Bass, Berry & Sims attorney Lisa Rivera provided insight for the article “OIG Steps Up Enforcement Against Providers Hiring Prohibited Employees,” that was published on January 28 by Modern Healthcare. The article analyzes the rise in fines being levied against companies that hire people on government exclusion lists. According to the article, fines totaling $9 million were levied against 75 healthcare companies in 2014, a significant increase from the prior year. To read the full article, visit the Modern Healthcare website.
When the Supreme Court decided United States v. Windsor, 133 S. Ct. 2675 (2013), finding Section 3 of the Defense of Marriage Act (DOMA) unconstitutional for precluding recognition of same-sex marriage under federal law, the Court did not address the extent to which the decision would apply retroactively. More federal guidance may emerge, however, with Schuett v. FedEx, No. 15-cv-189 (N.D. Cal. 2015), the outcome of which could potentially impact numerous employers who relied on DOMA to deny employee or spousal benefits. Continue Reading
Bass, Berry & Sims attorney Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan. The answered questions include:
- What is affirmative action? What is an AAP?
- What does affirmative action mean?
- Who has to prepare an AAP?
- What about Medicare/Medicaid reimbursement? TRICARE participation?
- Are all of my facilities covered?
- What is in the AAP?
- What happens after you prepare the AAP?
To read the full article and get answers to these questions, click here.
Bass, Berry & Sims attorneys Sarah Krause and Stephanie Roth authored the article “Wellness Programs Face Muddy Regulatory Waters,” that was published by Employee Benefits News on December 23. In the article, the authors discuss the EEOC’s recently filed complaints alleging that employers’ wellness programs violate the ADA. To read the full article, click here.
The article was also run in Employee Benefits Adviser.
Employers have long been concerned about the privacy of their confidential data. Part of this concern, of course, relates to hackers who, for malicious or profit-driven motives, gain unlawful access to the employer’s system. This can lead to a host of problems, including liability for failing to take proper precautions to protect the data and loss of revenue as consumers – even temporarily – avoid additional purchases for fear of identity theft. The latest, attention-grabbing cyber-attack looted Sony Pictures. While thousands of people are enjoying a bit of schadenfreude seeing the private thoughts of movie executives splashed across social media sites, many employers are following Sony’s legal troubles in the wake of the hack, including a class action lawsuit filed in federal court by current and former employees who allege the company failed to secure its computer network and protect the employees’ confidential information, including home addresses, birth dates, Social Security numbers, and healthcare data. Continue Reading
On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007). The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes. The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use). In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes. This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance. Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception). Continue Reading
On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures. Employers should be aware of how the new rule will affect union organization in the workplace. The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.” The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015. The new rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
- Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
- Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
- Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
- Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
- Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
- Eliminates automatic stays of elections caused by challenges to the regional director’s pre-election decision;
- Narrows the issues the Board must review in post-election disputes to those issues raised; and
- Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director’s approval of an election agreement or decision directing an election, and requires employers to include voters’ personal email addresses and phone numbers (if available) on the voter list.
As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.
It is unlikely that the new rule will go unchallenged. The rule has been heavily criticized as sanctioning “union ambush tactics.” Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits. However, employers should not bank on courts overturning the new rule. Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.
Bass, Berry & Sims attorneys Tim Garrett, Michael Moschel and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best practices related to anti-discrimination policies. In the article, employers are encouraged to ensure policies are properly introduced to employees and that managers and supervisors are adequately trained to implement the policies. To read the full article, click here.
In a case decided on December 8, 2014, the Supreme Court unanimously held the Fair Labor Standards Act (FLSA) does not require a staffing agency to compensate warehouse packers for time spent waiting in post-shift security lines. The packers argued their wait time, which they asserted could be as long as 25 minutes each day, should be compensated because the security checks were required by their employer and were necessary to the employer’s task of minimizing shrinkage (i.e. product loss). Following dismissal in the District Court for failure to state a claim, the Ninth Circuit reversed as to the FLSA claim, agreeing with the employees. The security checks were integral and indispensable to the employees’ work because the employer required the screenings to take place on the premises and because the screenings were designed to prevent theft, the threat of which arose as a result of the nature of the employees’ primary work as packers of Amazon.com merchandise.
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently filed complaints against three employers alleging that the employers’ wellness programs violate the Americans with Disabilities Act (“ADA”) due to the penalties imposed on employees who chose not to complete the wellness programs’ requirements.
The ADA prohibits employers from asking employees disability-related questions or requiring employees to undergo medical examinations unless those questions and examinations are job-related and consistent with business necessity. However, the ADA allows disability-related questions and medical examinations as part of a wellness program as long as the wellness program is voluntary and the information obtained is kept confidential and not used to discriminate on the basis of a disability.1 A wellness program is considered voluntary if the employer neither requires participation nor penalizes employees for not participating in the program. Many employers offer incentives to employees to encourage participation in wellness programs. The EEOC has never formally explained whether and to what extent offering an incentive effectively amounts to a requirement to participate or a penalty. The EEOC has indicated in its last two semiannual regulatory agendas that it plans to issue proposed regulations on this issue, but no regulations have been issued to date. Continue Reading