jackson lewisPreventive Strategies and

Positive Solutions for the Workplace ®

HEALTH CARE INDUSTRY PRACTICE

JACKSON LEWIS’ HEALTH CARE INDUSTRY PRACTICE

is comprised of experienced labor and employment

attorneys from a wide range of backgrounds with a shared

focus on representing for-profit, non-profit and faith-based

acute care hospitals, behavioral health hospitals, nursing

homes and other health care employers. Our attorneys are

in constant communication with one another and with our

clients on the latest labor and employment law

developments affecting health care employers. We bring to

each representation a clear understanding of the business

and complexity of health care, as well as up-to-the-minute

knowledge of emerging legal issues. We are one of the few

employment law firms to publish a bulletin exclusively

devoted to informing hospitals and other health care

employers on workplace law developments.

We have significant experience representing all kinds of health care providers,including:■ National and regional hospital systems, university-affiliated and teachinghospitals, as well as community and rural hospitals;■ Behavioral health hospitals, substance abuse treatment facilities andcommunity-based mental health services;■ National, regional and local health care companies offering acute, sub-acute, long term, hospice, rehabilitation and/or other health related services;■ Physician practice groups, occupational health centers, rehabilitationservice companies and other professional practice groups;■ Home care and other community-based health services; and■ Nursing homes, senior and assisted living providers and continuing careretirement communities.

We understand the cultural and operational differences between thesevarious providers and consider them when advising clients regarding the bestsolutions for their particular organization.

Our Preventive Approach: Jackson Lewis began more than 50 years agowith a handful of attorneys. We are now one of the largest labor and employ-ment law firms in the U.S. With more than 600 lawyers practicing in regionaloffices across the country, we are exposed to the most current national trendsand yet remain sensitive to the local communities we serve. Since day one, wehave championed the practice of preventive practices because we believe wecan serve our clients best by counseling and educating them on their rightsand obligations and the rights of their employees. We adhere to this approachin our representation of health care employers in the following practice areas.

Labor, Including Preventive Practices

Jackson Lewis attorneys are among the most prominent and successfulpractitioners of preventive labor relations law in the nation. We literallywrote the book, Winning NLRB Elections, and we have advised employerswith respect to how they may best preempt union organizing and corporatecampaigns for over 50 years. Every year, the Labor Relations Institute issuesits list of “Top One Hundred Labor Lawyers in America.” Consistently,Jackson Lewis has had more attorneys on the “Top One Hundred” list thanany other law firm. With more than 100 labor relations attorneys across thecountry, Jackson Lewis can respond quickly and effectively to any health careprovider’s labor law needs.

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Meeting the Needs of Non-Union Health Care Providers: Jackson Lewisattorneys have advised countless health care employers regarding strategicand preventive labor relations programs that suit their needs. On a dailybasis, we advise health care employers regarding legislative initiatives,corporate campaigns, neutrality agreement requests, union organizing andNLRB elections.

We have written a number of books, monographs and articles designedspecifically to advise health care employers, including Establishing PreventiveLabor and EEO Programs – A Step-By-Step Guide for Health Care Employ-ers, The Strike Preparation Manual: Health Care Employer’s Guide toWinning Strikes and Maintaining Patient Care Services, as well as UnionCorporate Campaigns – Forcing Hospital Neutrality in the Face of UnionOrganizing, and Employer Neutrality Agreements in Union OrganizingCampaigns – Union Versus Employee Rights for the American Society ofHealthcare Human Resource Administrators.

Jackson Lewis attorneys not only anticipate legal trends affecting healthcare employers, we also help influence what the law will be. Some examplesinclude:■ For the U.S. Chamber of Commerce and health care associations, wechallenged California’s Neutrality Statute which denied Medicaid funds tohealth facilities exercising the right to educate their employees on unionissues. This litigation ended with the U.S. Supreme Court striking down thelaw as preempted by the National Labor Relations Act.■ We filed amicus briefs on behalf of the American College of Health CareAdministrators (ACHCA) to oppose the NLRB’s decision on the supervisorystatus of charge nurses.■ We represented one of the largest private teaching hospitals in defending apetition by the SEIU to represent its 1,600 employed physicians, fellows andmedical residents.■ We filed “notice and comment” position papers on behalf of hospitals inconnection with the acute care hospital bargaining unit rules.■ We represented employers, including those with Department of VeteranAffairs service contracts, to urge the Department of Labor to clarify itsproposed regulations requiring the posting of union rights notices in all theemployer’s facilities.■ Several of our partners are members of the U.S. Chamber of CommerceLabor and Employment Committee and were chosen to draft its authoritativeposition statement on the proposed Employee Free Choice Act (EFCA).■ One of our partners, Michael J. Lotito, was a lead presenter at a U.S.Chamber of Commerce conference on Union Corporate Campaigns againsthealth care organizations.

