• Employee engagement is the emotional commitment an employeehas to the ASC and its goals. Employee engagement is the extent towhich employees feel passionate about their jobs, are committedto the ASC, and put discretionary effort into their work.
Sexual harassment is a form of sex discrimination and consists of unwelcome sexualadvances, requests for sexual favors, and other verbal or physical contact of a sexualnature. Sexual harassment becomes illegal when:
1. Submission to such conduct is made either explicitly or implicitly a term of conditionof an individual’s employment;
2. Submission to or rejection of such conduct by an individual is used as the basis foremployment decisions; and
3. Such conduct has the purpose or effect of unreasonably interfering with anindividual’s work performance or creating an intimidating, hostile or offensiveworking environment.
The first two categories refer to “quid pro quo” (Latin meaning “this for that” or“something for something”) sexual harassment, in which the employee is implicitly orexplicitly requested to submit to sexual demands in exchange for employment benefits orto avoid adverse employment consequences. The third category – a hostile workenvironment – exists when verbal or nonverbal behavior in the workplace is severe orpervasive enough to create a work environment that a reasonable person would considerintimidating, hostile, or abusive
• Physical - Touching, pinching, patting, grabbing, brushing against aperson’s clothing, body or hair, initiating unwanted sexual activity,rubbing or touching anyone sexually in the presence of another,exposing oneself, requiring the employee to wear sexuallysuggestive clothing, blocking a doorway or impeding a person’smovement.
• Verbal - Name-calling, belittling, sexually explicit, provocative ordegrading language, sexually explicit jokes, comments about aperson’s anatomy, questions or comments about a person’s sexualpractices or preferences, sexual noises or remarks.
• Visual – Sexual pictures, writing or objects, staring someone up anddown, leering, sexually oriented gestures, winking, blowing kisses,standing or sitting too close, inappropriate emails and internetusage, gawking or trying to embarrass a person who looksdifferent.
• Who Can Be A Victim? Employees, interns, independentcontractors and vendors or those employed by a companyproviding services in the workplace or third parties visiting theentity. Victim does not have to be the person targeted by theharasser, but can be a third party who is offended by it or finds itunwelcome.
• Who Can Be A Harasser? Anyone in the workplace. Managementand supervisors, co-workers, subordinates, patients, residents,clients or customers, other non-employees (vendors, contractors,interns, security), members of the public (visitors).
• Gender is not a factor. Sexual harassment can occur betweenmales and females, or between parties of the same sex. (The term“sex” includes sexual orientation, gender identity and the status ofbeing transgender.) Sexual harassment that occurs because thevictim is transgender is also unlawful.
Sexual harassment can occur at functions outside the workplace. Locationsoff-site and during off-hour activities can be considered extensions of theworkplace. For example:
• Supervisors who fail to intervene and report. Supervisors have amandatory duty to report harassment where they know or havereason to know of its existence.
Critical and Required Internal Policies and Practices
• Encourage the reporting of sexual harassment by victims andbystanders, and enforce a zero-tolerance policy and anti-retaliationpolicy in your ASC.
• Supervisors must report any harassment that they observe, knowof or have reason to know of, even if no one is objecting to theharassment or complaining about it.
• Do not ignore a known situation of potential or actual sexualharassment or discrimination; take complaints and reportedconcerns seriously and do not prejudge the allegations during theinvestigatory process.
• Make sure your ASC’s internal complaint process is prompt,thorough and fair in investigating suspected sexual harassment.
• According to figures from federal lawsuit filings, litigants filed a total of 8,954 FLSA cases between January 1, 2015, and December 31, 2015, a 253% increase from 10 years ago. For comparison purposes, plaintiffs filed 8,086 FLSA cases in 2014. And that is an increase of more than 30% since 2011.
• In 2015, the U.S. Department of Labor collected a record $248 million in back wages for over 240,000 employees who had not been paid in compliance with the Fair Labor Standards Act (FLSA).
• First Quarter 2018 = 1,847 filings already.
• Reporting does not count cases pending with DOL, State Lawsuits, or asserted pre-lawsuit.
• Much of this liability could have been avoided had the employer reviewed and changed its pay policies.
1) Employers are finding it difficult to stay up-to-date on current (and ever evolving) wage and hour laws, i.e., Wage Theft Prevention Act, Increase in Minimum Wage, Change of Exemptions to Overtime, Change in Circumstance Created by Lawsuits, and/or misclassification of employees, i.e., nurses, IT Helpdesk, salaried employees.
2) Permissive Class/Collective Litigation Covers More Claims; and
3) Plaintiffs’ attorneys receive their attorneys’ fees from You (the employer). Even the smallest infraction can lead to large attorneys’ fees.
• Actual damages – amount of unpaid hours. (Usually see unpaid overtime premium rate, i.e. straight time paid at 50 hours, but 10 hours of overtime not paid at time and one half).
• Liquidated damages – Double actual damages as a penalty. Statutory.
• Attorneys’ Fees. Plaintiffs can recover their attorneys’ fees. On collective/class actions, fees are tens of thousands of dollars.
• Personal Liability – owner/manager controlling schedule can be personally liable.
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Overtime Is A Federal And State Requirementfor Hourly, Non-Exempt Employees
• The federal overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempt, employees covered by the FLSA must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay.
• States have corresponding overtime laws, i.e., The New York State Minimum Wage Orders contain the State’s overtime requirements.
• Typically, State laws are more protective of employees than the FLSA.
• Differences include: rates of minimum wage, record keeping, statute of limitations, and class action v. collective action.
• Collective Actions: Under the FLSA, a Plaintiff can sue on behalf of him/herself and also on behalf of a class of similarly situated employees.
– This could result in the entire office being swept up in a federal lawsuit.
• Under State law, class actions are permissible.
– Under New York State law, if a Plaintiff can demonstrate a class exists, all class members are included in the lawsuit, unless they choose to opt out.
• Typically, attorneys for employees bring a lawsuit alleging both.
• Creates an analysis of how a department or institution treats “similarly situated” employees.
• In addition to overtime requirements, the FLSA also imposes specific record keeping obligations.
– Each employer shall preserve for at least three years payroll records, collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years.
– State Laws Also Supplement FLSA Record Keeping Obligations.
• NY Wage Theft Prevention Act.
• Wage Statements.
– Dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages.
• The FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees, and also exempts certain computer employees.
• To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations.
• Note NYS change in salary level as of December 31, 2016.
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• Nurses paid at hourly rates – weekly hours worked, lunch breaks, pre- and post-shift work.
• Front Office Staff – receptionists, sales, marketing, insurance intake, etc. - Staff coming in early or staying late to finish paperwork or to attend meetings.
• Back Office Staff – Billing/coders, payroll, etc. - Staff working late to complete monthly billing, staying after shift or before shift to file time-sensitive claims or appeals.
• Employers may have policies restricting overtime or requiring pre-approval, but cannot deny overtime pay if an employee actually works additional hours even in violation of policy.
• Arbitration provisions or agreements with employees to arbitrate all disputes over wages, including FLSA, NYLL, etc., and waiver of class/collective actions. Waiver must be clear and specific.
