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 complexity and

conflict of regulation.

Increased volume of

legislation and regulation at

the national, state and local

levels, including ballot

referenda.

Increased velocity of change,

yet overarching uncertainty,

created by regulators.

Increased economic stakes and

“class”ification of claims.

Increased zeal and antagonism

by regulators.

Increasingly litigation savvy

and proactive employees.

Increasing individualized

analysis of employment issues.

Increased scrutiny of corporate

and HR work product by

regulators.

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

New Frontier: E-Signature

New NLRB Election Rules

Effective April 14, 2015

“Quickie” Election Rules

“Ambush” Election Rules

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

Ambush election statistics Year 1

29

Organizing in Healthcare

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

Significant (Recent)

DECISIONS

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

Arizona Developments

Recreational Marijuana

Minimum wage increase

The Future….

Federal minimum wage increase

Paid family leave

Right to work

EEOC - background, salary, unemployment

discrimination

Weingarten rights to non-union

employees

Desperate Housewife Alleges Wrongful Termination

1. Nicollette Sheridan 2. Eva Longoria

3. Marcia Cross 4. Terry Hatcher

Disabled Postal Worker Goes Hollywood

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?