a wider lens on workplace law 11 latest labor and employment developments jeffery l. thompson...

A wider lens on workplace law 11

Latest Labor and Employment Developments

Jeffery L. ThompsonConstangy, Brooks, Smith & Prophete, LLP

Telephone: 478-621-2423Email: jthompsonconstangy.com

GSHHRA

Healthcare Leadership and Education Summit

A wider lens on workplace law

In a Word - Pot


Medical Marijuana

• On March 25, 2015, the Georgia House of Representatives voted to approve the Senate’s version of House Bill 1.

• HB 1 was signed into law on April 16, 2015. • Under HB 1, Georgians with specified medical

conditions can get a recommendation and certification from their doctor that allows them to use the CBD oil.

• The Georgia Department of Public Health is creating a low THC oil registry.


Medical Marijuana

• Patients can possess no more than 20 ounces of the oil at a time.

• Patients must meet three requirements to lawfully possess Low THC oil: (1) must be registered with the Department of Public Health; (2) must possess a registration card issued by the Department of Public Health; (3) substance must be in a pharmaceutical container with a manufacturer’s label.

• There is also a provision regarding people participating in clinical trials.


Medical Marijuana and the Workplace

• The bill specifies that it does not require an employer to “permit or accommodate the use, consumption, possession, transfer … of marijuana in any form” and does not "affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty and off-duty use of marijuana or prohibiting any employee from having a detectable amount of marijuana in such employee’s system while at work.

• No ADA accommodation because Federal law prohibits the use of marijuana.


Supreme Court of the United States

Recent Decisions


Obergefell v. HodgesSame-Sex Marriage

• 5-4 decision, majority opinion was authored by Justice Kennedy, joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor on June 26, 2015

• The due process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution compel states to recognize same-sex couples

• The First Amendment will continue to protect those who object to same-sex marriage for religious reasons

• States must recognize lawful same-sex marriages performed in other States


King v. BurwellAffordable Care Act

• Here is the heart of the dispute: one provision of the Affordable Care Act (ACA) indicates that subsidies are only available to people who purchase their health insurance on an exchange “established by the State.”

• The plaintiffs in the case argued that this means that subsidies are not available to the millions of people who purchased their health insurance on an exchange that was created by the federal government, because the federal government is not a “State.”

• The SCOTUS agreed that tax subsidies are available under the ACA for everyone who purchases health insurance on an exchange, regardless whether the exchange was created by the federal government or a state.


Equal Employment Opportunity Commission (EEOC)


Top EEOC Issues for 2015

• Americans with Disabilities and Reasonable Accommodations

• Pregnancy Discrimination Act and Reasonable Accommodations

• Issues Related to Wellness Programs


Americans With Disabilities ActLeave Policies and Reasonable Accommodations

• Old Rule: If an employer could show it made efforts to accommodate the individual, the charge would be dismissed.• New Strategy: EEOC will second guess and

require documentation as to the efforts to provide a reasonable accommodation.• Ex. Individual out for a year due to disability and

terminated. EEOC will ask why it was not an undue hardship for individual to remain out!


Americans With Disabilities Act Accommodation

• Flex schedule may be reasonable accommodation

• Solomon v. Vilsack

• Court held Maxiflex schedule may be reasonable form of accommodation for employee with severe depression as employer had previously tolerated same.



• EEOC v. Ford• Employee had a severe case of IBS and wanted to

work from home; Ford refused and EEOC sued.• Court held that “regular, predictable, on-site

attendance is necessary to be qualified for jobs requiring team work and interactive behaviors.”



• Court did not address issue of “reasonable accommodation” because it held that employee was not “qualified.”

• Good case for employers, but employers should never assume that working from home can never be a reasonable accommodation.

• INTERACTIVE PROCESS is key.


Americans With Disabilities Act Wellness Programs

• EEOC v. Honeywell – (Pending)

• Alleges violation of ADA and GINA.• Alleges requiring to participate in medical

exams associated with wellness program when providing financial inducements (reducing contributions to HSAs and imposing surcharges on employees who decline testing) to incentivize participation was unlawful.


Americans With Disabilities Act Medical Examinations

• “Counseling” requirement may violate prohibition on medical examinations

• Kroll v. White Lake Ambulance Authority

• EMT who was required to undergo counseling because of emotional outbursts related to an affair with a married co-worker stated a cause of action for unlawful ADA medical exam.


Title VIIPregnancy Discrimination

• New EEOC Guidance on Pregnancy and Related Issues• Published July 14, 2014• Employers are obligated to make reasonable

accommodations for pregnant employees



• Young v. UPS (Sup. Ct. March 2015)• Supreme Court held that under Title VII, employers have a

duty to accommodate pregnant employees.• Pregnant employee must establish that the employer did

not accommodate her but provided an accommodation to “others similarly situated in their ability or inability to work.”



