For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied ...
Our colleague Eric Conn, Chair of Epstein Becker Green's OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA's Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.
Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to ...
On Epstein Becker Green's Management Memo blog, our colleague Adam C. Abrahms writes about the Department of Labor’s delay, once again, of its timeline for finalizing the Persuader Rule.
Below is an excerpt from the blog post:
As we noted in “First Kill All The Lawyers,” last November the DOL announced its intention to move forward this month with the Administration’s Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.
In November the DOL’s announcement asserted ...
In a complimentary webinar on February 20 (1:00 p.m. ET), our colleagues Frank C. Morris, Jr., and Adam C. Solander will review the ongoing impact of the Affordable Care Act (ACA) on employers and their group health plans.
The Treasury Department and the Internal Revenue Service recently issued highly anticipated final regulations implementing the employer shared responsibility provisions of the ACA, also known as the employer mandate. The rules make several important changes in response to comments on the original proposed regulations issued in December 2012 and provide ...
By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel and Casey M. Cosentino
As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.
As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts ...
- H-1B Nonimmigrant Season Opens on April 1, 2014, for Fiscal Year 2015
- H-1B Petition Amendments May Be Required Due to Changed Job Location
- DOL's Administrative Review Board Applies "Bona Fide Termination" Rule to E-3 Worker
- Infosys Pays Record $34 Million in Settlement
- New York Federal District Court Awards Undocumented Immigrants FLSA Damages
- California Passes "Immigrant Friendly" Legislation
- OCAHO Provides ...
Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:
It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action ...
Recently, the Practical Law Company published a Q&A with me regarding issues raised by the Affordable Care Act in mergers and acquisitions. We discussed various items employers should review, such as full-time worker definitions, exposure to tax under the employer mandate, and integration of each party’s health programs. Following is an excerpt:
Q. The ACA is perhaps one of the most talked about pieces of legislation in recent history. ln terms of M&A transactions, what do you think are the ACA's major effects?
A. The ACA has created many new ...
Our colleagues Kara Maciel and Adam Solander have a new Law360 article, "Where ERISA and the Affordable Care Act Collide," that serves as an important wake-up call on staffing decisions that employers have to face.
Following is an excerpt:
In July 2013, the Obama administration announced a delay of the employer mandate provision of the Affordable Care Act for one year (i.e., the employer mandate). While back in July a one-year delay seemed like an eternity, the reality is that given the way in which most employers will determine whether an employee is classified as full-time, and ...
By: Adam C. Abrahms
Yesterday, in his first public address since being confirmed by the Senate, NLRB Board Member Kent Y. Hirozawa shared with the attendees of EBG’s 32nd Annual Client Labor and Employment Briefing his views on the current Board and what to expect from it.
His address, coming the day before Halloween, had all the “BEWARE” foreshadowing of a good ghost story; unfortunately for employers, the potential horrors may not be tricks or treats.
Board Poised For an Active and Productive 2014
As we noted here, when Hirozawa was confirmed as part of a package deal in July the ...
By: Andrew J. Sommer
San Francisco has just become the first municipality in the country to pass a law providing working parents and caregivers the “right to request” flexible or predictable work schedules. The law, which will take effect on January 1, 2014, applies to employers with 20 or more employees within the City of San Francisco. Known as the Family Friendly Workplace Ordinance, the new law allows San Francisco-based employees, after completing six months of employment, to request a flexible or predictable working arrangement so that they can assist with caregiving ...
Our colleague Kara M. Maciel of Epstein Becker Green wrote a wage and hour update in this month’s Take 5 labor and employment newsletter.
Here’s a preview of the five items:
1. IRS Will Begin Taxing a Restaurant's Automatic Gratuities as Service Charges
2. The New DOL Secretary, Tom Perez, Spells Out the WHD's Enforcement Agenda
3. DOL Investigates Health Care Provider and Obtains $4 Million Settlement for Overtime Payments
4. Federal Court Strikes Down DOL Tip Pooling Rule
5. Take Preventative Steps When Facing WHD Audits
Read the full article here.
Our Epstein Becker Green colleagues have posted an NLRB update on the Management Memo blog: “Impact of Government Shutdown on NLRB, Part II: Some Proceedings Delayed Indefinitely, Extensions to Serve and File Documents Granted, New Charges Must Be Filed Within Six Months,” by Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry.
Following is an excerpt:
On Monday October 1, 2013, the Board published a Notice in the Federal Register to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB ...
The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.
Following is an excerpt:
The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.
