Health Employment And Labor

labor and employment law for the healthcare industry

ACA Section 1557: Are You Prepared to Meet the October 16 Deadlines?

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In less than three weeks, health care providers covered by the Affordable Care Act must meet various posting obligations required by the recently issued Section 1557 regulations. Epstein Becker & Green, P.C. has written extensively about the Final Rule, including the expansive nondiscrimination standards and the upcoming October 16 deadlines. While we encourage you to review these publications for more detail, covered entities urgently need to prepare by October 16, 2016, nondiscrimination notices and taglines to be posted (1) in significant publications or communications; (2) in conspicuous physical locations where they interact with the public; and (3) in a conspicuous location on their website.

Nondiscrimination notices must include, among other things, a statement of nondiscrimination, the availability of interpretive services for patients with limited English proficiency (LEP), the availability of auxiliary aids and services for individuals with disabilities, and the availability of a grievance procedure for discrimination complaints. In small-sized publications, such as postcards and pamphlets, the notice may be shortened to include only the nondiscrimination policy.

Taglines, which are statements of the availability of language assistance services, must be posted in the same locations. In large-format publications, taglines must be posted in at least the top 15 languages for the relevant state.  In small-sized publications, taglines must be posted in the top two languages.

With the October 16th deadline quickly approaching, in addition to complying with Section 1557’s notice requirements, covered entities should develop a plan to ensure they are able to provide the services and procedures promised in the required notices. On Thursday, October 6, join us as we host a webinar to discuss these topics, address practical considerations, and recommend best practices for compliance.

Employers Under the Microscope: Is Change on the Horizon? – Attend Our Annual Briefing (NYC, Oct. 18)

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Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

EEOC Releases Retaliation Guidance – Employment Law This Week

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Featured on Employment Law This Week:  The Equal Employment Opportunity Commission (EEOC) has issued new guidance on workplace retaliation.

The EEOC’s final guidance on retaliation includes concrete examples of retaliation issues that the courts have largely agreed upon, as well as expanded definitions of “adverse action” and “causal connection.” The guidance also describes “promising practices” for reducing the possibility of retaliation, including anti-retaliation training and proactive follow-up with potential targets. Retaliation has become the most frequent form of employment claim across business sectors. The percentage of EEOC charges in this area has almost doubled since the last guidance was issued. Our colleague David Marden is interviewed.

See below for the episode and read our blog post about the guidance.

EEOC Issues Final Retaliation Guidance

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On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation, including tips on ADA interference. The Guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals following a 30-day public input period that ended February 24, 2016. The changes in the Guidance are in line with the EEOC’s efforts to broaden the conduct that would be deemed retaliatory as well as the concept of causation.

Along with the Guidance, the EEOC has issued two accompanying documents: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance. The Guidance also provides “boxed” examples of actual and perceived retaliation that will be of great help to employers and employees.

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Since 1998, the last time the EEOC issued a formal resource document on retaliation, the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation. Further, the percentage of EEOC charges alleging retaliation has essentially doubled (now nearly 45% of all charges). Retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.

The guidance also addresses the interference provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. The EEOC considers the scope of this separate interference provision broader than the anti-retaliation provision under the ADA.

In preparing the Guidance, the Commission analyzed courts’ interpretation and application of the law to specific facts, noting that, regarding many retaliation issues, the lower courts have been uniform in their interpretations of the relevant statutes. Where the Commission agreed with those interpretations, the Guidance explains the law on such issues with concrete examples. The Commission noted that there are cases where the lower courts have not consistently applied the law, or the EEOC’s interpretation of the law differs. In those instances, the Guidance sets forth the EEOC’s position and explains its analysis.

Elements of a Claim. The Guidance does not change the three well-established elements of a retaliation claim and leaves little doubt that the EEOC takes a broad view when defining each element:

  1. An employee’s participation in a protected activity, generally a complaint of discrimination or harassment.
  2. A materially adverse action taken by the employer/manager against the employee.
  3. A causal connection between the protected activity and adverse action.