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Meeting the Labor Needs of Unionized Health Care Employers:Our attorneys have represented hospitals, nursing homes and other healthcare employers in hundreds of collective bargaining negotiations with healthcare unions. Depending upon the client’s objectives, we may serve as theemployer’s chief spokesperson “at the table” in formal collective bargainingnegotiations or as an advisor “behind the scenes.”

We have been lead counsel for a number of health care industry bargain-ing groups. We also have had significant experience assisting unionized healthcare organizations in responding to strikes, picketing and corporate cam-paigns. Jackson Lewis was lead counsel for the health care industry task forcewhich defeated the first and only state-wide nursing home strike.

Many Jackson Lewis partners serve as faculty for collective bargainingseminars, such as “Corrective Bargaining,” “Winning Strikes, Picketing andCorporate Campaigns” and “Recapturing Management Rights.” JacksonLewis attorneys are known as adept labor strategists who are as comfortablein the boardroom as they are meeting with union leaders across the table.

Litigation, Including Class Actions and Complex Litigation

While Jackson Lewis’ goal is to help its health care clients avoid litigation,our attorneys also have extensive experience defending employers whenemployment lawsuits are filed against them. Of particular concern to hospitaland health care employers is the marked increase in wage and hour classaction lawsuits based on employee claims concerning “off the clock” work,missed meal periods and misclassification of exempt employees and indepen-dent contractors.

In addition to defending health care employers, we initiate suits foremployers where necessary to protect the organization’s business interestswhen former employees solicit essential personnel or take, use or divulgetrade secrets or other confidential business information, such as lists ofphysicians, patients or employees.

The following are routine examples of the wide variety of workplacelawsuits Jackson Lewis attorneys have handled for hospitals and other healthcare employers:■ Defeat Discrimination, Defamation and Unfair Trade Practice Claimsagainst Medical Center. Court granted summary judgment in our client’sfavor with regard to plaintiffs’ race harassment, discrimination, retaliationand defamation claims. After a 10 day trial, the court granted our client’smotion for non-suit with respect to plaintiffs’ claims for failure to providereasonable accommodation, disability discrimination, labor code violationsand unfair business practices.■ Defeat of “Baylor Plan” Nurse’s Contract Claims. We successfully de-fended the hospital against a claim by Baylor Plan nurse that a change in her

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hours breached an enforceable agreement.■ Successful Defense of Physician Claims Relating to National PractitionerData Bank. On behalf of a hospital client, we obtained summary dismissal ofclaims by a physician that the hospital improperly obtained his resignationand inaccurately reported the circumstances to the National PractitionerData Bank.■ Defeat Contract Physician’s Joint Employment Claim Against Hospital. Wesuccessfully defended the hospital in a jury trial in which a contract physiciansued the hospital and the ER physician group for allegedly terminating herbased on her age and gender. The jury returned a defense verdict finding thehospital was not a “joint employer.”■ Non-Compete Injunction against Physician Group. After an evidentiaryhearing, our client obtained an injunction against a physician group forbreach of a non-competition and confidentiality agreement and UniformTrade Secrets Act.

In the past five years alone, our litigation team has represented clients in7,500 lawsuits, including class-actions and other complex litigation. Due tothe volume of cases we handle, we are skilled in efficiently and effectivelyconducting discovery with the goal of obtaining the evidence necessary toobtain summary judgment while at the same time pressuring plaintiffs toconsider settlements favorable to our clients.