We recommend this post that was recently published on October 1st, 2013 on the Management Memo blog: “Government Shutdown “Closes” NLRB: 1600 of 1611 Employees Furloughed,” by Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry, our colleagues at Epstein Becker Green.
Following is an excerpt:
The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).
We recommend this recent client alert on Epstein Becker Green's website: "Special Immigration Alert: The Immigration Ripple Effect of a Government Shutdown," by Robert Groban, Jr., Pierre Georges Bonnefil, Patrick Brady, Jang Im, and Greta Ravitsky, our colleagues at Epstein Becker Green.
Following is an excerpt:
The looming prospect of a Government shutdown will have a significant impact on the immigration process. Activities of the U.S. Citizenship and Immigration Services (USCIS) will be largely unaffected because it is funded by the fees it collects. The shutdown ...
By Kara Maciel and Jordan Schwartz
On September 16, 2013, the U.S. Department of Labor (DOL) announced that Harris Health System (“Harris”), a Houston health care provider of emergency, outpatient and inpatient medical services, has agreed to pay more than $4 million in back wages and damages to approximately 4,500 current and former employees for violations of the Fair Labor Standards Act’s overtime and recordkeeping provisions. The DOL made this announcement after its Wage and Hour Division (“WHD”) completed a more than two-year investigation into the ...
We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.
Below is their description of the event:
Violence in the workplace can range from bullying and ...
We recommend this recent post on the Hospitality Labor and Employment Law blog: “IRS Releases Proposed Rules on Employer's Information Reporting Requirements Under the Employer Mandate of the Affordable Care Act,” by Kara Maciel, Adam Solander, and Brandon Ge, our colleagues at Epstein Becker Green.
Following is an excerpt:
On September 5, 2013, the Internal Revenue Service (“IRS”) released two proposed rules to implement important reporting requirements under the Patient Protection and Affordable Care Act (“ACA”), which will help determine penalties under the ...
Our colleagues' OSHA Law Update blog has a post we think will be of interest: "OSHA Launches Ergonomics Campaign in Healthcare Industries," by Eric J. Conn, Head of Epstein Becker Green’s OSHA Practice Group.
Following is an excerpt:
OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care. Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries. These injuries are due in large part to over exertion related to ...
By: Adam C. Abrahms and Stephanie R. Carrington
Since California’s implementation of legislation setting minimum nurse-to-patient staffing ratios in 2004, the issue of nurse staffing has been slowly but surely creeping its way into other states’ legislation, attempts at federal legislation, and of course, into more union contracts.
When it comes to requirements for hospital staffing ratios, federal regulations provide only that hospitals participating in Medicare have “adequate numbers” of nurses and other personnel to provide nursing care. But some states have ...
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama’s nominations for the Board ...
A recent article in Bloomberg BNA's Health Insurance Report will be of interest to health industry employers: "ACA's Employer 'Pay or Play' Mandate Delayed - What Now for Employers?" by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green's Washington, DC, office.
Following is an excerpt:
The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility'' provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their obligations with ...
Our Epstein Becker Green colleague Stuart M. Gerson recently commented in an article titled "4th Circuit Upholds ACA's Employer Mandate, Says Insurance Regulation Within Commerce," by Mary Anne Pazanowski, in Bloomberg BNA's Health Care Daily Report.
Following is an excerpt:
A unanimous U.S. Court of Appeals for the Fourth Circuit July 11 declared the Affordable Care Act's employer mandate a valid exercise of Congress's power to regulate commerce under the U.S. Constitution's Commerce Clause (Liberty University Inc. v. Lew, 4th Cir., No. 10-2347, 7/11/13).
In an opinion ...
I’ve posted a client advisory on the recent ACA employer mandate delay, with my colleagues Frank C. Morris, Jr.; Elizabeth Bradley; and Adam Solander. We explore the ramifications and unresolved issues that employers should consider. Following is an excerpt:
In reaction to employers' concerns about the many difficulties posed in efforts to comply with the Employer Mandate provisions of the Affordable Care Act ("ACA"), the Obama administration ("Administration") announced late yesterday that it is delaying the implementation of the penalty provisions and other aspects of ...
By: Elizabeth Bradley, Kara M. Maciel & Adam Solander
In breaking news, the Obama Administration has now acknowledged the significant regulatory burdens that the January 1, 2014 deadline under the Affordable Care Act would place on employers. Based on reports, the ACA Employer Mandate has been delayed to 2015! We understand that regulatory guidance will be forthcoming this week.
This is welcome news to employers across the country who have been struggling with compliance efforts under the ACA.
