Let’s Get Practical: A discussion of common employment issues

1. Let’s Get Practical:A discussion of common employment issues Samantha S. Otero McCandlish Holton, PC Richmond, Virginia (804) 775-3868 sotero@lawmh.com

2. Recent Employment Law Updates Effective July 1, 2013, employers must report every new hire to the New Hire Reporting Center (a part of the division of Child Support Enforcement) within 20 days of employment commencing. The AMA designated obesity as a disease. This will likely mean that courts will find the obese persons have a disability. The Fourth Circuit held in 2013 that Virginia employers do not need to post notices informing employees of their right to unionize. Last summer the Department of Labor issued Fact Sheet #71 – Internship Programs under the Fair Labor Standards Act - which essentially states that interns in the for-profit private sector will be viewed as employees. Six criteria apply if the employer wishes to escape payment of wages. EEOC is focusing now on religious discrimination

3. Top Reasons Why Health Care Practices Seek Employment Law Advice • Wage and Hour Issues (Fair Labor Standards Act) • Family and Medical Leave Act paperwork • Americans with Disabilities Act • Physician Issues • Hiring/Employment Contracts/Noncompetes • Firing/Poor Performance, Unacceptable Conduct • Unemployment Claims • EEOC filings and responses • Employee Handbooks

4. Wage and Hour Questions Can I deduct from a provider’s pay if they are not performing up to expectations? Are nurses automatically exempt from overtime/minimum wage requirements? Can I have exempt employees clock in and out? What if a nonexempt employee is working off the clock?

5. Family and Medical Leave Act Paperwork • FMLA paperwork (in general) • First round – paperwork to be sent to EE within 5 business days of receiving a “request” • HD Publication 1420- Employee Rights and Responsibilities: Outlines EE rights and duties under FMLA. • WH-381 – Notice of Eligibility and Rights and Responsibilities: Sets forth specific rights and responsibilities as an employee of the company. • WH-380E or WH-380F– Certification of Health Care Provider for Employee's/Family Member’s Serious Health Condition: This form must be completed and returned to the ER within 15 calendar days of EE’s receipt. • Job Description (if leave is for employee’s condition): This should be provided to any health care provider who will be certifying the need for leave. • HIPAA form – can be included but should not be required • Second Round – designate leave • WH-382 – Designation Notice – to be sent within 5 business days of determining that leave qualifies as FMLA leave • Third Round – if leave is for continuous period or if intermittent leave may amount to more than 12 weeks, send a letter to EE 2 weeks before his leave will expire, reminding him of end of leave period, and requesting that he submit any questions/information he may have regarding a continuing need for leave.

6. Americans with Disabilities Act • Is leave an accommodation under the ADA? • YES! If reasonable and “defined” • Review precedent • Review other leave policies • If an EE does not request an accommodation, are we obligated to provide one? • Possibly – you should engage in the collaborative process.

7. Physician Contract Issues • Are our employment agreements up to date? • Practices should have their physician agreements reviewed by counsel every 2-3 years, particularly if you have noncompete agreements. • Noncompete agreements should contain disclaimers – • Allowing for the practice to agree in writing to proposed employment by former physician. • Explaining that nothing in the agreement should be read to preclude physician from performing any work that is not competitive with the practice. • Can we modify noncompetes for individual physicians? • Yes, but be careful. You have to prove that the restrictions are reasonable with respect to your legitimate business interests, so if each contract has a different geographic area or time restriction, you will have a more difficult time doing so. • Can we have different contracts for different specialties/practices/locations? • Of course – so long as you are able to maintain the increase in administrative burden.

8. Physician Behavior Issues • Can we terminate a physician if he treats staff poorly? Issues to consider: • Termination provision in contract? Will the behavior amount to “cause”? • Do you have a policy covering physician behavior and if so, was the physician notified of it? • What is the precedent – have you allowed other physicians to remain employed in spite of their poor treatment of staff? • Is this a shareholder and if so, is all paperwork in order/signed? Is the “buy-in” paperwork consistent with the physician’s contract?

9. Unemployment Claims • Can be handled by ER without representation • EE must have performed service “during 30 days” (whether or not consecutive) or for 240 hours • Misconduct cases • Be proactive with documenting behavior in writing – citing any policies that were violated • Have policies that address specific behaviors • Have EVERY employee sign an acknowledgement that they have received the policies • When response is due to VEC, attach signed acknowledgement page, policy that was violated, and warning(s) given to employee and explain that basis for termination was due to additional violations of policy. • Voluntary Quit cases • If EE gives notice of resignation, try to avoid letting her go immediately • If EE is a no-call/no-show, send letter confirming that, pursuant to policies, she has resigned • If EE outright quits, send documentation confirming her resignation and the date on which it occurred

10. EEOC Charges ER should engage legal representation EE has 300 days from the date of the discrimination, to file a Charge ER will receive a Charge and possibly a Request for Information from the local EEOC office, containing allegations by the current or former EE Mediation is always an option, as is a continuance ER will be required to submit a Position Statement EEOC will (eventually) respond with a Right to Sue letter or it will take the case itself EE has 90 days following receipt of Right to Sue letter, to sue

11. Employee Manuals • “Required” provisions • Contract disclaimer • At-will employment reference • Sexual harassment policy and reporting language • Religious accommodation reference • Disability accommodation reference • Workers’ compensation reporting language • Attendance policy • Behavior expectations • Overtime provisions/classifications/work hours • Family and Medical Leave Act provision – for ERs with more than 50 EEs within 75 miles • “No right of privacy” language • Confidentiality – for both proprietary information and HIPAA-related issues

12. Contact Information McCandlish Holton’s large Health Care Practice Group represents physician practice groups, hospitals, payors, and long term care providers in regulatory, transactional, reimbursement and employment law matters. www.lawmh.com