Settlement Highlights Importance of Considering State Law in Assessing Employment Practices
By Ryan Eddings
Last week, in Meeks v. Allen Memorial Hospital, a state court in Iowa approved a $2 million settlement in a race discrimination class action against an Iowa hospital. This case is yet another reminder that health care employers must consider both federal and state laws when assessing their employment practices.
The named plaintiff in the case, Robyn Meeks, is an African-American nurse who had previously worked for Allen Memorial Hospital until she resigned in 2003 after a failed mediation in a race discrimination case she filed with the Equal Employment Opportunity Commission (EEOC) against the hospital.
Continue ReadingNLRB Ruling Puts Arbitration Agreements with Class Action Waivers in Question
In D.R. Horton, Inc., the National Labor Relations Board (“Board”) last week ruled that arbitration agreements imposed as a condition of employment prohibiting employees from filing class action claims violate the National Labor Relations Act (“NLRA”). It found that filing a class or collective action claim is protected activity under Section 7 of the NLRA, which says employees have the right to engage in concerted activities for “mutual aid and protection,” and that an arbitration agreement employees are required to sign as a condition of employment that waives an employee’s right to bring a class action in both arbitration and court violates the employee’s Section 7 rights.
For health care employers that were looking to last year’s Supreme Court ruling in AT&T Mobility v. Concepcion as unchallenged support for mandatory employment arbitration agreements with class action waivers, this NLRB ruling is a step the other way. It remains to be seen how this will play out. Hospital employers may yet find that arbitration agreements required as a condition of employment are a pathway to avoiding exposure in misclassification and off-the-clock overtime cases, and other potential class action claims in heavily-populated job titles that include individuals covered as “employees” under the NLRA, but likely will have to wait to see if the Federal Arbitration Act trumps the NLRA or vice–versa.
In the meantime, this will be a year in which effectiveness and status of workplace arbitration agreements, particularly as to class issues, will be in flux. For more information, see Littler’s ASAP on this recent case.
Accommodation for Healthcare Employees Objecting to Abortion-Related Procedures
By Alex Frondorf and Rob Wolff
Healthcare employees who object to providing patient care for women seeking an abortion have long presented a thorny issue for healthcare employers. A recent settlement in the United States District Court for the District of New Jersey is a reminder that this issue continues to raise tricky questions. Nonetheless, a careful employer can successfully navigate these issues and avoid common pit-falls.
Hospitals that receive federal funds are prohibited from requiring employees to participate in abortions if it “would be contrary to [their] religious beliefs or moral convictions.” 42 U.S.C. § 300a-7. In Danquah v. University of Medicine & Dentistry of New Jersey (UMDNJ), a group of nurses sought to enforce this prohibition through an injunction after UMDNJ changed its policies in September 2011, requiring all nurses to assist in termination-of-pregnancy procedures. The parties entered into a settlement that allows the objecting nurses to refrain from participating in non-emergency care of patients seeking or obtaining an abortion. While all hospitals and medical facilities that receive federal funds through the Public Health Service Act, the Community Mental Health Services Act, or the Developmental Disabilities Services and Facility Act should be mindful of this prohibition, medical providers that do not receive federal funds should also beware of potential pit-falls when an employee objects to participating in abortion-related medical care.
Continue ReadingTwo More FLSA Collective Actions Against Hospitals Decertified
Two more cases have been added to the growing list of FLSA collective actions against large healthcare systems that have been either decertified or denied certification, granting the holiday wishes of two major healthcare systems in Pennsylvania. In Kuznyetsov v. West Penn Allegheny Health System, Inc., Judge Ambrose of the U.S. District Court for the Western District of Pennsylvania decertified a class of 824 hospital employees who worked in 1,174 different departments at 142 different locations with 312 different supervisors. In Camesi v. University of Pittsburgh Medical Center, Judge Bissoon, of the same district court, likewise granted a motion to decertify a class of plaintiffs in 500 different job titles working in over 1,000 different hospital departments. The Kuznyetsov and Camesi decisions, issued on the same day, are strikingly similar in their analyses and conclusions – and an all-around win for hospital employers.
In both cases the plaintiffs, who included nurses, technicians, secretaries, couriers, maintenance workers, dishwashers, and many others, alleged the hospitals violated the FLSA by automatically deducting 30-minute meal periods from their wages, regardless of whether they worked through the unpaid meal periods. In granting the motions for decertification, and denying plaintiffs’ motions for certification, both courts emphasized the “extremely wide variety” and the “plethora of differences” in the employees’ work settings, as well as individual supervisors’ discretion to dictate how meal breaks would be taken and paid.