Stay tuned to this blog and www.ebglaw.com for additional information.
By: Amy B. Messigian
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation standard. Under such a standard, a plaintiff must present proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The underlying facts of the Nassar case are somewhat complicated. The ...
Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think health industry employers will be interested.
Following is an excerpt:
In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible ...
In February 2013, the Justice Department announced a federal trade secret enforcement initiative that rested in large part on encouraging American businesses to adopt best practices in the area and diligent pursuit of civil remedies, and on parallel criminal law enforcement. As noted in the initiative outline, "The Department of Justice has made the investigation and prosecution of corporate and state sponsored trade secret theft a top priority."
Over the last ten days, events unfolded in New Jersey that showed this new policy initiative to be one involving real ...
By: James P. Flynn
The New Jersey Legislature was overwhelmingly in favor of a measure that would have barred employers from obtaining social media IDs and other social media related information from employees and applicants. Click here for A2878 as passed. But Governor Chris Christie vetoed A-2878 because it would frustrate a business’s ability “to safeguard its business assets and proprietary information” and potentially conflict with regulatory requirements on businesses in regulated industries such as finance and healthcare. Click here for the Governor's Veto ...
By Gretchen Harders and Michelle Capezza
On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These ...
By Adam C. Abrahms and Steven M. Swirsky
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...
Employers with fifty or more full-time employees (including full-time equivalent employees) are subject to the employer mandate penalties under the Patient Protection and Affordable Care Act of 2010, as amended (the “ACA”) which become effective in 2014. These penalties can be triggered if such employers fail to offer a health plan to their full-time employees and their dependents and have at least one full time employee who receives a premium tax credit or cost share reduction in connection with their enrollment in a qualified health plan through an ...
Excerpt from EBG April 2013 Immigration Alert:
On March 8, 2013, the USCIS published a notice in the Federal Register announcing that it had recently revised the Employment Eligibility Verification form (“Form I-9”), and that employers must start using this new form by May 7, 2013. Employers using prior versions of the Form I-9 on or after May 8, 2013, will violate the law and be subject to worksite enforcement fines and other penalties.
Click here to read the full Immigration Alert.
by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that ...
Evan Rosen and Mark M. Trapp of the Labor and Employment practice co-wrote an article titled "What To Know About ACA Collective Bargaining."
Following is an excerpt:
For the unionized employer, the advent of the Affordable Care Act requires careful strategic thought about its impact on upcoming collective bargaining negotiations. Indeed, for companies with a unionized workforce, the ACA poses additional challenges and strategic considerations above and beyond those confronting nonunionized workforces.
We are pleased to announce the release of a new version of our Wage & Hour Guide app that puts federal and state wage-hour laws at health care employers’ fingertips. To download the app, click here.
The new version features an updated main screen design; added support for iOS 6, iPhone 5, iPad Mini, and fourth generation iPad; improved search capabilities; enhanced attorney profiles; expanded email functionality for sharing guide content with others; and easier access to additional wage and hour information on EBG’s website, including the Wage and Hour Division Investigation ...
The April 2013 issue of Take 5 was written by David W. Garland, Chair of Epstein Becker Green's Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.
In it, he summarizes five recent labor and employment actions that employers should consider:
- EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
- Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
- House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
- New York City Human Rights Law Expanded to Prohibit ...
A long-awaited decision on the jurisdiction of Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) over health care providers was released this week. The decision, UPMC Braddock v. Seth Harris(Acting Secretary of Labor), by Judge Paul Friedman of the U.S. District Court for the District of Columbia, upholds broad and deep OFCCP jurisdiction – meaning that hospitals and other health care providers will be required to write affirmative action plans, track and report the race and sex of applicants, and be subjected to ...
Allen Roberts, a Member of Firm in the Labor and Employment practice and co-chair of the firm's Whistleblowing and Compliance Subpractice Group, in the New York office, wrote an article titled "Impact: Employers Brace for Change – Top 5 Issues Facing Businesses, as appeared in Insurance Advocate."
Following is an excerpt:
By popular account, the Affordable Care Act ("ACA") would preserve the base of insureds and extend health insurance coverage to as many as another 32 million Americans. That estimate could be wrong if ACA disrupts patterns and experience of spouse and dependent ...
Labor Relations in 2013
What Health Care Industry Employers Should Know Now! (A Webcast Series)
Part III: When Union Organizing Trumps Patient Care - Aggressive Contract Management Tactics
Thursday, March 28, 2013
12:00 pm - 1:00 pm EDT/ 9:00 am - 10:00 am PDT
Registration Is Complimentary! Webcast Space Is Limited!
