Jury Finds Against Female Physician’s Unequal Pay Claims

A federal jury in Iowa has rejected Equal Pay Act claims by a female physician alleging she was paid less than her male colleagues in the same network for performing substantially equal work under the same compensation formula. Bertroche v. Mercy Physician Assoc., Inc., No. 1:18-cv-00059 (N.D. Iowa Nov. 13, 2019).

The jury also found the physician network that employed her did not breach her employment agreement. After a six-day trial, the federal jury deliberated for less than three hours before delivering a complete defense verdict.

Plaintiff, Sharon Bertroche, M.D., worked as a family practice physician at Mercy for more than 20 years. During approximately the same period, three male physicians worked for the same network under the same form of employment agreement. All agreements required the same primary care physician duties under the same compensation system. Bertroche claimed that, although primary care physicians performed the same basic job duties, Mercy paid female physicians less than male physicians for substantially equal work in violation of the Equal Pay Act.

While acknowledging that each physician received a different amount of total compensation, Mercy argued that those differences were based on the specific practice of the physician at issue. Each physician was treated as a “profit center” and the contract formula was not applied differently between male and female physicians. Mercy paid physicians under a system that measured earnings by production quantity and quality based on physician revenue cost and profits. Some physicians maximized profitability by seeing more patients and delegating duties to nursing staff.

On a motion for summary judgment, the trial court denied Mercy’s request for dismissal, but decertified the case as a collective action. Two other female physicians, Gina Perri and Arleen Zahn-Hauser, who opted into the case after it was removed to federal court were permitted to proceed to trial on their Equal Pay Act and state law claims. But the trial court held each of their cases required separate inquiries on issues such as whether they received the same staffing support and revenue as the male doctors at issue. The trials for Perri and Zahn-Hauser are scheduled to take place next year.

In her trial, Bertoche conceded that all doctors were paid under the same formula and that their pay varied based on the services they performed and the way they ran their practice. Defense counsel argued the salaries of physicians who were performing services under the same formula applicable to Bertroche varied. Some female doctors made significantly more and some male doctors made less. The jury concluded that there was no violation of the Equal Pay Act.

Physician compensation systems continue to be vulnerable to litigation. Even a system based on a contractual formula can be subject to claims of differential treatment based on a protected status under the law. The healthcare industry has paid attention to recent reports on physician pay, and many employers are now performing attorney-client privileged pay equity audits to assess liabilities and take a proactive approach to these types of claims. Contact Jackson Lewis with any questions about privileged pay audits, pay policies, or pay equity training.

Healthcare Employers’ Title VII Obligations in Harassment, Discrimination of Employees by Patients

Title VII of the Civil Rights Act requires healthcare employers to protect their medical staff and employees from harassment and discrimination and respond to any such behaviors swiftly and effectively, even if the actor is a patient, rather than a coworker or supervisor. A decision from the U.S. Court of Appeals for the Fifth Circuit illustrates employers’ obligations when the harasser is a patient. Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019). You can read more here.

Two Federal Courts Strike Down Health and Human Services ‘Conscience Protection Rule’

Two federal courts have struck down the U.S. Department of Health and Human Services’ (HHS) “Conscience Protection Rule,” which was slated to go into effect on November 22, 2019. The Rule purported to enforce pre-existing “conscience laws” that protect the rights of certain employees of healthcare institutions that receive federal funds to refuse to participate in certain healthcare procedures (i.e., abortion, sterilization, and assisted suicide) based on religious or moral objections. You can read more about the rule here.

Religious Accommodation and Patient Safety in Healthcare Industry

During a recent webinar, our Healthcare team provided practical case studies with clear takeaways and best practices for reasonably accommodating employees’ sincerely-held religious beliefs without compromising patient safety. You can watch the webinar recording at your convenience. Additionally, the team compiled a list of frequently asked questions about Title VII of the Civil Rights Act reasonable accommodation requirements. You can read more here.

Pay Equity Challenges Continue: EEOC Sues Nursing Home for Paying Female Nurse Less

Pay equity challenges continue to make the news in the healthcare setting, primarily in the context of physician pay equity gaps. This month, the journal Pediatrics published data from the American Academy of Pediatrics’ Pediatrician Life and Career Experience Study (PLACE), which included 1,000 physician responses on income and 1,300 responses on household responsibilities. The income data (from 2016) showed that female pediatricians were paid only 76 percent of their male peers’ income. At the same time, based on the household responsibilities data (from 2015), female pediatricians reported that they had more time-consuming responsibilities in their own home life than male physicians.

Although the issue of physician pay certainly deserves continued focus, it is also important that your organization is dialed in on any pay gaps in non-physician roles. This month, the EEOC sued a Kansas City nursing home in the Western District of Missouri under the Equal Pay Act (EPA), alleging that the employer paid a female LPN $21 dollars an hour, but paid two male LPNs performing the same job $25 dollars per hour. EEOC v. Edgewood Manor OPCO LLC, Case No. 19-cv-00760.

The EPA generally prohibits employers from paying men and women differently for a job that requires the same skill, effort, responsibility, and working conditions. The employee does not need to prove any intentional sex discrimination to make out an EPA claim. Rather, if an employer cannot prove that there is a factor other than sex that explains the difference in pay between the female employee and her male counterpart(s), the employer will be liable for the difference (plus an equal amount in liquidated damages).

