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Just in Time for Summer:Scorching Hot Labor and Employment 

Law Topics

SPENCER A. KINDERMANLYNLEE WELLS PALMER

GILPIN GIVHAN, PC

AGENDA1. More Paperwork!  Documenting Employee 

Issues in Long Term Care

2. FMLA 501: Advanced FMLA Problem‐Solving

3. Strategies for Keeping Your Workforce Union‐Free

What Do You Mean, MORE Paperwork?!Documenting Employee Issues

in Long Term Care

LYNLEE WELLS PALMERGILPIN GIVHAN, PCEmail: lpalmer@gilpingivhan.comWebsite: www.GilpinGivhan.com

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The Health Care Worker’s Mantra

If it isn’t written down, it didn’t happen

Medical Records/Issues- Everything done with 4 important

things in mind:

(1) Ensuring the best possible resident care;

(2) Getting paid;(3) Potential reports to ADPH;

and(4) Potential litigation.

Why are employee issues different?

Documentation is Most Common Employee Issue in LTC

• “I didn’t have time to document it”

• “If I documented every employee issue, I’d never do anything with my residents”

• “I was trying to be efficient when I wrote the employee up for his last 7 infractions all at once”

• If you leave tomorrow, your successors need to know what issues apply to which employees

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Why is Written Discipline Important?

• Establishes a record of prior violations

• Avoids employee surprise• Improves performance• Makes it easier for you to prove that termination was not motivated by an improper factor

• Ensures that employees who repeatedly violate policies are not retained longer than necessary

Sometimes Documents Contain Too Little Information

• “Employee is always late” – when?

• “Employee violated company policy” – which one?

• No prior documentation of chronic performance problem

• Failing to include dates• Failing to sign • Missing documentation

Other Times, Documents Contain Too Much Information

• Residents’ names• Legal conclusions

• “negligence”• “abuse”• “violation of the

Nurse Practice Act”• “guilty of sexual

harassment”• “discriminated

against co-worker”• Medical equipment (!)

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Employee Disciplinary Form: Exhibit A

“Employee removed extension tube with bag attached and threw it in the garbage of a peritoneal dialysis pt. She did not report any complication of dialysis fluid exchange. Was not aware she left the … cath exposed and left [resident name] in life-threatening situation with potential for peritonitis.”

Employee Disciplinary Form:Exhibit B

My favorite reason for termination:

Category One Violation: Gross negligence ofpatience in the performance of job duties.

Employee Disciplinary Form:Exhibit C

“Employee letresidents A, B, C, D,and E fall duringtransfers. Employeehas a repeatedpattern of failing toprovide safe care andcan’t seem to learnhow to transferresidents properly.”

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Employee Disciplinary Form:Exhibit D

“Wound nurse did not change resident dressings for five days.”

Employee Disciplinary Form:Exhibit E

Employee called in with a stomach virus:

“Kristy and her children has a sickly problem often.  If it’s not herbeing sick, it’s one of her children.”

Employee Termination Form: Exhibit F

“He called her sexy ass and fat ass numerous times.  He has said to her ‘damn you look sexy.’ He has said to her ‘look at that’ as she was walking down the hall.  He has said to her ‘I would like to have sex with a black girl.’  He has said to her ‘How many time do you and your husband have sex?’  He has been harassing her for 2 years.”

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What Should a Disciplinary Form Contain?

• Limited facts about what employee did (NOT resident names)

• Identification of the policy/policies violated

• Where the employee is in the disciplinary process

• What the employee should do to improve• Consequences of failure to improve• Date of the disciplinary action• Signature of employee, person giving 

discipline, and witness• Who, what, when and where.  The why is 

usually for the employee to explain.

What if the Employee Refuses to Sign?

• Remind employee that signature is not an acknowledgment that she did something wrong

• Include statement on disciplinary form that indicates employee signature is acknowledgment of receipt only

• Encourage employee to write her version of events

• What about writing “Employee refused to sign”?

Performance Evaluation Problems

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Performance Evaluation ProblemsCindy CNA is a bit of a bully on the 3-11 shift. After themanagement types leave for the day, she thinks she runs the place,refuses to help anyone else, and takes extended smoke breaks.Several of Cindy’s co-workers have complained to Lisa LPN. Lisatalked to Cindy about the issue, and Cindy promised to improve. Co-workers continued to complain to Lisa and ultimately to AndiAdministrator. Andi, who had not heard of these problems from Lisa,started an investigation and learned that this was an ongoingproblem with Cindy. Andi decided to move Cindy to the 7-3 shift,where she could be more closely supervised. Shortly after the move,Cindy’s performance evaluation was done. Thereafter, Cindydisplayed some problems with her attitude, as well as with herresident care. When an investigation of the resident care issues wasdone, it was discovered that Cindy had repeated problems withchanging residents in a timely fashion. At the conclusion of theinvestigation, Cindy’s employment was terminated. When she filed alawsuit for wrongful discharge, what did the facility’s lawyer find inCindy’s personnel file?