To register, please click here.
Please join Epstein Becker Green’s Labor & Employment practitioners for a discussion focusing on new and more aggressive tactics and strategies being employed by health care industry unions.
In Part I and Part II of the series, we ...
On February 20, 2013, the Departments of Labor, Health and Human Services and the Treasury (the “Departments”) jointly issued a set of Frequently Asked Questions (“FAQs”) About Affordable Care Act Implementation (Part XII). In the latest round of guidance, the Departments addressed the limitations on cost-sharing and the coverage of preventive services under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”). This guidance applies only to non-grandfathered group ...
Several colleagues and I recently wrote Health Reform: Key Compliance Actions for the New HIPAA Privacy Regulations, an alert published by the Implementing Health and Insurance Reform team of Epstein Becker Green.
In it, we summarized areas in which employers should consider taking action prior to September 2013 to facilitate compliance with the new requirements. Here are our top five action items for covered entities and business associates to focus on in their Omnibus Rule compliance efforts:
- Review Business Associate Relationships, and Update Business Associate ...
by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry
The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.
While the NLRB had held that the workers actions were ...
Typically, when we blog about physician employment arrangements, we focus on major areas of negotiation, such as compensation, professional liability insurance and termination. However, when the employment arrangement involves the physician, as employee, and a hospital, as employer, such as when the hospital acquires the physician's medical practice, some unique additional issues arise. (Indeed, in a November, 2012 press release, the AMA noted that a survey of final-year residents found nearly 1/3 listed hospital employment as their first choice of practice setting.) As ...
An immigration alert has been issued by our colleagues at Epstein Becker Green: Robert S. Groban Jr., Pierre Georges Bonnefil, Patrick G. Brady, Jang Hyuk Im, and Greta Ravitsky.
Topics include the following:
- H-1B Nonimmigrant Season Opens on April 1, 2013, for Fiscal Year 2014
- Report Finds Immigration Laws Frustrate the Admission of Critical Health Care Professionals
- Senators Offer "Bipartisan" Framework for Comprehensive Immigration Reform
- HHS Issues Proposed Regulation Implementing ACA
- DOJ Settles Worksite Enforcement Claim Against Oregon Homecare Provider
Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides health care and life sciences employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.
The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division ...
by: Adam C. Abrahms, Kara M. Maciel, Evan J. Spelfogel and Steven M. Swirsky
In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board (“NLRB” or “the Board”) in light of recent precedent reversing NLRB decisions. Quoting from early Constitutional authority including The Federalist Papers and Marbury v. Madison, the D.C. Circuit ruled today that President Obama’s “Recess Appointments” of three ...
I wrote the January 2013 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.
In it, I summarize five actions that employers should consider taking in 2013 as the DOL steps up its audit efforts under the leadership of the reenergized Obama administration,
- Assess the Workforce
- Choose Whether to “Pay” or to “Play”
- Evaluate Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac ...
It is no secret that the National Labor Relations Board (the “Board”) is engaged in a purposeful and partisan attempt to issue rules and decisions that benefit unions, often to the detriment of employers, including attempts by the Board to assert itself into non-union workplaces. The decisions that the Board has issued over the past few weeks illustrate that this trend is likely to continue during President Obama’s second term. Indeed, the holiday season has provided unions with additional reason to celebrate as, among other things, the Board has overturned decades of ...
Epstein Becker Green is pleased to announce a webinar series for health care employers focusing on new and more aggressive tactics and strategies being employed by health care industry unions.
This three-part webinar series will provide an in-depth analysis and offer tools to assist employers who currently have union represented workforces as well as those who are or may be facing organizing efforts.
Part I - January 29, 2013
Aggressive Union Organizing Strategies: When Organizing Trumps Patient Care
Part II - February 28, 2013
Aggressive Union Negotiating Tactics
Part III - March ...
by: Maxine H. Neuhauser and Amy E. Hatcher
On January 7, 2013, the New Jersey Department of Labor and Workforce Development (the “Department”) published in the New Jersey Register proposed new rules and notification language to implement a recently enacted law intended to fight gender inequity and bias in the workplace. The notice of proposal is available for downloading here.
The law, which became effective on November 19, 2012, requires every employer in New Jersey with 50 or more employees to post a notice advising employees of their right to be free from gender inequity or bias ...
