www.dinslaw.com employment/labor law update dinsmore & shohl health care seminar greater...

www.dinslaw.com

Employment/Labor Law Update

Dinsmore & Shohl Health Care SeminarGreater Cincinnati, February 23, 2010Dayton, March 17, 2010

Colleen P. Lewis, Esq.Dinsmore & Shohl LLP

Cincinnati513-977-8426

[email protected]

© 2010 Dinsmore & Shohl LLP | www.dinslaw.com

Legislative Update

It’s been a busy past couple of years, legislatively.– ADA Amendments Act

Emphasizes that the definition of “disability” should be interpreted broadly The term “substantially limits” should not be restrictively defined

– Family and Medical Leave Act Military Leave Revised Regulations

– American Recovery and Reinvestment Act COBRA Subsidy (65% subsidy, eligibility period extended through February)

– Lilly Ledbetter Fair Pay Act Expands statute of limitations for equal pay claims Each paycheck is a separate occurrence that restarts the clock


Union Organizing

Employee Free Choice Act

– Potential Provisions Card Check

First Contract Arbitration

Higher Penalties on Employers (but not Unions) for Unfair Labor Practices

– Currently stalled in Congress, but not dead Check back after November’s mid-term elections


Union Organizing

Corporate Campaigns– Union’s aren’t putting all of their eggs into the “EFCA” basket.– Organizing campaigns designed to put top-down, public relations-oriented pressure on

employers are becoming more prevalent. Different that traditional bottom-up approach designed to foster enough employee

support to win an election.– Aimed at coercing employers to be more receptive to organizing efforts

i.e. forcing employers to sign neutrality agreements, voluntarily accept authorization cards, etc.

– For example, “agree not to campaign against unionization, or we’ll continue to make public allegations of safety and health violations”

– A corporate campaign can also be used even if the union has already been recognized, and can be aimed at forcing employers to be more compliant in negotiations or in other areas.


Union Organizing

Corporate Campaigns

– These efforts often include public relations campaigns and/or allegations with respect to safety and health violations or wage and hour violations.

A Union doesn’t need supporting evidence in order to publicize this type of allegation.

– Especially in healthcare settings, these allegations can be easy for Unions to make and costly for Employers to combat


Union Organizing

Corporate Campaigns

– The best defense against such efforts begins with taking preventative action to resolve potential weak areas on these issues.

– Once allegations have been made, an effective public relations response by the Employer is often the best way to counter.

– As always, one can potentially avoid these issues through making efforts to maintain a positive relationship with one’s employees.


Harassment

Alaniz v. Zamora-Quezeda, Case No. 07-40235 (5th Cir. 12/21/09).

– Four female aides at a Texas medical clinic claimed that they had been sexually harassed by a male physician.

– Won a jury verdict of $257,000.00 in damages, including punitive damages.

– Plaintiffs complained about widespread and repeated sexual propositions, offensive touching, and harassing comments.

– No corrective action was ever taken.


Harassment

Case study for how to avoid that type of verdict:

Young v. Temple Univ. Hosp. Case No. 08-4375 (3rd Cir. 12/31/09).

– Similar claims of sexual harassment.

– The court granted the employer’s motion for summary judgment, and dismissed the case.

– A female occupational therapist assistant repeatedly complained about a subordinate who allegedly refused to take her directions and treated her with hostility “because she was a woman.”


Harassment

Young v. Temple Univ. Hosp. Case No. 08-4375 (3rd Cir. 12/31/09) cont’d.

– The male employee was disciplined after each report Oral warnings, written warnings, suspension.

– Complaints continued, Plaintiff requested that the male employee be transferred out of the department.

– Transfer denied, as the supervisor preferred to continue the progressive disciplinary process, which ultimately led to the male employee’s termination.


Harassment

Young v. Temple Univ. Hosp. Case No. 08-4375 (3rd Cir. 12/31/09) cont’d.

