New Mexico Hospital

Association 72nd Annual

Meeting--2017 Labor and

Employment Law Update

Danny W. Jarrett

Jackson Lewis P.C.

jarrettd@jacksonlewis.com

505-878-0515

September 28, 2017

©2017 Jackson Lewis P.C.

Agenda

Overview of the Trump Administration and what to

expect under his leadership in the next 4 years

The NLRB and what to expect from the Board moving

forward

Managing Physician Workforce

Wage and Hour Woes

Disability Accommodations

Effective Onboarding

Social Media

New Mexico State Law Update

2

What to Expect? Does Anyone Know?

3

Procedural Considerations

What steps are needed to change existing labor & employment laws, rules and guidance?

Executive Orders and actions: Can be rescinded immediately.

Agency guidance and opinion letters: Trump political appointees, once all are in place, will direct staff priorities and enforcement positions.

Regulations: President Trump could alter the regulatory landscape left by the Obama Administration by:

• Working with Congress to defund the enforcement of rules he does not support;

• Directing agencies to issue new regulations to modify those in place;

• Working with Congress to pass legislation that moots or invalidates existing rules.

4

Procedural Considerations (cont.)

Legislation:

• President Trump is likely to garner support for some, but not all,

of his legislative initiatives. Both houses will be controlled by

Republicans until at least 2018, but Trump’s views do not always

align with those of Republican lawmakers.

• The filibuster remains available to block laws objectionable to

Senate Democrats.

• Under current rules it can be difficult for a party to push through

controversial legislation with only a small majority. Most bills still

require 60 votes to beat a filibuster, meaning at least eight

Democrats would have to support legislative initiatives.

• Presidential appointments need only a simple majority.

5

Executive Orders

No direct reference to Executive Orders in the U.S.

Constitution.

Article II of the U.S. Constitution vests executive powers

in the President, makes him the commander in chief, and

requires that the President “Shall take Care that the

Laws be faithfully executed.”

While an executive order can have the same effect as a

federal law under certain circumstances, Congress can

pass a new law to override an executive order, subject to

a presidential veto.

Every POTUS has issued Executive Orders.

6

Executive Orders (cont.)

Franklin D. Roosevelt 3,522 12.11(yrs.) 290.8 (/yr.) 1933 – 1945

Harry S. Truman 907 7.77 116.7 1945 – 1953

Dwight D. Eisenhower 484 8 60.5 1953 – 1961

John F. Kennedy 214 2.84 75.4 1961 – 1963

Lyndon B. Johnson 325 5.16 62.9 1963 – 1969

Richard Nixon 346 5.56 62.3 1969 – 1974

Gerald Ford 169 2.45 69.1 1974 – 1977

Jimmy Carter 320 4 80.0 1977 – 1981

Ronald Reagan 381 8 47.6 1981 – 1989

George H. W. Bush 166 4 41.5 1989 – 1993

Bill Clinton 364 8 45.5 1993 – 2001

George W. Bush 291 8 36.4 2001 – 2009

Barack Obama 276 8 34.6 2009 – 2017

Donald Trump 45 (in 219 days) 2017 – present

7

Government Agencies – In General

Under President Trump, agencies such as the

Department of Labor, the Equal Opportunity Employment

Commission, the Office of Federal Contract Compliance

Programs, the Occupational Safety and Health

Administration and the National Labor Relations Board

are expected to focus more on achieving employer

compliance and less on aggressive enforcement (or

expansion).

Education vs. Penalties.

Ongoing court challenges to some rules may be

disposed of via settlements.

8

Equal Employment Opportunity Commission

President Trump nominated Janet Dhillon as chair of the

EEOC on June 28th, 2017

Under President Obama, the EEOC took aggressive

enforcement efforts and pursued significant litigation in

such areas as criminal background checks, systemic

discrimination, and LGBT protections.

The EEOC likely will curtail many of these efforts under

President Trump (and Janet Dhillon if she is confirmed).

Republican Congress also may allocate fewer funds

toward EEOC enforcement efforts.

9

EEOC (cont.)

The new Strategic Enforcement Plan (SEP) was issued in October of 2106 and purports to cover FY 2017 through 2021. It set forth new emphasis on several priorities, including, for example:

• Qualification standards and inflexible leave policies under the ADA;

• Complex employment relationships and structures in the 21st century workplace; and

• Backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent.

Although the SEP may survive in some form, some of the initiatives it contains will not likely be high priorities for the Trump Administration.

It is unknown, for example, whether the EEOC’s current position that Title VII’s sex discrimination provisions protect LGBT individuals, which has been endorsed by some courts, will continue under President Trump, or whether the EEOC will continue its emphasis on systemic discrimination or seek to expand protections for employees under the ADA.