The small business fact sheet provides a list of actions taken by applicants and employees that are protected from retaliation:

  • taking part in an internal or external investigation of employment discrimination, including harassment;
  • filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • communicating with a supervisor or manager about employment discrimination, including harassment;
  • answering questions during an employer investigation of alleged harassment;
  • refusing to follow orders that would result in discrimination;
  • resisting sexual advances, or intervening to protect others;
  • reporting an instance of harassment to a supervisor;
  • requesting accommodation of a disability or for a religious practice; or
  • asking managers or coworkers about salary information to uncover potentially discriminatory wages.

Protected Activity. In the Commission’s view, playing any role in an internal investigation (even in support of the employer) should be deemed to constitute protected participation. For example, an employee can issue a direct complaint (“participation”) or engage in “protected opposition” by communicating explicitly or implicitly opposition to perceived employment discrimination. According to the EEOC, an employee may make a broad or ambiguous complaint of unfair treatment because they may not know the specific requirements of the anti-discrimination laws and such communication would be considered protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

While the Guidance states that the manner of opposition must be reasonable, the Guidance points out that the scope of the opposition clause is not limited to complaints made to the employer directly, and may include complaints made to coworkers, an attorney, others outside the company, or even publicly. According to the EEOC, employees’ complaints or opposition activities will be protected as long as their actions are based on reasonable, good faith that their assertions are accurate. Nonetheless, opposition to perceive discrimination “does not serve as a license for the employee to neglect job duties.”

Adverse Action. The Guidance seeks to expand the definition of “adverse action” to include activity that could be reasonably likely to deter protected activity even if it has no tangible effect on a person’s employment. According to the EEOC, adverse actions can be activities that are not work-related, or take place outside of work, and may even be taken against a third party who is closely linked to a complaining employee.

Causal Connection. The Guidance also expands what constitutes a causal connection between a protected activity and adverse action. Under the Commission’s interpretation of the “but-for” causation standard articulated in University of Texas Southwest Medical Center v. Nassar, that there can be multiple “but-for” causes, and retaliation need only be one of those but-for causes in order for the employee to prevail. Moreover, citing a Seventh Circuit decision (Ortiz v. Werner Enters., Inc.), the Guidance notes that causal connection may be established by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent. Citing a decision where a termination that occurred five years after an employee filed a discrimination lawsuit defeated summary judgment, the Commission noted that it may go years back into a person’s employment history to find evidence of either a protected activity or an adverse action.

Guidance for Employers. The Commission includes a section in the Guidance on “promising practices” that it suggests may help reduce the risk of retaliation violations. While adhering to these practices is not a safe harbor, employers should take note of the list provided by the EEOC:

  • Including clear anti-retaliation language in written employment policies that provide practical guidance on what retaliation is and how it is avoided, with examples of conduct that managers, supervisors, and decision makers may not realize are actionable;
  • Taking proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • Instituting a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • Providing a clear explanation to employees that retaliation can be subject to discipline, up to and including termination;
  • Providing all parties and witnesses to an alleged act of discrimination with information about how to avoid engaging in retaliation, and how to report alleged retaliation; and
  • Ensuring that someone with special knowledge of EEO guidance reviews proposed employment actions to ensure they are based on legitimate, non-discriminatory, non-retaliatory reasons.

Second Circuit Extends the Reach of the Cat’s Paw

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In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision.  On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.

The plaintiff, an emergency medical technician employed by the defendant, was terminated within hours of complaining to her supervisors that a male co-worker had sent her a text message containing a graphic, sexual photograph.  Plaintiff alleged that when her male co-worker learned that she had complained, he manipulated his iPhone to make it appear that a conversation containing consensual sexual text banter that he had with another person was a conversation between him and plaintiff and, when questioned by the employer about plaintiff’s allegations, provided printed screen shots of portions of this alleged conversation, telling the employer that he and the plaintiff had been involved in a consensual relationship.  In her lawsuit, plaintiff complained that her employer accepted the co-worker’s tale as true, and rejected her offer to turn over her cell phone for inspection or otherwise refute his claim.  Instead, plaintiff asserted that she was told by her employer that it “kn[e]w the truth,” that she had a sexual relationship with the co-worker, and that her employment was being terminated because she had sexually harassed him.   Plaintiff filed suit, asserting that the employer’s decision to terminate her employment was an act of retaliation in violation of Title VII because she had voiced complaints of sexual harassment.  Relying on the “cat’s paw” doctrine, the plaintiff argued that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker.  The district court dismissed her complaint, concluding that an employer could not be held liable under the “cat’s paw” doctrine for the discriminatory or retaliatory intent of a non-supervisory co-worker.

