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Florida Health Care Association
2013 Annual Conference
The Westin Diplomat Resort & Spa
Session #12 Journey Through the Complex World of Labor/Employment Law
Monday, August 5 10:45 a.m. to 12:45 p.m.
Regency 2
Upon completion of this presentation, the learner will be able to:
comprehend recent developments in employment law such as discrimination and
retaliation under various federal and state statutes;
understand the current legal issues surrounding social media use in the workplace;
comply with new federal and state agency initiatives related to employment law; and
formulate personnel policies and practices that comply with current legislation and agency
views.
Seminar Description:
Prepare to travel through the complex and rapidly changing world of labor and employment law!
Exciting destinations will include a tour of issues surrounding social media and other workplace
employment policies that have resulted in liability for employers, as well as recent twists and turns
of employment law topics such as discrimination and retaliation. The flight will also highlight
alarming federal agency initiatives of the NLRB an
-will employment provisions, criminal background checks, constraints on investigations
into employee complaints, plus union dues checkoff and union negotiation over discipline issues.
During the journey, explore the preventive approach to labor relations and receive practical human
resource and bargaining tips, with an interactive style of presentation.
Presenter Bio(s):
Mike Miller, Partner with Kunkel Miller & Hament, has served as Labor Counsel to Florida Health
Care Association since 1984, representing member companies in labor and employment matters.
He also serves as General Counsel to the Florida Association of Professional Employer
Organizations. He is Board Certified in Labor and Employment law and has been rated "AV" and
-
attorneys who have attained a high degree of peer recognition and professional achievement.
John Hament is a partner in the law firm of Kunkel Miller & Hament. He advises and represents
employers in matters relating to discrimination, retaliation, collective bargaining negotiations,
arbitrations, mediations, union organizing campaigns, unfair labor practices, strikes, wage and hour
law, OSHA and administrative state and federal court proceedings. He is a member of the Florida
Bar and is Board Certified in Labor and Employment Law.
7/30/2013
1
for
Florida Health Care Association2013 Annual Conference & Trade Show
August 5, 2013
Presented byMichael R. MillerJohn M. Hament
Gail E. FarbMagdalene Center
Suite 20215438 N. Florida Avenue
TAMPA, FL 33613(813) 963-7736
Orange Professional CentreSuite 200
235 N. Orange AvenueSARASOTA, FL 34236
(941) 365-6006
SunTrust Bank BuildingSuite 405
12751 New Brittany Blvd.FORT MYERS, FL 33907
(239) 278-1600SATELLITE OFFICE
230 Water StreetP.O. Box 865
APALACHICOLA, FL 32329(850) 653-1600
WWW.KMHLABORLAW.COMEmail: [email protected]
No Juries Allowed On Board!
• Waiver of jury trial in application (Wyndham Worldwide)Clear wordingProminent placementRight to consult counsel
• Pilot AdvisoryUse jury trial waiver in applicationAlternative - enter into mandatory arbitration agreement for implied waiver
• Avoidance of jury trial to minimize uncertainty of outcome
7/30/2013
2
EEOC Guidance on criminal background checks
• Consider several factorsNature and gravity of offenseTime lapseNature of job sought
• To prevent “disparate impact” on males or minorities.