©2016 Jackson Lewis P.C.10

EEOC: Agency Guidance

Recently-issued EEOC guidance on retaliation, national

origin discrimination, and pregnancy discrimination also

may be rescinded or curtailed.

Much of that guidance reflects existing case law, but in

some areas, the EEOC advocates for more expansive

protections than most courts have been willing to

endorse.

11

EEOC: EEO-1 Pay Data Reporting

Final rules issued on September 29, 2016 revise the

EEO-1 report to include W-2 earnings and work hours for

some employers.

These rules, which are scheduled to take effect in March

2018, are intended to assist the EEOC in investigating

compliance with equal pay laws.

Employer groups raised serious concerns about the

burdens associated with the new reporting.

The new administration may rescind the changes before

first reporting is due in 2018, or may revise the reporting

requirements to ease the burden on employers.

12

National Labor Relations Board

Federal agency created by the National Labor Relations Act.

Has exclusive jurisdiction over private sector labor relations.

Processes election petitions and resolves unfair labor practice (ULP) charges.

HQ in D.C. with regional offices across the country, each headed by a Regional Director.

• Cornele Overstreet heads Region 28

5 members; appointed by the President with advice of the Senate.

Currently two Democrat and two Republican members with a fifth Republican member pending Senate confirmation.

NLRB “prosecutor” is its General Counsel, appointed by the President with advice of Senate.

• Replacement for Richard Griffin was named on September 15, 2017. Mr. Peter Robb—long-time management labor lawyer who is expected to be much less hostile to employers than his predecessor.

13

National Labor Relations Board (cont.)

Philip A. Miscimarra was designated Acting Chairman by President Trump on January 23, 2017.

On April 24, 2017 President Trump named Philip A. Miscimarra NLRB chairman.

Miscimarra has served as a Board Member since August 7, 2013, and was the sole Republican Member until the confirmation of Marvin E. Kaplan, serving along with Democrats Mark Gaston Pearce, and Lauren McFerran.

Chairman Miscimarra’s term expires on December 16, 2017. He recently announced that he will not serve another term. Board Member Pearce’s term expires on August 27, 2018. Board Member McFerran’sterm expires on December 16, 2019 and Board Member Kaplan’s term expires August 27, 2020.

14

National Labor Relations Board (cont.)

The NLRB is a five-member board typically composed of

two members from each political party, plus a fifth from

the President’s party.

Under President Obama, the NLRB drastically changed

existing policies and precedents for both unionized and

non-union employers, resulting in a significant increase

in pro-union decisions.

President Trump has currently filled one of the two

vacancies on the Board with the other pending with a

third vacancy scheduled to open up next year.

15

National Labor Relations Board (cont.)

President Trump nominated Marvin Kaplan and William

Emanuel to fill the vacancies on the Board.

While Kaplan has been confirmed, Emanuel is still awaiting

confirmation from the Senate Committee on Health,

Education, Labor and Pensions.

Assuming Emanuel is confirmed, the Board will have a 3-2

Republican majority and is expected to reverse many Obama-

era, pro-employee rulings.

©2017 Jackson Lewis P.C.16

National Labor Relations Board (cont.)

If Emanuel is confirmed it will be the first Republican majority in nine

years and will return to its full strength with all five members in

place.

The new Board is not likely to make additional changes the previous

Board would make, such as:

• Extending Weingarten rights to non-union workplaces, and

• Making misclassification of employees as independent contractors a

separate violation of the National Labor Relations Act.

Trump also may work with Congress to pass legislation to reverse

several NLRB decisions from recent years, including employee-

friendly rulings on joint employment.

©2016 Jackson Lewis P.C.17

National Labor Relations Board (cont.)

This new board with a Republican majority will likely

revisit numerous recent NLRB rules and decisions,

including those covering:

• Micro-units;

• Class action waivers;

• Joint employers;

• Inclusion of temporary workers in bargaining units with an

employer’s regular workers;

• Quickie elections;

• Protected concerted activity in areas such as social media,

confidentiality, and employer policies; and

• Status of college/university adjunct faculty, graduate students, and

student athletes.

18

The New Joint Employment Standard

Browning-Ferris of California, 362 NLRB No. 186

(August 27, 2015):

• Discarded the Reagan-era joint employer standard replacing it

with a looser test that will likely put more companies on the hook

for the acts of their subcontractors, franchisees and other

business relationships.

The Standard no longer requires that one business

“directly and immediately” control a workforce nominally

employed by another business.

