On December 23, the National Labor Relations Board (“NLRB”) announced that it was postponing the effective date of its employee rights notice-posting rule from January 31 to April 30.  This is the second postponement of the rule which was initially to go into effect on November 14, 2010. Several employer groups have filed lawsuits challenging the authority of the Board to require a poster and impose penalties for non-compliance.  The Board stated that it was postponing the effective date “at the request of the federal court in Washington, DC hearing a challenge regarding the rule.”

Keep reading this blog for updates, or feel free to contact us for more details.

The National Labor Relations Board (NLRB) has voted 2-to-1 to approve Chairman Mark Pearce’s resolution to adopt a limited number of amendments to the NLRB election process.  According to the agency, the modified elections rules are intended to reduce “unnecessary pre-election litigation.”    

The six amendments grant the NLRB and its hearing officers significant latitude in deciding election issues.  They also substantially limit an employer’s ability to appeal significant pre-election and post-election issues.

Chairman Pearce and Member Craig Becker supported the amendments.  Member Brian Hayes was against them. 

It appears that the NLRB will publish a final rule, based on the modifications, and the Board will hold an official vote for formal adoption.  As the Board will lose its “quorum” when Member Becker’s term expires at the end of this calendar year, this vote must occur on or before December 31st.

Since health care employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever to consider a comprehensive preventive labor relations program.  We recommend that the program include potential elements such as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law when having such discussions and/or during union organizing, (3) bargaining unit analyses (for example to determine who is a supervisor), and (4) legal analysis and client development of best HR practices consistent with changes in the law (such as the NLRB’s initiative relating to protected concerted activity).

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently reiterated its intention to begin aggressively inspecting nursing homes and other residential care facilities in the next few months.  Its “Nursing Home National Emphasis Program” was instituted in response to reports of increased and above-average rates of injuries and illnesses among hospital and health care workers.  According to statistics from the DOL’s 2010 report on Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, nursing aides, orderlies, and attendants were high on the list of employees with medical issues that kept them from work.  Such employees are out at approximately four times the national average.   Health care employers should consider self-auditing their facilities on a regular basis and consulting with counsel to ensure they are in compliance with OSHA regulations and other employment laws.  

The Office of the National Coordinator for Health Information (ONC) is seeking input from the public on the role of mobile communication devices (smart phones, tablets, net books, etc.) in the exchange of personal health information within the healthcare industry, i.e. the use of such devices by physicians, hospitals and managed care providers and the ability to protect the privacy of such information.  As part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act) of 2009, ONC is particularly interested in consumer and healthcare provider preferences for how such protected information should be exchanged and the challenges involved in maintaining privacy in the exchange of such information.  Comments are due December 31, 2011.  For more information see the following link to Jackson Lewis’ workplace privacy blog:

http://www.workplaceprivacyreport.com/2011/11/articles/hipaa-1/provide-feedback-to-government-on-exchanging-health-information-on-mobile-communications-devices/index.html

The Office of Civil Rights (OCR) recently launched a HIPAA compliance audit program with 150 on-site audits scheduled to begin in February 2012.  Covered entities and business associates need to be prepared and take stock of their HIPAA compliance.  For more information see the following link to Jackson Lewis’ privacy blog:

http://www.workplaceprivacyreport.com/2011/10/articles/hipaa-1/hipaa-audits-to-begin-early-2012/index.html

The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012.

The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.

The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made.”

Keep reading this blog for updates, or feel free to contact us for more details.

A group of nurses and nurses’ assistants alleging that their employer, a health care system, violated the Fair Labor Standards Act by failing to compensate them for interrupted meal periods filed a collective action in behalf of themselves and other similarly situated employees.  Usually, at the early, “notice” stage  a court only  requires a preliminary showing that plaintiffs’ claims are sufficiently representative of those of other putative class members.  In this case, however, the district court took the unusual step of denying the plaintiffs’ motion based on its view that the evidence obtained during pre-trial discovery did not support their claim that that the employer had a “policy” of forcing nurses and assistants to respond to pages and work during their unpaid lunch breaks.  Blaney, et al. v. Charlotte-Mecklenberg Hosp. Auth. d/b/a Carolinas Healthcare Sys., No. 10-cv-592 (N.C. Dist. Ct. Sept. 16, 2011).  This was an excellent outcome for the employer, as cases certified as a collective action often are settled because of the risk of huge damage awards and the extraordinary cost of litigating them to verdict.  This decision also points to some important preventive strategies.