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule provides standards for the use and disclosure of "individually identifiable health information," dubbed protected health information, or PHI. PHI is information, including demographic information, that relates to an individual's physical or mental health, the provision of health care to the individual, or payment for the provision of health care to the individual. Such information constitutes PHI if it identifies the individual or if there is a reasonable basis to believe it can be ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on employers and their group health plans.
In less than a year, employers employing at least 50 full-time employees will be subject to the Employer Shared Responsibility provisions. Under these provisions, if employers do not offer health coverage or do not offer affordable health coverage that provides a minimum level of value to their full-time employees, they may be subject to a tax penalty under the proposed ...
On Tuesday, December 18, Epstein Becker Green attorneys Gretchen Harders, Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “What Employers Need to Know Now!” as the second webinar in a series on the New ACA Implementation Regulations: Employer Impact.
The webinar included:
- ACA implementation timeline
- Structure of the law and basic concepts affecting employers
- Critical employer decision making and planning for 2014
- Alternative plan design options available to employers
The webinar recording and presentation slides for “What Employers Need to ...
Frank C. Morris, Jr., Member of the Firm in the Litigation, Labor and Employment, and Employee Benefits practices is speaking at the 36th Annual National Labor & Management Conference on the topic of the Affordable Care Act and associated compliance issues facing employers and health and welfare funds.
The National Labor and Management Conference is recognized as one of the most outstanding labor and management programs in the United States, promoting discussion and collaboration on many levels. The program annually unites a diversity of labor and management leaders from ...
Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on employers and their group health plans and programs.
Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit requirements, and ...
On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”
The webinar discussed:
- the proposed regulations and the impact these regulations could have on your overall wellness strategy
- areas where employer comment is needed
- recent wellness litigation trends
- where EEOC fits in the picture
The audio recording and presentation slides for "The New Wellness Program Regulations ...
Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: "Employer Posting Requirements Under New Jersey Law."
Following is an excerpt:
The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees' workplace rights and responsibilities under state law.
Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to ...
In the wake of Hurricane Sandy, employers with employees and operations impacted by Hurricane Sandy are asking what types of tax and employee benefits relief may be available to them and their affected employees. The Internal Revenue Service (“IRS”), the Department of Labor (“DOL”) and the Pension Benefit Guaranty Corporation (“PBGC”) have moved quickly to provide disaster relief guidance for affected employers and their employees.
IRS Relief. In response to Hurricane Sandy, on November 2, 2012, the IRS in IR-2012-84 declared Hurricane Sandy a “qualified ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners for a discussion of the recently released Employer Wellness Program regulations.
The Affordable Care Act created new incentives to promote employer wellness programs and encourage opportunities to support healthier workplaces. As such, HHS, DOL, and Treasury recently released proposed regulations increasing the amount of incentive a group health plan may offer a participant for participation in certain wellness programs
During this program, Epstein Becker Green ...
By Amy J. Traub, Gretchen Harders, Anna Kolontyrsky, and Margaret C. Thering
With the reelection of President Obama, it is clear that employers should be preparing to comply with all of the applicable provisions of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”). As employers well know, the Affordable Care Act contains comprehensive healthcare reform provisions, including, among other things, the mandate that larger employers face penalties starting in 2014 if they do not ...
Kara M. Maciel, contributor to this blog and Member of the Firm at Epstein Becker Green, has released the "HR Guide for Responding to Natural Disasters." Following is an excerpt:
Natural disasters such as hurricanes, earthquakes, and tornadoes have posed unique human resource challenges for employers. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods of time because of damage or loss of utilities.
The economic effects of a natural disaster will have long-term consequences on businesses ...
For a physician who has spent his or her whole professional life developing and growing a medical practice, the process of selling that practice can be a traumatic experience. Typically, the physician may focus on the short term, attempting to maximize the price at which the practice will be purchased and the applicable payment terms. However, the long term happiness of the selling physician may depend less on the size of the purchase price at which the practice is sold, and more on how well the physician negotiates the terms and conditions of employment following the acquisition ...
Epstein Becker & Green, P.C. attorneys Jennifer Goodwin, David Matyas, and Deepa Selvam coauthored an article addressing the importance of promoting greater diversity in the health care workforce. Read the article - "Promoting Greater Diversity in the Healthcare Workforce" - in its entirety, as published in the October 2012 issue of AHLA Connections.
Over the past several weeks the National Labor Relations Board (the "Board") has come down with a series of decisions that attack the very fabric of the employee-employer relationship: at-will employment. Then, in nothing short of a Las Vegas-style double or nothing gambit, the Board did not stop there, but instead doubled down on their offensive against employers by rendering unlawful the confidentiality requirements (pdf) that many health care employers follow in internal investigations.
