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.

Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think health industry employers will be interested.

Following is an excerpt:

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII. Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII.

Under long-standing precedent (Faragher and Ellerth), whether an employer can be found vicariously liable for harassment perpetrated by its employees is dependent on whether the harasser is a supervisor or merely a co-worker of the victim …

Read the full post here.

By:   Amy B. Messigian

In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation standard.  Under such a standard, a plaintiff must present proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

The underlying facts of the Nassar case are somewhat complicated.  The plaintiff, a medical doctor employed as a faculty member of the defendant medical center and staff physician for its affiliated hospital entity, resigned from the faculty claiming that the chief of infectious disease medicine at the medical center was biased against individuals of Middle Eastern heritage such as plaintiff.  The hospital entity offered the plaintiff a full time position as staff physician, but later rescinded the offer after plaintiff’s former supervisor protested the job offer.  The plaintiff sued, alleging that the medical center retaliated against him for his discrimination complaints by encouraging the hospital to rescind its job offer.  A jury returned a verdict in the plaintiff’s favor and awarded more than $3 million in damages.

The medical center appealed, arguing that the judge had instructed the jury to apply a lesser standard of causation than required for a retaliation verdict under Title VII.  Specifically, the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor’s actions, called mixed-motive. The medical center argued that the judge should have told the jury it had to find that the discriminatory action would not have happened but for the supervisor’s desire to retaliate in order to hold the medical center liable for retaliation.

Though the Fifth Circuit affirmed the retaliation finding, the Supreme Court disagreed.  Without deciding whether the facts of the case warranted a finding of retaliation, the Supreme Court determined that the wrong standard had been applied, warranting reconsideration by the lower court under the strict but for causation standard.

Although the opinion raises the burden of proof required of employees who bring retaliation claims and should be uniformly applauded by employers, the holding may create some confusion for juries in cases where both discrimination and retaliation claims are raised.  By this ruling, the Supreme Court has adopted a different standard for retaliation claims and discrimination claims, the latter of which is tested under the more lenient motivating factor standard.  Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissenting in an opinion written by Justice Ruth Bader Ginsburg, criticized the use of a different standard for retaliation and discrimination claims: “The court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination ‘because of,’ e.g., race is coupled with a claim of discrimination ‘because’ the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards.”

by: Maxine H. Neuhauser and Amy E. Hatcher

On January 7, 2013, the New Jersey Department of Labor and Workforce Development (the “Department”) published in the New Jersey Register proposed new rules and notification language to implement a recently enacted law intended to fight gender inequity and bias in the workplace.  The notice of proposal is available for downloading here.

The law, which became effective on November 19, 2012, requires every employer in New Jersey with 50 or more employees to post a notice advising employees of their right to be free from gender inequity or bias in pay, compensation, benefits, or other terms or conditions of employment under particular state and federal laws.

New Jersey employers are also required to distribute a copy of the notice:

In English and Spanish and any other language that the employer reasonably believes is the first language of a significant number of the employer’s workforce, provided a notice has been issued in that language by the Department;

  • To all employees no later than 30 days after the notice is issued by the Department;
  • At the time of an employee’s hiring;
  • To all employees annually, on or before December 31 of each year (and the employer must obtain a written acknowledgement of receipt); and
  • At any time upon the first request of an employee.

The notice may be transmitted electronically to employees via e-mail, or via an internet or intranet site, so long as it is accessible and the employer provides notice to employees that the notice has been posted electronically.

Importantly, the notification requirements of the law are not triggered until the New Jersey Commissioner of Labor and Workforce Development issues the form of notification by regulation, which will likely take at least a few months.  Employers will have 30 days from the date of the notice of adoption in the New Jersey Register, containing the final form of the notification, to comply with the notification and posting requirements.

A public hearing on the proposed amendments and new rules is scheduled to take place on February 13, 2013, and the due date for public comments is March 23, 2013.  The Department’s forthcoming January 22 notice, which provides notice of these dates (and also corrects an error in the January 7 proposal), is available for downloading here.

