The National Labor Relations Board has proposed rule changes that would significantly reduce the time between the date the union requests an election and the date the NLRB conducts the election.  These changes, if implemented, would dramatically affect an employer’s ability to communicate with its employees before an NLRB election, and would give unions a significant advantage in organizing non-union employers.   

Among other things, the NLRB proposes to:

  • Accelerate the initial hearing date following the filing of a union petition;
  • Require the employer to disclose its position prior to or at the initial hearing;
  • Significantly limit the employer’s ability to litigate issues – including those relating to supervisory status – before the election;
  • Preclude the employer from appealing regional office decisions to the NLRB before the election; and
  • Require that the employer provide the union with employees’ phone numbers and e-mail addresses in addition to their home addresses.

The likely result of the proposed new rules would be an NLRB election held within a few weeks of a union petition. This is far shorter than the current timeframe, in which the vast majority of initial elections are conducted within 56 days of a union petition.  In addition to the procedural changes that limit the employer’s rights, the shortened timeframe would severely restrict the employer’s ability to communicate its position and would compromise employees’ ability to get information from both sides to make an informed decision about union representation and collective bargaining.

Under the existing rules, unions won nearly 68% of NLRB elections in 2010.  In the healthcare industry the union win rate was 71% in 2010.  Under the proposed new rules, unions would undoubtedly win even more elections.  For this reason, healthcare employers should assess the employer relations environment at their facilities and their ability to communicate with employees, on short notice, about this important issue.

Jackson Lewis participated in the NLRB’s hearing on the proposed rule changes, and also participated in the hearing conducted by the House Committee on Education and the Workforce (“Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice”).  In addition, as counsel to Assisted Living Federation of America, Jackson Lewis is submitting comments on the NLRB’s proposed new rules.  The NLRB is expected to promulgate final rules, similar or identical to the proposed rules, later this year after the public comment period.

Thanks to Edward V. Jeffrey for this posting.

On-site health clinics, occupational health clinics, and in-house physicians can be attractive options for businesses that take a comprehensive approach to disability and leave management. However, as one federal district court makes clear, employers need to be mindful of the workplace law risks. This case involves one of those risks – the ADA and its confidentiality requirements. If you have an on-site health clinic, occupational health clinic, or in-house physicians, consider reviewing this post on the Jackson Lewis workplace privacy blog. 

http://www.workplaceprivacyreport.com/2011/07/articles/ada/inhouse-physicians-disclosure-of-employee-medical-information-to-management-violates-ada-court-rules/

Washington has become the first state in the nation to require protection for healthcare workers who handle, administer and dispose of chemotherapy drugs. 

This new law addresses concerns raised both by OSHA and NIOSH, which recommend that precautions be taken when handling these drugs.   OSHA calls for development and implementation of a “Hazardous Drug Safety and Health Plan” where employees are exposed to such drugs.  Nevertheless, until now, federal OSHA has issued no standard dealing specifically with the issue and no state has required employers to take protective measures, such as proper ventilation or protective equipment in the preparation, administration and disposal of such drugs.  The Governor has directed the Washington State Department of Labor & Industries to adopt requirements for the safe handling of chemotherapy drugs by healthcare workers.  After such requirements are adopted, we will provide an updated post. 

While Washington may be the only state in the nation to mandate worker protection expressly, to limit exposure to potential tort claims and possible citations under OSHA’s General Duty Clause or other state OSHA plan laws and regulations, appropriate protective measures should be considered and implemented, as needed.

The U.S. Court of Appeals for the Ninth Circuit in 2009 dismissed a registered nurse’s claim that a California hospital violated the Fair Labor Standard Act’s overtime provisions when it used different base hourly rates to calculate regular rates of pay depending on whether RNs chose to work an 8-hour or 12-hour shift.  Thus, the Ninth Circuit determined that employers can negotiate with employees reduced base hourly rates to find the regular rate of pay upon which overtime wages are calculated.  The resulting rate must equal or exceed the minimum wage, the employees must agree to the rate reduction, and the reduced rate must have been in place for some substantial period of time. Of course, an employer cannot jump from rate to rate depending upon whether overtime was worked.   The Ninth Circuit’s decision stands following U.S. Supreme Court’s denial of the request for review. Parth v. Pomona Valley Hosp. Med. Ctr., No. 10-1041, cert. denied, 5/23/2011. 

