Health Employment And Labor

labor and employment law for the healthcare industry

Penalties Rise for ADA Noncompliance

LinkedIn Tweet Like Email Comment

By Andrea R. Calem

Noncompliance with the Americans with Disabilities Act just became costlier.  Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).

Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires public accommodations to make reasonable accommodations so that disabled individuals may equally access these goods and opportunities.  Accommodations may include modification of physical space in order to remove physical barriers, the provision of auxiliary aids for communication (such as sign language interpreters, closed captioning, written materials in Braille), and a wide variety of other, context-specific adjustments to the way business is conducted or services are offered.

With the upward adjustment, the maximum civil penalty for a first violation of Title III rises from $55,000 to $75,000, and the maximum civil penalty for a second violation rises from $110,000 to $150,000.  The new maximums apply to violations that occur on or after April 28, 2014.  The last time these penalties were adjusted for inflation was in 1999.

These penalties can be consequential for small businesses or those with thin profit margins, and can accrue to significant levels for businesses of all sizes if the DOJ finds evidence of repeated violations of Title III.  The DOJ’s current ADA enforcement environment is an aggressive one, consistent with the aggressive positions recently taken by many other federal agencies which protect workers’ and civil rights, such as the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance and Programs.  Health care and life science businesses, in particular, are targets of the DOJ’s Barrier-Free Health Care Initiative, which has led to an increase in the number of Title III enforcement actions undertaken by U.S. Attorney’s offices across the country in the past several years.

The increased penalties are one more reminder that the costs associated with ADA compliance should not be postponed until enforcement – in the form of a civil lawsuit or the DOJ – is knocking at your (hopefully accessible) door.

Please join me and my colleagues Frank C. Morris, Jr. and Brian Steinbach on April 29  and April 30 for a two-part webinar concerning ADA compliance.  Registration is complimentary.

NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting

LinkedIn Tweet Like Email Comment

For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections.  The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA).  The positions of the parties were largely split between the labor unions applauding the NLRB’s proposed rule on making elections faster; whereas, the trade associations and management attorneys emphasizing that the NLRB’s proposed rule was unnecessary and a solution in search of a problem.

EBG attorney, Kara M. Maciel, represented the voice of NGA on three separate panels.  First, she argued that the NLRB’s proposed rule requiring employers – for the first time – to submit a written position statement within 7 days of the union’s petition setting forth the employer’s entire legal argument, or risk waiver later, is unduly burdensome and risks that the process leading to a pre-election hearing will become more adversarial and less focused on reaching a negotiated pre-election stipulation.  Under current procedures, over 90% of petitions are stipulated to without a pre-election hearing, but under the NLRB’s proposed rule, employers could feel pressured to go to a hearing in light of the written position statement requirement. 

Second, Maciel testified that the election date should not be accelerated from the current 34 day median to 10-21 days contemplated by the rule.  “Hasty decisions are not good decisions” and she noted that “common sense dictates that the greater the time an individual has to inform himself, and to reflect upon and consider all aspects of a decision, the more likely the decision will be a true reflection of the individual’s interests.”  NGA is concerned about the due process rights impairing an employer’s protected 8(c) rights under the National Labor Relations Act if there is not sufficient time to communicate with employees about a union petition for representation.

Finally, Maciel expressed concern over the proposed rules compulsory disclosure of employee’s personal and confidential e-mail accounts and phone numbers on voter lists.  The non-consensual disclosure constitutes a gross invasion of employees’ privacy and opens employees up to potential use and abuse of their personal information.

The NLRB will now consider all the written and oral comments submitted by the public on the proposed rules; however, it is widely expected that the NLRB will adopt the rules as proposed.  Following the rule-making process, it is likely that trade associations could seek to enjoin implementation of the rule through a court challenge.  In the meantime, all employers should brace themselves for the rule and implement training and education for their management team on how to respond to union organizing.   

For more information on NLRB’s two-day public meeting, please click here.

NLRB Public Meeting: Kara Maciel to Speak on Ambush Election Rules

LinkedIn Tweet Like Email Comment

Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

The panels will address the following topics:

  • Panel B.2: Requirement for written statement of position
    Address issues related to the proposed requirement for a written statement of position.
  • Panel E.1 & E.3: Election date
    Please describe the standard to be applied for scheduling an election. The proposed rules state that the regional director should select an election date which is “as soon as practicable.” If you disagree with this standard, please describe the standard you would apply. Specify whether you think the rules should include a minimum or maximum time between the filing of the petition and the election, and, if so, how long this time should be. Also address whether the proposed rules adequately protect free speech interests; if you believe they do not, please state specifically how the proposal can be adapted to adequately address the matter.
  • Panel C: Voter lists
    Address whether or how the rules should address voter lists.

