Jeffery L. Thompson Telephone: 478-621-2423 E-mail: jthompson@constangy

Jeffery L. ThompsonJeffery L. ThompsonTelephone: 478-621-2423Telephone: 478-621-2423

E-mail: [email protected]: [email protected]

HR UpdateHR Update

A LIGHTHOUSE IN THE STORM

Topics That Will Be Topics That Will Be DiscussedDiscussed

Federal Legislative ActivityFederal Legislative Activity Federal Agency ActivityFederal Agency Activity Employment Laws Every HR Employment Laws Every HR

Professional Should Know and New Professional Should Know and New Cases From the Courts in Those AreasCases From the Courts in Those Areas

Social Media As The New FrontierSocial Media As The New Frontier FMLA AbuseFMLA Abuse

Aggressive Agency Aggressive Agency EnforcementEnforcement

EEOC Charge StatisticsEEOC Charge Statistics

EEOC Strategic Enforcement EEOC Strategic Enforcement PlanPlan

ADA Targeting (end of leave, ADA Targeting (end of leave, essential functions, reasonable essential functions, reasonable accommodations with new accommodations with new technologies, the conversation)technologies, the conversation)

Pregnancy Accommodations (not Pregnancy Accommodations (not ADA generally but evaluated ADA generally but evaluated differences between how other differences between how other conditions treated)conditions treated)

DOL EnforcementDOL Enforcement

DOL EnforcementDOL Enforcement

OFCCP EnforcementOFCCP Enforcement

Discussion Question #1Discussion Question #1

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

The EEOC’s PositionThe EEOC’s Position Where an employer has "Where an employer has "broad policy broad policy

that imposes disciplinethat imposes discipline" for " for discussing investigations of discussing investigations of discrimination or harassment, it discrimination or harassment, it will will likely violate the retaliation likely violate the retaliation provision of Title VIIprovision of Title VII. .

Where an employer makes Where an employer makes confidentiality a "confidentiality a "suggestionsuggestion" it is less " it is less likely to be a violation. However, this likely to be a violation. However, this suggestion must truly be a suggestion. suggestion must truly be a suggestion.

The CourtsThe Courts At least one Court has gone the other At least one Court has gone the other

way. way. The Central District of California found The Central District of California found

that where a employee violated the that where a employee violated the company's confidentiality policy on company's confidentiality policy on internal investigations, and the court internal investigations, and the court found it to be a found it to be a legitimate reason for legitimate reason for terminationtermination. .

Day v. Sears Holdings Corp.Day v. Sears Holdings Corp., 930 F. , 930 F. Supp. 2d 1146 (March 13, 2013 C.D. Supp. 2d 1146 (March 13, 2013 C.D. Cal.) Cal.)

News from the CourtsNews from the Courts

HarassmentHarassment

Vance v. Ball State UniversityVance v. Ball State University (U.S. Sup. (U.S. Sup. Ct)Ct)

Issue: was harasser a supervisor?Issue: was harasser a supervisor? Ct: to be supervisor, must be Ct: to be supervisor, must be

empowered to take tangible empowered to take tangible employment actions against harassment employment actions against harassment victimvictim

Important: will limit liability of Important: will limit liability of employers in harassment litigationemployers in harassment litigation


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

Religious AccommodationReligious Accommodation

Brown v. Hot Springs Nat’l Park Brown v. Hot Springs Nat’l Park HospitalHospital

24/7 availability was essential job 24/7 availability was essential job function for hospital manager positionfunction for hospital manager position

Plaintiff’s religious beliefs precluded Plaintiff’s religious beliefs precluded weekend workweekend work

Ct: no duty to eliminate essential Ct: no duty to eliminate essential function, and accommodation would be function, and accommodation would be undue hardshipundue hardship

Religious AccommodationReligious Accommodation

Antoine v. First Students, Inc.Antoine v. First Students, Inc.

Employer policy permitted swapping Employer policy permitted swapping shifts to accommodate religious shifts to accommodate religious beliefsbeliefs

Ct: policy not sufficient; implies that Ct: policy not sufficient; implies that greater employer effort to greater employer effort to accommodate is requiredaccommodate is required


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

Pregnancy Discrimination Act Pregnancy Discrimination Act And ADAAAAnd ADAAA

Pregnancy Discrimination Act Pregnancy Discrimination Act

(PDA)(PDA) Must treat pregnancy like any other Must treat pregnancy like any other

illness.illness.