• Individualized assessment of candidates
EEOC lawsuit against Dollar General
• Automatic bar against employment based on certain convictions
• Automatically revoked offer based on old drug conviction
• Did not consider applicant’s post-conviction employment record
• Automatically revoked offer based on conviction erroneously reflected in report
• EEOC alleged “discriminatory impact”: blacks rejected at a higher percentage rate than non-blacks
EEOC lawsuit against BMW
• BMW hired new subcontractor and required existing employees to undergo background check
• Disqualified existing employees based on old convictions
• Did not consider they had satisfactorily performed their jobs for years
• Alleged “discriminatory impact”: employee pool was about 55% black, but black employees were screened out at 80% rate
7/30/2013
3
Florida laws supporting or requiring criminal checks
• Section 768.096, Florida Statutes: defense to negligent hiring claims encourages background checks
Florida laws supporting or requiring criminal checks
• Florida laws pertaining to certain health care workers require background checks (“Level 2”)
Automatic disqualification of candidates awaiting final disposition; found guilty or pleaded to certain offenses; or adjudicated delinquent of certain offenses (§§ 408.809(4); 435.04(2))
AHCA/Department of Health reviews background check and makes final decision, not employer (§ 435.07)
Florida laws supporting or requiring criminal checks
• Florida laws pertaining to certain health care workers require background checks
AHCA/DOH decides whether to grant exemption (§§ 435.06(2)(a); 435.07)
AHCA/DOH considers many factors in deciding whether to grant exemption (§§ 435.07(3)(a); Fla. Admin. Code § 59A-35.090(5))
Certain convictions permanently disqualify candidates (§ 435.07(4)(b))
7/30/2013
4
Tension between EEOC Guidance and Florida law
• EEOC: employer not shielded from liability because it adopted background check to comply with state law
Tension between EEOC Guidance and Florida law
• Pilot Advisory
Comply with state and federal laws/regulations
Decide what specific positions require criminal check and why
Decide what specific offenses disqualify a candidate and why
Develop written policy/train employees
Consider giving disqualified applicant opportunity to provide relevant information
Pilot Errors in I-9 Protocols May Be Costly
• I-9 Document Abuse Cases Are Expensive
Advantage Home Care, LLC (NJ home health agency)
Required lawful permanent residents to provide more or different documents than U.S. citizens
Settled: $1,633 back pay to charging party, back pay to other potential victims, $46,575 civil penalties to U.S., anti-discriminatory training of HR staff, 3 years reporting and compliance monitoring by DOJ
7/30/2013
5
Pilot Errors in I-9 Protocols May Be CostlyHolliswood Hospital (NY)
Required lawful permanent residents to provide more or different documents than U.S. citizens
Settled: $1,182 back pay, $5,000 civil penalties to U.S., anti-discriminatory training of HR staff, 18 mos. reporting and compliance monitoring by DOJ
University of California San Diego Medical Center (CA)
Requested non-citizen employees to provide specific documentation in verification and reverification processes
Settled: $115,000 civil penalties, implementation of non-discriminatory practices
Pilot Errors in I-9 Protocols May Be Costly
ComForcare In-Home Care & Senior Services (OR)
Failed to provide naturalized citizen employee with written tentative nonconfirmation in E-Verify
Demanded employee and non-U.S. citizens produce specific List A documents
Settled: $524.96 back pay, $1,210 civil penalties to U.S., anti-discriminatory training of HR staff, 18 mos. reporting and compliance monitoring by DOJ
Pilot Errors in I-9 Protocols May Be Costly
• Prohibited Discriminatory Acts by Immigration and Nationality Act (INA)
Citizenship or immigration status discrimination
National origin discrimination
Unfair documentary practices during Form I-9 process (or document abuse)
Retaliation
7/30/2013
6
Pilot Errors in I-9 Protocols May Be Costly• To Avoid I-9 Document Abuse:
Do Not request employees produce more documents than required (only require one from List A or one from both Lists B and C)
Do Not request a particular document such as “green card” (employee may choose from Lists)
Do Not reject documents that reasonably appear to be genuine and relate to employee presenting them
Do Not treat different groups of applicants differently
Comply to Avoid Penalties
• Civil penalties: $110 to $1,100 for each violation for failure to properly complete, retain, or make available for inspection
