Bass Berry & Sims Labor Talk

U.S. Department of Labor (DOL) Issues New FLSA and EPPA Posters

Posted in Employee Handbooks and Policies

The U.S. Department of Labor (DOL) has updated their mandatory posters, which notify employees of their rights under the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA), to no longer list the civil monetary penalties that may be assessed for violations of the aforementioned Acts.  Additionally, the FSLA poster has also been updated to list material regarding the rights of nursing mothers under the FLSA, which includes information regarding lactation breaks.  The revised posters should be posted, effective August 1, 2016.  Employers should review their employment law postings and ensure that their postings reflect the information above.  Copies of the revised FLSA and EPPA posters may be downloaded directly from the DOL’s website.

San Diego Amends Recent Paid Sick Leave Law

Posted in Employee Benefits, Employee Handbooks and Policies

On August 3, 2016, the mayor of San Diego signed a new Implementing Ordinance that will provide for several changes to the city’s new paid sick leave law.  As noted in our previous post on July 12, 2016, the San Diego City Council had considered changing the law shortly after it was passed because the ordinance seemed to create conflicting obligations with the statewide mandate.  For example, while the California Healthy Workplaces, Healthy Families Act of 2014 permits capping annual sick leave accrual and allows employers to avoid carrying over sick leave from one year to the next (under the practice of providing all required hours at the beginning of each calendar year, i.e., the “upfront method”), the San Diego Ordinance did not.  The new amendments, however, address these issues and provide additional clarity for employers seeking to comply with both laws. Continue Reading

SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements

Posted in Employee Handbooks and Policies, Employment Agreements/Non-Compete Policies and Practice

The Securities and Exchange Commission (SEC) recently fined BlueLinx Holdings and Health Net, Inc. for including within severance agreements a provision designed to eliminate a former employee’s right to recover whistleblower incentives.  In what is generally considered a standard provision in severance agreements, the companies’ agreements allowed for the former employees’ participation in any government investigation but required a waiver of the right to recover any incentive payments that the law provides for whistleblowers.  The SEC issued substantial fines to these companies for this waiver requirement.  The SEC explained that the whistleblower incentive is a key part of the SEC’s enforcement efforts and that any public company’s attempt to eliminate or limit that incentive violates the law. Continue Reading

Another Protection for Gun Owners

Posted in Employee Handbooks and Policies

In a case arising out of Mississippi, the United States Court of Appeals for the Fifth Circuit ruled recently that terminating an employee for possessing a firearm in a legally permissible manner violates the “public policy” exception to employee at will. In Swindol v. Aurora Flight Sciences Corporation, (2016 BL 255951, Case No. 14-60779 5th Cir. August 8, 2016), the federal court had previously asked the Mississippi Supreme Court to answer a certified question about the effect of Mississippi Code Section 45-9-55 on the traditional employment-at-will rule in that state. The Mississippi Supreme Court ruled that the Mississippi statute, which makes terminating an employee for having a firearm inside his locked vehicle on company property “legally impermissible,” falls within the “public policy” exception to the employment-at-will rule.

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Tim Garrett Comments on Potential Unintended Consequences of New DOL Overtime Pay Policy

Posted in Employee Benefits, Employee Handbooks and Policies, Hiring and Recruiting, Wage and Hour Law and Practice

Bass, Berry & Sims attorney Tim Garrett provided insight on the Department of Labor’s (DOL) overtime pay policy, slated to take effect on December 1, 2016 (for additional background on the DOL policy, read the firm’s blog post, “DOL Announces New Salary Level in Overtime Regulations“). As Tim points out for the article, “‘I’m not saying overtime pay shouldn’t be increased, but this should be done in more responsible manner… The regulations currently don’t recognize some unintended consequences.'” According to Tim, these consequences may include the following:

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Bob Horton Content Cited in Leading Guide on Healthcare Valuation

Posted in Uncategorized

The authors of the BVR/AHLA Guide to Healthcare Industry Finance and Valuation cited content from Bob Horton’s 2013 Member Briefing, “Restrictive Covenants in Physician Employment Relationships.” Bob’s briefing, written for the Labor & Employment and the Business Law & Governance Practice Groups of the American Health Lawyers Association (AHLA), outlines the enforceability of restrictive covenants in the healthcare industry. The BVR/AHLA Guide to Healthcare Industry Finance and Valuation covers the best practices in healthcare valuation and how the current market is effecting valuations.

To read more about the BVR/AHLA guide, please visit the Business Valuation Resources (BVR) website.

Impact of ACA Section 1557 on Administration of Healthcare Services

Posted in Discrimination and Harassment Law and Practice

Under new federal regulations, issued in May 2016 with an initial compliance deadline of July 16, 2016, it is now illegal for any healthcare provider that receives federal funding from HHS to discriminate on the basis of sex, race, color, national origin, age and disability.  While many healthcare providers already have in place general nondiscrimination policies, it is important to point out that:  (1) Section 1557 is the first federal civil rights law to broadly prohibit healthcare providers (e.g., certain physician practices, hospitals and health insurers) from discriminating on the basis of gender, gender identity, pregnancy and sex stereotyping; and (2) it will require covered providers to comply with a whole host of new requirements, including appointing a Section 1557 compliance coordinator, adopting a grievance procedure and providing notices.  Notices must be in place by mid-October in order to be in full compliance.  Section 1557 also will require the entities take reasonable steps to provide meaningful access to healthcare services to individuals with limited English proficiency and to individuals with disabilities.

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NLRB Decision Enhances the Risk of Unionization of Joint Employers

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

The National Labor Relations Board (NLRB) recently made it easier for unions to force joint employers to recognize and bargain with unions. In its decision in Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the NLRB made it more likely that joint employers (now defined broadly under other NLRB precedent) will be forced to recognize the union of their co-employers’ workers, and will be required to bargain directly with the union over the terms and conditions of employment it controls. Companies which use temporary staffing agencies and other such third-party agencies, as well as staffing agencies themselves, and franchisees and franchisors all should be aware of the possible consequences. For example, a national franchisor may be required to bargain with a franchisee’s union regarding workplace policies and standards over which the franchisor attempts to assert control. Or, a user of temporary labor could be required to bargain with its staffing agency employees’ union regarding reasons for ending the temporary work assignment, standards for converting the temporary worker to direct employment, workplace policies, assignment of work, production and evaluation standards, and the like. Or, a temporary staffing agency’s employees could be organized by its customer’s employee union and be required to bargain over pay, benefits and other terms and conditions of employment, merely by virtue of its employees being assigned as temporary workers at that particular unionized employer.

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