In this case, the EEOC is alleging that the difference was “willful,” meaning that if the suit is successful the plaintiff may be entitled to up to three years’ back pay as damages. In a press release the EEOC issued regarding the lawsuit, it stated that “[t]he fact that it’s still necessary to enforce the Equal Pay Act 56 years after its passage is astonishing. But the EEOC is dedicated to enforcing the law against both public and private employers who it finds have violated this key civil rights statute.” This case is in its early stages, but it is a good reminder (and a warning) that you should not wait for an EEOC Charge to address any pay gaps at your organization as appropriate, and at any and all levels. In addition, employers need to be concerned about state agencies and plaintiff’s attorneys who may bring claims under the many state laws that are more demanding than the EPA.

For more information on how to get ahead of pay equity issues, contact your Jackson Lewis attorney.

OCR Recognizes Insider Threats to HIPAA PHI, You Should Too

As we have observed here, news reports of security risks, hackings and breaches caused by individuals, terror groups or even countries around the world certainly are important and can be unsettling. But, for many organizations, including healthcare providers and business associates, a significant and perhaps more immediate area of data risk is malicious insiders. On August 29, the Office for Civil Rights (OCR) published its 2019 summer cybersecurity newsletter entitled, “Managing Malicious Insider Threats,” acknowledging this threat and providing some best practices to neutralize it. Our colleague in the Privacy, Data and Cybersecurity practice group published an informative article on the various forms of insider threats and how to stop them. You can read more about it here.

Mandatory Nurse-to-Patient Staffing Ratios: Is Your State Next?

Healthcare facilities in California have been required to adhere to mandatory nurse-to-patient ratios since 2004. These ratios vary depending upon the degree of patient care involved. More recently, Massachusetts passed a law requiring mandatory staffing minimums in the state’s ICU’s. Other states are considering jumping on the bandwagon. A California-like bill is currently pending in the Illinois General Assembly. Additionally, groups in Florida, Iowa, Minnesota, New Jersey, New York, Texas, and the District of Columbia are asking state lawmakers to consider similar measures.

At first blush, such legislation might not seem controversial, however, it is a topic of fierce debate among healthcare policy experts. Proponents, such as patient advocacy groups and nurses’ unions, tout that mandatory ratios will result in improved patient outcomes and reduced nurse stress and exhaustion levels.

Opponents, such as healthcare executives and administrators, express skepticism for some of the reasons summarized below.

  1. Increased Costs.  Most healthcare facilities will be required to hire more nurses in order to ensure ratio compliance. Additionally, as has occurred in California, healthcare facilities may feel compelled to increase nurses’ salaries and benefits in order to retain them. Already budget-strapped healthcare facilities will have to divert resources from other priority areas. In addition, some question whether there are enough nurses available in the labor market to satisfy these patient ratios in all facilities.
  2. Longer Patient Wait Times.  Consider this scenario: A nurse has four patients on her floor. This is the maximum number of patients she is allowed to treat. Two of her patients are not currently on the floor because they are at physical therapy. The other two are stable in their beds. There is a new patient waiting in the ER to be admitted to the floor. Under a ratio law, the nurse cannot go down to the ER to bring the patient up to the floor for admission even though she has no current patient care needs to address. The patient will have to wait in the ER until coverage is available.
  3. Lack of Flexibility And Potential Poor Patient Outcomes. Another example: There is a nearby industrial chemical spill or a catastrophic fire. Scores of patients are pouring into the ER requiring immediate care. Under a ratio law, nurses cannot be diverted from one floor. The healthcare facility must wait for other nurses to report to work. This could have a negative impact on the prognosis of patients who need urgent treatment.

Is there a compromise that will make both sides happy? Possibly.

At least 21 states have varying regulations that require healthcare institutions to develop their own staffing policies and plans. Many healthcare facilities in these jurisdictions have found success managing the competing tensions surrounding staffing issues by collaborating with stakeholders on both sides to develop staffing plans that meet the specific needs of their community demographics.

While it remains to be seen what additional action will be taken by states considering mandatory ratios, now is an opportune time for healthcare institutions to review their nurse staffing plans, and consider what changes may be appropriate. Changes to those staffing plans may require bargaining with nursing unions.

To learn more about how Jackson Lewis can assist healthcare organizations evaluate and improve staffing plans, please contact a member of Jackson Lewis’ Healthcare Industry Team.

Healthcare Organizations, Is Your Patient Portal Secure?

While healthcare organizations are embracing new technologies such as patient portals, a recent report shows that organizations’ cybersecurity measures for these technologies are behind the times. A patient portal is a secure online website that allows patients to access their Electronic Health Record from any device with an Internet connection. Many patient portals also allow patients to request prescription refills, schedule appointments, and securely message providers. With this increased access for patients comes the risk that someone other than the patient will gain unauthorized access to the portal, and to the patient’s electronic protected health information (ePHI). Our colleagues in the Privacy, Data and Cybersecurity practice group explains the importance of HIPAA compliance and data security. You can read more about it here.

New California Law Allows Sharing of Home Care Aides’ Contact Information with Unions on Demand

A controversial amendment to the California Home Care Services Protection Act (Home Care Act) requires the state Department of Social Services (DSS) to provide the names, phone numbers, and addresses of new or renewing registered home care aides (HCAs) to labor unions on request, unless the aides opt out. The new law, which raises concerns over privacy rights, became effective on July 1, 2019. You can read more about it here.

New York Expands Telemedicine Regulations

The authorized use of telehealth to deliver mental health services to New Yorkers has been expanded by amendments to the state Office of Mental Health’s (OMH) Telemental Health Services regulations increasing the types of professionals who may provide care and the places where care recipients can be treated. Our colleagues in the Health Law and Transactions practice group offer details on the expanded regulations. You can read more about it here.

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