In Parth, for many years, the Hospital offered the option of a 12-hour shift. RNs who opted for it received: (a) a lower hourly base rate of pay than those who worked the 8-hour shift for the first 8 hours of work; (b) overtime at 1.5 times the regular rate of pay for more than 8 hours of work; and (c) twice the regular rate of pay for hours worked in excess of 12 in one shift.  The plaintiff and other RNs opted for the 12-hour shift (and corresponding reduced regular rate of pay).   They each signed an individual agreement that later was incorporated into a collective bargaining agreement after the Hospital became unionized. The RN sued, alleging the use of different base hourly rates depending on length of a shift violated the FLSA. 

The Ninth Circuit dismissed the RN’s claim. It found the FLSA allows employers and employees to contract for a new wage arrangement any time they choose as long as the rate exceeds the statutory minimum wage rate and the compensation plan “properly incentivizes [the Hospital] from overworking its nurses.”  The RN appealed to the Supreme Court, claiming the payment scheme negated the statutory purpose of the FLSA. In opposition, the Hospital pointed out, inter alia, a series of U.S. Department of Labor opinion letters established that a reduced rate is not an “artifice or subterfuge” to circumvent the FLSA where (1) employees agree to the reduced rate; (2) the rate has been in place for a “substantial length of time”; and (3) the rate “equals or exceeds the minimum wage.”  The Supreme Court declined to review the case.

*          *          *

 In addition to the federal wage-hour law, employers must consider the requirement of relevant state wage-hour law. Some state wage laws, like newly-enacted Section 195.1 of the New York Labor Law, mandate written notice of the rate that will be paid. Therefore, negotiated rates generally should be transparent to all parties and duly documented.  This is critical to administration of the agreement, not to mention providing a defense to allegations of non-compliance with the law. 

Thanks to Joshua Rudin, Summer Law Clerk, for his assistance in preparing this post.

This is an important development for health care employers, as well as those companies tied to the health care industry. A government report issued this week says HIPAA enforcement is not sufficient to protect electronic protected health information and recommends more audits. The result may be more “compliance reviews,” audits, for covered entities and business associates.   Here is a link to Jackson Lewis’ privacy blog with more detail:

http://www.workplaceprivacyreport.com/2011/05/articles/hipaa-1/hhs-office-of-inspector-general-recommends-more-hipaa-audits/index.html

 

On April 29th the National Labor Relations Board (NLRB) issued a complaint against the California Nurses Association (CNA) for interfering with and coercing employees in their right not to engage in union activity, as well as for altering employees’ terms and conditions of employment without the employer’s agreement or consent.   After negotiating a contract with the Henry Mayo Hospital in California, the CNA, as many unions do once an agreement is reached, told the Hospital it would print copies of the contract.  However, the printed version included unilaterally added language on the back cover of the contract about employees’ “Weingarten Rights.”   “Weingarten Rights” give unionized employees the right to request union representation during any investigatory interview conducted by an employer.  The Hospital filed an unfair labor practice charge against the CNA.   Finding reasonable cause to believe the Union violated the National Labor Relations Act, the NLRB’s Regional Office in California issued a complaint against the Union and scheduled a hearing for August 1st.  

Employers who have contracts with the CNA or any other National Nurses United (NNU) affiliated union that have had similar language printed on the back of their collective bargaining agreements, without consent, should contact labor counsel for advice as to how to proceed and whether to file an unfair labor practice charge.   Employers generally should be cautious when Unions agree to take care of printing the contract, that the printed version accurately represents the parties agreement without unilateral amendments or additions.

Thanks to Steve Porzio for this submission.

 

On May 3, 2011, the Second Circuit rejected an appeal by a group of Registered Nurses (“RNs”) of the partial denial of their motion for class certification.   In a case pending since 2006, the RNs contend that certain hospitals in the Albany-Schenectady-Troy metropolitan area conspired to depress salaries in violation of the Sherman Antitrust Act, 15 U.S.C. §1.  In July 2008, the United States District Court for the Northern District of New York partially granted the nurses’ motion for class certification under Rule 23 of the Federal Rules of Civil Procedure, finding “Plaintiff’s have adequately demonstrated that class certification is appropriate with respect to whether there has been a violation of antitrust law and whether there has been injury to the class that the Sherman Act was designed to prevent. Injury-in-fact and damages, however, must be separately determined, as there exists too much disparity among the proposed class  members to proceed under one common trial.”   The District Court explained that there are three elements to an antitrust claim, 1) violation of antitrust law; 2) injury and causation; and 3) damages.   While the RNs had asserted a common violation of antitrust law, the issues of injury-in-fact and damages were, in the District Court’s view, insufficiently common among the putative class members to justify class certification. 

