Webcast Replay Available: Reviewing Significant Employment Law Issues Facing Medical Practices Today

On February 21, Patti Bartis of Parker Poe highlighted the significant employment law issues facing medical practices on a webinar hosted by the North Carolina Medical Society Foundation in cooperation with the North Carolina Medical Group Management Association.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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March 22 Webcast: Employer’s Risk & Responsibility in Preventing Violence in the Workplace

Employer’s Risk & Responsibility in Preventing Violence in the Workplace

March 22, 2017 | 3:00-4:00pm EST

Register here.

Violence is a more common source of injury in healthcare than other industries and Home Care employers have many workplace challenges. The Home Health Care Industry carries unique risks and hazards and the environment is uncontrolled and more highly varied than traditional health care facilities. Home health workers may also be at risk from the community surrounding the home (robbery, car theft, vandalism). In a recent OSHA enforcement action against a home care agency, the agency was found not to take the steps needed to address employee exposure to workplace violence in a patient’s home.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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Refreshing Your Work Authorization Procedures

Employers in all industries – including Health Care – should be aware of employment changes to immigration and authorization to work and may need to refresh new hire procedures.

Read the client alert, “Employers Should Review Work Authorization Procedures” in Parker Poe’s EmployNews Bulletin.

 

 

Sarah Ford

Sarah Ford

Sarah Ford assists employers in the areas of compliance counseling, internal investigations and litigation. Ms. Ford has experience defending employers against the claims of current and former employees as well as charges brought by government agencies. These include the Equal Employment Opportunity Commission (EEOC), Citizenship and Immigration Services (USCIS), the Civil Rights Division of the U.S. Department of Education and the Federal and North Carolina Departments of Labor. Ms. Ford has experience handling sensitive employment issues such as claims of sexual harassment, racial bias and disability discrimination. Her clients include health care entities, schools and universities, financial institutions and retailers.

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March 2 Webcast: What the New Federal Discrimination Laws Mean to You

March 2, 2017 | 3:00-4:00pm EST

Section 1557 prohibits health care providers that receive Medicare, Medicaid or other federal funding sources from discriminating on the basis of race, color, national origin, sex, age, or disability.  The requirements of the Section 1557 Rules, which were recently adopted by DHHS, requires providers to take many affirmative steps to comply with the law including, adopting nondiscrimination policies, providing free language assistance to individuals with limited English proficiency, and accommodating individuals with disabilities.

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Robb Leandro

Robb Leandro

Robb Leandro assists his client with a broad range of legal issues relating to health care, administrative law and public policy. His legal practice focuses on helping health care providers navigate the minefield of regulations that they face in their practices. Robb routinely assists his clients with issues including Medicaid and Medicare regulations; Medicaid and Medicare audits; Certificate of Need Applications and litigation; licensure, surveys, and certification issues; and HIPAA and privacy laws. Robb also provides counsel to health care providers with complex government contract procurement issues.

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Feb. 21 Webcast: Reviewing Significant Employment Law Issues Facing Medical Practices Today (free)

February 21, 2017 |12:00 PM – 1:00 PM

The North Carolina Medical Society Foundation in cooperation with the North Carolina Medical Group Management Association, invites you to join us for a webinar reviewing the significant employment law issues facing medical practices today. Topics will include: an update on the status of new overtime regulations and other government action; handling substance abuse in the workplace; and the challenges presented by employees’ use of social media and personal electronic devices at work. Other subjects include ADA and FMLA compliance challenges, expanding protections for LGBT workers and independent contractor misclassification risks.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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Seventh Circuit Dismissal Signals Likely End to EEOC’s Challenges to Employer-Sponsored Wellness Programs

Several years ago, the Equal Employment Opportunity Commission (EEOC) raised employers’ eyebrows when it filed several lawsuits challenging the validity of employer-sponsored wellness programs. The EEOC contended that such programs violate the ADA and GINA due to terms that rewarded or punished employees and dependents based on their degree of participation in the wellness initiatives. Federal courts were largely unsympathetic to these challenges, noting provisions in other federal laws specifically endorsing the use of wellness programs as a way to improve employee health and help control plan expenses.

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Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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Can Employers Continue Post-Accident Drug and Alcohol Testing?

On January 1, the federal Occupational Safety and Health Administration’s (OSHA) new recordkeeping and reporting rule took effect. The main impact of this rule requires employers to electronically file annual injury and illness reports, which will be placed in a publicly accessible database. However, buried in the final rule’s explanation last year, OSHA questioned the ability of employers to conduct automatic post-accident drug or alcohol testing.

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Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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EEOC Settlement Reminds Healthcare Employers of Limits on Mandatory Vaccinations

The policy seemed straightforward. A hospital required all employees to receive seasonal flu vaccinations based on its assessment of the dangers of influenza to patients with compromised immune systems. The hospital went further, providing an exemption from the policy for employees with medical or religious reasons for avoiding the vaccinations. Nevertheless, the Equal Employment Opportunity Commission (EEOC) recently announced that it had reached a $300,000 settlement with the hospital based on its claims that the vaccination policy violated the religious rights of six terminated employees under Title VII.