Continue ReadingNew York Presbyterian Hospital and Nurses Agreement Continues Health Benefits Unchanged Despite Contrary Arbitration Decision
In what a spokesperson for the New York State Nurses Association (“NYSNA” or union) called a model for other New York City hospital contract negotiations, the NYSNA recently reached a four-year agreement with New York Presbyterian Hospital that includes an agreement to continue health benefits unchanged without employee contributions.
This part of the agreement contradicts an arbitrator’s award issued on June 20, 2011, that mandated new benefit plan options and provided for employee contributions for plans offered by the New York State Nurses Association Benefit Fund, the plans that provide health benefits for New York Presbyterian’s nurses and some 14,500 nurses employed at 40 hospitals and nursing homes in New York City and its vicinity. The arbitration was the result of a deadlock between the employer and union trustees of the NYSNA Benefit Fund.
Continue ReadingHouse and Senate Overrule OFCCP on TRICARE Subcontractors
By Rob Wolff
TRICARE is the federal government’s healthcare program for active duty and retired military members and their families. For many years, healthcare systems reasonably assumed that their subcontracts to provide services or benefits to federal employees under TRICARE would not invoke the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP), and thus would not mandate federal equal employment and affirmative action obligations. This assumption seemed particularly rational where the subcontract expressly provided that the healthcare system was not a federal contractor. In addition, the OFCCP's own March 2003 directive stated that healthcare providers that have a relationship with participants in the Federal Employees Health Benefits Program (FEHBP) are not covered under OFCCP's programs based solely on that relationship and thus are not subject to OFCCP’s federal contractor requirements.
ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case
By Carie Torrence and Sarah Green
As reported in this blog, the National Labor Relations Board recently reversed a 2006 administrative law judge (ALJ) decision that Virginia Mason Hospital was not required to bargain with the union over a flu prevention policy that required nurses to wear a facemask or take anti-viral medication, rejecting the argument that the policy went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose. The Board remanded the case back to the ALJ for consideration of the hospital’s other defenses to its unilateral implementation of the flu policy, and the ALJ issued a new opinion (case 19-CA-30154; JD(SF)-44-11).
On remand, among other things, the ALJ analyzed whether the management rights clause of the parties’ collective bargaining agreement created a “clear and unmistakable” waiver as to the union’s right to bargain about the flu policy. In so doing, the ALJ noted the Board’s 2007 Provena St. Joseph Medical Center decision, in which the Board reaffirmed its adherence to the “clear and unmistakable” standard.
Continue ReadingMinimum Wage, Overtime Requirements Extended to In-Home Care Workers in DOL Proposed Rule
On December 15, 2011, the Department of Labor’s Wage and Hour Division (WHD) issued its much-anticipated proposed rule that could make more than a million domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, the home healthcare industry has changed since the FLSA regulations governing home care employees were enacted more than 35 years ago. To that end, the proposal seeks to revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household. To learn more about the proposed rule and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.
Hospital's Post-Offer Medical Questions May Violate ADA, Title VII, and Employee Privacy Rights
According to a Michigan federal district court decision, Garlitz v. Alpena Regional Medical Center, a hospital may be liable for violations of the Americans with Disabilities Act (ADA), Title VII, and violation of privacy rights for withdrawing an employment offer to a medical technologist after she refused to answer a post-offer, preemployment questionnaire, directed only to females, about her sexual and reproductive history and plans for pregnancy. The questionnaire at issue was part of a medical screen conducted by a medical clinic retained by the hospital. The decision serves as an important reminder that employers need to be very careful when inquiring into medical or other private matters relating to applicants and employees. The decision also underscores the importance of monitoring third parties that are engaged to assess potential new hires or employees.
Continue ReadingHHS Issues Final Rule Addressing Issues Related to Affordable Care Act's Medical Loss Ratio Requirements
The Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) has issued a final rule (pdf) regarding certain issues associated with the Affordable Care Act’s medical loss ratio (MLR) requirements. The new health care law mandates that health insurers, depending on the size of the insurance market, spend between 80 and 85% of premium revenue on reimbursement for clinical services or activities that improve health care quality, or provide a rebate to their enrollees starting in 2012. The agency issued interim final regulations on the MLR requirement last November. The new final rule specifically addresses the treatment of “mini-med” and expatriate policies; rules governing how ICD-10 conversion costs, fraud reduction expenses, and community benefit expenditures are accounted for; and rules regarding the distribution of rebates in group markets. Continue reading this entry at Littler's Employee Benefits Counsel.