Jeffery L. Thompson Telephone: HR Update A LIGHTHOUSE IN THE STORM

Topics That Will Be Discussed Federal Legislative Activity Federal Legislative Activity Federal Agency Activity Federal Agency Activity Employment Laws Every HR Professional Should Know and New Cases From the Courts in Those Areas Employment Laws Every HR Professional Should Know and New Cases From the Courts in Those Areas Social Media As The New Frontier Social Media As The New Frontier FMLA Abuse FMLA Abuse

Aggressive Agency Enforcement

EEOC Charge Statistics

EEOC Strategic Enforcement Plan ADA Targeting (end of leave, essential functions, reasonable accommodations with new technologies, the conversation) ADA Targeting (end of leave, essential functions, reasonable accommodations with new technologies, the conversation) Pregnancy Accommodations (not ADA generally but evaluated differences between how other conditions treated) Pregnancy Accommodations (not ADA generally but evaluated differences between how other conditions treated)

DOL Enforcement

OFCCP Enforcement

Discussion Question #1 Sarah is your employee. Sarah, who has always been a “problem” employee, comes to your office and claims she has been sexually harassed. You tell Sarah you are going to investigate, but you ask her not to speak to anyone about the investigation. Sarah leaves your office and goes to talk to Elizabeth, her coworker, about the harassment and investigation. What action should you take?

The EEOC’s Position Where an employer has "broad policy that imposes discipline" for discussing investigations of discrimination or harassment, it will likely violate the retaliation provision of Title VII. Where an employer has "broad policy that imposes discipline" for discussing investigations of discrimination or harassment, it will likely violate the retaliation provision of Title VII. Where an employer makes confidentiality a "suggestion" it is less likely to be a violation. However, this suggestion must truly be a suggestion. Where an employer makes confidentiality a "suggestion" it is less likely to be a violation. However, this suggestion must truly be a suggestion.

The Courts At least one Court has gone the other way. At least one Court has gone the other way. The Central District of California found that where a employee violated the company's confidentiality policy on internal investigations, and the court found it to be a legitimate reason for termination. The Central District of California found that where a employee violated the company's confidentiality policy on internal investigations, and the court found it to be a legitimate reason for termination. Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146 (March 13, 2013 C.D. Cal.) Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146 (March 13, 2013 C.D. Cal.)

News from the Courts

Harassment Vance v. Ball State University (U.S. Sup. Ct) Vance v. Ball State University (U.S. Sup. Ct) Issue: was harasser a supervisor? Issue: was harasser a supervisor? Ct: to be supervisor, must be empowered to take tangible employment actions against harassment victim Ct: to be supervisor, must be empowered to take tangible employment actions against harassment victim Important: will limit liability of employers in harassment litigation Important: will limit liability of employers in harassment litigation

Discussion Question #2 Bob is one of your employees. Bob has religious beliefs that do not allow him to work on a Saturdays. Your hospital requires its employees to work on any day they are needed to respond to customer demands. What should you do?

Religious Accommodation Brown v. Hot Springs Nat’l Park Hospital Brown v. Hot Springs Nat’l Park Hospital 24/7 availability was essential job function for hospital manager position 24/7 availability was essential job function for hospital manager position Plaintiff’s religious beliefs precluded weekend work Plaintiff’s religious beliefs precluded weekend work Ct: no duty to eliminate essential function, and accommodation would be undue hardship Ct: no duty to eliminate essential function, and accommodation would be undue hardship

Religious Accommodation Antoine v. First Students, Inc. Antoine v. First Students, Inc. Employer policy permitted swapping shifts to accommodate religious beliefs Employer policy permitted swapping shifts to accommodate religious beliefs Ct: policy not sufficient; implies that greater employer effort to accommodate is required Ct: policy not sufficient; implies that greater employer effort to accommodate is required

Discussion Question #3 Lacy began working in the cafeteria 30 days ago. She has just approached you and explained that she is 5 months pregnant and is not going to be able to lift over 10 pounds during her pregnancy and will need time off for bed rest. What should you do?

Pregnancy Discrimination Act And ADAAA

Pregnancy Discrimination Act (PDA) Must treat pregnancy like any other illness. Must treat pregnancy like any other illness. Not generally covered by the ADA but evaluated differences between how other conditions are treated. Not generally covered by the ADA but evaluated differences between how other conditions are treated. Pregnancy-related conditions may need to be accommodated. Pregnancy-related conditions may need to be accommodated.

