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

1. HR Update A LIGHTHOUSE IN THE STORM Jeffery L. Thompson Telephone: 478-621-2423 E-mail: jthompson@constangy.com

2. Topics That Will Be Discussed • Federal Legislative Activity • Federal Agency Activity • Employment Laws Every HR Professional Should Know and New Cases From the Courts in Those Areas • Social Media As The New Frontier • FMLA Abuse

3. Aggressive Agency Enforcement

4. EEOC Charge Statistics

5. EEOC Strategic Enforcement Plan • ADA Targeting (end of leave, essential functions, reasonable accommodations with new technologies, the conversation) • Pregnancy Accommodations (not ADA generally but evaluated differences between how other conditions treated)

6. DOL Enforcement

7. DOL Enforcement

8. OFCCP Enforcement

9. Discussion Question #1 Sarah is your employee. Sarah, who has always been a “problem” employee, comes to your office and claims she has been sexually harassed. You tell Sarah you are going to investigate, but you ask her not to speak to anyone about the investigation. Sarah leaves your office and goes to talk to Elizabeth, her coworker, about the harassment and investigation. What action should you take?

10. The EEOC’s Position • Where an employer has "broad policy that imposes discipline" for discussing investigations of discrimination or harassment, it will likely violate the retaliation provision of Title VII. • Where an employer makes confidentiality a "suggestion" it is less likely to be a violation. However, this suggestion must truly be a suggestion.

11. The Courts • At least one Court has gone the other way. • The Central District of California found that where a employee violated the company's confidentiality policy on internal investigations, and the court found it to be a legitimate reason for termination.  • Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146 (March 13, 2013 C.D. Cal.)

12. News from the Courts

13. Harassment • Vance v. Ball State University (U.S. Sup. Ct) • Issue: was harasser a supervisor? • Ct: to be supervisor, must be empowered to take tangible employment actions against harassment victim • Important: will limit liability of employers in harassment litigation

14. Discussion Question #2 Bob is one of your employees. Bob has religious beliefs that do not allow him to work on a Saturdays. Your hospital requires its employees to work on any day they are needed to respond to customer demands. What should you do?

15. Religious Accommodation • Brown v. Hot Springs Nat’l Park Hospital • 24/7 availability was essential job function for hospital manager position • Plaintiff’s religious beliefs precluded weekend work • Ct: no duty to eliminate essential function, and accommodation would be undue hardship

16. Religious Accommodation • Antoine v. First Students, Inc. • Employer policy permitted swapping shifts to accommodate religious beliefs • Ct: policy not sufficient; implies that greater employer effort to accommodate is required

17. Discussion Question #3 Lacy began working in the cafeteria 30 days ago. She has just approached you and explained that she is 5 months pregnant and is not going to be able to lift over 10 pounds during her pregnancy and will need time off for bed rest. What should you do?

18. Pregnancy Discrimination Act And ADAAA

19. Pregnancy Discrimination Act (PDA) • Must treat pregnancy like any other illness. • Not generally covered by the ADA but evaluated differences between how other conditions are treated. • Pregnancy-related conditions may need to be accommodated.

20. Is Pregnancy A Disability? • Wonasue v. Univ. of Mayland Alumni Assn. • Employee with severe morning sickness requested accommodations; employer denied. • Court found that morning sickness is not a disability; no duty to accommodate. • Some pregnancy related conditions could be a disability.

21. Latest Concerning The Americans With Disability Act Amendment Act Reasonable Versus Unreasonable

22. Reasonable Versus Unreasonable

23. Job Restructuring • Employee who hurts back at work • Light duty – limited lifting • Worker’s Compensation • Shared Lifting Reasonable or Unreasonable?

24. Schedule Modifications • Medical condition requires morning therapy • Clinic opens at 8 • Sue works from 8-4 • As an accommodation, Sue wants to report to work at 10:00 a.m. Reasonable or Unreasonable?

25. Change in Supervisor • Accounts Receivable employee • Investigated for misconduct • Post traumatic stress and anxiety • Wants to be moved to another supervisor Reasonable or Unreasonable?

26. Working From Home/Telecommuting • Employee with irritable bowel syndrome • Works in Accounts Payable • Wants to work from home 4 days a week Reasonable or Unreasonable?

27. Working from Home • EEOC v. Ford Motor Company • Employee’s job required face to face interaction with clients and co-workers • Ford denied request to work from home; suggested other accommodations • Employee was terminated for performance • Ct: Employee’s request to telecommute was not a reasonable accommodation

28. Discussion Question #4 Jimmy is an employee at your hospital. He can no longer perform his job because he cannot lift the requisite number of pounds. However, there is an open, vacant position in another department which does not require any heavy lifting. Do you have to offer Joe the job?