Advice and Counsel on Human Resource Legal Issues

We partner with our health care clients and help them anticipate and preemptissues before they result in workplace disputes or litigation. Our role is toinform clients of their options, explain the risks and benefits of alternativestrategies and make recommendations where appropriate. We do not burdenclients with legalese. We offer positive, practical solutions to real problems.We also recognize that advice must be consistent with a provider’s philo-sophical constraints, be they religious, community-based or otherwise.

We are sensitive to the risk of unwanted publicity regarding executivepay, sexual harassment, discrimination and litigations that groups use topressure non-profit entities. We have worked with many different health careclients – ranging from acute care hospitals to senior living providers – whowere aggressively targeted in regional and national corporate campaigns. Wehave been successful in defending these employers against public relationsattacks, lawsuits and charges while also being mindful of the clients’ need tomaintain their operations without disruption.

The health care industry has seen an increase in wage and hour and otherclass-action litigation. We monitor these suits and the issues involved andwork with employers to avoid system-wide issues that might give rise to suchlitigation.

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Affirmative Action and OFCCP Diversity Planning

We have one of the largest and most active affirmative action practices in thecountry. We counsel numerous health care employers who have reportingand compliance obligations because of their status as federal contractors asdefined by the services they provide. Using specially designed proprietarysoftware, our attorneys prepare over 1500 affirmative action plans (“AAPs”)annually for our federal contactor clients. We also prepare AAPs for, anddefend against, audits by state and local affirmative action agencies, helpdesign and review lawful diversity plans and offer strategic planning counsel-ing. We defend against the imposition of citations and allegations of discrimi-nation in connection with audits by the Office of Federal Contract Compli-ance Programs (“OFCCP”) and have successfully defended hundreds of suchaudits. We offer liability avoidance services, including vulnerability auditsand statistical analyses employing the methodology used by the OFCCP toidentify potential discrimination.

Workplace Privacy

From assisting health care clients with developing and implementing anonline on-boarding program, to defending hospitals against union contractgrievances filed by employees disciplined for inappropriately accessing ordisclosing patient records or personal health information, our attorneys canhelp health care employers comply with emerging privacy and data securitymandates across the country, including compliance with the evolving HIPAAprivacy and security regulations.

Consistent with the firm’s founding principles, we also work with healthcare employers to create preventive organization-wide best practices – in theform of “written information security programs” – to ensure privacy andsafeguard data. Should a breach occur, we have counseled health careproviders through the data breach response notification process in all stateswhich have these laws, including the recent HIPAA breach notificationregulations. We have successfully represented health care providers before theDepartment of Health and Human Services to defend complaints filed underHIPAA for privacy and security violations. We also keep our clients up todate on these issues though our privacy blog - workplaceprivacyreport.com.

Our Transactional Practice

We have significant experience in providing labor, employment law andbenefits advice to health care providers in the context of mergers, acquisi-tions, asset purchases, corporate restructurings and other transactions.Frequently, our firm is called upon to work closely with the health careemployer’s regular corporate counsel, including with respect to strategic

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planning, statutory compliance, the due diligence process, development ofpre- and post-transaction labor strategies, executive compensation andemployment agreements, benefit and compensation arrangements, drafting oftransactional documents, and the integration of business units after theclosing of a transaction.

Disability, Leave and Health Management

The Americans with Disabilities Act and Family and Medical Leave Act havesignificantly changed the obligations of employers when dealing with em-ployees who cannot work due to injuries or illnesses. Jackson Lewis offersclients imaginative solutions to the difficult legal and operational problems inmanaging employee absences and requests for accommodations. We workwith clients to develop workplace safety programs; draft policies concerningleaves of absence, reasonable accommodation and related issues; and trainmanagers to understand the interplay between federal and state laws.

Employee Benefits, including Complex ERISA Litigation and ExecutiveCompensation

We assist with the design of pension, profit sharing, 401(k), and other typesof retirement, compensation and welfare benefit plans. When challengesarise, we defend against benefit claims and provide counsel on all benefitissues occurring in the course of collective bargaining, corporate divestitures,acquisitions, business closures and reductions in force.