• Young v. UPS (Sup. Ct. March 2015)• Pregnant employee can establish pretext by showing

that employer’s policies impose a significant burden on pregnant employees.

• Pretext can be shown by showing accommodation provided to large percentage of non-pregnant workers, but not to a large percentage of pregnant workers.


What Should You Do?

• Review leave policies• Include pregnancy• length of whole pregnancy may be included in certain

situations

• Eliminate bright line termination dates• Consider all requests on a case-by-case basis


United States Department of Labor

Wage and Hour Division


Obama Announces White Collar Proposed Rules on Exemptions

• Salary Level - $50,440.00

• Salaries Indexed

• Job Duties Test

• Federal Administrative Procedure Act


Employee Breaks

• Issue: Do you require employees to clock out before leaving campus?

• Breaks of 20 minutes or less must be treated as compensated

• Georgia DOL says an employer does not have to compensate for meal periods of thirty minutes or more, as long as the workers are free to use the meal period time as they wish and are not required to perform work during that time

A wider lens on workplace law24

Fair Labor Standards Act - Compensable Time

• Meal breaks

• Aguilera v. Waukesha Memorial Hosp.

• Housekeepers and nursing assistants may seek overtime pay for automatically deducted meal breaks when they were required to carry cell phones and answer calls during breaks


Fair Labor Standards Act - Home Care Workers

• DOL Regs pertaining to home care workers invalidated

• September 2013 Final Rule issued – narrowed types of companionship service duties for which workers are exempt from MW/OT requirements of FLSA; eliminated exemption for employees of third-party business

• Effective date January 1, 2015

• Home Care Ass’n of America v. Weil• On December 22, 2014, and January 14, 2015, the Court

invalidated Regulation


Family and Medical Leave Act



• Demand for multiple physician notes violated FMLA

• Oak Harbor Freight Lines, Inc. v. Antti

• Employee on FMLA intermittent leave required to submit doctor notes for each absence

• Medical re-certifications only allowed on reasonable basis, and not more often than every 30 days, unless doubts



• Absences Exceeding Doctor’s Certification

• Hansen v. Fincantieri Marine Group, LLC

• Employee out for depression more frequently than doctor’s certification

• Terminated for attendance; filed FMLA suit

• Ct: Violation of FMLA; employer’s only course of action is request for recertification


What Is A Spouse?

• FMLA defined spouse as husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.

• Effective March 27, 2015 - New definition defines spouse by place of celebration not place of residence. If legally married in State where marriage occurred, then meets definition of spouse in all States. If legal in any State, then legal even if it occurred in no State (e.g. Bahamas)

• Supreme Court of the United States expanded definition


Title VII – Increase in LGBT Claims

• LGBT Executive Order for Federal Contractors

• Signed by President on July 21, 2014 / effective immediately• Amends EO 11478 and 11246• Adds “sexual orientation” and “gender identity”

to list of protected categories• Employment Non-Discrimination Act next?• OFCCP Final Rule published December 3, 2014


National Labor Relations Board (NLRB)


New Ambush Election

• Effective April 14, 2015.• Election time line is shortened from 45 days to

13-21 days.• Consequence: The shorter election process will

significantly benefit unions and their organizers by decreasing the time that employers can communicate facts regarding union representation.


Summary: Ambush Election Timeline

Statement of Position DUE

Hearing

Excelsior List DUE

ELECTION!

Day 7 Day 9 Day 13

Petition Filed

Day 1 Day 8Day 2

Post Notice of Election

Decision and Direction of Election

Day 11 Day 21

ELECTION!

OR

Stipulationor


Practical Concerns

• The new ambush election rules make organizations more vulnerable than before.

• Once the petition is filed, an employer’s option will be very limited.

• If an employer is not prepared in advance, it would be difficult to have a successful campaign.


Access to E-mails

• On December 11, 2014, the Board in Purple Communications overruled Register Guard and held that employees are entitled to access an employer’s e-mail systems for communicating under Section 7 of the NLRA during their non-working time if the employer gives the employees access to the e-mail system for business communication.

• The Board stated that email has “effectively become a natural gathering place pervasively used for employee-to-employee conversations” and the fact that this “gathering place” is virtual does not undermine the role that email plays in Section 7 protected workplace discussions.


The Board’s Decision Is Limited

1. Applies to only employees who have already been granted access to the employer’s e-mail system in the course of their work and does not require employers to provide such access.

2. An employer may justify a total ban on non-work use of e-mail, including Section 7 on non-work time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.• What’s considered necessary is not discussed in

the Board decision.3. Does not address e-mail access by non-employees or

any other type of electronic communication system.