Indirect control will now be sufficient.

Unexercised control matters.

19

Electronic Signatures

The Office of the General Counsel for the NLRB issued a

Guidance Memorandum on electronic signatures to

support a showing of interest on September 1, 2015.

• The RD’s “should accept electronic signatures as a means to

support a showing of interest.”

• Effective immediately.

• Requirements for acceptance of electronic signatures.

20

Protected Concerted Activity

Section 7 of the NLRA covers protected concerted activity by

employees.

• Employees may engage in “concerted activities for the purpose of

collective bargaining or other mutual aid or protection.”

Applies equally to unionized and union-free workplaces.

Applies in the workplace and on-line.

Protected concerted activity: Typically, two or more employees acting

together to attempt to improve their terms and conditions of

employment.

Employees are protected by the NLRA against retaliation for

concertedly discussing or complaining about terms and conditions of

employment.

Further, the Board is of the view that rules are unlawful that, on their

face, employees would reasonably construe to prohibit Section 7

activity.

21

Protected Concerted Activity

Employer documents, handbooks, workplace policies, work rules, etc.

• It is unlawful to maintain any rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights,” even if the rule is not enforced.

• It also is separately unlawful to enforce such a rule against an employee.

• Handbook rules and policies drawing attention from the Board:

- Arbitration.

- Class action waivers.

- At-will employment.

- Confidentiality (including workplace investigations).

- Social media.

- Contact with media and law enforcement.

- General releases.

- Employee conduct.

- Other dispute resolution.

- No loitering.

- Union/union-free philosophy/statement.

22

Rules/Policies and Protected Concerted

Activity

On March 18, 2015, the NLRB General Counsel issued a

Memorandum that addresses recent case developments

arising in the context of employer rules.

“[M]ost employers do not draft their employee

handbooks with the object of prohibiting or restricting

conduct protected by the National Labor Relations Act”

but “even well-intentioned rules that would inhibit

employees from engaging in activities protected by

the Act” are not allowed.

Letter by General Counsel Richard F. Griffin Jr: accompanying the Memorandum.

23

NLRB: National Labor Relations Board

Under NLRA Section 7, union and nonunion employees have the right to engage in “protected, concerted activities” concerning wages, hours and other terms and conditions of employment.

Activity is “concerted” if it is “engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” It can involve only one speaker and one listener.

“Constructive” concerted – Where one employee “seeks to initiate, induce or prepare for group action” or raises “groups complaints to the attention of management.”

24

Rules Most Frequently Reviewed

by the Board

Confidentiality – Generally

Confidentiality of Investigations

Solicitation / Distribution

Speaking to the Media

At-Will Employment Policies

and At-Will Acknowledgements

Insignia and Dress Code

Recordings

Harassment

On-Duty Conduct

Off-Duty Conduct

Chain of Command

Off-Duty Access

Communications Systems

Social Media

Union-Free Rules

Handbook Receipts and Acknowledgements

Fraternization

Bulletin Boards

25

NLRB §7 Policy Violations:

Prohibiting employees from using any social media

Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or its officers, directors and employees

• In Quicken Loans, NLRB No. 141 (June 21, 2013), the NLRB struck down as unlawful a non-disparagement provision prohibiting employees from engaging in conduct that would “publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image,” including through social media. The board ruled this provision interfered with employee’s right to engage in protected concerted activities, such as criticizing their employer and its products. The Board noted, “Within certain limits, employees are allowed to criticize their employer and its products as part of their Section 7 rights.”

Prohibiting statements that lack truth or might damage the reputation or good will of the employer, its officers, directors, and employees

26

Examples of Policies The NLRB Found Do Not

Violate §7

Certain activities involving Facebook or Twitter posts are

not protected:

• Newspaper employee terminated following a tweet about news

headlines including homicides, several tweets with sexual

content and tweets criticizing an area television station BUT the

tweets were not shared with co-workers. NLRB found this was

not concerted activity.

• Employee terminated based on a Facebook conversation with a

relative complaining about not getting a raise and working

without tips. He did not discuss the posting with his co-workers

and none of them responded, so not concerted activity.

27

Risks & Challenges

NLRB Restrictions on Monitoring

Expansive application of “concerted” protected activity

In Register Guard, 351 NLRB 1110 (2007), the Board flatly stated

that “employees have no statutory right to use the[ir] Employer’s e-

mail system for Section 7 purposes.”

Late last year, an ALJ applied Register Guard rule and upheld an

employer’s blanket prohibition against using its email system for

non-work-related purposes. Purple Communications, Inc. (Bogas,

ALJ, Oct. 24, 2013).