Is Pregnancy A Disability? Wonasue v. Univ. of Mayland Alumni Assn. Wonasue v. Univ. of Mayland Alumni Assn. Employee with severe morning sickness requested accommodations; employer denied. Employee with severe morning sickness requested accommodations; employer denied. Court found that morning sickness is not a disability; no duty to accommodate. Court found that morning sickness is not a disability; no duty to accommodate. Some pregnancy related conditions could be a disability. Some pregnancy related conditions could be a disability.

Latest Concerning The Americans With Disability Act Amendment Act Reasonable Versus Unreasonable

Job Restructuring Employee who hurts back at work Employee who hurts back at work Light duty – limited lifting Light duty – limited lifting Worker’s Compensation Worker’s Compensation Shared Lifting Shared Lifting Reasonable or Unreasonable?

Schedule Modifications Medical condition requires morning therapy Medical condition requires morning therapy Clinic opens at 8 Clinic opens at 8 Sue works from 8-4 Sue works from 8-4 As an accommodation, Sue wants to report to work at 10:00 a.m. As an accommodation, Sue wants to report to work at 10:00 a.m. Reasonable or Unreasonable?

Change in Supervisor Accounts Receivable employee Accounts Receivable employee Investigated for misconduct Investigated for misconduct Post traumatic stress and anxiety Post traumatic stress and anxiety Wants to be moved to another supervisor Wants to be moved to another supervisor Reasonable or Unreasonable?

Working From Home/Telecommuting Employee with irritable bowel syndrome Employee with irritable bowel syndrome Works in Accounts Payable Works in Accounts Payable Wants to work from home 4 days a week Wants to work from home 4 days a week Reasonable or Unreasonable?

Working from Home EEOC v. Ford Motor Company EEOC v. Ford Motor Company Employee’s job required face to face interaction with clients and co-workers Employee’s job required face to face interaction with clients and co-workers Ford denied request to work from home; suggested other accommodations Ford denied request to work from home; suggested other accommodations Employee was terminated for performance Employee was terminated for performance Ct: Employee’s request to telecommute was not a reasonable accommodation Ct: Employee’s request to telecommute was not a reasonable accommodation

Discussion Question #4 Jimmy is an employee at your hospital. He can no longer perform his job because he cannot lift the requisite number of pounds. However, there is an open, vacant position in another department which does not require any heavy lifting. Do you have to offer Joe the job?

United Airlines v. EEOC U.S. Supreme Ct. declined to review 7 th Circuit ruling U.S. Supreme Ct. declined to review 7 th Circuit ruling 7 th Circuit held: ADA requires employer to assign disabled employee to vacant position for which qualified 7 th Circuit held: ADA requires employer to assign disabled employee to vacant position for which qualified Not sufficient to permit employee to compete for job Not sufficient to permit employee to compete for job

Discussion Question #5 Paul has been with your hospital for over two years and has been a “marginal” employee. He has recently been out on FMLA leave and his twelve weeks is about to end. He asks for additional time of 90 days of unpaid personal leave. The doctor says he may need even more leave time than the additional 90 days. What should you do?

EEOC’s Position On Leave Of Absence If employee is considered disabled, must attempt accommodation (unless undue hardship). If employee is considered disabled, must attempt accommodation (unless undue hardship). Accommodation may mean extending leave beyond what is normally allowed. Accommodation may mean extending leave beyond what is normally allowed. Be sure to review current policy for random termination periods (i.e., one 90 day leave then terminate. Be sure to review current policy for random termination periods (i.e., one 90 day leave then terminate.

Leave of Absence Brangman v. AstraZeneca Brangman v. AstraZeneca Company granted leave and two extensions; rejected third extension. Company granted leave and two extensions; rejected third extension. Court found that 3 rd request unreasonable because employee could not show she would eventually return to work. Court found that 3 rd request unreasonable because employee could not show she would eventually return to work.

