violation

Supervisor and manager training

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Flight Crew Uniform/Grooming Policies- Male vs. Female

• Dress code or grooming policy for professional environment may differentiate between genders

• Pilot Advisory

Written policy

Apply consistently

Do not impose greater burden on one gender

Use common sense and be mindful of social norms

The Passenger Is Always Right…Wrong!Discrimination Upon Demand Unlawful

• Unlawful discrimination based on customer’s request (Hurley Medical Center)

• Racial discrimination and reverse discrimination prohibited

• Prohibition against racial discrimination trumps patients’ demands (Chaney v. Plainfield Healthcare Center)

The Passenger Is Always Right…Wrong!Discrimination Upon Demand Unlawful

• Pilot Advisory

Review anti-discrimination policies

Initiate management training

Avoid discrimination based on client’s request

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Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

• INA Prohibits Citizenship Discrimination.

Employers may not treat individuals differently because are/not U.S. citizens or work authorized (unless required by law, regulation, or government contract)

Protected: U.S. citizens, recent permanent residents, temporary residents, asylees, refugees

Not protected: Permanent residents who do not apply for naturalization within 6 months of eligibility

Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

• INA Prohibits Citizenship Discrimination.

Applies from hiring process through termination

Prohibits retaliation for filing charge with OSC, participating in investigation or prosecution of a discrimination complaint, or asserting rights or the rights of another person under INA antidiscrimination provisions

Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

• Job Postings May Not Discriminate Regarding Citizenship.

Onward Healthcare, Inc. (provides traveling nurse positions in FL and thru USA)

1000s of job listings requiring U.S. citizenshipSettled: $100,000 civil penalties, INA antidiscrimination training and 3 years monitoring by DOJ

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Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

• Job Postings May Not Discriminate Regarding Citizenship

Avant Healthcare Professionals LLC (Casselberry, FL health care staffing agency)

100s of internet job postings preferring foreign-trained individuals seeking permanent resident or H1-B visa sponsorship over U.S. workers

Settled: $27,750 civil penalties, adopt nondiscriminatory policies and practices, DOJ reporting and monitoring for 3 years

Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

Pilot Advisory:

• Confirm applications and interviewers do not ask applicants whether they are U.S. citizens before making offer of employment

• May ask:Are you legally authorized to work in the United States? (Yes or No)Will you now or in the future require sponsorship for an employment visa status?

Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure

Pilot Advisory:

• Do not include language in job postings indicating hiring may be dependent upon citizenship or immigration status

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To Be (A Supervisor) Or Not To Be…That Is The Question

• Three Types of Liability for Workplace Harassment (decreasing order of difficulty to defend)

Employer strictly liable for harassing conduct of a supervisor, regardless of whether employer was aware of harassment, if harassment ended in a “tangible employment action” (i.e., termination or reassignment)

To Be (A Supervisor) Or Not To Be…That Is The Question

“Vicarious Liability” - If no tangible employment action (“hostile environment” claim), employer will be liable for supervisor’s acts unless employer can establish

it exercised reasonable care to prevent and correct any harassing behavior, and

plaintiff employee unreasonably failed to take advantage of the opportunities that the employer provided. (Faragher/Ellerth affirmative defense)

To Be (A Supervisor) Or Not To Be…That Is The Question

Employer not vicariously liable for harassing acts of a non-supervisory employee (i.e., co-worker)

Employer only liable for harassment by non-supervisory employee if employer negligent in controlling workplace conditions

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To Be (A Supervisor) Or Not To Be…That Is The Question

• Supreme Court defines “supervisor” in harassment (Vance v. Ball State University 6/24/13)

An employee is a “supervisor” for purposes of vicarious liability only if “the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decisions causing a significant change in benefits.’”

To Be (A Supervisor) Or Not To Be…That Is The Question

• Supreme Court defines “supervisor” in harassment (Vance v. Ball State University 6/24/13)

Not supervisors - Team leads, foremen, and assistant supervisors, who direct work of others but do not have the authority to change their subordinates’ employment status or terms of their employment

To Be (A Supervisor) Or Not To Be…That Is The Question

• Pilot Advisory:

Audit job descriptions and actual job responsibilities to ensure descriptions reflect actual functions of job, especially whether employees have the authority to hire, fire, promote, demote, transfer, make compensation decisions, or take other tangible employment actions

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To Be (A Supervisor) Or Not To Be…That Is The Question

• Pilot Advisory (cont’d):

In job descriptions for quasi-supervisory positions that do not have such authority, expressly state that employees holding those positions do not have such authority

Conduct anti-harassment training

Enforce anti-harassment policies

Be mindful of NLRA “supervisor” issue (e.g., LPN’s)

Employers May Now Have to BargainOver Discipline Pre-CBA

• Employers previously had right to discipline, pre-CBA, without need to bargain (Alan Richey)

Subsidizing Unions: Employers Cannot Stop Union Dues Even after CBA Expires

• Employers previously could suspend dues deductions upon CBA expiration (WKYC-TV)

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Validity of Recent Anti-Employer Board Decisions

• Supreme Court to decide legal challenge in 2013 – 2014 term (Noel Canning)

Pilot Advisory:

• Validity of NLRB since 1/2012 in the balance

• State of labor law and NLRB decisions remain uncertain

• Treat current Board decisions as valid and comply (for now).

for

Florida Health Care Association2013 Annual Conference & Trade Show

August 5, 2013

Presented byMichael R. MillerJohn M. Hament

Gail E. FarbMagdalene Center

Suite 20215438 N. Florida Avenue

TAMPA, FL 33613(813) 963-7736

Orange Professional CentreSuite 200

235 N. Orange AvenueSARASOTA, FL 34236

(941) 365-6006

SunTrust Bank BuildingSuite 405

12751 New Brittany Blvd.FORT MYERS, FL 33907

(239) 278-1600SATELLITE OFFICE

230 Water StreetP.O. Box 865

APALACHICOLA, FL 32329(850) 653-1600

WWW.KMHLABORLAW.COMEmail: Info@KMHLABORLAW.COM