BUT—It’s been overturned by the Board!

Purple Communications

28

Purple Communications: MANDATED EMPLOYEE

USE OF EMPLOYER EMAIL SYSTEMS

Purple Communications, Inc., 326 NLRB No. 126 (2014):

• Old rule:

- Company e-mail system is fully the Company’s.

• New rule:

- Absent special circumstances to justify total ban or limits on

use, employees may use e-mail system in exercising right to

discuss/join unions on non-work time.

29

Purple Communications: MANDATED EMPLOYEE

USE OF EMPLOYER EMAIL SYSTEMS

Employer also may:

• Monitor for legitimate reasons, such as:

- Ensuring productivity.

- Preventing harassment or other activities giving rise to employer liability.

• Tell employees they have no expectation of privacy.

• Decision not applicable to:

- Other types of communication systems (telephones).

- Non-employees.

- Employees not granted access to email system.

- Working time communications.

30

Department of Labor

Under Trump, the DOL is expected to be more business-

friendly, and to shift its focus to achieving compliance

rather than aggressive enforcement.

The DOL is expected to permit employers greater

flexibility in using independent contractors, for example,

and provide businesses with more certainty in expanding

through use of franchises.

31

Alex Acosta Nominated as Secretary of Labor

Alex Acosta was President Trump’s second choice for labor secretary after his first nominee, fast-food CEO Andrew Puzder. Puzder withdrew after it became clear he lacked support in the Senate, and was criticized for hiring an undocumented household employee, along with various personal issues.

Acosta served as the Dean of the Florida International University College of Law

Previously served on the NLRB under President George W. Bush (2002-2003)

Previously held two other Senate-confirmed positions: (1) Assistant Attorney General for the Justice Department’s Civil Rights Division (2003-2005); and (2) U.S. Attorney for the Southern District of Florida (2005-2009)

Graduate of Harvard College and Harvard Law School

32

Department of Labor: Persuader Rule

The Department of Labor has begun the process for rescinding the

“persuader” rule. On June 12, the Federal Register published the

Department of Labor’s May 22 proposal to rescind the Obama-era

“persuader” rule.

The publication formally begins the process by which the public submits

comments on the proposal, which were due by August 11. The rule

would have required employers and their advisors (including attorneys)

to disclose any efforts to “indirectly persuade” employees regarding

collective bargaining or union organizing.

However, in June 2016 a federal judge temporarily blocked the rule’s

implementation, followed by a permanent injunction in November 2016.

The OMB will now review the public comments on the proposal.

©2017 Jackson Lewis P.C.33

Department of Labor: Overtime

A Texas District Court issued a nationwide preliminary injunction enjoining the DOL from implementing and enforcing its final overtime rule.

The rule, which was scheduled to take effect on December 1, 2016, would have increased minimum salary levels required for an employee to achieve exempt status under the FLSA, with automatic increases thereafter.

The decision has been appealed to the Fifth Circuit Court of Appealsby the federal government. Then the “new” DOL under Acosta changed course and stated it wanted to revisit the salary threshold level.

The federal court struck down the rule in late August of this year.

On 9/7/17 the Fifth Circuit granted DOL’s unopposed motion to withdraw the appeal.

34

DOL Opinion Letters

Under President Obama, the DOL discontinued its

longstanding practice of issuing opinion letters signed by

the Administrator of the Wage and Hour Division,

choosing instead to issue less frequent “Administrator

Interpretations” with wider applicability and scope, but

less specificity.

The practice of issuing official opinion letters regarding

application of the FLSA and FMLA may be restored

under President Trump.

35

Expansion of Joint Employment:

Two significant Administrator Interpretations were issued

in the past two years – one concerning “joint

employment” and the other addressing independent

contractor status under the FLSA.

Both viewed as clear efforts to expand the rights of

workers under the law and place additional burdens on

employers.

Interpretations likely to change under the Trump

Administration.

36

ACA and Health Care

Via Executive Order No.13765 Jan. 20, 2017

Minimizing the Economic Burden of the Patient Protection and

Affordable Care Act Pending Repeal

Section 1. It is the policy of my Administration to seek the prompt

repeal of the Patient Protection and Affordable Care Act (Public Law

111-148), as amended (the "Act"). In the meantime, pending such

repeal, it is imperative for the executive branch to ensure that the

law is being efficiently implemented, take all actions consistent with

law to minimize the unwarranted economic and regulatory burdens

of the Act, and prepare to afford the States more flexibility and

control to create a more free and open healthcare market.

Trump named Tom Price, a congressman from Georgia, to serve as

Secretary of Health and Human Services.

