Our colleagues Patrick G. Brady and Julie Saker Schlegel, at Epstein Becker Green, have 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: “Beyond Joint Employment: Do Companies Aid and Abet Discrimination by Conducting Background Checks on Independent Contractors?

Following is an excerpt:

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage another company’s workers on an independent contractor basis would be wise to guard against another potential form of liability, for aiding and abetting acts that violate various anti-discrimination statutes, including both the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”) and the New Jersey Law Against Discrimination (“NJLAD”).

Read the full post here.

A new post on the Management Memo blog will be of interest to many of our readers in the health care industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case. …

Read the full post here.

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: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”

Following is an excerpt:

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices. …

Read the full post here.

On February 1, the New York State Department of Labor (“NYSDOL”) adopted regulations (“Regulations”) clarifying the pay transparency provisions of Section 194(4) of the New York Labor Law. The pay transparency section was added to Section 194 as part of a broader amendment to New York State’s equal pay law in January 2016. This pay transparency section provides that employers may not prohibit employees from “inquiring about, discussing, or disclosing” the wages of that employee or another employee, and explains what any company policy on the topic can and cannot say.

In the Regulations, the NYSDOL clarified that any employer-instituted restrictions on such discussions must (a) be justified without regard to content, (b) be narrowly tailored to serve a significant interest, and (c) leave open ample alternative channels for discussion of the topic. Additionally, the NYSDOL clarified that an employer may prohibit employees from talking about what other employees’ wages are without express permission from that employee, and that such permission can be withdrawn at any time. Further, such permission need not be granted in writing.

Finally, the regulations clarify that, to the extent an employer wishes to implement a policy limiting employees from discussing wage information, such a policy cannot unreasonably or effectively preclude or prevent inquiry, discussion, or disclosure of wages at the worksite and/or during work hours, either directly or in practice. Indeed, such a policy would also likely be deemed to violate the National Labor Relations Act, which prohibits employers from restricting non-managerial and non-supervisory employees’ collective discussions regarding pay and benefits. The policy can, however:

  • Provide for additional restrictions on the ability of certain employees (i.e., those who regularly have access to such information in connection with their jobs, such as Human Resources and Payroll employees) to share such information; and
  • Establish reasonable workplace and workday limitations on the time, place and manner for such inquiries, as long as those limitations are consistent with standards promulgated with the Commissioner of Labor and other state and federal laws.

Finally, if an employer wishes to avail itself of the ability to use as an affirmative defense against a claim that it violated Section 194 or that the employee who shared or discussed his or her wages violated the company’s policy against same, the employer must demonstrate that employees were given the policy in accordance with the terms of Section 194.

Therefore, companies with policies and/or practices restricting employees’ rights to discuss their wage information that do not reflect the restrictions described above should be reviewed and revised.

Our colleagues Adam C. Abrahms and Christina C. Rentz, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings.”

Following is an excerpt:

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.

A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board

In 2016, Lakewood Health Center (“Lakewood”) restructured its staffing system and replaced charge nurses with a newly created position, Patient Care Coordinator (“PCC”). According to the uncontradicted testimony of Lakewood Vice-President of Patient Care Danielle Abel, the hospital created this new position for one specific reason – “to ensure accountability for shift-by-shift work flow of the department….in addition to supervising the employees on their shift.” According to the job description, a PCC “provides overall supervision of staff and patient care,” is “responsible for daily nursing assignments,” and “retains overall accountability for the work flow for their shift, and remains accountable if duties are delegated to another qualified staff member.” Abel testified, without contradiction, that PCCs must assess the patient’s needs and the nurses’ skills when assigning nurses to patient care tasks and are accountable for the nurses’ performance.  The undisputed evidence further showed that PCCs were the highest ranking authority present evenings, nights and weekends and, for the majority of the time, the only person present with the authority to assign and direct nurses.  The Minnesota Nurses Association filed an election petition asserting that the PCCs should be included in the bargaining unit, thereby adding one more dues-paying classification to the potential bargaining unit. …

Read the full post here.

The increased use of portable electronic devices in the workplace and the popularity of social media pose unique challenges for health care employers, particularly when the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) conflict with the NLRB’s position on policies that could infringe upon an employee’s right to engage in concerted activity under the NLRA.

HIPAA governs the use and disclosure of protected health information (“PHI”) by health care providers. HIPAA violations may occur when health care employees post images of patients or patients’ records or vitals on social media. Oftentimes, the disclosure is inadvertent. For example, sharing a photo of co-workers in the workplace without realizing that a patient’s file was captured in the photo could result in the unauthorized disclosure of PHI. HIPAA violations may also occur when an employee shares a positive patient experience on social media, with or without an image, as a nursing student recently did to support a three year old who was fighting cancer.

The NLRA applies to all employers, both union and non-union. Section 7 of the NLRA protects “concerted activity,” which includes an employee’s ability to form, join, or assist a union; choose representatives to bargain with the company on their behalf; and act together with other employees for mutual benefit and protection. In some circumstances, recording activities in the workplace may be protected, concerted activity.