Almost all employers have a provision in its employee handbook explaining that ...
On August 31, 2012, the Internal Revenue Service (IRS), along with the Department of the Treasury, Department of Labor (DOL) and Department of Health and Human Services (HHS), issued guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) on the application of the employer responsibility standards to large employers (the employer “play or pay” mandate), IRS Notice 2012-58 , and the 90-day limit on waiting periods for group health coverage, IRS Notice 2012-59, DOL ...
By Amy J. Traub and Ian Gabriel Nanos
A new law in Massachusetts prohibits hospitals from requiring nursing staff to work mandatory overtime under most circumstances. The law, which will go into effect in 90 days, has strong support from the Massachusetts Nurses Association/National Nurses United. Citing increased chances for costly mistakes and the dangers to patients associated with mandatory overtime, representatives of the Nurses Association applauded the measure, stating that it will protect patients and ensure safe, quality patient care, while saving money.
Employers ...
It’s no secret that the business of healthcare is growing exponentially. Health insurance coverage is expanding and with it enhanced funding for health-related initiatives. Business models continue to evolve beyond the traditional healthcare delivery systems. Corporately managed healthcare and dental practices are growing.
Corporate wellness programs to combat rising insurance costs are increasingly in vogue. Massachusetts’s recently enacted healthcare cost containment law provides employers with a “wellness tax credit" of up to $10,000 ...
by Joan A. Disler, Michelle Capezza, and Gretchen Harders
Now that the Supreme Court of the United States has upheld essentially all of the provisions of the Obama administration's Affordable Care Act ("ACA"), employers are faced with looming deadlines to bring their group health plans into compliance with the ACA's numerous new requirements. We have prepared for employers a timeline of the highlights of the upcoming deadlines for compliance with the ACA that apply to non-grandfathered group health plans.
On May 16, 2012, the Centers for Medicare and Medicaid Services of the Department of Health and Human Services (“CMS”) published regulations announcing various changes to the Medicare Conditions of Participation (“CoP”) applicable to hospitals. According to the regulatory preamble, these revisions responded directly to the President’s “Executive Order 13563, by reducing outmoded or unnecessarily burdensome rules, and thereby increasing the ability of hospitals and [critical access hospitals] to devote resources to providing high quality patient care.” ...
They say that everything is bigger in Texas, and the Lone Star State’s new privacy protection laws are no exception. Texas House Bill 300 ("HB 300") amends the Texas Medical Records Privacy Act ("Texas Act") and takes effect on September 1, 2012. HB 300 significantly expands patient privacy protections for Texas covered entities beyond those federal requirements as outlined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the Health Information Technology for Economic and Clinical Health ("HITECH") Act by:
•revising the definition of a ...
Written by: Kara M. Maciel and Adam C. Solander
While some employers may have been disappointed with the U.S. Supreme Court’s recent decision affirming the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), there may be a silver lining to the seemingly dark cloud. By virtue of upholding PPACA, the Supreme Court also upheld Section 2705 of PPACA, the provision of the law that will allow employers to provide their employees incentives, up to 30 percent of their premiums, in return for participation in an employer-sponsored wellness program. ...
A two-part video featuring Paul Rosenberg and Evan Rosen
The past year has seen a radical transformation of the rules and laws governing labor relations. The National Labor Relations Board (NLRB), through both its rule-making and decision-making powers, has made a series of changes with one thing in common–labor unions will find it easier to organize employees and achieve their expansion goals. To help employers understand these new changes by the NLRB and how they affect them, the national law firm of Epstein Becker Green, through its Health Employment And Labor (HEAL) Group, has ...
By Amy Traub, Michael Kun, and Anna Kolontyrsky
As employers know, not only are FLSA collective actions more prevalent than ever, but they can be costly to defend or resolve. In an attempt to bring quick closure to such cases, somedefendants have attempted to settle such claims with the individual plaintiff alone through a Rule 68 offer of judgment before a class has been conditionally certified.
This strategy has come under attack. And the United States Supreme Court will now determine whether it is permissible.
The United States Supreme Court has elected to review a Third Circuit ...
On Monday, July 2, 2012, Epstein Becker Green conducted a webinar titled "Decision 2012: What's In, What's Out, and What's Next?" examining the monumental decision (PDF) issued by the Supreme Court of the United States on the Patient Protection and Affordable Care Act.