Rules Regulating Employee Conduct


March 18, 2015 – General Counsel’s Report

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From the General Counsel’s March 18 Report:

• Categories of rules addressed in the report:• Confidentiality.• Conduct toward the employer and management. • Conduct toward co-workers.• Communications and interaction with outside

parties and the media.• Photography and recording in the workplace.• Leaving work or premises, or walking off the job.• Conflicts of interest.

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From the General Counsel’s March 18 Report:

• Overview of the General Counsel’s position:• The General Counsel generally views employer rules as

unlawful when, in his view, an employee “would reasonably” construe a rule as prohibiting any form of protected concerted activity.

• It is not relevant that there may be no evidence that the policy language in fact restricted any employee's actions, and there is no room for an employer to demonstrate that the GC’s view of how an employee “would reasonably” construe language is incorrect. • A rule might be viewed as having a “chilling effect”

even if the prohibited behavior is harmful to the employer, co-workers, third parties, or the public, and even if there are less-harmful ways for employees to dispute and communicate.

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Examples of Unlawful Rules Regulating Employee Conduct

• Be respectful to the company, other employees, customers, partners, and competitors.

• No defamatory, libelous, slanderous or discriminatory comments about the company, its customers and/or competitors, its employees or management.

• Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.

• Refrain from any action that would harm persons or property or cause damage to the company’s business or reputation.

• It is important that employees practice caution and discretion when posting content on social media that could affect the employer’s business operation or reputation.


Examples of Lawful Rules Regulating Employee Conduct

• No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company.

• Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of company business.

• Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.

• Each employee is expected to abide by company policies and to cooperate fully in any investigation that the company may undertake.

• Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.


Unlawful Employee Conduct Rules

• Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.

• Do not send unwanted, offensive, or inappropriate emails.

• Material that is fraudulent, harassing embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email.


Lawful Employee Conduct Rules

• No harassment of employees, patients or facility visitors.

• No use of racial slurs, derogatory comments, or insults.


Unlawful Rules Regulating Third Party Communications

• Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.• Associates are not authorized to answer

questions from the news media. When approached for information, you should refer the person to the employer’s Media Relations Department.


Lawful Rules Regulating Employee Communications with Outside Parties

• The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.


“The social media cases have been very helpful in terms of raising the public’s awareness of the NLRB.”

- NLRB Chairman Pearce,

January 2014

Enforcement Trends – Social Media


Jeff, Where Do I Start?

• Rules of Conduct and Other Policies.• Train Managers on Latest in ADA, FMLA and

NLRB issues.• Development of Union Avoidance Strategy.• (5 Step Plan for Union Avoidance)


Georgia Board of Nursing

Nurse Practice Act(O.C.G.A. 43-26-53)


Mandatory Reporting of Terminated Nurses

• As of July 1, 2014, the Georgia Board of Nursing requires that any employer of nurses (licensed practical nurses, registered nurses or advanced practice registered nurses) report the name of any nurse whose employment is terminated or who has resigned in order to avoid termination for any reasons provided in the Nurse Practice Act, which include the following:

(1) Practicing nursing as a registered professional nurse, an advanced practice registered nurse, or a licensed practical nurse, without a valid, current license, except as otherwise permitted under Code Section 43-26-12 or 43-26-41, as applicable;

(2) Practicing nursing as a registered professional nurse, an advanced practice registered nurse, or a licensed practical nurse under cover of any diploma, license, or record illegally or fraudulently obtained, signed, or issued;

(3) Practicing nursing as a registered professional nurse, an advanced practice registered nurse, or a licensed practical nurse during the time the applicable license is suspended, revoked, surrendered, or administratively revoked for failure to renew;

(4) Using any words, abbreviations, figures, letters, title, sign, card, or device implying that such person is a registered professional nurse, an advanced practice registered nurse, or a licensed practical nurse unless such person is duly licensed or recognized by the board to practice as such under the provisions of this chapter;



(5) Fraudulently furnishing a license to practice nursing as a registered professional nurse, an advanced practice registered nurse, or a licensed practical nurse;

(6) Knowingly aiding or abetting any person in violating this chapter;

(7) While holding a license as a nurse, convicted of any felony, crime involving moral turpitude, or crime violating a federal or state law relating to controlled substances or dangerous drugs in the courts of this state, any other state, territory, or country, or in the courts of the United States, including, but not limited to, a plea of nolo contendere entered to the charge; or

(8) While holding a license as a nurse, currently or previously displaying an inability to practice nursing as a registered professional nurse, an advanced practice registered nurse, a licensed undergraduate nurse, or a licensed practical nurse with reasonable skill and safety due to use of alcohol, drugs, narcotics, or chemicals.



• Additionally, any nurse (this includes nurse administrators, nurse supervisors, nursing colleagues, or other nurses) is required to report the name of any nurse if there is reasonable cause to believe that the other nurse violated any of the grounds for discipline provided in the Nurse Practice Act, which were described previously.


QUESTIONS?

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