Recently, the NLRB in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), held that the company’s no-recording policy unlawfully restrained employees’ Section 7 rights. In doing so, the NLRB held that “[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” Thus, an employer may not lawfully adopt a work rule prohibiting employees from workplace recording if the employees are acting in concert for mutual aid and protection and the employer cannot demonstrate an overriding business interest. The Board specifically stated that the employer may not prohibit employees from recording the following: protected picketing, unsafe equipment or workplace conditions, discussions with others about terms and conditions of employment, the inconsistent application of employer rules, and recordings that preserve evidence for later use in administrative or judicial forums in employment-related actions.

The Board, however, acknowledged that employers may be able to establish an overriding business interest to justify restrictions on workplace recordings. The NLRB explained, “[W]e do not hold that an employer is prohibited from maintaining any rules regarding recording in the workplace. We hold only that those rules must be narrowly drawn, so that employees will reasonably understand that Section 7 activity is not being restricted.”

Health care employers should be able to demonstrate such an overriding business interest to support policies restricting workplace recordings and social media use given their obligations to protect patient privacy and comply with HIPAA.

In fact, the NLRB previously upheld a recording restriction implemented to protect patient privacy in Flagstaff Medical Center, 357 NLRB No. 65 (Aug., 26, 2011), a decision which was upheld by the U.S. Court of Appeals for the District of Columbia. In that case, the NLRB ruled that a hospital’s policy prohibiting the recording of images of patients, hospital equipment, property, or facilities was lawful because “the privacy interests of hospital patients are weighty,” and the hospital had a “significant interest in preventing the wrongful disclosure of individually identifiable health information.” The Board in Whole Foods acknowledged the Flagstaff ruling and distinguished its rule from the one in Whole Foods, noting that the business interests at issue in Flagstaff were more pervasive and compelling. Thus, the implementation of narrowly tailored no-recording policies in the health care setting should pass the NLRB’s scrutiny.

The Board should find that health care employers’ interest in protecting patient privacy and complying with federal law justifies appropriately tailored restrictions on workplace recordings. Therefore, to prevent the disclosure of PHI and to protect patient privacy, health care employers should implement policies restricting employees from recording and sharing patients’ images, conversations, or information on social media. Such policies should restrict employees from recording (video, still images, or audio) in patient rooms or settings, and sharing patient images or information on social media. Restricting recordings in non-patient settings (e.g., break rooms, cafeterias, and administrative offices) should be limited to those that will not infringe upon employees’ Section 7 rights.

Takeaways

  • Review and revise no-recording and social media policies to ensure that they are narrowly tailored to protect patient privacy and the disclosure of PHI. Be sure that the policies clearly explain that any restrictions on workplace recordings are due to patient privacy and HIPAA obligations and are not intended to infringe upon employees’ Section 7 rights.
  • Consider revising existing policies on HIPAA compliance to address the use and restrictions of social media.
  • Regularly train employees on recording and social media policies and on HIPAA compliance to ensure that every employee has a working knowledge of the foundational privacy and security regulations issued under HIPAA, and understands how such privacy can be compromised by workplace recording and social media use.
  • Consult with counsel before disciplining an employee for making a workplace recording or posting patient information on social media.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

In recent years, unions representing employees in health care facilities have engaged in activities during contract negotiations to pressure employers into settling, while limiting the cost of engaging in strike activity in the form of lost wages to union employees. The two most common forms of such activity used by unions are informational picketing, and short, sometimes intermittent, strikes, usually lasting only a day or two.

Informational Picketing

Informational picketing is yet another issue on which the NLRB has recently overturned precedent, in this case favoring union rights over patient rights and health care institutions’ property rights.

Typically, informational picketing is done by employees on their own time, either before or after their scheduled shifts and/or during their break times, or by non-employees. Thus, the picketing does not involve an actual work stoppage. Nonetheless, it can be disruptive of health care operations, involving noise, distraction, and perhaps physical interference with movement in and out of the affected institution. The NLRB’s long-standing rule on informational picketing balanced the employees’ right to picket against the needs of patient care and held that a hospital may lawfully prohibit on-premises picketing by both employees and non-employees. Thus, the noise and distraction of the picketing would usually be held at locations far removed from areas where patients, their families, and on-duty caregivers were located, such as public sidewalks at the entrances to driveways or parking lots.

This past August, the NLRB, in its decision in Capital Medical Center and UFCW Local 21, 364 NLRB No. 69 (August 12, 2016), overturned its long-standing rule and held that hospitals now have the burden of showing that a rule prohibiting on-premises picketing in non-patient care areas is necessary to avoid disruption of health care operations or disturbance of patients. The NLRB noted that such a rule would be examined on a case-by-case basis, and the Board clearly indicated that the measurement of disruption would take into account the actual conduct of the pickets. This ruling will make it extremely difficult for an employer to determine in advance whether a ban on on-site picketing would violate the National Labor Relations Act (“NLRA”).