For further information on other New Jersey employer posting requirements, see EBG’s Act Now Advisory entitled “Employer Posting Requirements Under New Jersey Law.”

Sadly, workplace violence continues to be a topic that many organizations face, especially those in the health care industry.  Indeed, as the news reports serve to remind us all, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and nonfatal assaults and violent acts committed within the workplace.  One of the struggles that employers face is trying to prevent violent conduct by third-party non employees that are simply beyond the control of the employer. 

 OSHA Enforcement of Workplace Violence

Employers can face significant liability as a result of workplace violence incidents.  For example, while the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues.  OSHA also offers all employers guidance on preparing for and handling emergencies and on developing a workplace violence program, including the adoption of a zero-tolerance policy. For example, in its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention. 

In the absence of a specific standard, OSHA bases its enforcement efforts on the General Duty Clause of the Act.  This provision requires employers to furnish employees with a working environment free from hazards (a) that are recognized by the employer or industry as hazardous; (b) that have the potential for causing death or serious physical harm; and (c) that may be abated by feasible means. 

Some recent OSHA enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.

OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including: 

Create a Written Zero-Tolerance Workplace Violence Prevention Program

  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement Systems to Flag Patient’s History of Violence

Criminal Background Checks as a Preventative Measure

One critical aspect of a prevention plan is the implementation of effective background checks of applicants, employees, and contractors in order to ensure that individuals with a violent history are carefully screened from employment.  However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.

For example, a number of states and EEOC policy guidance prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction.  Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property. 

Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity.  The EEOC is expected to issue updated guidelines with respect to criminal background checks.  As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or conduct an “individualized assessment” with applicants who report criminal convictions on their applications before the employer can bar them from employment.  The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity.  The EEOC’s revised guidelines are expected to be released by the end of April 2012.   

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA or other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence.  Part and parcel of any preventative plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.

Written By:  Ana S. Salper

Social media has revolutionized how we communicate with one another. From Facebook to Twitter, YouTube to blogs, social networking sites have permeated the workplace in ways that have significant implications for all employers.

Social media is both a source for marketing and promoting companies and products as well as an enterprise risk factor if not used appropriately or in a compliant way. In the health care industry, with the Health Insurance Portability and Accountability Act (“HIPAA”) and other privacy laws at stake, employers must have a heightened sensitivity to ensuring that confidential health information is protected, while simultaneously being mindful of the precise contours of what restrictions on social media usage are permissible and lawful. Also, for pharmaceutical and device firms, where promotion is highly regulated by the federal Food and Drug Administration (“FDA”), there are likely even greater compliance concerns.

To date, no governmental body – not even the court system – has been more active in addressing social media’s impact on the workplace generally than the National Labor Relations Board (“Board”). The Board’s reach has extended to non-unionized employers and to those that are unionized. In what has now become the famous “first Facebook case,” the first social media complaint issued by the Board was, in fact, against an employer in the health care industry, a leading medical transportation company. That October 2010 case, involving the discipline of an employee for posting derogatory comments about her supervisor on Facebook from her home personal computer, established the foundation for the Board’s two areas of scrutiny: employer discipline of employees’ social media site usage, and the appropriate scope and breadth of employer social media policies.

Read the full advisory online

 

 

A monthly breakfast law briefing and networking series specifically  designed for health care and wellness company executives and human resources professionals.  This informative series will address labor and employment issues during these challenging times and offer solutions.

For additional information and to register,  contact Carla Llarena or by tel: (404) 869-5363.

February 8, 2012 
Today’s OSHA: What Healthcare Companies and Practices Need to Know

March 14, 2012
It Can Hurt to Ask: TMI in the Digital Age
(Focusing on Social Media & Background Checks)

April 11, 2012
Best Practices to Avoid Wage and Hour Liability

May 9, 2012
What You Need to Know About the Americans with Disabilities Act,
and How Your Managers are Likely Getting it Wrong

June 13, 2012
E-Verify and Complying with Federal and State Immigration Law

July 11, 2012
Selling a Physician’s Practice

August 8, 2012
Employee Handbooks: How to Draft Them to best Protect Your Company and Communicate to Your Employees

September 12, 2012
Alternate Dispute Resolution: Is Mediation and/or Arbitration Preferable to Litigation for Healthcare Employers?