Employee Retirement Income Security Act (ERISA)

Defense of Marriage Act (DOMA) U.S. v. Windsor (U.S. Sup. Ct.) U.S. v. Windsor (U.S. Sup. Ct.) Struck down section 3 of DOMA Struck down section 3 of DOMA Result: same sex marriages recognized for federal law purposes; recognized in some states but not others Result: same sex marriages recognized for federal law purposes; recognized in some states but not others

Fair Labor Standards Act (FLSA)

Changing Clothes Not Compensable Work Sandifer v. U.S. Steel Corp. (1/27/14) Sandifer v. U.S. Steel Corp. (1/27/14) “Donning and doffing" safety gear before and after work shift constitutes changing clothes “Donning and doffing" safety gear before and after work shift constitutes changing clothes Employers and unions can agree to exclude the time workers spend putting on and taking off protective clothing from compensable work time Employers and unions can agree to exclude the time workers spend putting on and taking off protective clothing from compensable work time

Family and Medical Leave Act (FMLA)

Enforcement of Employer Attendance Policies Srouder v. Dana Light Axle Mfg, LLC Srouder v. Dana Light Axle Mfg, LLC FMLA regs require employee to comply with notice and procedures for absences FMLA regs require employee to comply with notice and procedures for absences Employee failed to call in per company policy; terminated Employee failed to call in per company policy; terminated Ct: no FMLA violation Ct: no FMLA violation

Enforcement of Employer Attendance Policies Paris v. Sanderson Farms, Inc. Paris v. Sanderson Farms, Inc. Company sent letter: leave expired; will terminate if you do not return to work or submit request for additional leave and medical certification; Company sent letter: leave expired; will terminate if you do not return to work or submit request for additional leave and medical certification; No response; terminated her; employee filed suit No response; terminated her; employee filed suit Ct: not FMLA violation to require compliance with company policies on requesting leave Ct: not FMLA violation to require compliance with company policies on requesting leave

12 Tips For Avoiding FMLA Abuse 1.Calculate FMLA leave using A “rolling” 12 month period. (Except for leave to care for service member) 2.Require employees use all paid leave prior to taking unpaid FMLA. 3.Require medical certifications to be returned within 15 days. 4.Require employees to provide thirty (30) days notice for foreseeable FMLA leave. Gives you the luxury to plan around the absences, which increases productivity and minimizes abuse.

12 Tips For Avoiding FMLA Abuse 5.Demand that employees schedule medical treatments around operations. 6.Establish and enforce reasonable attendance and call- in rules for all leave. 7.Assign employees taking foreseeable intermittent leave to alternative positions that cause less disruption, if possible. 8.Require “fitness for duty” certifications for employees returning to work.

12 Tips For Avoiding FMLA Abuse 9.Require employees to submit A recertification every thirty (30) days. 10.Require second and third opinions. 11.Have a policy prohibiting employees from working second jobs while on leave (of any type). 12.Use private investigators to prove FMLA fraud.

The New NLRB- How It Will Affect Healthcare?

Service Employees International Union (SEIU) More than half of SEIU's over 2 million members work in health care. More than half of SEIU's over 2 million members work in health care. SEIU represents: SEIU represents: 110,000 nurses 110,000 nurses 40,000 doctors 40,000 doctors over 500,000 home health aides over 500,000 home health aides 160,000 nursing home workers 160,000 nursing home workers

Recent SEIU Petition Filings (Hospitals) 1/21/2014- Health Care Services Group (WI) 1/21/2014- Health Care Services Group (WI) 1/17/2014-Luther Manor (WI) 1/17/2014-Luther Manor (WI) 1/14/2014- Dental Dreams, PLLC (MI) 1/14/2014- Dental Dreams, PLLC (MI) 1/13/2014- St. Francis Hospital (CA) 1/13/2014- St. Francis Hospital (CA) 1/10/2014- Health Care Services Group (FL) 1/10/2014- Health Care Services Group (FL) 1/7/2014- Golden Living Center (MA) 1/7/2014- Golden Living Center (MA) 12/30/2013- Lifestar Response of New Jersey 12/30/2013- Lifestar Response of New Jersey

Harris v. Quinn On January 21, 2014, the SCOTUS heard oral argument on a case that will have a big impact on organized labor in the healthcare industry On January 21, 2014, the SCOTUS heard oral argument on a case that will have a big impact on organized labor in the healthcare industry The case was brought by the National Right to Work Legal Defense Foundation. The case was brought by the National Right to Work Legal Defense Foundation. The case involves eight home care providers in Illinois and addresses the precedent of Abood v. Detroit Board of Education, which stands for the principle that the non-union workers must pay their “fair share” of union dues in the public sector. The case involves eight home care providers in Illinois and addresses the precedent of Abood v. Detroit Board of Education, which stands for the principle that the non-union workers must pay their “fair share” of union dues in the public sector.