On appeal, the Second Circuit disagreed and reinstated plaintiff’s Complaint.  Despite the fact that the male co-worker was a low-level employee without any supervisor authority, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the male co-worker as its agent and hold it accountable for his illegitimate intent.  Referencing the allegations that the employer “blindly credited” the male co-worker’s assertions and “obstinately refus[ed] to inspect [plaintiff]’s phone or to review any other evidence proffered by [plaintiff] in refutation,”   the Second Circuit concluded that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”

The impact of this decision on health care employers who are often called upon to make employment decisions based on information provided by one employee about another?  Negligence is the key.  Only when the employer effectively adopts the co-worker’s animus by acting negligently with regards to the information provided may the co-worker’s improper motivation be imputed to the employer to support a claim under the cat’s paw doctrine.  Exercise good faith and be thorough in conducting internal investigations.  Do not ignore warning signs.  Consider all evidence offered in making employment decisions.

The WARN Act Sale of Business Exception: 8th Circuit Rules on Corporate Transactions

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Our colleague Marc A. Mandelman, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “8th Circuit Rules Parties to Corporate Transactions Cannot Contract Around the WARN Act Sale of Business Exception

Following is an excerpt:

In a rare case interpreting the Worker Adjustment and Retraining Notification (“WARN”) Act “sale of business” exception, the U.S. Court of Appeals for the 8th Circuit recently held in Day v. Celadon Trucking Servs., Inc., 8th Cir., No. 15-1711 (July 5, 2016) that a buyer of a business remained liable under WARN to the seller’s employees to whom the buyer did not make offers of employment, despite provisions in the asset purchase agreement (“APA”) that placed all WARN Act liability on the seller. …

The key takeaway of the Day case for parties to a corporate transaction is that WARN liabilities are governed by statute, and the implications of WARN obligations and the sale of business provision of WARN must be carefully evaluated.  The case highlights that although the sale of business exception may be helpful to buyers in absolving them of WARN obligations to employees who they hire, the application of this important WARN “exception” may also result in the buyer remaining liable for the seller’s failure to provide WARN notice to employees whom the buyer does not offer continued employment, particularly where neither party satisfied the obligation to issue WARN notice or provide the employees with WARN pay in lieu of notice.

Read the full post here.

Are You a Joint-Employer with Your Suppliers? NLRB Examines Corporate Social Responsibility Policies

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Can Your Corporate Social Responsibility Policy Make You a Joint-Employer With Your Suppliers? The NLRB May Find That It Does

Following is an excerpt:

The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations should be treated as a joint employer of the supplier or contractor’s employees, is now considering whether a company’s requirement that its suppliers and contractors comply with its Corporate Social Responsibility (CSR) Policy, which includes minimum standards for the contractor or supplier’s practices with its own employees can support a claim that the customer is a joint employer. …

Employers are well advised to review the full range of their operations and personnel decisions, including their use of contingent and temporaries and personnel supplied by temporary and other staffing agencies to assess their vulnerability to such action and to determine what steps they make take to better position themselves for the challenges that are surely coming.

Read the full post here.

Seventh Circuit: Title VII Does Not Cover Sexual Orientation Bias

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Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.

Following is an excerpt:

Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of the U.S. District Court for the Northern District of Indiana dismissing the claim of Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, that she was denied the opportunity for full-time employment on the basis of her sexual orientation.