October 10, 2012
The 2012 Presidential Election and How it Will Impact You as an Employer

November 14, 2012
Doctor and Executive Compensation and Benefits

December 12, 2012
The Top 10 Biggest Mistakes that Health Care Employers Make
and How to Avoid Them

Epstein Becker Green
Resurgens Plaza
945 East Paces Ferry Road, Suite 2700
Atlanta, GA 30326-1380

8:30 a.m. – 9:00 a.m. Registration, Breakfast, and Networking
9:00 a.m. – 10:00 a.m. Program, Including Q&A Session

by Pamela D. Tyner

Physicians and healthcare workers devote years to improving the quality of their patients’ lives.  Despite the Hippocratic code and compulsory non-retaliation policies, incidents of disruptive behavior from physicians and healthcare workers, though largely shielded from the general public, continue to frequently surface internally at healthcare environments.  Amidst recent jarring headlines of workplace violence and bullying, news media have discovered this same trend is also on the rise as healthcare facilities across the nation struggle to effectively resolve these alarming concerns.  

Reasons for Under-Reporting of Disruptive Behavior

Most healthcare organizations will not readily admit there are under-reported and unresolved disruptive behavioral problems from its physicians and healthcare workers due to a number of factors.  First, there is an underlying history and culture of tolerance and indifference to intimidating and disruptive behaviors in health care.  Turning the other cheek becomes easier if the verbally abusive physician is one of the facility’s top physicians.    In addition, physicians serving on professional activity or peer review committees fear retribution, ostracization and even liability from their participation in attempting to resolve such incidents.

For example, in a nationally publicized case, Poliner v. Texas Health Systems, a Texas jury awarded Dr. Lawrence Poliner $366 million in damages against a hospital and several physicians for malicious peer review after his privileges were terminated.   In July 2008, the United States Court of Appeals for the Fifth Circuit reversed the ruling and entered judgment in favor of the defendants based on application of immunity for the hospital and three physicians under the Federal Health Care Quality Improvement Act (“HCQIA”).  This legal battle highlights both the fear of retribution for service on a peer review committee and the cost of lengthy litigation.

Joint Commission Redefines “Disruptive Behavior”

In July 2008, the Joint Commission published a sentinel event alert regarding intimidating and disruptive behavior that highlighted the following potential negative outcomes:

  • fosters medical errors;
  • contributes to poor patient satisfaction;
  • causes preventable adverse outcomes;
  • increases the cost of healthcare; and
  • increases rate of turn-over of qualified clinicians, administrators and managers.

As a result, the Joint Commission issued a disruptive behavior standard (LD.03.01.01) to include mandatory policies, training, code of conduct and reporting structures for any inappropriate outbursts.  In its November 9, 2011 newsletter, the Joint Commission revised its definition of “disruptive behavior” to a more refined interpretation of “behavior or behaviors that undermine a culture of safety”  after it received complaints that the term “disruptive behavior” was both ambiguous and not always viewed favorably.  For example, some argued that advocating for patient care  improvement might be incorrectly labeled as “disruptive behavior.”  The revised definition becomes effective in 2012 . 

Lessons Learned – A Balanced Healthcare Environment

From verbal abuse by physicians and healthcare workers causing fear to serve on hospital committees, potential patient safety issues and high turn-over rates, healthcare facilities and organizations must quickly strengthen  existing human resources policies and reporting lines to incorporate the revised definition of “disruptive physician” and to avoid becoming the latest headlines.  Above all, the historical tolerance for disruptive behavior must instead more highly value the promotion of patient safety and respect in the medical workplace.