Replacement plan for the ACA was ultimately defeated in the Senate

July 28, 2017 with a 51-49 vote against it

37

Immigration

EO 13767: Border Security and Immigration Improvements

• Authorizes building the Wall – no details yet.

- Business impact:

NAFTA rewrite?

Increased prices on manufactured goods and produce?

Decrease immigration?

Upward wage pressure?

EO 13768: Enhancing Public Safety in the Interior of the United States

• Authorizes deportation based on arrest without conviction.

- Business impact: Decreased hiring of potentially suspect workers?

EO 13769: Protecting the Nation from Foreign Terrorist Entry in the United States

- Business impact: restricted travel to U.S. and reciprocal treatment by the

affected countries, global mobility and global trade may be affected.

38

Immigration

TN visas are available to professionals from Canada and

Mexico,

Created by NAFTA.

Trump’s call to eliminate and renegotiate NAFTA could

jeopardize the availability of these visas.

Trump also may try to roll back recent administrative

rules that provide employers and employees with greater

flexibility to retain foreign post-graduate students and

employees here on temporary work visas who have

applied for permanent residency.

39

Immigration: Work Visas

On the issue of H-1B visas, Trump has been somewhat

inconsistent.

• Most recently stated an intention to ask DOL to look into possible

misuse of H-1B visas to replace U.S. workers with temporary

foreign workers, particularly in information technology jobs.

Fundamental changes to the H-1B program would

require legislative action.

Congress historically viewed the program favorably due

to the wide range of businesses that rely on it.

40

Immigration: Work Visas

In July of this year Department of Homeland Security issued a one time increase of 15,000 additional H2-B visas for low wage seasonal workers. (Excluding farm laborers who enter the U.S. under a different visa known as the H2-A)

Businesses applying must attest that their firms would suffer permanent, irreparable harm without importing foreign workers.

Current law limits the number of such visas to 66,000 a year which has already been reached.

Visas for more than 120,000 positions have been requested so far in fiscal 2017.

41

Immigration: E-Verify

Under current federal law, E-Verify is voluntary for employers.

• Except as mandated by executive order for federal government

contractors.

Currently 20 states require the use of E-Verify for at least

some public and/or private employers.

Trump’s proposed 2018 budget is requesting $131.5 million

for E-Verify operations and upgrades for U.S. Citizenship and

Immigration Services, including investments to expand the E-

Verify program and support its compulsory use within three

years.

©2016 Jackson Lewis P.C.42

Courts

President Trump appointed Neil Gorsuch to the U.S.

Supreme Court and will fill numerous other federal

judicial vacancies (over 100 open and he’s been slowly

filling them).

President Trump will likely appoint younger judges who

are inclined to:

• Preserve strict certification standards for class actions;

• Support arbitration of employment disputes; and

• Rein in novel interpretations of EEO laws, such as Title VII and

the Americans with Disabilities Act.

43

Neil Gorsuch

Sworn in April 10, 2017 to fill the vacant spot on the Supreme Court.

Federal judge on the U.S. Court of Appeals for the Tenth Circuit, in Denver.

B.A., Columbia University in 1988

J.D., Harvard Law School in 1991

Doctorate of Legal Philosophy from Oxford University in 2004

Gorsuch clerked for

• D.C. Circuit Judge David B. Sentelle in 1991-1992

• Supreme Court Justices Byron White and Anthony Kennedy in 1993-1994

Practiced law with Kellogg, Huber, Hansen, Todd, Evans & Figel from 1995-2005

Deputy Associate Attorney General at the U.S. Department of Justice in 2005-2006.

On May 10, 2006, President George W. Bush nominated Judge Gorsuch to the Tenth Circuit, and he was confirmed unanimously on July 20, 2006.

44

Response and Reaction

Some states and localities may “step up” to increase worker protections if the Trump Administration is, or is perceived to be, insufficiently worker-friendly.

Areas of possible state and local activity include:

• Minimum wage and overtime;

• Paid sick leave and other paid leaves;

• LGBT rights; and

• Criminal background checks and credit checks.

Likely to see more lawsuits if statutory protections are perceived as being rolled back.

If wages stagnate due to rollback of pending FLSA changes, unions are likely to have better pitch to frustrated workers.

Likely inflationary period due to increased prices associated with tariffs and trade restrictions.

2.5% to 3% wage increases currently standard in CBAs.

Likely to see increase in wages if inflation becomes a factor again.

45

The Physician Workforce

Prior World:

Physician had privileges and credentials with various hospitals;

Command and control over patient care;

Self-managed their practice/performance; and

Medical staff committees – privileged and protected.