– Plaintiff quit prior to the harasser’s discharge, and filed suit, alleging hostile work environment, constructive discharge and retaliation.

– Plaintiff’s claims were ultimately dismissed, primarily because the hospital could show that it responded appropriately to her complaints.

– The hospital’s “failure to [transfer the harasser] … does not by itself render its remedial actions inadequate … Rather than transferring [him, the hospital] sought to take the necessary steps to terminate him.”


Disability

ADA Amendments Act

– Made some provisions of the ADA broader (e.g., definition of disability), but did not change the employer’s obligation to provide a reasonable accomodation.

Stewart v. St. Elizabeths Hosp., Case No. 09-7013 (D.C. Cir. 1/5/10).

– Summary Judgment granted on disability claim, because the hospital “acted promptly and appropriately” in this case.


Disability

Stewart v. St. Elizabeths Hosp., Case No. 09-7013 (D.C. Cir. 1/5/10), cont’d.

– Plaintiff, a hospital employee, was assigned to the maximum-security pavilion of the hospital, that houses pretrial detainees awaiting psychiatric screening and persons found not guilty by reason of insanity.

– Plaintiff complained about that assignment, but did not cite any claimed disability.

– Months later, Plaintiff contacted her supervisor, asking to be transferred, as she “did not feel that well.”


Disability

Stewart v. St. Elizabeths Hosp., Case No. 09-7013 (D.C. Cir. 1/5/10), cont’d.

– Accordingly, the supervisor met with her, asking her to furnish medical documentation of any disability.

– Plaintiff submitted no medical records, merely repeating her request for a transfer.

– Plaintiff left and never returned to work.– The Court held that the Plaintiff couldn’t prove a failure to accommodate claim– Plaintiff’s supervisor met promptly with her as soon as there was any

indication that a medical issue was involved, and he did not deny her an accommodation, instead merely asking for the medical documentation necessary to determine whether an accommodation was appropriate.


Wage & Hour

Interrupted Meal Breaks

– This type of FLSA claim is becoming more prevalent.

– Employees claim to have worked during unpaid meal periods.

– The Dept. of Labor recently supervised a settlement for roughly 4,000 Missouri nurses on this issue.

Their employers paid a total of $1.7 million in damages to settle the case.

The company’s timekeeping system automatically deducted time for meal periods, whether the employees were fully relieved from duty or not.

The nurses had not been following the established process for canceling the deduction if their break was interrupted.


Wage & Hour

Interrupted Meal Breaks– $1.7 Million DOL Settlement, cont’d.

It’s important to have a solid and consistently enforced policy on this issue.

– Advise against any automatic deductions.– Frequently audit how these policies are applied in practice, ensure that

employees are not working while on break. Once they arise, cases like this are difficult to defend, as they almost

involve contested issues of fact.– Employees claim to have worked during meals.– Supervisors dispute those claims.– Employees rely on the fact that the supervisors could not have personally

observed each lunch period.


Occupational Safety & Health

OSHA recently announced two major initiatives:

National Emphasis Program on Recordkeeping

– 1-year program

– Roughly 350 planned inspections of employers in selected industries with high occupational injury and illness rates.

– Inspections aimed at determining compliance with OSHA recordkeeping requirements.

– Inspections will include: (1) a records review; (2) employee interviews; (3) a limited safety inspection of the workplace.


Occupational Safety & Health

Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza

– OSHA, in addition to other government agencies, has issued regulations governing H1N1.

i.e., requiring health care workers in close contact with individuals suspected or confirmed to have the flu to utilize N95 respirators.

– OSHA has also established official enforcement procedures on the subject of H1N1.

Inspections will be initiated in response to worker complaints, referrals, or as part of fatality and/or catastrophe investigations

Inspections will involve: (1) a walk-around; (2) a records review; and (3) employee interviews.

www.dinslaw.com

Colleen P. Lewis, [email protected]

513-977-8426

www.dinslaw.com employment/labor law update dinsmore & shohl health care seminar greater...

Documents