29. United Airlines v. EEOC • U.S. Supreme Ct. declined to review 7th Circuit ruling • 7th Circuit held: ADA requires employer to assign disabled employee to vacant position for which qualified • Not sufficient to permit employee to compete for job

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

31. EEOC’s Position On Leave Of Absence • If employee is considered disabled, must attempt accommodation (unless undue hardship). • Accommodation may mean extending leave beyond what is normally allowed. • Be sure to review current policy for random termination periods (i.e., one 90 day leave then terminate.

32. Leave of Absence • Brangman v. AstraZeneca • Company granted leave and two extensions; rejected third extension. • Court found that 3rd request unreasonable because employee could not show she would eventually return to work.

33. Employee Retirement Income Security Act (ERISA)

34. Defense of Marriage Act (DOMA) • U.S. v. Windsor (U.S. Sup. Ct.) • Struck down section 3 of DOMA • Result: same sex marriages recognized for federal law purposes; recognized in some states but not others

35. Fair Labor Standards Act (FLSA)

36. Changing Clothes Not Compensable Work • Sandifer v. U.S. Steel Corp. (1/27/14) • “Donning and doffing" safety gear before and after work shift constitutes changing clothes • Employers and unions can agree to exclude the time workers spend putting on and taking off protective clothing from compensable work time

37. Family and Medical Leave Act (FMLA)

38. Enforcement of Employer Attendance Policies • Srouder v. Dana Light Axle Mfg, LLC • FMLA regs require employee to comply with notice and procedures for absences • Employee failed to call in per company policy; terminated • Ct: no FMLA violation

39. Enforcement of Employer Attendance Policies • Paris v. Sanderson Farms, Inc. • Company sent letter: leave expired; will terminate if you do not return to work or submit request for additional leave and medical certification; • No response; terminated her; employee filed suit • Ct: not FMLA violation to require compliance with company policies on requesting leave

40. 12 Tips For Avoiding FMLA Abuse • Calculate FMLA leave using A “rolling” 12 month period. (Except for leave to care for service member) • Require employees use all paid leave prior to taking unpaid FMLA. • Require medical certifications to be returned within 15 days. • Require employees to provide thirty (30) days notice for foreseeable FMLA leave. Gives you the luxury to plan around the absences, which increases productivity and minimizes abuse.

41. 12 Tips For Avoiding FMLA Abuse • Demand that employees schedule medical treatments around operations. • Establish and enforce reasonable attendance and call-in rules for all leave. • Assign employees taking foreseeable intermittent leave to alternative positions that cause less disruption, if possible. • Require “fitness for duty” certifications for employees returning to work.

42. 12 Tips For Avoiding FMLA Abuse • Require employees to submit A recertification every thirty (30) days. • Require second and third opinions. • Have a policy prohibiting employees from working second jobs while on leave (of any type). • Use private investigators to prove FMLA fraud.

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

44. Service Employees International Union (SEIU) • More than half of SEIU's over 2 million members work in health care. • SEIU represents: • 110,000 nurses • 40,000 doctors • over 500,000 home health aides • 160,000 nursing home workers

45. Recent SEIU Petition Filings (Hospitals) • 1/21/2014- Health Care Services Group (WI) • 1/17/2014-Luther Manor (WI) • 1/14/2014- Dental Dreams, PLLC (MI) • 1/13/2014- St. Francis Hospital (CA) • 1/10/2014- Health Care Services Group (FL) • 1/7/2014- Golden Living Center (MA) • 12/30/2013- Lifestar Response of New Jersey

46. Harris v. Quinn • On January 21, 2014, the SCOTUS heard oral argument on a case that will have a big impact on organized labor in the healthcare industry • The case was brought by the National Right to Work Legal Defense Foundation. • The case involves eight home care providers in Illinois and addresses the precedent of Abood v. Detroit Board of Education, which stands for the principle that the non-union workers must pay their “fair share” of union dues in the public sector.

47. Harris v. Quinn • These home-care providers, who do not want to belong to a union or to pay dues and do not want a union to speak for them, have asked the Court to overrule the Abood decision. • The SEIU is actually one of the parties in this matter and is currently receiving about $3.6 million in dues from these personal care workers.

48. NLRB News • The NLRB’s “poster” regulation is effectively dead. • This “poster” regulation would have required employers to post notices to employees of their rights under the NLRA which hindered employers’ rights to talk about unionization in their workplace.

49. NLRB Attempting To Change Rules • 14-21 Day Elections • Union Access • Names/Phone Numbers/Addresses or Email Accounts • Third Party Access during OSHA investigations

50. The NLRB Strikes Again! • In April of 2013, an administrative law judge for the NLRB issued an opinion invalidating two of a healthcare provider’s policies regarding the use of email, company computers and company Internet. • This ruling is another in a long line of NLRB decisions and “guidance” intent on broadening employee communication rights under the guise of Section 7.