New World:

Merging healthcare organizations;

Physicians hired as employees;

Increasing need for organizations to deliver comprehensive patient care; and

Medical staff committees not equipped to manage employed physician issues.

47

Summary Of Trends

Physician shortages exacerbated by decline in

productivity and physicians leaving patient care

Medical school graduates will increase, but

residency slots will be limited

Greatest demand is for primary care docs (e.g.

general internists, family, pediatrics) and

hospitalists

Only one third of all physicians are primary

care

Healthcare reform demands primary care

“quarterbacks”

Hospitals and institutional providers now the

largest employer of physicians

48

The Physician Workforce

Expansion and consolidation of healthcare systems has

increased the demand for physicians especially given

anticipated shortages

A desire to ensure continuity of in-demand specialties and to

increase admissions has prompted hospitals to bring

specialists in house

Hospitals seeking to qualify as ACOs want to offer integrated

networks with large panels of physicians

Emphasis on more healthcare access has led to a

proliferation of sites needing physicians to staff them

A desire to enhance physician integration/alignment by

making them “employees”

49

The Physician Population

Physicians as employees vs. Physicians as contractors

Tension between employment laws and traditional

medical staff bylaws

• Credentialing

• Corrective Action

• Disruptive Physician Issues

50

The Laws/Rules That Apply

Key contractual rights and obligations that apply to

physicians

• Individual Contracts

• Employment Policies

• Medical Staff Bylaws

• Possible Labor Contracts

Employment Laws Now Apply

Fewer Privileges and Immunities

In addition, many of the same old issues—Whistleblower

Protection/False Claims, etc.

51

Employment Laws Apply

To Physician “Employees”

Title VII

ADA

ADEA

FMLA

USERRA

NMHRA

NM Whistleblower

Law—Public Sector

52

Change Management Is Essential

Critically important to educate physician leaders and managers on code of conduct policy, corporate compliance, employment law Issues, human resources policies and the practical application of them.

• Do we really need to this?

• What is the framework to enable this?

53

Historically, employed physicians never thought of

themselves as “employees” and expected greater

independence “as physicians.” In fact, physicians will

bristle at performance management and being told they

are not meeting productivity/quality expectations.

What can healthcare organizations do to address this

problem?

54

The Physicians’ Reaction

Key Takeaways

1. Physicians are increasingly employees to be managed

in conjunction with other professional requirements.

2. Employment laws do apply.

3. Medical staff leaders must learn to partner with HR

professionals.

4. A failure to coordinate leads to increased risk for the

healthcare employer.

5. Change management is critical.

55

Overview

FLSA covers 128.5 million workers—almost 90% of

workers in the United States

Requires payment of minimum wage and overtime

• Subject to exemptions

Goals of FLSA:

• Reduce unemployment—overtime pay for workers encourages

employers to spread the work and increases hiring

• Provide “Fair day’s pay for a fair day’s work”

• Reduce overwork and detrimental effect on health and well-

being

57

Exemption Tests

THREE MAIN PARTS

• Salary Level [COVERED LATER …]

• Salary Basis

• Job Duties

MAIN EXEMPTIONS

• “White Collar” Exemptions

- Executive

- Administrative

- Professional

• Also Computer Exemption (different salary test)

58

“Salary Basis”

“Salary basis”: a portion of compensation must be a

fixed weekly amount that is not subject to reduction

based on quantity or quality of work.

So, no docking the employee for being late, leaving

early, or doing poor work.

Salary must be at least $455/week ($23,660/year) – for

now.

59

Litigation Trends

60

61

Failure to Reduce Wage and Hour Risks

Misclassification of exempt

Permitting off-the-clock work

Providing Wage and Hour Notifications

Impermissible deductions

Establishing appropriate time recording with accurate audit trail

Ensuring incentive comp plans comply with state law

Failing to prepare for changes anticipated in 2017

Americans with Disabilities Act (“ADA”)

The ADA protects qualified disabled persons from discrimination.

Prohibits discrimination against qualified individuals with disabilities who, with or without reasonable accommodation, can perform the essential functions of the job

Employer and Employee should engage in a good faith interactive process to determine reasonable accommodation that will enable the employee to perform the essential functions.

Request more information relevant to the skills and abilities needed for the job.

Request more information relevant to the employee’s limitations.

63

Definition of Disability

A physical or mental impairment that

substantially limits a major life activity;

A record of such impairment; or

Being regarded as having such an impairment.

64

Reasonable Accommodation

Companies must provide reasonable accommodations to known physical or mental limitations of qualified applicants and employees unless the accommodation would impose an undue hardship on the operation.