Harris v. Quinn These home-care providers, who do not want to belong to a union or to pay dues and do not want a union to speak for them, have asked the Court to overrule the Abood decision. These home-care providers, who do not want to belong to a union or to pay dues and do not want a union to speak for them, have asked the Court to overrule the Abood decision. The SEIU is actually one of the parties in this matter and is currently receiving about $3.6 million in dues from these personal care workers. The SEIU is actually one of the parties in this matter and is currently receiving about $3.6 million in dues from these personal care workers.

NLRB News The NLRB’s “poster” regulation is effectively dead. The NLRB’s “poster” regulation is effectively dead. This “poster” regulation would have required employers to post notices to employees of their rights under the NLRA which hindered employers’ rights to talk about unionization in their workplace. This “poster” regulation would have required employers to post notices to employees of their rights under the NLRA which hindered employers’ rights to talk about unionization in their workplace.

NLRB Attempting To Change Rules Day Elections Day Elections Union Access Union Access Names/Phone Numbers/Addresses or Accounts Names/Phone Numbers/Addresses or Accounts Third Party Access during OSHA investigations Third Party Access during OSHA investigations

The NLRB Strikes Again! In April of 2013, an administrative law judge for the NLRB issued an opinion invalidating two of a healthcare provider’s policies regarding the use of , company computers and company Internet. In April of 2013, an administrative law judge for the NLRB issued an opinion invalidating two of a healthcare provider’s policies regarding the use of , company computers and company Internet. This ruling is another in a long line of NLRB decisions and “guidance” intent on broadening employee communication rights under the guise of Section 7. This ruling is another in a long line of NLRB decisions and “guidance” intent on broadening employee communication rights under the guise of Section 7.

The NLRB Strikes Again! A Pennsylvania union filed a charge against holding company UPMC (affiliated with the University of Pittsburgh Schools of the Health Sciences), and numerous subsidiary hospitals, alleging that UPMC’s policies regarding solicitation, electronic mail and messaging, and use of information technology resources violated the NLRA and “chilled” activity that is protected under Section 7 of the NLRA. A Pennsylvania union filed a charge against holding company UPMC (affiliated with the University of Pittsburgh Schools of the Health Sciences), and numerous subsidiary hospitals, alleging that UPMC’s policies regarding solicitation, electronic mail and messaging, and use of information technology resources violated the NLRA and “chilled” activity that is protected under Section 7 of the NLRA. The policies were considered “broad” and vague.” The policies were considered “broad” and vague.”

The NLRB Strikes Again! The judge found that stating non-work-related use was allowed unless the usage “may be disruptive,” is “offensive,” or is “harmful to morale” was too vague. The judge found that stating non-work-related use was allowed unless the usage “may be disruptive,” is “offensive,” or is “harmful to morale” was too vague. The language that permitted management to exercise any discretion to allow or forbid certain communications was struck. The language that permitted management to exercise any discretion to allow or forbid certain communications was struck. The most troubling part of this decision was that the judge invalidated a provision requiring company approval before Internet transmission of “sensitive, confidential and highly confidential information.” The most troubling part of this decision was that the judge invalidated a provision requiring company approval before Internet transmission of “sensitive, confidential and highly confidential information.” The judge thought this would inhibit employees from discussing the terms and conditions of their employment. The judge thought this would inhibit employees from discussing the terms and conditions of their employment.

Health Care Union’s Latest Strategies Internet/Social Media Campaign Internet/Social Media Campaign Lobbying Patient Care Issues Lobbying Patient Care Issues Going Public With Patient Safety Going Public With Patient Safety and Fairness Issues Target Certain Hospitals that are Target Certain Hospitals that areVulnerable

Blogs and Social Media: Class Warfare and Political Activism

Final Thoughts  It Starts At Home - Lilly Tomlin