Hot Topics in Employment Law

1. Hot Topics in Employment Law Betsy J. Beck Shannon Coleman Egle Kramer Rayson LLP 800 S. Gay Street, Suite 2500 Knoxville, Tennessee 37929 865.525.5134

2. Employment Litigationis Exploding • Recently, U.S. District Judge Leon Jordan indicated that employment cases make up 40% of the district court’s docket. • Most cases, including race, sex, religion, national origin, age, and disability, are tried to juries. • Add in FMLA, FLSA, ERISA (all jury cases), and eliminating your Practice’s exposure is a difficult task.

3. What is Unique About Employment Litigation? • Jurors identify with the employee. • Jurors realize the importance of a job for sense of self worth. • Jurors expect that companies should treat employees fairly. • They believe that employment/disciplinary procedures should be followed. • They believe that employers are profit-driven at the expense of employees.

4. Tips for Documentation • State the employee’s problem objectively • Follow disciplinary procedures • Be accurate and provide details • Don’t create bad documentation • Act timely • Treatment must be consistent

5. Inaccurate Documentation • Do not view performance documentation as a “pep rally” instead of an opportunity to candidly discuss your employee’s performance and conduct. • Inaccurate performance appraisals do disservice to the employee and the Practice. • Employees have the right to know where they stand. • Practice has right to fair and accurate appraisals when it has to take disciplinary action.

6. Lack of Documentation • Do not let proper documentation of discipline “slip through the cracks.” • It is alarming to get a call, “We have to terminate this employee” when you look in the file and the problem is not documented. • If it is important enough to speak to the employee about, it is important enough to document on an appropriate form. • Problems not important enough to document and follow progressive discipline are viewed by judges and juries as a pretext or “phony” reason.

7. Harassment Issues Unique to Physician Practices • Power, authority, and financial position • No individual liability under Title VII but potential “aider and abettor liability” under THRA. • Harris v. Dalton, 2001 Tenn. App. LEXIS 285 (Tenn. Ct. App. Apr. 26, 2001) • Supervisor may be required to obtain separate counsel -- possibly at his/her own expense. • Policy should list position other than physician as additional point of contact.

8. Employee Medical Leaves • Update on FMLA and ADA • Require medical documentation • Remember request and approval process • Treat non-medical leaves similarly • Be prepared to back up undue hardship arguments • Address disciplinary issues promptly

9. Compensation Issues • FLSA litigation exploding • Exemption issues • Physician pay • Nursing staff pay • Problem deductions • Collective actions and class actions

10. Breaks • State law requires meal break of at least 30 minutes for each shift of six (6) or more consecutive hours • No waiver • No automatic payroll deductions • Violation is a Class B misdemeanor (fine & penalty) and each and every infraction constitutes a separate and distinct offense • No other required breaks, • BUT, some breaks, if given, must be paid

11. Background Checks • Effective October 1, 2010 • For persons providing direct patient care • State law requires healthcare professionals to conduct background checks for states in which the prospective employee or I/C has lived in the previous 7 years using: • State sex offenders registry; • State abuse registry; and • Abuse registries • Links to these registries found on TN BME website.

12. Background Checks (cont’d) • Applies to both employees and I/Cs • Does not apply to contracted, external staff where direct patient contact is not intended: • Cleaning services; • Maintenance of office; • Maintenance of medical equipment; • Similar services. • Must check: • Current employees and I/Cs not already checked; • Prospective employees and I/Cs before date of hire.

13. Physician Non-Compete Agmts • Applies to employees and I/Cs • Applies to : • Podiatrists • Chiropractors • Dentists • MDs/Surgeons • Optometrists • DOs • Psychologists • Does not apply to emergency room physicians

14. Physician Non-Compete Agmts(Cont’d) • Max duration: 2 years • Max geographic limitation: • 10 mile radius from primary practice site of physician while employed/engaged; OR • County of primary practice site of physician while employed/engaged; OR • Acceptable alternative to geographic limitation: restrict physician from practicing at any facility at which physician provided services while employed/engaged.

15. Physician Non-Compete Agmts (Cont’d) • Prior law said that no non-compete enforceable if physician had been employed/contracted for 6 years. • Effective 1/1/2012: can extend to physicians employed/contracted 6 or more years • To extend 6 years and beyond: • Must be in writing • Must be through subsequent negotiations (i.e., no evergreen extensions) • Each extension must be for a period of time not to exceed 6 years • Refusal to extend cannot be grounds for terminating existing EA

16. Questions?