Not generally covered by the ADA Not generally covered by the ADA but evaluated differences between but evaluated differences between how other conditions are treated.how other conditions are treated.

Pregnancy-related conditions may Pregnancy-related conditions may need to be accommodated.need to be accommodated.

Is Pregnancy A Disability?Is Pregnancy A Disability?

Wonasue v. Univ. of Mayland Alumni Wonasue v. Univ. of Mayland Alumni Assn.Assn.

Employee with severe morning sickness Employee with severe morning sickness requested accommodations; employer requested accommodations; employer denied.denied.

Court found that morning sickness is not Court found that morning sickness is not a disability; no duty to accommodate. a disability; no duty to accommodate.

Some pregnancy related conditions could Some pregnancy related conditions could be a disability. be a disability.

Latest Concerning The Latest Concerning The Americans With Disability Act Americans With Disability Act

Amendment ActAmendment Act

Reasonable Versus Unreasonable

Reasonable Versus Reasonable Versus UnreasonableUnreasonable

Job RestructuringJob Restructuring

Employee who hurts back at workEmployee who hurts back at work Light duty – limited liftingLight duty – limited lifting Worker’s CompensationWorker’s Compensation Shared LiftingShared Lifting

Reasonable or Unreasonable?Reasonable or Unreasonable?

Schedule ModificationsSchedule Modifications

Medical condition requires morning therapyMedical condition requires morning therapy Clinic opens at 8Clinic opens at 8 Sue works from 8-4Sue works from 8-4 As an accommodation, Sue wants to report As an accommodation, Sue wants to report

to work at 10:00 a.m.to work at 10:00 a.m.


Change in SupervisorChange in Supervisor

Accounts Receivable employeeAccounts Receivable employee Investigated for misconductInvestigated for misconduct Post traumatic stress and anxietyPost traumatic stress and anxiety Wants to be moved to another supervisorWants to be moved to another supervisor


Working From Working From Home/TelecommutingHome/Telecommuting

Employee with irritable bowel syndromeEmployee with irritable bowel syndrome

Works in Accounts PayableWorks in Accounts Payable

Wants to work from home 4 days a weekWants to work from home 4 days a week


Working from HomeWorking from Home EEOC v. Ford Motor CompanyEEOC v. Ford Motor Company Employee’s job required face to face Employee’s job required face to face

interaction with clients and co-workersinteraction with clients and co-workers Ford denied request to work from home; Ford denied request to work from home;

suggested other accommodationssuggested other accommodations Employee was terminated for Employee was terminated for

performanceperformance Ct: Employee’s request to telecommute Ct: Employee’s request to telecommute

was not a reasonable accommodationwas not a reasonable accommodation


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

United Airlines v. EEOCUnited Airlines v. EEOC

U.S. Supreme Ct. declined to review U.S. Supreme Ct. declined to review 77thth Circuit ruling Circuit ruling

77thth Circuit held: ADA requires Circuit held: ADA requires employer to assign disabled employer to assign disabled employee to vacant position for employee to vacant position for which qualifiedwhich qualified

Not sufficient to permit employee to Not sufficient to permit employee to compete for jobcompete for job

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

EEOC’s Position On Leave Of EEOC’s Position On Leave Of AbsenceAbsence

If employee is considered disabled, If employee is considered disabled, must attempt accommodation (unless must attempt accommodation (unless undue hardship).undue hardship).

Accommodation may mean extending Accommodation may mean extending leave beyond what is normally leave beyond what is normally allowed.allowed.

Be sure to review current policy for Be sure to review current policy for random termination periods (i.e., one random termination periods (i.e., one 90 day leave then terminate.90 day leave then terminate.

Leave of AbsenceLeave of Absence

Brangman v. AstraZenecaBrangman v. AstraZeneca

Company granted leave and two Company granted leave and two extensions; rejected third extension.extensions; rejected third extension.

Court found that 3Court found that 3rdrd request request unreasonable because employee unreasonable because employee could not show she would eventually could not show she would eventually return to work.return to work.

Employee Retirement Income Employee Retirement Income Security Act (ERISA)Security Act (ERISA)

Defense of Marriage Act Defense of Marriage Act (DOMA)(DOMA)

U.S. v. Windsor (U.S. Sup. Ct.)U.S. v. Windsor (U.S. Sup. Ct.)