The activity in Capital Medical Center involved two employees standing outside the main lobby entrance holding picket signs. They were not patrolling or chanting. The NLRB found that such on-premises picketing did not lose the protection of the NLRA. The Board’s ruling makes clear that the facts of this case are not the outer limit of what behavior would stay within the protection of the NLRA. For example, there is no clear explanation of an employer’s right to restrict informational picketing, particularly as to exterior locations, such as building entrances or parking lots. Employers should note that this decision does not apply to non-employee pickets nor does it apply to picketing by striking workers.

Takeaways (Informational Picketing)

Health care employers facing potential informational picketing should, well in advance, identify the areas both inside and outside the institution that are sufficiently close to patient care areas that any form of picketing, even if peaceful, would disturb patients or disrupt patient care, and amend rules accordingly. A record of the facts supporting such a rule should be made at that time. In addition, if, during the course of informational picketing, the conduct of the pickets becomes disturbing to patients or disrupts patient care, health care employers should collect evidence supporting that conclusion and take steps to stop the disruptive behavior.

Capital Medical Center has petitioned the U.S. Court of Appeals for review of the Board’s decision and the Board cross-petitioned for review, so watch for future developments on this issue.

Short-Term Strikes

Unions representing health care employees have frequently used one- or two-day strikes against hospitals and other health care institutions as a way to force the target institution to give in to unions’ bargaining demands or spend millions of dollars in replacement workers and other preparations to ensure proper care for their sick patients, while the strikes have minimal impact on the wages of the nurses or other health care workers who only lose a day or two of pay.

These strikes typically involve serving a notice under Section 8(g) of the NLRA that tells the institution that the employees will be on strike for a single 24-hour period and includes the employees’ unconditional offer to return to work at the end of that period. This forces the institution to scramble to find qualified temporary replacement workers, vet them, train them, and orient them. In order to do so, the institution typically needs to contract with the replacement workers for at least five days and at significant expense. Once the strike is over, often nothing has been resolved and the parties return to the table only for the union to threaten to engage in another short-term strike.

According to current case law under the NLRA, work slowdowns, partial strikes, and intermittent strikes are not permitted; therefore, employees who engage in them are not protected and may potentially be disciplined or discharged. The reason for this long-standing policy is clear—while employees should be free to withhold their labor as economic leverage, they should not be able to do so without any risk or sacrifice. For that reason, “quasi-strikes” (strikes that are “intentionally planned and coordinated so as to effectively reap the benefit of a continuous strike action without assuming the economic risks associated with a continuous forthright strike, i.e., loss of wages and possible replacement”) have not been entitled to protection under the NLRA.[1] Therefore, unions have been hesitant to call more than one or two of these short strikes during any single labor dispute/negotiation because of the potential that the third or fourth short strike would be considered intermittent and unprotected under the NLRA.

In October 2016, the General Counsel (“GC”) of the NLRB issued an Operations-Management Memorandum to Regional Directors and others acknowledging that unions and employees “are more frequently engaging in short-term strikes” and seeking to “clarify and modify the law regarding intermittent and partial strikes” to address concerns that employees face “potential discipline for activities that should be considered protected under Section 7 of the [NLRA].”

The GC Memorandum instructs the NLRB’s Regions to take action to again put their thumb on the scales in favor of unions. Specifically, the GC Memorandum instructs Regions litigating this issue to utilize an Intermittent Strike Brief Insert that advocates for a loosening of the standard to sanction any intermittent or short-term strikes that:

  1. “involve a complete cessation of work” (as opposed to a slowdown or partial work stoppage);
  2. “are not designed to impose permanent conditions of work [i.e., weekend only strikes, refusal to work overtime, etc.], but rather are designed to exert economic pressure; and
  3. the employer is made aware of the employees’ purpose in striking.”

If this position is accepted by the NLRB and the courts, unions would be free to conduct as many short, intermittent strikes as they desired so long as they called for a complete walkout and they informed the employer what end they were seeking to achieve by striking. Such a ruling would result in the increased use of such tactics.

Takeaways (Short-Term Strikes)

At this point, no decision has been reported based on the GC’s argument. Nevertheless, health care employers should be aware of the NLRB’s position and watch for further developments. Unions representing health care workers are aware of the GC’s published instructions to the Regional Directors and likely will be looking to test this theory. Employers should prepare accordingly. While contingency planning is definitely a must, employers may also be able to take advantage of certain bargaining strategies designed to mitigate the impact of these union tactics. Employers should consult with experienced labor counsel to ensure that they are prepared.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

[1] WestPac Electric, 321 NLRB 1322, 1360 (1996).

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.

Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test.”

Following is an excerpt:

The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will be required to join together to bargain over such employees’ terms and conditions of employment.” …

The potential for confusion and uncertainty is enormous. In an attempt to minimize these concerns, the Board majority stated that the so-called user employer’s bargaining obligations will be limited to those of such workers’ terms and conditions that it possesses “the authority to control.”

Read the full post here.