Recent Employment Law Updates and Common Issues

Lets Get Practical: A discussion of common employment issues SAMANTHA S. OTERO MCCANDLISH HOLTON, PC RICHMOND, VIRGINIA (804) 775-3868 SOTERO@LAWMH.COM

Recent Employment Law Updates 2 Effective July 1, 2013, employers must report every new hire to the New Hire Reporting Center (a part of the division of Child Support Enforcement) within 20 days of employment commencing. The AMA designated obesity as a disease. This will likely mean that courts will find the obese persons have a disability. The Fourth Circuit held in 2013 that Virginia employers do not need to post notices informing employees of their right to unionize. Last summer the Department of Labor issued Fact Sheet #71 Internship Programs under the Fair Labor Standards Act - which essentially states that interns in the for-profit private sector will be viewed as employees. Six criteria apply if the employer wishes to escape payment of wages. EEOC is focusing now on religious discrimination

Top Reasons Why Health Care Practices Seek Employment Law Advice 3 Wage and Hour Issues (Fair Labor Standards Act) Family and Medical Leave Act paperwork Americans with Disabilities Act Physician Issues Hiring/Employment Contracts/Noncompetes Firing/Poor Performance, Unacceptable Conduct Unemployment Claims EEOC filings and responses Employee Handbooks

Wage and Hour Questions 4 Can I deduct from a provider s pay if they are not performing up to expectations? Are nurses automatically exempt from overtime/minimum wage requirements? Can I have exempt employees clock in and out? What if a nonexempt employee is working off the clock?

Family and Medical Leave Act Paperwork 5 FMLA paperwork (in general) First round paperwork to be sent to EE within 5 business days of receiving a request HD Publication 1420- Employee Rights and Responsibilities: Outlines EE rights and duties under FMLA. WH-381 Notice of Eligibility and Rights and Responsibilities: Sets forth specific rights and responsibilities as an employee of the company. WH-380E or WH-380F Certification of Health Care Provider for Employee's/Family Member s Serious Health Condition: This form must be completed and returned to the ER within 15 calendar days of EE s receipt. Job Description (if leave is for employee s condition): This should be provided to any health care provider who will be certifying the need for leave. HIPAA form can be included but should not be required Second Round designate leave WH-382 Designation Notice to be sent within 5 business days of determining that leave qualifies as FMLA leave Third Round if leave is for continuous period or if intermittent leave may amount to more than 12 weeks, send a letter to EE 2 weeks before his leave will expire, reminding him of end of leave period, and requesting that he submit any questions/information he may have regarding a continuing need for leave.

Americans with Disabilities Act 6 Is leave an accommodation under the ADA? YES! If reasonable and defined Review precedent Review other leave policies If an EE does not request an accommodation, are we obligated to provide one? Possibly you should engage in the collaborative process.

Physician Contract Issues 7 Are our employment agreements up to date? Practices should have their physician agreements reviewed by counsel every 2-3 years, particularly if you have noncompete agreements. Noncompete agreements should contain disclaimers Allowing for the practice to agree in writing to proposed employment by former physician. Explaining that nothing in the agreement should be read to preclude physician from performing any work that is not competitive with the practice. Can we modify noncompetes for individual physicians? Yes, but be careful. You have to prove that the restrictions are reasonable with respect to your legitimate business interests, so if each contract has a different geographic area or time restriction, you will have a more difficult time doing so. Can we have different contracts for different specialties/practices/locations? Of course so long as you are able to maintain the increase in administrative burden.

Physician Behavior Issues 8 Can we terminate a physician if he treats staff poorly? Issues to consider: Termination provision in contract? Will the behavior amount to cause ? Do you have a policy covering physician behavior and if so, was the physician notified of it? What is the precedent have you allowed other physicians to remain employed in spite of their poor treatment of staff? Is this a shareholder and if so, is all paperwork in order/signed? Is the buy-in paperwork consistent with the physician s contract?

Unemployment Claims 9 Can be handled by ER without representation EE must have performed service during 30 days (whether or not consecutive) or for 240 hours Misconduct cases Be proactive with documenting behavior in writing citing any policies that were violated Have policies that address specific behaviors Have EVERY employee sign an acknowledgement that they have received the policies When response is due to VEC, attach signed acknowledgement page, policy that was violated, and warning(s) given to employee and explain that basis for termination was due to additional violations of policy. Voluntary Quit cases If EE gives notice of resignation, try to avoid letting her go immediately If EE is a no-call/no-show, send letter confirming that, pursuant to policies, she has resigned If EE outright quits, send documentation confirming her resignation and the date on which it occurred

EEOC Charges 10 ER should engage legal representation EE has 300 days from the date of the discrimination, to file a Charge ER will receive a Charge and possibly a Request for Information from the local EEOC office, containing allegations by the current or former EE Mediation is always an option, as is a continuance ER will be required to submit a Position Statement EEOC will (eventually) respond with a Right to Sue letter or it will take the case itself EE has 90 days following receipt of Right to Sue letter, to sue

Employee Manuals 11 Required provisions Contract disclaimer At-will employment reference Sexual harassment policy and reporting language Religious accommodation reference Disability accommodation reference Workers compensation reporting language Attendance policy Behavior expectations Overtime provisions/classifications/work hours Family and Medical Leave Act provision for ERs with more than 50 EEs within 75 miles No right of privacy language Confidentiality for both proprietary information and HIPAA- related issues

Contact Information 12 McCandlish Holton s large Health Care Practice Group represents physician practice groups, hospitals, payors, and long term care providers in regulatory, transactional, reimbursement and employment law matters. www.lawmh.com Jeremy A. Ball (804) 775-3801 jball@lawmh.com Samuel C. Haisley (804) 775-3885 shaisley@lawmh.com Sara Hendon Heisler (804) 775-3861 sheisler@lawmh.com Dominic P. Madigan (804) 775-3858 dmadigan@lawmh.com Thomas W. McCandlish (804) 775-3838 tmccandlish@lawmh.com Jennifer L. Ligon (804) 775-3842 jligon@lawmh.com Jamie Baskerville Martin (804) 775-7216 jmartin@lawmh.com Samantha S. Otero (804) 775-3868 sotero@lawmh.com Alana M. Ritenour (804) 775-3886 aritenour@lawmh.com