The EEOC claimed that in practice, the Pennsylvania hospital rejected religious claims for exemption from the flu vaccine, while routinely granting medical exemptions. The settlement specifically prohibits the hospital from requiring that employees seeking a religious exemption from the vaccinations provide notes from clergy certifying the religious basis for the objection. In general, Title VII prohibits employers from inquiring into the basis for or sincerity of the employee’s religious practices or beliefs.

The settlement does allow the hospital to continue denying vaccination exemption requests if it can prove undue hardship. This is a difficult standard, requiring the employer to demonstrate something close to certainty of harm in the event that the exemption is granted. In the hospital’s case, undue hardship could arise for example, with employees whose jobs requires regular and close contact with patients known to have compromised immune systems.

The EEOC’s position obviously provides employees who simply prefer not to get vaccinated an avenue to claim a questionable religious exemption to the requirement. Absent clear evidence that the employee does not hold a sincere religious belief supporting the accommodation request, the employer has little recourse other than to determine whether the accommodation presents the undue hardship allowed by the EEOC.

Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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White House Council of Economic Advisors Cites Non-Competes as Factor in Increasing Labor Monopsony

I vaguely recall the word “monopsony” from an introductory economics course, but to be honest, I could not remember what it means. The term monopsony is defined as, “a market condition where one or a small group of firms exercise such control over a particular product or service that they are able to pay lower prices for its inputs.” While a monopoly can result in higher consumer prices, a monopsony allows the controlling company to lower its costs of production by paying less than would be the case in a competitive marketplace.

Earlier this month, the President’s Council of Economic Advisors released an issues brief discussing the consequences of a labor market monopsony on wages and economic equality. The Council identified monopsony as a significant contributing factor behind slow wage growth in the U.S. in recent years. Absent a competitive labor market in some industries, employees lack the ability to increase their incomes by selling their services to a competitor.

In addition to market concentration, the issues bulletin notes recent cases of wage collusion among competitors in Silicon Valley and in the healthcare industry who allegedly agreed not to hire each other’s employees. The bulletin also cites non-competition agreements as a significant contributing factor toward market monopsony, noting that 18 percent, or 30 million U.S. employees are currently restricted from moving to competitors. Finally, the Council points out that the decline of organized labor, regulatory (i.e., licensing) restrictions and lack of healthcare portability also contribute to a lack of labor mobility.

The issues bulletin concludes by setting forth a list of proposed remedial steps such as increased antitrust enforcement efforts. More importantly for employers, in addition to the bulletin, the White House also released a set of “best practices and call-to-action” for states to implement specific policy reforms to “curb the use of unnecessary non-compete agreements.” Among other recommendations, the White House urges states to ban non-compete agreements for (1) workers under a certain salary threshold; (2) those who do not have access to trade secrets; (3) workers in public interest vocations; and (4) employees who have been terminated or laid off without cause.

Neither the issues bulletin or White House best practices guidelines have any force of law. However, they represent one of the first expressions of federal interest in controlling state law governed non-competes. In recent years, state courts and legislatures have become increasingly hostile to non-compete agreements they view as overbroad or unfair. If Democrats continue to hold the White House or regain control of Congress, these new policy documents could represent an indication of future federal legislative and regulatory intentions.

Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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Supervisor’s Remarks May Constitute Direct Evidence of Discriminatory Bias

On September 2, 2016, the United States District Court for the District of Maryland (which sits in the Fourth Circuit, along with North Carolina and South Carolina) held that the EEOC can move forward in its case against a large Maryland healthcare provider for allegedly failing to promote a female employee allegedly because she had availed herself of maternity leave.

In the case, EEOC v. Dimesions Healthcare Sys., No. PX 15-2342 (D. Md. Sept. 2, 2016), upon being passed up for a promotion, the plaintiff met with her supervisor to discuss why she had not been awarded the position when she had more years of experience in the industry and working with the company than the male candidate who had been selected. In response to the plaintiff’s inquiries, the supervisor told the plaintiff that the selected candidate “had a management background. Plus you were on maternity leave for a while.” Highlighting the fact that the supervisor was the ultimate decision-maker and that this reference to the plaintiff’s maternity leave was made on the heels of the promotion decision, the court concluded that the comment could reasonably be viewed as direct evidence of discrimination. The court focused on the fact that the plaintiff had superior experience and qualifications compared to the selected male candidate in rejecting defendant’s argument that the comment was a single, isolated remark that should not be given much weight. Moreover, the court also considered remarks and personnel decisions the supervisor had made with regard to other pregnant employees to further support its conclusion that the statement could reasonably be viewed as direct evidence of a discriminatory bias.

This case is a reminder that comments—especially those made by decision-makers—can constitute direct evidence of discrimination under federal discrimination laws. When there is direct evidence of discrimination, it is easier for a court or jury to find an employer liable for unlawful discrimination. The court’s decision also demonstrates that circumstantial evidence cannot only be used under the burden-shifting framework set forth in McDonnell Douglas, but can also bolster alleged discriminatory comments under the direct evidence analysis. Furthermore, the court’s consideration of comments made about other employees highlights that remarks do not have to be about the employee or employment decision at issue to constitute direct evidence of a discriminatory bias.

Most importantly, the case underscores the importance of training employees in decision-making positions to refrain from voicing or considering unlawful factors when making employment decisions or otherwise.

Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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