• Employee completes Section 1 after accepts offer of employment and no later than first day of employment
• Employer completes Section 2 within 3 business days after employment begins (employee’s Day 4), unless hired for fewer than 3 days
Comply to Avoid Penalties
• Do not require Social Security number on I-9 unless participate in E-Verify
• Retain completed I-9s for later of 3 years after hire or 1 year after employment ends (electronic storage permitted)
• May copy documents presented by employees (must keep for all employees, if keep at all)
7/30/2013
7
Comply to Avoid Penalties
• Since May 7, 2013, use new 2-page I-9 for all new hires and reverification
Not needed for existing employees
Added optional extra data fields - employee’s telephone number and email addresses
Allows foreign passport information
• Spanish version may be used only in Puerto Rico
Pilot Advisory:
• Train personnel on current I-9 requirements
• Use current I-9 form
7/30/2013
8
Social Media – Adverse Personnel Actions
• Employee social media activity may be protected by National Labor Relations Act (NLRA)
• NLRA applies to union and non-union workplaces
• NLRB focus on: adverse personnel actions and personnel policies
• “Protected Concerted Activity” definition
Social Media – Adverse Personnel Actions
• Examples of protected concerted activity:
Facebook complaint about supervisor and working conditions (Bettie Page Clothing)
Facebook discussion of complaint of co-worker (Hispanics United of Buffalo)
Facebook posting attacking manager that included profanity (Pier 66)
Facebook discussion deemed “concerted” where another employee hit “like” (Triple Play Sports Bar & Grille)
Social Media – Adverse Personnel Actions
• Examples of not protected concerted activity:
Facebook posting that employer did not appreciate its employees and was tyrannical was not “concerted” because individual gripes (Report of NLRB Acting General Counsel 8/18/2011)
Facebook posting where employee complained about co-worker overcharging customers for drinks not “protected” because only tangentially related to terms and conditions (Report of NLRB Acting General Counsel 1/24/ 2012)
7/30/2013
9
Social Media – Adverse Personnel Actions
• Examples of not protected concerted activity (cont’d):
Facebook posting by newspaper reporter employee including “you stay homicidal Tucson” was unprofessional, thus “unprotected” (Report of NLRB Acting General Counsel, 8/18/2011)
Social Media – Adverse Personnel Actions
• Pilot Advisory: Considerations before employee discipline
Individual gripe
Discussions with others, especially co-workers
Related to wages, hours, terms or conditions of employment
Union activity or legal compliance
Topic previously discussed
Policies Implicated by Social Media Use
• Policies implicated by social media use:
Social MediaNon DisparagementConfidentiality Professionalism Anti-Harassment/Discrimination Media
• Pilot Advisory:
Consider implementing Social Media PolicyNLRB issued sample social media policy (Walmart)Review other policies for legality
7/30/2013
10
At-Will Clauses Should Not Chill Unionization
• NLRB scrutinizes at-will clauses in handbooks
• NLRB develops a test
Does at-will clause explicitly restrict Section 7 activities?Could at-will clause restrict Section 7?Was at-will clause a response to union activity?Is at-will clause applied to restrict activities?
• Pilot Advisory: Identify who can alter the at-will relationship
Investigation “Gag Orders” are disfavored
• NLRB clamps down on confidentiality
• Pilot Advisory
Retrain employees who conduct investigations
Eliminate blanket confidentiality rules
NLRB found blanket requests for confidentiality violate employees’ Section 7 rights
EEOC follows NLRB’s lead
7/30/2013
11
Unpaid Internships in the Balance
• FLSA lawsuits for overtime and minimum wage filed by unpaid interns claiming to be employees increasing (Black Swan)
Costly
May not waive FLSA rights
Unpaid Internships in the Balance
• Internship similar to training that would be given in school
• Internship experience for benefit of intern
• Intern does not displace regular employees, but works under close observation of a regular employee
DOL’s test to see if unpaid intern is an employee:All six elements must be satisfied
• Employer provides training and derives no immediate advantage
• Intern not necessarily entitled to a job at the conclusion of the internship
• Mutual understanding that intern not entitled to wages
Unpaid Internships in the Balance
• In June 2013, New York federal court (Black Swan case) applied these factors to determine that unpaid interns were employees
However, unlike the DOL, the court evaluated facts/factors based on the totality of the circumstances.