This webinar analyzed the decision and its implications for the states, the health care and life sciences industry, and employers. It also addressed potential congressional activity and the decision's impact on the presidential election.
By now, every American who pays any attention to the news is aware that the Supreme Court of the United States has upheld essentially all of the Obama administration's Affordable Care Act. We have posted a copy of the lengthy opinion, concurrence, and dissent on our website. For now, we should be focusing on what the case of National Federation of Independent Business v. Sebelius actually will cause to occur.
Written by: Eric J. Conn and Alexis M. Downs
This week, Washington Legal Foundation published an article regarding OSHA’s New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs. The article expands on a February 2012 post entitled “Enterprise Enforcement: OSHA’s Attack on Employers with Multiple Locations” here on the OSHA Law Update Blog.
The gist of the article and the prior blog post is that companies that operate multiple facilities in different locations, such as national retail and grocery chains, grain ...
By: Michael Thompson
The United States Supreme Court has ruled that pharmaceutical sales representatives (PSRs) are “outside salesmen” who are not entitled to overtime under the Fair Labor Standards Act (FLSA). The high court’s ruling was predicated on its finding that, in the pharmaceutical industry’s “unique regulatory environment,” the commitments obtained by PSRs equate to traditional sales. Furthermore, the Supreme Court rebuked the Department of Labor (DOL) for “unfairly surprising” the industry by filing amicus briefs arguing that PSRs were not ...
Written By: Adam C. Abrahms
Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity. The NLRB’s announcement of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”
The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix ...
Epstein Becker Green is proud to announce that it has received the 2012 Chambers USA Award for Excellence in the Healthcare category. The results were announced at an awards dinner held on Thursday, June 7, 2012, in New York. Other firms nominated in the Healthcare category included Akin Gump Strauss Hauer & Feld LLP; Hogan Lovells US LLP; King & Spalding LLP; McDermott Will & Emery LLP; Ober Kaler Grimes & Shriver PC; and Proskauer Rose LLP.
The Chambers USA Awards for Excellence are based on research for the 2012 edition of Chambers USA: America's Leading Lawyers for Business and reflect ...
In 2012, both of Epstein Becker Green's founding practices, Health Care & Life Sciences and Labor & Employment, as well as several individual attorneys, were recognized as leaders in their fields of practice.
Specifically, Jay P. Krupin and Steven Swirsky were recognized in the Labor and Employment Management Relations Category.
Click here to read more about Epstein Becker Green’s recognition by Legal 500 United States
It should be an easy matter for an employer to determine which federal laws apply to it. Not so, however, given the way in which the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) administers and enforces the federal affirmative action laws (Executive Order 11246, the Rehabilitation Act, and the Vietnam Era Veterans Readjustment Assistance Act).
In the last sixteen months, OFCCP has (a) issued an expansive and controversial new “Directive 293,” asserting broad and deep jurisdiction over health care providers who participate in TRICARE, FEHBP ...
In May 2012, the Employee Benefit Research Institute (“EBRI”) issued a report showing that the percentage of workers covered by employer-sponsored health care coverage (measured through April 2011) continued to fall despite improvement in the economy. Employer-sponsored health care coverage is the most common source of health care coverage for workers who exceed the poverty line and who are not yet eligible for Medicare. It covers approximately 69% of workers, 46% of non-working adults and 55% of children.
The EBRI report notes that there is a generally recognized link ...
As of May 18, 2012, U.S. Citizenship and Immigration Services (USCIS) has received 42,000 petitions that count against the 65,000 H-1B Regular Cap, and 16,000 petitions that count against the 20,000 H-1B Master's Cap. USCIS will continue to accept new petitions until it has filled the H-1B Regular and Master’s Cap.
Click here to read the Special Immigration Alert in its entirety.
Join us Wednesday, June 20, 2012 at 9:00 am Eastern either by Webinar or in person for a complimentary briefing presented by Epstein Becker Green attorneys Eric J. Conn and Amanda R. Strainis-Walker of the Firm’s national OSHA Practice Group.
The briefing will cover actions that employers can take now to prepare their workplaces and workforce for unexpected visits from the Occupational Safety and Health Administration (OSHA), review employers’ and employees’ rights during an OSHA inspection, and discuss inspection strategies to ensure the best possible outcome from an ...