During the open meeting, April 10 and 11, catch the live stream at http://www.nlrb.gov/openmeeting.

Webinar, April 8: OSHA’s Temporary Worker Initiative

LinkedIn Tweet Like Email Comment

Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

Persuader Rule Postponed: Employers Get Temporary Reprieve from Assault on Attorney-Client Privilege

LinkedIn Tweet Like Email Comment

On Epstein Becker Green’s Management Memo blog, our colleague Adam C. Abrahms writes about the Department of Labor’s delay, once again, of its timeline for finalizing the Persuader Rule.

Below is an excerpt from the blog post:

As we noted in “First Kill All The Lawyers,” last November the DOL announced its intention to move forward this month with the Administration’s Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.

In November the DOL’s announcement asserted that it intended to publish a Final Rule in March. On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month. The DOL did not give a new target date for finalizing the Rule, rather it stated it would provide a new date in its Spring Regulatory Agenda which is not scheduled to be released for some months.

Read the full blog post, “Persuader Rule Postponed: Employers Get Temporary Reprieve from Assault on Attorney-Client Privilege.”

Webinar on the ACA Employer Mandate: Feb. 20

LinkedIn Tweet Like Email Comment

In a complimentary webinar on February 20 (1:00 p.m. ET), our colleagues Frank C. Morris, Jr., and Adam C. Solander will review the ongoing impact of the Affordable Care Act (ACA) on employers and their group health plans.

The Treasury Department and the Internal Revenue Service recently issued highly anticipated final regulations implementing the employer shared responsibility provisions of the ACA, also known as the employer mandate. The rules make several important changes in response to comments on the original proposed regulations issued in December 2012 and provide significant transition relief.

Objectives of the webinar are to:

  • Provide an overview of the shared responsibility rules
  • Discuss how the changes to the rules will affect employers of all sizes
  • Analyze special rules for seasonal, educational, and other employees and those with breaks in service
  • Provide insight into compliance issues affecting employers
  • Discuss strategies for compliance
  • Provide a roadmap of future ACA regulations

Click here to read more about this webinar, or click here to register.

Groundhog Day: Pro-Labor NLRB Again Attempts to Put The “Fix” In Union Elections: Reissues Discredited “Ambush” Election Rules

LinkedIn Tweet Like Email Comment

By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel and Casey M. Cosentino

As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.

As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts to “fix” the representation election process in its favor. Most significantly, the Board’s current attempt only comes after having its more modest 2011 attempt struck down by a federal judge.

The present proposal is identical “in substance” to the Board’s original proposals first contemplated on June 22, 2011, and as such are more aggressive than the Rules ultimately adopted on December 21, 2011, and later struck down. The Board claims the proposed amendments are necessary to, among other things, facilitate the swift resolutions of questions concerning representation, simplify representation-case procedures, eliminate needless litigation, and consolidate all requests for review of regional directors’ determinations into one post-election request. However, if adopted as written, the proposed rules will radically up-end 75 years of Board practice and make it considerably easier for unions to organize employees and win elections.

History of Proposed Rule

The Board first contemplated the proposed amendments in a notice of proposed rulemaking on June 22, 2011. Following a period of public comment, the Board issued a final rule on December 22, 2011, that adopted some of the proposed amendments but deferred other more controversial aspects of the proposed amendments for further consideration. The final rule was immediately challenged in federal court. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012). In May 2012, the D.C. District Court struck down the final rule on procedural grounds. In response, the Board suspended the implementation of changes to its election representation case process.