Struck down section 3 of DOMAStruck down section 3 of DOMA

Result: same sex marriages Result: same sex marriages recognized for federal law purposes; recognized for federal law purposes; recognized in some states but not recognized in some states but not othersothers

Fair Labor Standards Act Fair Labor Standards Act (FLSA)(FLSA)

Changing Clothes Not Changing Clothes Not Compensable WorkCompensable Work

Sandifer v. U.S. Steel CorpSandifer v. U.S. Steel Corp. . (1/27/14)(1/27/14)

““Donning and doffing" safety gear Donning and doffing" safety gear before and after work shift constitutes before and after work shift constitutes changing clothes changing clothes

Employers and unions can agree to Employers and unions can agree to exclude the time workers spend exclude the time workers spend putting on and taking off protective putting on and taking off protective clothing from compensable work timeclothing from compensable work time

Family and Medical Leave Family and Medical Leave Act (FMLA)Act (FMLA)

Enforcement of Employer Enforcement of Employer Attendance PoliciesAttendance Policies

Srouder v. Dana Light Axle Mfg, LLCSrouder v. Dana Light Axle Mfg, LLC

FMLA regs require employee to FMLA regs require employee to comply with notice and procedures comply with notice and procedures for absencesfor absences

Employee failed to call in per Employee failed to call in per company policy; terminatedcompany policy; terminated

Ct: no FMLA violationCt: no FMLA violation

Enforcement of Employer Enforcement of Employer Attendance PoliciesAttendance Policies

Paris v. Sanderson Farms, Inc.Paris v. Sanderson Farms, Inc. Company sent letter: leave expired; will Company sent letter: leave expired; will

terminate if you do not return to work or terminate if you do not return to work or submit request for additional leave and submit request for additional leave and medical certification;medical certification;

No response; terminated her; employee No response; terminated her; employee filed suitfiled suit

Ct: not FMLA violation to require compliance Ct: not FMLA violation to require compliance with company policies on requesting leavewith company policies on requesting leave

12 Tips For Avoiding FMLA 12 Tips For Avoiding FMLA AbuseAbuse

1.1. Calculate FMLA leave using A “rolling” 12 month Calculate FMLA leave using A “rolling” 12 month period. (Except for leave to care for service period. (Except for leave to care for service member)member)

2.2. Require employees use all paid leave prior to Require employees use all paid leave prior to taking unpaid FMLA. taking unpaid FMLA.

3.3. Require medical certifications to be returned within Require medical certifications to be returned within 15 days. 15 days.

4.4. Require employees to provide thirty (30) days Require employees to provide thirty (30) days notice for foreseeable FMLA leave. Gives you the notice for foreseeable FMLA leave. Gives you the luxury to plan around the absences, which luxury to plan around the absences, which increases productivity and minimizes abuse.increases productivity and minimizes abuse.


5.5. Demand that employees schedule medical Demand that employees schedule medical treatments around operations. treatments around operations.

6.6. Establish and enforce reasonable attendance Establish and enforce reasonable attendance and call-in rules for and call-in rules for allall leave. leave.

7.7. Assign employees taking foreseeable Assign employees taking foreseeable intermittent leave to alternative positions that intermittent leave to alternative positions that cause less disruption, if possible. cause less disruption, if possible.

8.8. Require “fitness for duty” certifications for Require “fitness for duty” certifications for employees returning to work. employees returning to work.


9.9. Require employees to submit A recertification Require employees to submit A recertification every thirty (30) days.every thirty (30) days.

10.10. Require second and third opinions. Require second and third opinions.

11.11. Have a policy prohibiting employees from Have a policy prohibiting employees from working second jobs while on leave (of any working second jobs while on leave (of any type).type).

12.12. Use private investigators to prove FMLA fraud. Use private investigators to prove FMLA fraud.

The New NLRB- How It Will The New NLRB- How It Will Affect Healthcare?Affect Healthcare?

Service Employees Service Employees International Union (SEIU)International Union (SEIU)

More than half of SEIU's over 2 More than half of SEIU's over 2 million members work in health care.million members work in health care.