Determine reasonable accommodation through interactive process with employee.

The process you follow in exploring potential reasonable accommodations is important

Interactive dialogue is required

Undue hardship, the defense to failing to provide reasonable accommodation, is a very high standard

Only individuals with disabilities are entitled to reasonable accommodations…but ADA now has very broad definition of disability

– Take-away: we must at least evaluate whether additional leave or another accommodation might be reasonable

65

Reasonable Accommodation

Accommodations must be provided to both work-related

and non work-related injuries and illnesses

Individuals are not entitled to the exact accommodation

requested

It does not require removing responsibility for performing

essential job functions

– To be qualified, an individual must be able to perform essential job

functions, with or without reasonable accommodations

– Accommodation of last resort is reassignment to vacant positions for

which individuals are qualified

66

67

Mandated Employee Leave Protections

Americans with Disabilities Act – 2016 Guidance

Paid Sick Leave – currently 7 states and numerous cities

• Is Albuquerque next? TBD

Military Leave

Pregnancy leave and other state leave legislation

68

Implementing Effective and Lawful

Onboarding Practices

Maintaining a lawful onboarding process

• Benefits of electronic onboarding

• New hire notification obligations

• Federal and state new hire compliance

• FCRA compliance

Healthcare-Specific Media

Today there are 59,000 Mobile Health app publishers on

main app stores worldwide, including:

• Mobile MIM

- Allows physicians to send MRI, CT, PET scans to Iphones

• Epocrates

- Mobile drug reference resource

• Symplur

- Social media management for healthcare

• Inspire

- Patient chat feeds regarding care

70

Issues with Social Media in Healthcare

Medical Professionals photographing patients

Medical Professionals befriending patients on social media

Discussions of patients on social media

Paying third parties for hospital/provider website promotion

Provider access of patient information, records, on personal devices

Compliance

Data breach: What happens when the information is gone?

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Nurse aide admits to photographing patient

(WGRZ 6:03 p.m. EST February 4, 2015)

NEW YORK- A former nursing aide at a health center in Lancaster has admitted tophotographing and sharing a picture of a patient in an uncompromising position.

New York Attorney General Erie Schneiderman announced Tuesday that Edward Melock, a former nurse at the Greenfield Health and Rehabilitation Center in Lancaster, pleaded guilty to 2nd degree unlawful surveillance, dissemination of an unlawful surveillance image and willful violation of health laws for the photograph. Melock was sentenced to one year of conditional discharge with 100 hours of community service, and was forced to give up his CNA certificate.

According to Schneiderman's office, Melock took a photo of an elderly patient while they were undressed in March of 2013, and then shared it on Snapchat.

The Niagara Lutheran Health System, which runs the facility, said Wednesday all of their employees have since been re-trained on their policy that bans them from using their cell phones during work hours.

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Consider . . .

67% of physicians surveyed by the Federation of State Medical Boards in 2011 reported professional use of social media

87% of them used social media for personal use

35% of them received friend requests from patients

16% of them have visited online profiles of patients or their families

In a 2010 survey of Executive Directors at Medical Boards in the US, 92% indicated violations of online professionalism in their jurisdictions (inappropriate contact with patients was 69%)

Outcomes resulted in license limitations (44%), suspension (29%) or revocation of licensure (21%).

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Further Consider….

Formation of unintended provider-patient relationships;

Exerting undue influence in promotion of practice or

product owned or managed by physician;

Unprofessional behavior; and/or

Violations of Patient Privacy or Publicity

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The Legal Landscape

HIPAA

STARK

STATE LAW

STATE QUALITY ASSURANCE

COMMISSION/ETHICS BOARDS

COMMON LAW (invasion of privacy actions)

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HIPAA

What is the Health Insurance Portability and

Accountability Act (HIPAA)?

• Nondiscrimination

• Portability

• Fraud and Abuse

• Administrative Simplification

To whom do the administrative simplification rules

apply?

• Covered entities

• Business associates (and subcontractors)

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HIPAA

Who/what is a covered entity under HIPAA?

• Most Healthcare Providers – those that transmit health

information in electronic form in connection with certain covered

transactions

• Health Plans

• Health Care Clearinghouses

• No Jurisdiction Over “Employers”

What health plans are covered?

• Medical, dental, vision, HRA, HFSA, EAP, many LTC plans

• Remember on-site health clinics, even though not “plans”

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HIPAA

When can you use and disclose PHI?