Do you see any disciplinary actions?

Performance Evaluation Pointers

• BE HONEST (this is the time for confrontation).  Don’t sugar‐coat.

• Review the employee’s personnel file before completing the evaluation.

• Consult with the employee’s direct supervisor(s).

• Don’t just check the box.  Explain what the issues are; state facts.

• Use objective factors when possible.• Discuss the performance appraisal with 

the employee and allow employee comment.

• Be consistent.• Evaluate everyone.  On time.

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The Link Between Discipline, Evaluations and Termination

• Employees terminated for poor performance should not be surprised

• Issues should be addressed through the disciplinary process and in performance evaluations

Investigations• Employee statements are best if they 

are written and signed by the employee, not just by you

• Always get a written statement from the employee being investigated

• Keep notes of who you talked to, when, who was present, and what was said – even if the employee writes a statement

• It’s ok to ask the employee to write more, if they have left something out of their statement

• Document follow‐up meetings with employees

• Summarize the investigation and your conclusion

Employee Complaints/ Meetings

• If an employee complains (or a resident/family member complains about an employee), write it down and investigate it.

• If you meet with an employee for any work‐related reason, document it.

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What about other employee documentation?

‐ Personnel files of other employees who did similar things

‐ Documents about Plaintiff, her job, or things she did wrong:‐ Emails‐ Text messages‐ Faxes‐ Notes‐ Diary/calendar entries‐ Log books

‐ YOUR personnel file (do you have one?)

Beware of Emails and Text Messages

• Especially dangerous betweenpeople who are friends or knoweach other very well• Read and re-read before you hitsend• Always be professional• Be concise• Remember that anything you writemay be an exhibit in later litigation• Remember that it never disappears• Print out critical informationpertaining to employees

Make Sure that Key Employment Issues Are In Writing

• Disciplinary actions (even verbal ones)

• Performance evaluations• Shift changes• Pay changes• Training• Termination• Resignation• Other employee requests

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Timing of Documentation

• As soon as possible after the event that prompts the document.  Stale documents aren’t palatable.

• Do not wait, hoping that performance will get better; without documentation, it probably won’t

• Do not backdate documentation.  Ever.

Important Thoughts About Documentation

- What would my mother think?- What would my clergyman think?- What would a jury think?

FMLA 501: GRADUATE LEVELFMLA PROBLEM SOLVING

SPENCER A. KINDERMANLYNLEE WELLS PALMER

GILPIN GIVHAN, PCEmail: skinderman@GilpinGivhan.com

lpalmer@gilpingivhan.comWebsite: www.GilpinGivhan.com

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FMLA BASICS REFRESHER• FMLA provides eligible employees of covered employers with

up to 12 workweeks of job-protected leave within a designated 12 month period for certain qualifying reasons.

• Eligible Employees: 12 non-consecutive months / 1250 hours worked within the preceding 12 months

• Covered Employers: 50 employees within 75 miles• Qualifying Reasons:

• Birth or placement of a child• Spouse, child, or parent with a serious health condition• Employee’s own serious health condition• Spouse, child or parent on active duty and a qualifying

exigency arises• Spouse, child or parent that suffers serious illness in line

of duty

SERIOUS HEALTH CONDITION• Inpatient care (i.e., an overnight

stay), or• Continuing treatment by a

healthcare provider:• Due to a period of incapacity that is

more than 3 consecutive calendar days + continuing treatment

• Due to pregnancy or for prenatal care

• Due to or for treatment of a chronic serious health condition

• Necessitated by a permanent or long term condition

• To receive multiple treatments for restorative surgery after accident or injury

TYPICAL SERIOUS HEALTH CONDITION SITUATIONS

• Treatment to determine existence of a serious health condition

• Treatment for substance abuse

• Worker’s compensation covered injuries

• Conditions covered under short-or long-term disability policies

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NOTICE REQUIREMENTS

EMPLOYEE• 30 days for foreseeable

leave• “As soon as practicable” for

unforeseeable leave• “As is reasonable and

practicable” for military-related leave

• Employee need not mention the FMLA

• Notice need not be in writing

EMPLOYER• Must designate leave as

FMLA qualifying within -- business days

• May seek medical certification

• Allow employee at least 15 Days to provide certification

• Advise employee of consequences of failing to provide

DURATION OF LEAVE• Continuously• Intermittently: FMLA

leave taken in separate blocks of time due to a single qualifying reason

• On a Reduced Leave Schedule: a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday

JOB RESTORATION RIGHTS

• Same position• Equivalent position

– Pay– Duties– Benefits

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HYPOTHETICAL #1 : NOTICEBob is a maintenance employee for Lake Living Nursing Home, a position he hasheld for two years. On Thursday, November 8, 2007, Bob goes to HR and statesthat he has to have foot surgery and will need to be off work. HR asks whetherthe surgery is scheduled. Bob says no. HR gives Bob FMLA request forms,including a Healthcare Provider Certification for Bob’s doctor to complete.Instructs Bob to let the facility know when the surgery is scheduled andindicates that HPC must be returned within 15 days. The forms do not specifythe consequences for failing to turn in the form.