• Pilot Advisory: Employers should review their internship programs
7/30/2013
12
Wind Shear Ahead in Wellness Programs?
• Affordable Care Act (ACA) guidelines regarding nondiscrimination for wellness programs
• ADA and ADEA may apply
• Pilot Advisory
Evaluate effects of rewards and incentives on individual employees
Provide alternative standards for employees who do not meet health goals
Nursing Mothers Without Privacy May Claim Retaliation
• FLSA protection against retaliation and constructive discharge (Salz v. Casey’s Mktg. Co.)
• Pilot Advisory
Adopt breastfeeding policy allowing for breaksProvide private place to express breast milk, not the bathroom
7/30/2013
13
Nursing Mothers Without Privacy May Claim Retaliation
• Comply with time and space requirements for expressing breast milk (Miller v. Roche Surety & Casualty Co.)
• Lactation discrimination under Title VII’s pregnancy discrimination
• Pilot Advisory
Engage in interactive process with employee
Evaluate applicability to exempt employees, too
“Have It Your Way?”Accommodating Religion In Flight
• Failure to accommodate faith-based dress code (Fries Restaurant Management)
• Prove “undue hardship” to avoid accommodation
• Contrast quantum of accommodation required for religion versus disability
“Have It Your Way?”Accommodating Religion In Flight
• Pilot Advisory
Accommodate religious request, if no undue hardship
Review anti-discrimination, grooming/dress code and attendance policies for possible violation
Supervisor and manager training
7/30/2013
14
Flight Crew Uniform/Grooming Policies- Male vs. Female
• Dress code or grooming policy for professional environment may differentiate between genders
• Pilot Advisory
Written policy
Apply consistently
Do not impose greater burden on one gender
Use common sense and be mindful of social norms
The Passenger Is Always Right…Wrong!Discrimination Upon Demand Unlawful
• Unlawful discrimination based on customer’s request (Hurley Medical Center)
• Racial discrimination and reverse discrimination prohibited
• Prohibition against racial discrimination trumps patients’ demands (Chaney v. Plainfield Healthcare Center)
The Passenger Is Always Right…Wrong!Discrimination Upon Demand Unlawful
• Pilot Advisory
Review anti-discrimination policies
Initiate management training
Avoid discrimination based on client’s request
7/30/2013
15
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
• INA Prohibits Citizenship Discrimination.
Employers may not treat individuals differently because are/not U.S. citizens or work authorized (unless required by law, regulation, or government contract)
Protected: U.S. citizens, recent permanent residents, temporary residents, asylees, refugees
Not protected: Permanent residents who do not apply for naturalization within 6 months of eligibility
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
• INA Prohibits Citizenship Discrimination.
Applies from hiring process through termination
Prohibits retaliation for filing charge with OSC, participating in investigation or prosecution of a discrimination complaint, or asserting rights or the rights of another person under INA antidiscrimination provisions
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
• Job Postings May Not Discriminate Regarding Citizenship.
Onward Healthcare, Inc. (provides traveling nurse positions in FL and thru USA)
1000s of job listings requiring U.S. citizenshipSettled: $100,000 civil penalties, INA antidiscrimination training and 3 years monitoring by DOJ
7/30/2013
16
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
• Job Postings May Not Discriminate Regarding Citizenship
Avant Healthcare Professionals LLC (Casselberry, FL health care staffing agency)
100s of internet job postings preferring foreign-trained individuals seeking permanent resident or H1-B visa sponsorship over U.S. workers
Settled: $27,750 civil penalties, adopt nondiscriminatory policies and practices, DOJ reporting and monitoring for 3 years
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
Pilot Advisory:
• Confirm applications and interviewers do not ask applicants whether they are U.S. citizens before making offer of employment
• May ask:Are you legally authorized to work in the United States? (Yes or No)Will you now or in the future require sponsorship for an employment visa status?