• General rule – you can’t unless permitted under HIPAA, but

there are many exceptions

• Key exceptions

- Individual, and pursuant to his/her authorization

- Plan sponsor

- Business associate

- Inadvertence

- Treatment, payment, health care operations,

- Judicial and administrative proceedings,

- Workers compensation

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HIPAA – A Brief Refresher

When can a provider/plan use and disclose PHI?

• General rule – not unless permitted under HIPAA

• Key exceptions

- Individual, personal representatives, and pursuant to authorization

- Family members and friends involved in patient care

- Plan sponsor and business associates

- Inadvertence

- Treatment, payment, health care operations

- Judicial and administrative proceedings

- Workers compensation

- HHS

- Whistleblowers

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HIPAA

What are the key requirements under the HIPAA

security rule?

• Security rule applies to electronic PHI only

- PHI that is computer based, e.g., created, received, stored or

maintained, processed and/or transmitted in electronic media

- Electronic media includes computers, laptops, disks, memory stick,

PDAs, servers, networks, dial-modems, E-Mail, web-sites, etc.

• Security - means to ensure the confidentiality, integrity, and

availability of information that the covered entity creates,

receives, maintains, or transmits through safeguards

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HIPAA/HITECH - BAAs

When are BAs directly liable under HIPAA?

• Final regulations make clear that BAs are directly liable for:

- Uses and disclosures of PHI not permitted under HIPAA;

- A failure to provide breach notification to the CE;

- A failure to provide access to a copy of electronic PHI to the CE, the

individual, or the individual’s designee;

- A failure to disclose PHI to the Secretary of Health and Human

Services to investigate or determine the BA’s compliance with the

HIPAA privacy and security rules;

- A failure to provide an accounting of disclosures; and

- A failure to comply with the HIPAA security rules..

• But not other portions of privacy rule, such as notice requirement.

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Risks & Challenges

What Is Data Breach?

Unauthorized use of, or access to, records or data containing personal information.

• Personal Information (PI) typically includes:

- First name or first initial and last name in combination with:

Social Security Number

Driver’s Licenses or State identification number

Account number or credit or debit card number in combination with access or security code

Biometric Information (e.g. NC, NE, IA, WI)

Medical Information (e.g. CA, VA)

• PI typically maintained where?

Human Resources-Applications, FMLA, Disability, etc.

Accounting-Payroll documents.

Benefits-Health, Vision, Dental.

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What are the Risks Associated with Losing

Data?

Data loss.

Financial loss.

Public relations.

Negative publicity.

Loss in customer confidence.

A couple of statistics reported by Cisco Systems in their Whitepaper titled “Data Leakage Worldwide: Common Risks and Mistakes Employees Make:”

• 46 % of employees admitted to transferring files between work and personal computers when working from home.

• 13 % of those who work from home admit that they cannot connect to their corporate networks, so they send business email to customers, partners, and co-workers via their personal email.

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Risk & Challenges

How Does a Data Breach Occur?

Loss, theft, improper access, inadvertent disclosure:

The lost laptop/bag;

Inadvertent access;

Data inadvertently put in the “garbage;”

Theft/intentional acts;

Inadvertent email attachment;

Stressed software applications;

Rogue employees;

Remote access;

Wireless networks;

Peer to peer networks;

Vendors.

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HIPAA/HITECH – Data Breach

What are the key features of the breach notification

rule under HIPAA?

• Generally follows the format of 46 state laws with some key

distinctions:

- Absent law enforcement delay, must provide notice without

unreasonable delay but not later than 60 days following discovery

- Notify Secretary of HHS as provided above of breach affecting 500

or more individuals

- Notify Secretary of HHS of breach affecting fewer than 500 within

60 days of end of calendar year in which breach occurred

- Conspicuously post notice on CE’s website or place notice in major

print or broadcast media for breaches involving 10 or more

individuals for whom there is insufficient contact information

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BYOD? (Bring Your Own Device)

Rapid increase in the use of mobile devices by employees

Mobile phones/Smart phones

Tablets

Laptops

Non-company owned PCs

USB sticks

External hard drives

Cloud-based storage (e.g., Drop Box) etc.

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BYOD?

Upgrades: Too fast!

Lost Data

Rights affecting access and

monitoring

Privacy

NLRA Rights

Who owns data?

Corporate information and

trade secrets;

Personal information of

employees or customers.

Duty to monitor employees

Malicious software attacks.

Compliance risks:

HIPAA;

Encryption (MA & NV);

Client demands;

e-Discovery

Data breaches

Wage & Hour violations

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Questions?

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Danny W. Jarrett

Managing Principal, Albuquerque Office

Jackson Lewis PC

4300 San Mateo Blvd. NE, Suite B-260

Albuquerque, New Mexico 87110

(505) 878-0515

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