Proposed Amendments to the Election Procedure

To the favor of unions, the proposed amendments announced this week would significantly change the existing procedures for union elections in the following ways:

  • Permit electronic filing of election petitions.
  • Require pre-election hearings to be held within 7 days after a hearing notice is served, shortening the time period between the petition and election.
  • Require employers to file a detailed statement of position on any and all issues involved in the petition before the hearing commences (i.e., within 7 days of first receiving notice of the petition). Failure to present an issue in the statement would constitute waiver of the issue in all future proceedings.
  • Grant hearing officers the authority to limit the issues to be heard at the hearing, depriving employers of their ability to litigate valid legal/factual positions prior to an election.
  • Defer resolution of voter-eligibility issues to post-election challenges until after an election, replacing the longstanding practice of having a pre-election hearing to determine such issues. This will allow unions to claim that some supervisors should be included in the bargaining unit, which could prevent an employer from utilizing them in the campaign to communicate its own position to the employees they supervise.
  • Grant hearing officers the authority to deny an employer the ability to file a post-hearing brief.
  • Eliminate an employer’s ability to seek Board review of a Regional Director’s rulings, which would also reduce the time between the petition and election.
  • Shorten the time for holding an election to as early as 10 days after the Regional Director’s direction of election (down from the typical 25 to 30 day minimum that now exists)
  • Require an employer to provide the NLRB with the list of voters’ names and addresses within 2 days after the Regional Director’s direction of an election instead of 7 days.
  • Require employers to provide the phone numbers and email addresses of all eligible voters as well as specifying each employee’s work location, shift, and classification. Currently, employers must only provide name and mailing address to the NLRB, which it then provides to the union. Since unions will use be able to use this information during the days before the election, it is feared that instances of organizers harassing and coercing employees will significantly increase.
  • Grant the Board discretion to deny review of post-election rulings. Currently, the Board is required to decide post-election disputes.

The Board’s False Pretenses and True Intended Harm of “Ambush” Elections

The Board asserts these election “fixes” are necessary to address alleged long delays in the representation process; however, such delays are rare. To the extent that the NPRM seeks to address election delays, objective data of NLRB elections conducted between 2008 and 2010 shows that such delays occurred less than 10 percent of the time. In fact, currently median time between petition and election is only 38 days and almost all elections occur within 56 days. The Board’s current proposal, however, could shorten that period to 10 to 21 days, which essentially eliminates the ability for employers to make a full and meaningful presentation of their position or employees to make a truly informed choice.

Typically, union organizers campaign under the radar for months before a petition is filed and unions wait until they believe that they have the support of the majority of the employees in a unit before they file a petition. Shortening the election period so drastically will erode an employer’s ability to respond to the union’s propaganda and communicate its position on union representation. Employees will vote without having the benefit of hearing the employer’s position. This contravenes the express purpose of the Act, which is to protect employee rights— not union rights and would gut the right that employers are granted by the Act to communicate their positions to employees. This one-sided campaign will almost certainly result in more election victories for unions and less real choice for employees.

Management Missives

It is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.

 

Immigration Update

LinkedIn Tweet Like Email Comment

Robert Groban and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

Frank Morris’s “Top 5” Action Items for Employers in 2014

LinkedIn Tweet Like Email Comment

Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:

It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action items to maximize the use of your time and resources for optimum results in 2014. …

  1. Consider Whether Your Organization Should Adopt Mandatory Arbitration Agreements and Seek to Bar Class/Collective Actions in 2014
  2. Enhance the Accessibility of Your Organization’s Website to Individuals with Disabilities
  3. Ensure That Proper Exempt/Nonexempt and Independent Contractor/Employee Determinations and Updated Job Descriptions Are in Place in 2014
  4. Update Confidentiality and Non-Compete Agreements to Better Protect Intellectual Property and Human Capital Assets in a High-Technology, BYOD, Mobile World
  5. Consider Key Employer ACA Issues for 2014

Read the full newsletter here.

ACA’s Implications for M&A Transactions

LinkedIn Tweet Like Email Comment

By Jeffrey A. Lieberman

Recently, the Practical Law Company published a Q&A with me regarding issues raised by the Affordable Care Act in mergers and acquisitions.  We discussed various items employers should review, such as full-time worker definitions, exposure to tax under the employer mandate, and integration of each party’s health programs.  Following is an excerpt:

 Q. The ACA is perhaps one of the most talked about pieces of legislation in recent history. ln terms of M&A transactions, what do you think are the ACA’s major effects?

 A. The ACA has created many new responsibilities and risks for employers. There are a vast number of requirements, including providing coverage, cost-sharing between employers and employees, and notice requirements, as well as the risk of incurring penalties. A potentiaI buyer of a target company needs to consider these new requirements to evaluate current and prospective compliance risks. As with all commerciaI and legal risks, there may be only so much a buyer can do about a target’s compliance efforts to date. However, the better a buyer understands the target’s workforce and plans, and the steps the target has taken to implement the ACA, the better the buyer can gauge what it must do to get the target into compliance post-transaction.

Download the full article here, in PDF format.