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John W. Sheffield
Justin A. Barkley
JOHNSTON BARTON PROCTOR & ROSE,
LLP
Alabama Nursing
Home Association
January 9, 2013
Birmingham, Alabama
TOP 10 TOP 10 EmploymentEmploymentLaw Updates Law Updates for Nursing for Nursing HomesHomes
1.1. Health Care ReformHealth Care Reform
Health Care ReformHealth Care Reform Employers of more than 50 full-time employees required to provide affordable coverage to full-time employees
New regulations (Dec. 2012) from g ( )IRS make clear the threshold is 50 FTEs
Full‐time = 30 hours
Affordable = no more than 9.5% of employee’s household income
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Dependent CoverageDependent Coverage
Employers must offer coverage to “dependents” 26 years of age or under
But not “spouses” But not spouses
Dependent coverage need not be “affordable”
beginning Jan 2015
2.2. ImmigrationImmigration
Alabama’s Alabama’s New New
Immigration Immigration LawLaw
‐ Amendment
‐ Provisions invalidates
‐ Provisions enforced
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EE--VERIFYVERIFY
• Internet based system that electronically confirms information on I‐9 forms
• Verifies employment eligibility of new hiresp y g y
• Free service; began as a voluntary pilot program
• Partnership between DHS and SSA
• Does not replace I‐9s; works in conjunction
EE‐‐Verify Dos and Don’tsVerify Dos and Don’ts
• Only for new hires (unless federal contractor with specific language in your contract)
• Must enter I‐9 information into e‐verify within 3 days of start of employment
• Cannot pre‐screen applicants• Must use for all new employees• Cannot use to “re‐verify”• Must give employees opportunity to
respond to nonconfirmation• Can take adverse action only after a final
nonverification is issued
3.3. Workplace ViolenceWorkplace Violence
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Workplace ViolenceWorkplace Violence
‐ Statistics from SHRM Study
‐ Best Practices – Policies & Prevention‐ Background ChecksBackground Checks‐ Reporting Mechanisms and
Communication‐ Response: No Tolerance
44.. OSHAOSHA
OSHAOSHA• Targeted Enforcement: Nursing Homes
Announced 3 year National Enforcement Program (“NEP”) targeting nursing homes- High incidence of workplace injuries
E t bl d d i f ti t i l
http://www.osha.gov/SLTC/nursinghome/index.html
- Exposure to blood and infectious materials- Communicable diseases- Lifting residents- Slips, trips and falls- Drugs and hazardous chemicals- Specific information on nursing home
standards:
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55.. Union OrganizingUnion Organizing
Union OrganizingUnion Organizing
• Specialty Healthcare
– “micro-unions”
UFCW v Lakeland• UFCW v. Lakeland Healthcare Associates, LLC– LPNs as
supervisors
6.6. Wage & HourWage & Hour
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Wage & Hour Issues Wage & Hour Issues in Nursing Homesin Nursing Homes
Cases & Settlements
off-the-clock (in-services, pre- and post- shift activities, automatic lunch deductions))
regular rate of pay
misclassification.
RN – professional exemption
LPN – must meet supervisory or administrative exemption
77.. Protected ActivityProtected Activity
NLRB and Social MediaNLRB and Social Media
• Costco Wholesale Corp.
• Hispanics United of Buffalo
• Flex Frac Logisticsg
• TT & W Farm Products
• Knauz BMW
• Focus on Policies
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88.. EEOCEEOC
NEW STRATEGIC INITIATIVE Systemic DiscriminationFocus on “systemic” cases with multiple plaintiffs or a class of plaintiffs
U i di id l h d t b ild “ t i ”Use individual charges and cases to build “systemic” cases
EEOC not required to go through normal class certification procedures to assert claims on behalf of a class
“Commissioner’s charges” – not require an individual charging party
EEOC OpinionsEEOC OpinionsEmployer use of arrest & conviction records may create adverse impact Arrest v. Conviction Time limits Job related
Requiring High School Diploma may violate ADA Could screen out those with learning disabilities Job related and consistent with business necessity
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EEOC EEOC –– Pushing the EnvelopePushing the Envelope
• Transgender Discrimination
– Commissioners’ Opinion: Transgender discrimination as a form of gender discrimination under Title VII
– Hopkins v. Price WaterhouseHopkins v. Price Waterhouse
• Not conforming to gender stereotypes
• Domestic Violence Discrimination
– Concerns of workplace violence
– Mental/psychological effects of domestic abuse as a potential disability
– Gender stereotyping
9.9. ADA/GINAADA/GINA
Disability claims jumped nearly 20% from 2009 to 2011 (21,451 to 25,742)
EEOC Relief awards under ADA up 36% last year
First GINA charges filed in 2010 (210), a
ADA/GINAADA/GINA
few more in 2011 (245)
New legislation driving trends
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10.10.RetaliationRetaliation
RetaliationRetaliation Increasing numbers of lawsuits and EEOC charges assert
retaliation claims
Largest verdicts often include retaliation claims
Jurors return plaintiff’s verdicts more often on retaliation claims
Charges of retaliation (36 3%) surpassed charges of race Charges of retaliation (36.3%) surpassed charges of race discrimination (35.9%) for first time in 2009, trend continues
Should be addresses with supervisors whenever an incumbent employee files an EEOC charge or makes a complaint
Can turn a frivolous discrimination/harassment claim into a more difficult to defend retaliation claim
QUESTIONS?QUESTIONS?Contact us:
John W. [email protected]
Justin A. [email protected] j205-458-9457
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