The RNs appealed to the United States Court of Appeals for the Second Circuit under Rule 23(f) of the Federal Rules of Civil Procedure, which governs interlocutory appeals of orders granting or denying class action certification.  Rule 23(f) provides that a petition for permission to appeal must be filed with the Circuit Court within 14 days after the certification order is entered.   Since the appeal was made nearly 18 months after the decision, it was untimely and, accordingly, was rejected.  The Circuit Court expressly rejected the RNs’ argument that denial of the motion to amend should reset the clock for the appeal stating, “if denial of amendment to an order granting class certification were sufficient to reset the clock for appeal, a litigant could easily circumvent Rule 23(f)’s deadline by filing a motion to amend or decertify the class at any time after the district court’s original order, then petitioning for leave to appeal within fourteen days from the denial of that motion.”   Citing to its earlier decision in Coco v. Inc. Vill. Of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir. 2006), the Circuit Court confirmed the Second Circuit’s well established rule that Rule 23(f)’s fourteen day filing requirement is “a rigid and inflexible restriction.” 

Here is a link to an article posted on the Jackson Lewis Workplace Privacy Blog that may interest healthcare employers.

http://www.workplaceprivacyreport.com/2011/03/articles/ada/ada-violated-when-employer-responds-to-state-subpoena-and-discloses-former-employees-medical-records/

 

 

In one of the last decisions of 2010, a Minnesota federal judge issued an opinion that flipped on its head the statutory time limitations imposed upon an individual’s right to sue under the Minnesota Human Rights Act (“MHRA”), greatly eroding an employer’s ability to determine predict when the threat of litigation is over.  The MHRA prohibits unlawful discrimination in employment and, like many state anti-discrimination laws, imposes time limitations as to when an aggrieved individual can commence litigation.  A claimant has the choice of filing a charge of discrimination or commencing litigation within one year of the alleged unlawful employment action.  If an individual chooses to file a charge, with either the Minnesota Department of Human Rights (“MDHR”) or the federal Equal Employment Opportunity Commission (“EEOC”), he or she must obtain a right to sue notice prior to commencing a civil lawsuit.  In cases where the individual files a charge, but decides to withdraw the charge and pursue litigation, the MHRA mandates: “the charging party shall notify the commissioner of an intention to bring a civil action, which shall be commenced within 90 days of giving the notice.”  Minn. Stat. § 363A.33.  Until recently, courts have interpreted this provision to mean the individual must commence a civil action within 90 days after notifying the commission his or her intent to sue.  This interpretation may no longer be applicable.

On December 23, 2010, in Beliveau v. The Saint Paul Area Council of Churches, 2010 U.S. Dist. LEXIS 135902 (D. Minn. Dec. 23, 2010), United States District Court Judge Donovan Frank, contrary to the direct language of the MHRA and court decisions interpreting the MHRA’s time limitation provision, ruled that the 90 day limitation did not begin to run until the individual received notice from the MDHR acknowledging the request of dismissal.  This interpretation provided plaintiff in Beliveau additional time to commence the civil action against her former employer.  The plaintiff in Beliveau filed a civil lawsuit 112 days after notifying the MDHR of her intent to sue, 89 days after she claimed to have received notice from the MDHR dismissing her action.  The debate as to when notice was received arises often under statutes subject to jurisdiction of the Equal Employment Opportunity Commission, which require filing of suit within 90 days after receipt of notice of dismissal by the agency. 

Based on what appeared to be an untimely filing of the complaint, defendant filed a motion to dismiss the MHRA claims.   Judge Frank denied the motion and found plaintiff’s letter to the MDHR requesting a dismissal did not trigger the 90 day time limitation.  Instead, Judge Frank held the 90 day time limitation started when the plaintiff received notice from the MDHR acknowledging her intent to file a lawsuit and dismissing the charge. 

The Beliveau decision erodes an employer’s ability to determine when a threat of litigation may be over (and, thus, for example, to release a litigation hold of electronically stored data).  Under the Beliveau decision, there is no way for an employer to predict with certainty when a charging party actually received notice of dismissal from the MDHR. It is not uncommon, despite the MDHR’s best efforts, for the department to issue a right to sue notice months after an individual’s request for dismissal.

Thanks to Nora Kaitfors for this submission.