2015 C HANGES IN THE EMPLOYMENT LAWS P RESENTED TO : 2015 FRBMA RETREAT Stuart Charlson, JD HR for Business – Consultstu LLC January 30, 2015

Who we are HR for Business – Consultstu LLC provides fractional HR support to small/mid businesses. We engage clients on 18 key points that protect ownership from expensive HR mistakes, engage employees and support growth. Achieve better outcomes.

Speaker Profile Stuart Charlson, JD founded HR for Business – Consultstu LLC in Experienced in compliance, governmental agencies, supervisory training, safety, employee surveys and employee engagement. Over twenty (20) years advising small/mid businesses, including medical practices, in various roles including employment attorney, corporate HR and consulting.

Employment law changes for 2015 Ten (10) HR Headaches New laws Old laws New interpretations New enforcement

Unfortunately … workplace civility is dead Banner Estrella Medical Center (2014) Work rules prohibiting negative comments and requiring that employees represent the hospital “in the community in a positive and professional manner” violated federal law. Hills and Dales General Hospital (2012) Values and behavior policy to showcase it new culture – teamwork and attitude language Designed to prevent “back biting and back stabbing” Negativity prohibition violated 8(a)(1) of NLRA because employee right to engage in protected, concerted activity Gossip prohibition was ok

HR Headache #1 Same sex marriage in Florida A District Court judge lifted a stay on January 6, 2015, and immediately Florida clerk of courts began issuing marriage licenses to same sex couples. A legal challenges is still pending at the 11 th Circuit Court of Appeals but the ultimate outcome will rest with the U.S. Supreme Court. Action item(s): Evaluate updates to employee policies for definition of spouse, such as FMLA and employee benefit plans.

HR Headache #2 New FL Information Protection Act of 2014 Florida has adopted one of the most strict breach notification laws in the U.S. It protects personal information to include name, health and medical info and online credentials. Notification deadlines have been revised and businesses are required to take reasonable measures to protect data. Action item(s): Evaluate current policies, prepare a breach response plan, review IT security plans, review liability policies for coverage for breaches

HR Headache #3 NLRB has gone “rogue” Over the past year, the new NLRB has begun to re-interpret long standing standards and invent new approaches. Attacking social media and policies to foster a culture of civility and professionalism Quickie elections access for campaigning Action item(s): Review policies, assess vulnerability and review discipline and discharge decisions.

HR Headache #4 Re-employment statute revisions (circ. 2012) Several years ago, Florida revised its UE law and lowered the standard to prove misconduct to “conscious disregard” of “reasonable standards of behavior”. Absenteeism and tardiness requires prior written warning. Use a 2 day no call/no show policy standard. Action item(s): Revise policies on workplace conduct and review progressive discipline and termination procedures.

HR Headache #5 Independent Contractor Enforcement In January 2015, Florida signed an MOU with the Department of Labor to cooperate on combating misclassified independent contractors. There will be information sharing, increased enforcement actions and referrals between agencies. Action item(s): Evaluate the use of independent contractors, review agreements and assess the element of “control” and terminology used between the parties.

HR Headache #6 FCRA is becoming the new FLSA Yikes. Some large companies are getting hammered with FCRA violations. The Fair Credit Reporting Act (FCRA) has very specific requirements for employers that conduct criminal background checks. You need to get disclosure, authorization and use both the pre-adverse and adverse action notices. The stand alone requirement has tripped up some employers, as well as using waiver language. Action item(s): Don’t combine disclosure/authorization and employment application. Remove waiver language from disclosure and authorization form. Prepare a process for handling candidates rejected due to criminal history, including notices.

HR Headache #7 FLSA changes are coming (plus the old stuff) Pending: Wage and Hour has proposed to change the salary required for exemptions – up from $455/week to $970/week. Also considered is adopting a California rule that exempt employees must perform exempt duties at least 50 percent of their work time. This will impact lower level supervisors, managers and some professionals. Action item(s): Review positions and consider impact of proposed changes at your practice. Review pay practices to ensure that all compensable time is captured, and that work practices comply with rules.

HR Headache #8 New Pregnancy Protections The Florida Civil Rights Act’s (FCRA) discrimination protections based on gender also covers pregnancy discrimination, according to a 2014 FL Supreme Court decision (even though the word is not in the Act). Also in 2014, the EEOC issued enforcement guidance that concluded that reasonable accommodation should be made available to individuals with temporary impairments, including impairments due to pregnancy. Action item(s): Review EEO guidance, then review absence control policies, including FMLA, ADA and personal leaves of absence. Set up an interactive process to discuss and evaluate requests for accommodations.

HR Headache #9 Affordable Care Act implementation In 2015, employers with over 50 employees will be gathering new data on employees for new IRS reporting requirements in Identifying and tracking full time employees, understanding hours of service Coverage and eligibility for transitional relief Pay or play determination Notices to employees Continued trending toward self-service platforms Action item(s): Keep up with regulatory updates, health plan renewals, ensure access to sufficient hours worked reports, analysis of penalty provisions

HR Headache #10 Absence management practices FMLA regulatory change to the definition of spouse ADA interactive process for evaluating employees in need of accommodations Expanded definition of “disabled” Light duty considerations Telecommuting case implications Action item(s): Evaluate process for handling employee leave issues (depending on employer size); review employee handbook for accommodation language; train managers on company procedures.

Bonus HR Headache #11 OSHA Recordkeeping and Reporting changes More inspections will result Each “work related inpatient hospitalization” will need to be reported within 24 hours to OSHA (even partial exempt employers) Means “formal admission” (not diagnostic or observation only) [ex: heart attack] Change in recordkeeping – doctor office (6211) and medical/diagnostic lab (6215) on exempt industry list after 1/1/2015. New online reporting tool Action item(s): Update procedures for OSHA reporting and evaluate OSHA recordkeeping obligations. Check prior compliance.

2014 case study: treacherous waters Dialysis Clinic, Inc. (Sacramento, CA) 14 year nurse diagnosed with breast cancer. Took leave of absence to have mastectomy surgery and chemotherapy treatments. 4 months later, letter of termination (exceeding leave of absence time) Cleared to return to work (w/o restriction in 2 months) Told to re-apply for open positions, she did (not hired), another nurse hired a little later EEOC sued: “only needed 2 more months” “why sacrifice employee over arbitrary time limit”

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