SEIU represents:SEIU represents: 110,000 nurses110,000 nurses 40,000 doctors40,000 doctors over 500,000 home health aidesover 500,000 home health aides 160,000 nursing home workers160,000 nursing home workers

Recent SEIU Petition Filings Recent SEIU Petition Filings (Hospitals)(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 12/30/2013- Lifestar Response of New

JerseyJersey

Harris v. QuinnHarris v. Quinn On January 21, 2014, the SCOTUS heard On January 21, 2014, the SCOTUS heard

oral argument on a case that will have a oral argument on a case that will have a big impact on organized labor in the big impact on organized labor in the healthcare industryhealthcare industry

The case was brought by the National Right The case was brought by the National Right to Work Legal Defense Foundation.to Work Legal Defense Foundation.

The case involves eight home care The case involves eight home care providers in Illinois and addresses the providers in Illinois and addresses the precedent of precedent of Abood v. Detroit Board of Abood v. Detroit Board of Education,Education, which stands for the principle which stands for the principle that the non-union workers must pay their that the non-union workers must pay their “fair share” of union dues in the public “fair share” of union dues in the public sector.sector.

Harris v. QuinnHarris v. Quinn These home-care providers, who do These home-care providers, who do

not want to belong to a union or to not want to belong to a union or to pay dues and do not want a union to pay dues and do not want a union to speak for them, have asked the Court speak for them, have asked the Court to overrule the to overrule the AboodAbood decision. decision.

The SEIU is actually one of the parties The SEIU is actually one of the parties in this matter and is currently in this matter and is currently receiving about $3.6 million in dues receiving about $3.6 million in dues from these personal care workers.from these personal care workers.

NLRB NewsNLRB News The NLRB’s “poster” regulation is The NLRB’s “poster” regulation is

effectively dead.effectively dead.

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

NLRB Attempting To Change NLRB Attempting To Change RulesRules

14-21 Day Elections14-21 Day Elections

Union AccessUnion Access

Names/Phone Numbers/Addresses or Names/Phone Numbers/Addresses or Email AccountsEmail Accounts

Third Party Access during OSHA Third Party Access during OSHA investigationsinvestigations

The NLRB Strikes Again!The NLRB Strikes Again! In April of 2013, an administrative law In April of 2013, an administrative law

judge for the NLRB issued an opinion judge for the NLRB issued an opinion invalidating invalidating twotwo of a healthcare of a healthcare provider’s policies regarding the use of provider’s policies regarding the use of email, company computers and email, company computers and company Internet.company Internet.

This ruling is another in a long line of This ruling is another in a long line of NLRB decisions and “guidance” intent NLRB decisions and “guidance” intent on broadening employee on broadening employee communication rights under the guise of communication rights under the guise of Section 7.Section 7.

The NLRB Strikes Again!The NLRB Strikes Again!

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

The policies were considered “broad” and The policies were considered “broad” and vague.” vague.”

The NLRB Strikes Again!The NLRB Strikes Again! The judge found that stating non-work-related The judge found that stating non-work-related

email use was allowed unless the usage “may email use was allowed unless the usage “may be disruptive,” is “offensive,” or is “harmful be disruptive,” is “offensive,” or is “harmful to morale” was too vague. to morale” was too vague.

The language that permitted management to The language that permitted management to exercise any discretion to allow or forbid exercise any discretion to allow or forbid certain communications was struck. certain communications was struck.

The most troubling part of this decision was The most troubling part of this decision was that the judge that the judge invalidatedinvalidated a provision a provision requiring company approval before Internet requiring company approval before Internet transmission of “sensitive, confidential and transmission of “sensitive, confidential and highly confidential information.” highly confidential information.”

The judge thought this would inhibit The judge thought this would inhibit employees from discussing the terms and employees from discussing the terms and conditions of their employment. conditions of their employment.

Health Care Union’s Latest Health Care Union’s Latest StrategiesStrategies

Internet/Social Media CampaignInternet/Social Media Campaign

Lobbying Patient Care IssuesLobbying Patient Care Issues

Going Public With Patient SafetyGoing Public With Patient Safety

and Fairness Issuesand Fairness Issues

Target Certain Hospitals that are Target Certain Hospitals that are

VulnerableVulnerable

Blogs and Social Media: Class Blogs and Social Media: Class Warfare and Political ActivismWarfare and Political Activism

Final ThoughtsFinal Thoughts

It Starts At HomeIt Starts At Home

- Lilly Tomlin- Lilly Tomlin

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