For those healthcare employers that have been resting on your laurels and viewing through rose-colored glasses your entity’s HIPAA (Health Insurance Portability and Accountability Act of 1996) and HITECH (Health Information Technology for Economic and Clinical Health) compliance efforts, the time has come to thoroughly clean your glasses and prepare for increased Office of Civil Rights (“OCR”) enforcement actions. Speaking at the recent National HIPAA Summit, the OCR’s Director, Leon Rodriguez, announced that the OCR intends to follow the Office of Inspector ...
by James S. Frank, Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry
In a sharp setback for the National Labor Relations Board (the "Board"), a federal district court in Washington, D.C. (the "Court"), struck down the Board's election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes ...
RECENT PRESS COVERAGE
Rock Center with Brian Williams recently featured a story about hospitals that were "overwhelmed by ‘permanent residents.’" The focus of the piece was individuals whose need for acute care in a hospital had long since been addressed, but who have no insurance or other way to pay for the long-term care they do need, in a nursing home or rehabilitation facility, or in their own home. Without a safe place to which discharge is available for these patients, hospitals must continue to provide for their care.
One of the individuals profiled by the piece, and many ...
Epstein Becker Green has been designated by the Health Information Trust Alliance (HITRUST) as a Common Security Framework (CSF) Assessor. This will allow the firm to provide health care organizations with privacy and security risk assessments to protect the entities from breaches of protected health information (PHI). The health care industry has accepted the HITRUST CSF as the most widely adopted security framework. Epstein Becker Green is the first law firm to become a CSF Assessor and the designation exemplifies the firm's distinct capability to identify and address risk for ...
Historically, health care provider employers and employees have tended to use termination "without cause" as a proxy for termination "without fault." That is, in the traditional physician employment agreement, there may be one set of consequences if the agreement is terminated "with cause," and another, different set of consequences if the agreement is terminated "without cause," with those consequences established on the assumption that "without cause" means the employee is not at fault. As described below, that assumption may be both incorrect ...
Sadly, workplace violence continues to be a topic that many organizations face, especially those in the health care industry. Indeed, as the news reports serve to remind us all, employees and non-employees often take out their aggression and violent acts within the workplace. As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and nonfatal assaults and violent acts committed within the workplace. One of the struggles that employers face is trying to prevent violent conduct by third-party non employees that are ...
We are pleased to announce the release of the inaugural edition of the quarterly Benefits Litigation Update (“Update”) - a joint project between Epstein Becker Green and The ERISA Industry Committee (ERIC), a non-profit association committed to representing the advancement of the employee retirement, health, and compensation plans of America’s largest employers.
The Update is a quarterly publication which provides two primary components:
- a Featured Article addressing a trend or topic currently being discussed in the benefits community which (i) explains why the ...
By: Kara M. Maciel and Matthew Sorensen
Social media has become an increasingly important tool for businesses to market their products and services. As the use of social media in business continues to grow, companies will face new challenges with respect to the protection of their confidential information and business goodwill, as several recent federal district court decisions demonstrate.
Christou v. Beatport, LLC (D. Colo. 2012), Ardis Health, LLC v. Nankivell (S.D. N.Y. 2011), and PhoneDog v. Kravitz (N.D. Cal. 2011) each involved former employees who took the login ...
Written by: Evan Rosen
As we have previously reported on this blog, the National Labor Relations Board (the “Board”) issued a highly controversial rule requiring private employers to post a notice informing employees of their right to join or form a union. Implementation of the rule has been postponed several times, but was finally set to go into effect on April 30, 2012.
Thankfully, the courts have once again intervened to provide a respite to employers. Today, the D.C. Circuit Court enjoined implementation of the rule pending an appeal in the underlying case brought against ...
By Julia E. Lloyd and Eric J. Conn
Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”). In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.” Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient ...
Written by: Greta Ravitsky
A Texas hospital has recently been the subject of much media coverage due to its controversial hiring policy that bars overweight applications from consideration. Per the hiring policy, which was instituted last year at the Citizens Medical Center in Victoria, the hospital would only consider potential employees with a body mass index of less than 35. This equates to roughly 210 pounds for someone who is 5’5” tall or 245 pounds for someone 5’10.” In an interview with the Texas Tribune, the hospital’s CEO defended this policy as catering to its ...
On March 26, 27 and 28, 2012, the Justices of the Supreme Court of the United States (“SCOTUS”) heard oral arguments in a series of cases, including Department of Health and Human Services, et al. v. State of Florida, et al, which addresses the constitutionality of certain provisions of the Patient Protection and Affordable Care Act of 2010 (“PPACA”). In the three days of testimony, SCOTUS debated whether (1) the Anti-Injunction Act bars a decision until a tax is actually collected under PPACA, (2) the individual mandate to buy health insurance under PPACA is a valid exercise of ...
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