The importance of the Seventh Circuit panel’s opinion is not in its precise holding but both (i) the in-depth discussion of Seventh Circuit precedence binding it, the decisions of all of the U.S. Courts of Appeals (except the Eleventh Circuit) that have held similarly, and Congress’s repeated rejection of legislation that would have extended Title VII’s protections to sexual orientation, and (ii) the multifaceted bases for its entreaties to the U.S. Supreme Court and the Congress to extend Title VII’s prohibition against sex discrimination to sexual orientation discrimination.

The Seventh Circuit panel highlighted the following reasons as to why the Supreme Court or Congress must consider extending Title VII’s protections to sexual orientation …

Read the full post here.

OSHA Fines Home Health Care Provider for Failing to Protect Employee from Workplace Assault

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Denise Dadika

Denise Dadika

In a matter highlighting the importance of workplace violence prevention programs, Epic Health Services, a national home health care provider, was recently issued a citation and fine by the Occupational Safety and Health Administration (“OSHA”) for failing to protect its employees from the dangers of workplace violence. The fine and citation stemmed from a complaint by one of Epic’s nurses, who alleged she was sexually assaulted by a client while providing services in the client’s home.

After an investigation, OSHA determined that the nurse was subjected to physical and sexual assault. The investigation also revealed that Epic had received numerous reports of verbal, physical and sexual assaults on employees, as well as a report of an employee forced to work in a house in which to domestic violence occurred.  In addition, OSHA concluded that the employer had no system for reporting threats or incidents of violence in the workplace.  For these reasons, OSHA cited the employer for one willful violation for failing to maintain a safe workplace under OSHA’s General Duty Clause.  A willful violation is defined by OSHA as a violation in which the employer either knowingly failed to comply with the legal requirement, purposefully disregarded the requirement or acted with indifference to employee safety.  OSHA also cited the employer for a records violation.  The citations amounted to a $98,000 fine.

OSHA’s findings highlight the importance of a workplace violence prevention program, particularly for home health care workers who are more vulnerable to workplace violence given their uncontrolled work environment. An effective workplace violence prevention program includes:  a well-disseminated policy addressing the prevention of workplace violence; an employee training program; a system for reporting all incidents of workplace violence; management commitment and employee involvement; worksite analysis and hazard identification; corrective action to address any hazards identified; and recordkeeping and program evaluation.  As we have reported in the past, OSHA has continued to stress the need for such programs, particularly in the health care industry.

Sleeping on the Job Disqualifies Residential Counselor from Unemployment

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Maxine Neuhauser

Maxine Neuhauser

In an unpublished decision issued July 22, 2016, the New Jersey Appellate Division ruled that an overnight residential counselor for developmentally disabled adults was properly disqualified from unemployment because of “severe misconduct” after having been found sleeping on the job. In affirming the Division of Unemployment’s denial of benefits, the court noted that this was the employee’s second documented violation “of his employer’s most basic rule: stay awake.” The decision, James MacIsaac v. Board of Review and Center for Innovative Family Achievements, Inc. serves to remind health care employers of the importance of job descriptions and performance documentation, particularly with regard to patient care and safety.

Claimant MacIsaac’s  job description, which he admitted having received, included the requirement to be “alert for … [residents’] needs during the night, including therapeutic intervention and crisis management.” Nine months after his hire, MacIsaac was issued a corrective action notice and final warning for sleeping on the job. Two months later, a co-worker found McIsaac asleep on his shift again and reported it to management. He was fired three days later.

In New Jersey, severe misconduct disqualifying an employee from unemployment benefits includes “repeated violations of an employer’s rule or policy” N.J.S.A. 43:21-5 (b). The Appellate Division has interpreted this criterion “as requiring acts done intentionally, deliberately, and with malice.”

In these circumstance, and relying on the documentation, as well as testimony of McIsaac’s supervisors, the Division of Unemployment, found that McIsaac’s:

behavior by falling asleep during working hours jeopardized the safety and well-being of developmentally disabled individuals [who] were under his care. Hence, the evidence amply supports that the claimant’s conduct by failing to take steps to avoid falling asleep during his shift, was intentional, deliberate and malicious and constitutes severe misconduct.

The Appellate Division agreed.