Management Education

Education is the foundation of our preventive approach to employment andlabor law. Jackson Lewis attorneys regularly conduct in-house supervisorytraining programs and speak at hundreds of events nationally to attorneysand human resource professionals. These events include programs sponsoredby the Association of Corporate Counsel, The Society for Human ResourceManagement, Executive Enterprises and The Executive Committee.

Jackson Lewis also regularly conducts webinars on topics affecting thehealth care industry, such as “Wage and Hour Compliance Issues for HealthCare Employers” and “OSHA Update for the Health Care Industry.” We arepermanent faculty to the “How to Stay Union Free” program which is themost successful program of its kind. We also conduct an Annual CorporateCounsel Conference where Jackson Lewis attorneys discuss important laborand employment law developments. Finally, we regularly work with state andnational health care associations to educate employers on legal issues.

Trade Secrets, Non-Competes and Workplace Technology

The high demand for health care professionals and the mobility of the

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workforce has increased the need for health care employers to protect theirconfidential information, trade secrets and competitive position. We workwith numerous acute care hospitals, medical systems and physician practicegroups to protect their interests. The increased merger and consolidation ofpractice groups and providers necessitate greater protection of these intereststhan ever before.

Jackson Lewis attorneys advise on executive and individual employmentagreements, post-employment restrictive covenants, non-competition agree-ments, and related protective instruments effective during and after employ-ment. We prosecute and defend lawsuits involving post-employment non-competition and non-solicitation agreements, employee raiding claims, unfaircompetition claims and other employment-related business torts.

Wage and Hour Compliance

We regularly assist employers with the development and audit of wage andcompensation policies; classifying exempt, nonexempt and independentcontract workers; structuring bonuses, incentive payments and other com-pensation; determining eligibility for overtime pay, commissions and bonusplans; and administering other compensation programs. Jackson Lewisattorneys have represented health care employers in defending claims such asfailure to pay meal and rest periods; failure to pay overtime for training,travel, and while waiting to be engaged; failure to pay for interrupted mealbreak, alleged off-the-clock work; and misclassification issues. We counselemployers on creating systems to prevent such issues and educate manage-ment on how to recognize and correct these problems.

Workplace Safety Compliance

Jackson Lewis attorneys provide the necessary representation to ensure ourclients’ rights are fully protected during OSHA inspections. In cases where anemployer is subject to criminal or civil legal action based on alleged viola-tions, we have the expertise to provide a defense to the allegations. We haveextensive agency experience with respect to settlement negotiations and theexpertise to contest citations before all state safety and health commissions,and in federal and state court review proceedings.

We are cognizant of the safety issues unique to health care employers,such as blood borne pathogens and face masks. OSHA has expressed awillingness to increase its enforcement of issues specifically affecting healthcare providers such as ergonomics and musculoskeletal disorders. To assistwith complex issues such as ergonomics, fatality and catastrophe investiga-tions, safety management of hazardous chemicals and workplace violence, weoffer a number of services, including facility and personnel risk assessment,management training, and policy and procedure analysis.

Copyright © 2010 Jackson Lewis LLP

Attorney Advertising. Prior results do not guarantee a similar outcome. (May10)

Founded in 1958, Jackson Lewis is dedicated to representing

management exclusively in workplace law. Jackson Lewis has a wide-

range of specialized practice areas, including: Affirmative Action and

OFCCP Diversity Planning; Disability, Leave and Health Management;

Employee Benefits, including Complex ERISA Litigation, Workplace Privacy

and Executive Compensation; Global Immigration; Labor, including

Preventive Practices; Litigation, including Class Actions, Complex

Litigation and e-Discovery; Trade Secrets, Non-Competes and Workplace

Technology; Wage and Hour Compliance; and Workplace Safety

Compliance. In addition, Jackson Lewis provides advice nationally in other

workplace law areas, including: Reductions in Force, WARN Act; Corporate

Governance and Internal Investigations; Drug Testing and Substance

Abuse Management; International Issues; Management Education,

including e-Based Training; Alternative Dispute Resolution; Public Sector

Issues; Government Relations; Corporate Diversity Counseling and College

and University Employment Law and Compliance Issues.

jackson lewisPreventive Strategies and

Positive Solutions for the Workplace ®

ALL WE DO IS WORK