Hot Topics in Employment Law

Betsy J. BeckShannon Coleman Egle

Kramer Rayson LLP

800 S. Gay Street, Suite 2500Knoxville, Tennessee 37929

865.525.5134

Employment Litigationis Exploding

• Recently, U.S. District Judge Leon Jordan indicated that employment cases make up 40% of the district court’s docket.

• Most cases, including race, sex, religion, national origin, age, and disability, are tried to juries.

• Add in FMLA, FLSA, ERISA (all jury cases), and eliminating your Practice’s exposure is a difficult task.

2

What is Unique About Employment Litigation?

• Jurors identify with the employee.• Jurors realize the importance of a job for sense

of self worth.• Jurors expect that companies should treat

employees fairly.• They believe that employment/disciplinary

procedures should be followed.• They believe that employers are profit-driven at

the expense of employees.

3

Tips for Documentation

• State the employee’s problem objectively

• Follow disciplinary procedures

• Be accurate and provide details

• Don’t create bad documentation

• Act timely

• Treatment must be consistent

4

Inaccurate Documentation

• Do not view performance documentation as a “pep rally” instead of an opportunity to candidly discuss your employee’s performance and conduct.

• Inaccurate performance appraisals do disservice to the employee and the Practice.

• Employees have the right to know where they stand.

• Practice has right to fair and accurate appraisals when it has to take disciplinary action.

5

Lack of Documentation

• Do not let proper documentation of discipline “slip through the cracks.”

• It is alarming to get a call, “We have to terminate this employee” when you look in the file and the problem is not documented.

• If it is important enough to speak to the employee about, it is important enough to document on an appropriate form.

• Problems not important enough to document and follow progressive discipline are viewed by judges and juries as a pretext or “phony” reason.

6

Harassment Issues Unique to Physician Practices

• Power, authority, and financial position

• No individual liability under Title VII but potential “aider and abettor liability” under THRA.

• Harris v. Dalton, 2001 Tenn. App. LEXIS 285 (Tenn. Ct. App. Apr. 26, 2001)

• Supervisor may be required to obtain separate counsel -- possibly at his/her own expense.

• Policy should list position other than physician as additional point of contact.

Employee Medical Leaves

• Update on FMLA and ADA

• Require medical documentation

• Remember request and approval process

• Treat non-medical leaves similarly

• Be prepared to back up undue hardship arguments

• Address disciplinary issues promptly

Compensation Issues

• FLSA litigation exploding

• Exemption issues– Physician pay

– Nursing staff pay

• Problem deductions

• Collective actions and class actions

Breaks

• State law requires meal break of at least 30 minutes for each shift of six (6) or more consecutive hours– No waiver– No automatic payroll deductions

• Violation is a Class B misdemeanor (fine & penalty) and each and every infraction constitutes a separate and distinct offense

• No other required breaks,• BUT, some breaks, if given, must be paid

Background Checks

• Effective October 1, 2010

• For persons providing direct patient care

• State law requires healthcare professionals to conduct background checks for states in which the prospective employee or I/C has lived in the previous 7 years using:

– State sex offenders registry;

– State abuse registry; and

– Abuse registries

• Links to these registries found on TN BME website.

Background Checks (cont’d)

• Applies to both employees and I/Cs• Does not apply to contracted, external staff where

direct patient contact is not intended:– Cleaning services; –Maintenance of office; –Maintenance of medical equipment;– Similar services.

• Must check:– Current employees and I/Cs not already checked;– Prospective employees and I/Cs before date of

hire.

Physician Non-Compete Agmts

• Applies to employees and I/Cs• Applies to :– Podiatrists– Chiropractors– Dentists–MDs/Surgeons– Optometrists– DOs– Psychologists

• Does not apply to emergency room physicians

Physician Non-Compete Agmts (Cont’d)

• Max duration: 2 years

• Max geographic limitation: – 10 mile radius from primary practice site of

physician while employed/engaged; OR

– County of primary practice site of physician while employed/engaged; OR

– Acceptable alternative to geographic limitation: restrict physician from practicing at any facility at which physician provided services while employed/engaged.

Physician Non-Compete Agmts (Cont’d)

• Prior law said that no non-compete enforceable if physician had been employed/contracted for 6 years.

• Effective 1/1/2012: can extend to physicians employed/contracted 6 or more years

• To extend 6 years and beyond:– Must be in writing– Must be through subsequent negotiations (i.e., no

evergreen extensions)– Each extension must be for a period of time not to exceed 6

years– Refusal to extend cannot be grounds for terminating

existing EA

Questions?