Preventive Strategy Recommendations: Interrupted meal breaks are common in acute care and other healthcare settings and many organizations are vulnerable to these collective actions, especially where they automatically deduct a half hour for meal breaks.  For this reason, there is a growing trend to adopt the “best practice” of requiring staff to “swipe out” for meal periods and swipe back in when they have to return to the unit.  Even where the automatic deduction practice is maintained, it is important to have a written policy explaining that staff are to alert the supervisor when their meal periods have been missed or interrupted due to patient care responsibilities, so that they can be appropriately be paid for such time.  The Facility should document the dissemination of this policy to supervisors and staff and take the added step of conducting in-services on the policy.  These steps will go a long way to eliminating the problem and preventing and/or defeating FLSA claims and efforts to win certification of any collective action.

The NLRB has upheld a hospital’s ban on the use of cameras for photographing patients, equipment, property or facilities.  It said the ban did not violate the right of employees to engage in union or protected concerted activity. The NLRB in the 2-1 decision reasoned that the ban did not expressly restrict union or other protected, concerted activity and there was no evidence that it was adopted in response to or applied to such activity.  Further, the Labor Board acknowledged the hospital’s “weighty” interest in protecting patient privacy and preventing the wrongful disclosure of individually identifiable health information.  It concluded that employees would see the policy as a way to protected patient privacy and not as an attempt to prevent union activity.

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            Where a policy could be interpreted as an infringement on union or other protected, concerted activity claims, employers should incorporate within it a statement of the legitimate and substantial business reasons for adopting it.  This will minimize the chance that a union or an employee will be able to reasonably interpret its purpose as unlawful. 

On August 30 the National Labor Relations Board (NLRB) issued the long-awaited decision in Specialty Healthcare & Rehabilitation Center of Mobile, in which it announced a new standard for determining what constitutes an appropriate bargaining unit in non-acute health care facilities.

The union in Specialty Healthcare sought to represent a unit consisting only of Certified Nursing Assistants (CNAs) in a nursing home.  The home argued that the unit should include other non-professional employees such as cooks, dietary aides, activity assistants, the social services assistant, staffing coordinator, maintenance assistant, the medical records and data entry clerks, central supply clerk, and the receptionist.  In other words, the employer argued for the well-established facility-wide “service and maintenance unit” that has been the approved unit in nursing homes for more than 20 years.

Under the new standard articulated by the NLRB, if the union seeks a unit of employees that is “readily identifiable as a group” (e.g., a unit of a single job classification) and those employees “share a community of interest,” the NLRB will approve the unit requested by the union unless the employer can show that employees in a larger unit “share an overwhelming community of interest” with the employees in the unit requested by the union.  The NLRB, applying their new standard, found that the unit of CNAs requested by the union was an appropriate unit and rejected the home’s request to add the other non-professional employees to the unit.

The dissent of Board Member Hayes explains the NLRB’s decision and its impact in the context of the NLRB’s proposed changes to its election procedures:

First, in this case, they [the NLRB majority] define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included. This will in most instances encourage union organizing in units as small as possible.  Next, by proposing to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.

Non-acute healthcare providers can expect that unions will seek smaller units which likely will include units consisting of employees in a single-classification.  This will make it easier for unions to win elections, by allowing them to limit the requested unit to those employees with the strongest support for the union.  This will lead to a proliferation of bargaining units in nursing homes, senior living facilities, and other non-acute healthcare providers and, as a consequence, multiple contracts and potential job actions by multiple groups of employees.

Non-acute healthcare providers should consult with their labor counsel to discuss this decision and strategies for minimizing its potentially damaging impact on their facilities and the care they provide.

The NLRB has advised the public that all employers covered by the National Labor Relations Act (generally all private sector employers) will be required to post a notification of employees’ rights by November 14, 2011.  The Board’s August 25th press release, which contains links to the Final Rule and additional information, is reprinted below.  The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading.

The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011. 

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website at  https://www.nlrb.gov/poster.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. 

The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws. 

Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, with Member Brian Hayes dissenting. 

The rule will be published in the Federal Register tomorrow, and will take effect 75 days later. A fact sheet with further information about the rule is available here.