Granting Preference For Foreign Workers or U.S. Citizens May Cause Engine Failure
Pilot Advisory:
• Do not include language in job postings indicating hiring may be dependent upon citizenship or immigration status
7/30/2013
17
To Be (A Supervisor) Or Not To Be…That Is The Question
• Three Types of Liability for Workplace Harassment (decreasing order of difficulty to defend)
Employer strictly liable for harassing conduct of a supervisor, regardless of whether employer was aware of harassment, if harassment ended in a “tangible employment action” (i.e., termination or reassignment)
To Be (A Supervisor) Or Not To Be…That Is The Question
“Vicarious Liability” - If no tangible employment action (“hostile environment” claim), employer will be liable for supervisor’s acts unless employer can establish
it exercised reasonable care to prevent and correct any harassing behavior, and
plaintiff employee unreasonably failed to take advantage of the opportunities that the employer provided. (Faragher/Ellerth affirmative defense)
To Be (A Supervisor) Or Not To Be…That Is The Question
Employer not vicariously liable for harassing acts of a non-supervisory employee (i.e., co-worker)
Employer only liable for harassment by non-supervisory employee if employer negligent in controlling workplace conditions
7/30/2013
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To Be (A Supervisor) Or Not To Be…That Is The Question
• Supreme Court defines “supervisor” in harassment (Vance v. Ball State University 6/24/13)
An employee is a “supervisor” for purposes of vicarious liability only if “the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decisions causing a significant change in benefits.’”
To Be (A Supervisor) Or Not To Be…That Is The Question
• Supreme Court defines “supervisor” in harassment (Vance v. Ball State University 6/24/13)
Not supervisors - Team leads, foremen, and assistant supervisors, who direct work of others but do not have the authority to change their subordinates’ employment status or terms of their employment
To Be (A Supervisor) Or Not To Be…That Is The Question
• Pilot Advisory:
Audit job descriptions and actual job responsibilities to ensure descriptions reflect actual functions of job, especially whether employees have the authority to hire, fire, promote, demote, transfer, make compensation decisions, or take other tangible employment actions
7/30/2013
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To Be (A Supervisor) Or Not To Be…That Is The Question
• Pilot Advisory (cont’d):
In job descriptions for quasi-supervisory positions that do not have such authority, expressly state that employees holding those positions do not have such authority
Conduct anti-harassment training
Enforce anti-harassment policies
Be mindful of NLRA “supervisor” issue (e.g., LPN’s)
Employers May Now Have to BargainOver Discipline Pre-CBA
• Employers previously had right to discipline, pre-CBA, without need to bargain (Alan Richey)
Subsidizing Unions: Employers Cannot Stop Union Dues Even after CBA Expires
• Employers previously could suspend dues deductions upon CBA expiration (WKYC-TV)
7/30/2013
20
Validity of Recent Anti-Employer Board Decisions
• Supreme Court to decide legal challenge in 2013 – 2014 term (Noel Canning)
Pilot Advisory:
• Validity of NLRB since 1/2012 in the balance
• State of labor law and NLRB decisions remain uncertain
• Treat current Board decisions as valid and comply (for now).
for
Florida Health Care Association2013 Annual Conference & Trade Show
August 5, 2013
Presented byMichael R. MillerJohn M. Hament
Gail E. FarbMagdalene Center
Suite 20215438 N. Florida Avenue
TAMPA, FL 33613(813) 963-7736
Orange Professional CentreSuite 200
235 N. Orange AvenueSARASOTA, FL 34236
(941) 365-6006
SunTrust Bank BuildingSuite 405
12751 New Brittany Blvd.FORT MYERS, FL 33907
(239) 278-1600SATELLITE OFFICE
230 Water StreetP.O. Box 865
APALACHICOLA, FL 32329(850) 653-1600
WWW.KMHLABORLAW.COMEmail: [email protected]