Preventive Medicine
Preventive Medicine - Winter 2017

February 14, 2017

THE EMERGENCY ROOM

NEWS & ANALYSIS

A legal “wellness” program for healthcare employers

Physician, heal thyself! Although many of us dread going to the doctor, healthcare employers know just how important it is to get preventive care and catch medical conditions before they become too severe.

But it’s not only lay people who get sick. Even healthcare employers can benefit from “preventive care.” Here are some things that you can do to make your employment practices fit as a fiddle.

Vital signs

The first step in your “wellness” campaign is to take some time to examine how things are running right now, from top to bottom. You can’t cure a disease unless you know it exists.

Let’s start with something simple. For example, you know those posters hanging in your breakrooms? What year are they from? Do they reflect the current state minimum wage and, for example, the domestic violence law your state just passed? Federal and state laws require employers of a certain size to post various notices concerning workers’ rights, and the failure to do so can result in fines and even liability in a lawsuit. It’s an easy fix, but it is well worth the time it takes to double check them.

You should also think about the areas in which you most frequently get employee complaints or requests for clarification. If your employees repeatedly tell you that they don’t understand how they are evaluated for pay increases, you may want to look at that. Making the process more transparent could go a long way toward preventing discrimination or other lawsuits.

What about your recordkeeping? Are you confident that you’re maintaining personnel records for the legally required amount of time? Do you keep applications after a position has been filled? How do you ensure that employees maintain confidentiality of patients’ medical and personal information?

From a wage and hour standpoint, you should ensure that your exempt employees are classified properly. For each employee who is not paid overtime, and especially those who are at the lower levels of your “exempt” category, you should assess the daily duties and determine whether “exempt” status truly applies. Relying on outdated job descriptions is a common issue in wage and hour audits, so it would be a great time to update those as well. With your non-exempt employees, review for any opportunities for off-clock work.

Give your policies a shot in the arm

A well-drafted employee handbook records the company’s rules and communicates them in an easy, understandable way. It can also provide the foundation for any employment decisions you need to make and – if the situation arises – form the backbone for the defense of many lawsuits brought against you by employees. However, your handbook can also be a liability for you if it is out of date or poorly drafted.

Is your onboarding package consistent with your handbook? Make sure you’re using the most updated federal forms and that your background check procedures are consistent with the Fair Credit Reporting Act and any applicable state laws.

What about the digital challenges facing your workplace? Does your handbook address whether “texting in” sick is acceptable, or that online harassment of coworkers could lead to disciplinary action at work?

It is worth the time to have a professional check out your handbook to ensure that it is not making a rule that’s illegal on its face. For example, if your handbook currently provides that overtime will not be paid unless it’s approved in advance, then revise your policy. Stat! If your handbook provides that employees may not discuss wages or the terms of their employment, then you need to take another look at that policy as well, especially if you are a federal contractor.

Finally, you may want to ensure that your policies comply with the positions taken recently by the National Labor Relations Board. The Board under President Obama invalidated many policies that most employers considered routine, such as policies requiring “courtesy,” “respect,” or “civility” at work, or broad provisions requiring “confidentiality.” It is important to note that the Board’s position applies to non-union as well as union employers. That said, it is likely that the NLRB will moderate its position under the Trump Administration. The President has appointed Philip Miscimarra, formerly a Member of the Board, as acting chairman. While a Board Member, Mr. Miscimarra dissented from most of the Obama-era Board positions in this area. With the transitioning that is likely to take place, it is best to consult with a labor relations attorney who can advise you on how to draft effective policies that will not create liability for your organization.

Inservice training

The best policy in the world will not keep you out of trouble if your employees don’t know about it or don’t follow it. Without training, your managers may not know the warning signs of a potential claim, and you may not find out about it, until it is too late. Even more problematic is the fact that you may be held strictly liable for the unlawful actions of your management employees. If everybody knows what to do, that makes your job much easier. Simply put, train early and train often – certainly with respect to any issues unique to healthcare employers, such as the privacy rule under the Health Insurance Portability and Accountability Act, but also on topics like harassment, diversity, and workplace safety.

Keep a specialist on standby

Sometimes diagnosis and treatment may require a specialist. The “HR wellness” process presents a good opportunity to assess whether you have the resources to provide more advanced help when you need it. If you don’t have those resources already in place, then this is a good time to get them lined up — especially if you have a sensitive investigation or termination, or if you have to defend an administrative complaint or a lawsuit. Also, if you have employment practices liability insurance, familiarize yourself with the basic terms of your policy and coverage before an issue arises.

PULSE

SOURCE: U.S. Equal Employment Opportunity Commission.

A BAND-AID AND A KISS

*Nice tie-in with feature article . . . Stephanie Underwood provides a handy recap of the federal posting requirements in this blog post. (Be sure to check applicable state and local laws, too.)

*The latest on the Trump “travel ban” – guaranteed obsolete by the time you read this! Will Krasnow and Jeanette Phelan of our Immigration Practice Group have been keeping busy, following all of the developments in the controversy surrounding President Trump’s “travel ban.” Here is their summary of the Executive Order, and here is their (updated) summary of the Temporary Restraining Order issued by a federal judge in Seattle. By the way, if you need help with H-1B visas for 2017, please contact our Immigration Practice group asap.

*Updates from California and New York. States have been keeping busy, too. Richard Bromley and Kacy Coble have an update on the new California state legislation that is most significant to employers, and Anjie Cabrera and Stephen Stecker have the latest from New York.

*Are you using the new “smart” I-9s? You’d better be. A new “smart” I-9 form was released in November, and use of the new form is mandatory as of January 22. Elizabeth Joiner has the information you need in this Immigration Dispatch.

*ConstangyTV is on the air! We are delighted to be offering ConstangyTV’s Close-Up on Workplace Law, a once-a-month video series covering various labor and employment related topics, with host Leigh Tyson, a partner in our Atlanta Office. In our first show, which came out right after our last edition of Preventive Medicine, Leigh interviewed Cara Crotty, head of our Affirmative Action/OFCCP Compliance Practice group about the evolving definition of “sex discrimination” under federal law. Then, in November, Leigh interviewed Gary Wheeler about workplace holiday parties. In December, Leigh interviewed “drug guy” Tommy Eden about marijuana in the workplace, an increasingly hot topic as more states are legalizing medical and recreational use of marijuana. Leigh’s January guest was Jim Goh of our Denver Office, talking about what employers can expect in 2017. You can subscribe to our YouTube channel and see all the shows here.

*Class waivers, “rounding” time, and e-discovery. The January 2017 edition of Class Action Outlook has excellent information on developments in this interesting (and expensive) area of the law. Kim Seten discusses the Supreme Court’s decision to review whether class waivers in arbitration agreements violate the National Labor Relations Act; Sean Kramer talks about a very employer-friendly decision from the U.S. Court of Appeals for the Ninth Circuit on “rounding” of employees’ time under the Fair Labor Standards Act and California wage and hour law; and Susan Bassford Wilson has the third in her series on electronic discovery.

*And here is everything else you may consider noteworthy. Fair Pay & Safe Workplaces (aka “the Blacklisting Rule”) is on the chopping block (and may its death come quickly) – two by Heidi Wilbur; the proposed Enforcement Guidance on Workplace Harassment recently issued by the Equal Employment Opportunity Commission (what’s wrong with it here, what’s right with it here and here, and the comment period has now been extended to March 21); Kentucky becomes a right-to-work state, and so does Missouri; “pay transparency” is still the law, by Jon Yarbrough; and why good documentation is important, and what makes it good.

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