As health care entities gear up for this new year, here are some key “to-dos” organizations should consider in order to minimize the risk of employment-related litigation across several fronts:
- Audit your wage-and-hour practices, especially to ensure that exempt employees are classified properly and that non-exempt employees are paid for all time worked, as well as overtime. Recently, several class action lawsuits have been filed against Pennsylvania hospitals, claiming that the plaintiffs were required to perform work during unpaid meal breaks, and other plaintiffs’ class action lawsuits under the Fair Labor Standards Act continue to make the news. Lawsuits under the Fair Labor Standards Act can be very costly for employers – prevailing plaintiffs can collect back pay for two or three years (the latter for a “willful violation”), liquidated damages and their attorneys’ fees. For obvious reasons, wage-and-hour class actions are very attractive to plaintiffs’ lawyers.
- Review any relationships with independent contractors to evaluate whether those individuals are classified properly or whether they should be classified as employees. Examples in health care can include nurses who provide services to patients in their home, professionals with their own practices such as doctors, legal counsel, and accountants, among other staffing or service classifications. If a worker who is actually an employee is treated as an independent contractor, the organization could face tax penalties, liability for failure to pay overtime (if applicable), liability for failure to provide benefits, and be responsible for unemployment compensation.
- Make sure your organization has considered how a potential pandemic of the H1N1 virus could affect the operations and finances of your organization and those of your suppliers, vendors and contractors. Some organizations have required employees (or at least those with patient contact) to receive the influenza vaccine and the H1N1 vaccine. If your organization takes that approach, be mindful of your employees’ rights to accommodations for religious objections or for disabilities. You also should estimate the effect of key employee absences; cross-train employees to help maintain vital functions; plan to use e-mail and teleconferencing in place of staff meetings, where possible, to minimize face-to-face contact; and revise sick-leave policies to reflect the new realities a pandemic can bring. To help allay any anxiety your employees and facility visitors may have about H1N1, you also should maintain up-to-date pandemic information from reliable sources; provide enhanced means for facility visitors to help maintain a more sterile environment and to reduce the spread of the flu through good hygiene; and be sure your employees are prepared to handle the challenges of a pandemic.
- With 41 Republican senators, passage of the Employee Free Choice Act could be delayed, and compromise could be much more difficult. Nonetheless, many unions have made organizing in the health care industry a priority, and current economic conditions have created added vulnerabilities. This can be a tremendous challenge to health care employers, particularly considering that, even under the current system, unions won more than 74 percent of representation elections held in the health care industry in 2008. In addition to increased union-organizing activity, many attorneys expect to see increased litigation surrounding union organizing, such as litigation over what constitutes an appropriate unit for collective bargaining purposes in multi-site health care systems. In the health care industry, however, many arguments normally within the employer’s arsenal are taken away because the National Labor Relations Board has already determined that there are eight presumptively appropriate units for purposes of collective bargaining: (1) physicians, (2) registered nurses, (3) other professional employees, (4) technical employees, (5) business office clerical employees, (6) service and maintenance employees, (7) either maintenance department employees or stationary engineers, and (8) security guards. Moreover, in those units that tend to have a relatively small number of employees – such as maintenance workers or security guards – a skilled union organizer can collect majority support through signed authorization cards in a matter of weeks, if not days. Employers should review existing communication systems to ensure that employees have a way of raising concerns, and train managers to be effective in listening to and addressing those concerns. As a proactive response, organizations should assertively use surveys, feedback systems, and audits teams to take the pulse of their employees. They also should educate managers on the risks of union representation, and how to respond quickly at the first hint of any organizing campaign.
- Develop a policy concerning employee use of social media, such as blogs, Facebook, MySpace and the like. The policy should address whether employees can use such media while at work or on organization computers, and should remind employees not to post anything that is harassing, defamatory, offensive or contains confidential information about the organization and/or patients or clients. Health care organizations ideally should already have a strong policy on computer and network use in order to help protect the security and integrity of patient health records; see Pepper’s related articles: “What's Your Company's Biggest Potential Security Threat? Your Employees,” “Social Networking Sites Present Legal Risks for Health Care Providers,” and “The Stimulus Package: Creating a Nationwide Health Information Technology Infrastructure while Protecting Patient Privacy and Security.”
- The Genetic Information Nondiscrimination Act (GINA), designed to protect Americans against discrimination based on their genetic information when it comes to health insurance and employment, is now in effect. So now is the time to make sure that genetic information is listed as a protected class in all relevant policies, such as your non-discrimination and anti-harassment policies.
- If you are a federal government contractor, make sure you are in compliance with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP), which require contractors that have $50,000 or more in government contracts and 50 or more employees to have an affirmative action plan. The Obama administration requested an increase in the 2010 budget of the OFCCP from approximately $82 million to more than $109 million, as well as a significant increase in employees, and we would expect more aggressive enforcement activity. The beginning of the year is an opportune time to review recruiting and promotion practices to maximize the presence of females and minorities in the applicant pool.
- Review your disability leave policies to ensure that they do not contain inflexible provisions providing for automatic termination after an employee has been out for a certain period of time. The EEOC has recently been challenging those types of policies, taking the position that inflexible leave policies violate the Americans with Disabilities Act because they do not contemplate engaging in the interactive process to determine if additional leave or some other reasonable accommodation might be warranted.
- In conjunction with the amendments to the Americans with Disabilities Act and the anticipated final regulations, consider having a policy that advises employees who need a reasonable accommodation to request one. In addition, make sure that managers and human resources personnel are trained in how to engage in the interactive process with employees who request reasonable accommodations.
- Remember to document and communicate to employees any performance problems. Given the economy and the number of unemployed, we anticipate an increase in employment discrimination cases. Often, the best defense in a case brought by an employee who was terminated for poor performance is a strong record reflecting that the employer advised the employee of his or her performance problems, and afforded the employee opportunities to improve. In addition, be careful to review every adverse employment decision for consistency with past decisions affecting similarly situated employees, to minimize the risk that an employee will able to prove that other employees were treated more favorably.
And, finally, remember that, regardless of the industry, employees who feel they are treated fairly and with respect are less likely to bring claims against their employers.
The experienced professionals at Pepper Hamilton can help health care organizations plan or implement any of these ten tips, or other initiatives as needed, in order to minimize the chances of liability issues resulting from their dealings with their employees. For more information, please contact the author.
Susan K. Lessack
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.