Health Employment And Labor labor and employment law for the healthcare industry

Category Archives: Class Actions – All State & Federal Discrimination Claims

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Seventh Circuit is First Federal Appeals Court to Hold Sexual Orientation Discrimination Covered by Title VII

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination on the basis of sexual orientation is covered under Title VII of the Civil Rights Act’s protections against discrimination on the basis of sex.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian part-time professor at Ivy Tech, applied for but was denied several full-time positions with the college. After her employment was later terminated, she filed a lawsuit alleging that she was denied promotion and then terminated because of her sexual orientation. The lower courts … Continue Reading

What Does It Mean to Be a Recipient of Federal Financial Assistance for Purposes of Section 1557 Compliance?

In May 2016, the U.S. Department of Health and Human Services (“HHS”) published a final rule implementing Section 1557 of the ACA. Section 1557 prohibits discrimination in the health programs and activities of “Covered Entities” on the basis of race, color, national origin, sex, age, or disability. Section 1557 also imposes detailed and specific notice and disclosure requirements on Covered Entities, including, among other things, the requirement to provide information about the use of auxiliary aids and services, the adoption of grievance procedures, and access for individuals with limited English proficiency. Covered Entities are also required to include specific nondiscrimination … Continue Reading

Transgender Teenager’s Death Leads to ACA § 1557 Discrimination Suit Against Hospital

Kyler Prescott was a 14 year old transgender boy who was receiving puberty-delaying medication to help him transition.  Shortly before Kyler’s death he had “suicidal ideation” and was taken to Rady Children’s Hospital – San Diego in April 2015.  The hospital has a Gender Management Clinic to provide services to children with gender dysphoria and related issues.  A lawsuit under the ACA’s non-discrimination provision, § 1557, alleges that after admission, despite assurances that he would be referred to with masculine pronouns, hospital employees referred to Kyler as a girl.  The suit claims that the hospital’s actions discriminated against Prescott … Continue Reading

Accessible Technology Claims Are Not Going Away: Recent Decisions Under ADA

Our colleague Joshua A. Stein, attorney at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away.”

Following is an excerpt:

As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (… Continue Reading

Recent Federal Decisions Support Viability of Transgender Discrimination Claims

Nathaniel M. Glasser

Nathaniel M. Glasser

North Carolina made waves last week by enacting legislation prohibiting cities from allowing transgender individuals to use public restrooms that match their gender identity and further restricting cities from passing anti-discrimination ordinances that would give protected status to sexual orientation or gender identity.

Employers in North Carolina and across the country, however, should be aware of the trend in the federal courts and agencies to grant protections to transgender workers under Title VII of the Civil Rights Act.  Last week two federal courts allowed transgender plaintiffs to proceed with their gender discrimination claims, representative of the growing … Continue Reading

Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII

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 … Continue Reading

New Jersey to Propose Gender-Equality Notice Rules for Employers

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, … Continue Reading

The Supreme Court Holds That Pharmaceutical Sales Representatives Are Exempt From Overtime Requirements Under The “Outside Sales” Exemption

By: Michael Thompson

The United States Supreme Court has ruled that pharmaceutical sales representatives (PSRs) are “outside salesmen” who are not entitled to overtime under the Fair Labor Standards Act (FLSA). The high court’s ruling was predicated on its finding that, in the pharmaceutical industry’s “unique regulatory environment,” the commitments obtained by PSRs equate to traditional sales. Furthermore, the Supreme Court rebuked the Department of Labor (DOL) for “unfairly surprising” the industry by filing amicus briefs arguing that PSRs were not exempt from the FLSA’s overtime requirements.

PSRs provide physicians with information about the efficacy and benefits of their … Continue Reading

Weight Discrimination In The Workplace May Be Legal, But Is It a Sound Business Practice?

Written by: Greta Ravitsky 

A Texas hospital has recently been the subject of much media coverage due to its controversial hiring policy that bars overweight applications from consideration.  Per the hiring policy, which was instituted last year at the Citizens Medical Center in Victoria, the hospital would only consider potential employees with a body mass index of less than 35.  This equates to roughly 210 pounds for someone who is 5’5” tall or 245 pounds for someone 5’10.”  In an interview with the Texas Tribune, the hospital’s CEO defended this policy as catering to its patients, and stated … Continue Reading

Accessibility Obligations of Medical Providers to Provide Care to Individuals with Disabilities

Under Title III of the Americans with Disabilities Act (“ADA”), private health care providers, including clinics, hospitals and doctor’s offices, as places of public accommodation, are required to provide their services to individuals with disabilities in an accessible manner.  Specifically, the ADA requires that providers provide individuals with disabilities full and equal access to their health care services and facilities and provide reasonable modifications to policies, practices and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would alter the essential nature of the services.

The Department of Justice enforces the ADA … Continue Reading

2012 HEAL Briefings for Healthcare and Wellness Executive and HR Professionals – EBG Atlanta Office

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 Continue Reading

Employee or Independent Contractor? Enforcement Efforts Increase in the Home Health Care Industry

By:  Kara M. Maciel

Identifying and eradicating the misclassification of employees as independent contractors continues to be a key objective for the Obama Administration.  The U.S. Department of Labor (“DOL”) and the IRS have intensified their enforcement efforts regarding worker misclassification, and audits have increased substantially, particularly within the home health industry.  In September 2011, the DOL and IRS announced an effort to coordinate with each other and with several states by, pursuant to a Memorandum of Understanding, permitting the sharing of information to combat misclassification.

Legal Tests for Independent Contractor Status

Liability for misclassification can arise under different laws, … Continue Reading