Bob goes to doctor on Friday the 9th. Doctor schedules surgery for thefollowing Tuesday, the 13th. Bob does not inform Lake Living of the surgerydate. Bob does not appear for work on Tuesday or any subsequent scheduledworkday, and does not follow the established call in policy. On the 21st, LakeLiving, not having heard from Bob, deems him to have abandoned his job underthe attendance policy (three days no call-no show) and sends him a COBRAnotice. Thereafter, the facility receives the completed HPC form from Bob’sdoctor on the 29th, which indicates that Bob needs to have surgery and be offwork for 6 to 8 weeks. Upon receiving the COBRA notice, Bob contacts HR,claims that he is out on an FMLA leave and that he used the call-in policy whenhe was absent. What do you do?

HYPO #1: ISSUES

1) Was Bob’s initial request timely?2) Is Lake Living’s failure to notify Bob of

consequences of failing to return the HPC form problematic?

3) What is the effect of Bob’s failure to notify Lake Living of scheduled surgery?

4) What is the effect of Bob’s failure to follow call-in policy?

5) Is there a problem with the timing of Bob’s termination?

HYPO #1: TAKEAWAYS

1) Enforce notice requirements

2) Make sure your paperwork has the required language

3) Require certification

4) Investigate thoroughly before making termination decision

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HYPOTHETICAL #2 : ELIGIBILITY

Georgina is hired by Beautiful Sunset Nursing and Rehabin October 2010. On July 1, 2011, Georgina informsher supervisor that she is pregnant and intends to takeFMLA leave at the time her child is due in January2012. Two weeks after Georgina’s announcement, sheis disciplined for poor work performance. Prior to thistime, Georgina had not been disciplined. Over thecourse of the next two months, Georgina is written upon several occasions for performance-related issues,and ultimately terminated in September 2011.Georgina files suit under the FMLA. Does she have aclaim?

HYPO #2: ISSUES

1) Is Georgina an eligible employee?2) Can she assert an interference claim?3) Can she assert a retaliation claim?

HYPO #2: TAKEAWAYS

1) Pre-eligible employees are protected from interference with post-eligible leaves.

2) Pre-eligible discussion of post-eligible FMLA leave constitutes protected activity for purposes of a retaliation claim.

3) Document disciplinary issues carefully, understanding the potential risk of a retaliation claim.

4) Don’t treat pre-eligible employees who notify you of a future leave differently.

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HYPOTHETICAL #3 : FRAUDCarol, a RN for Caring Hands Long Term Care, regularly works 12hour shifts, walking frequently, pushing the med cart,administering medications, and providing general nursing care toresidents. After a particularly strenuous shift, Carol developssevere back pain. Carol’s doctor approves her for a six week FMLAleave. Carol applies for and receives STD benefits. While on FMLAleave, Carol takes a preplanned trip to Mexico. While on her trip,Carol posts several pictures to her Facebook page, showing herriding in a speedboat, holding up bottles of beer in one hand, andholding her infant grandchildren, one in each arm. Her Facebookpage also describes her activities, including watching hergrandchildren, taking online classes and going on trips to HomeDepot. Several of Carol’s co-workers, who are her “friends” onFacebook and who see the pictures Carol has posted, complain toCarol’s supervisors that she is misusing FMLA leave. What do youdo?

HYPO #3: ISSUES

1) Do you confront Carol?2) Do you have sufficient

evidence to conclude that Carol has committed FMLA fraud?

3) Does your FMLA policy prohibit fraud?

HYPO #3: TAKEAWAYS

1) Always fully investigate potential FMLA fraud.

2) Make sure that your FMLA policy prohibits fraud.

3) The “honest belief” doctrine allows an employer who “honestly believes”, based on particularized facts, that an employee lied and misused his or her FMLA leave, to discipline/terminate that employee based on such belief.

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HYPOTHETICAL #4 : ELIGIBILITYOn December 4, 2011, Jill is assigned by Nurses R Us, a staffingcompany, to We Love the Elderly as a full-time temporaryemployee. This relationship continues until July 24, 2012, whenJill accepts a permanent full-time position with We Love theElderly, thus terminating her relationship with Nurses R Us. OnJanuary 30, 2013, Jill seeks medical attention for pain in her back,neck and shoulder regions. Her doctor informs her that she willneed surgery and will have to be off work for approximately eightweeks. Jill submits this information, including documentationfrom her doctor detailing the need for surgery, to We Love theElderly. On February 14, 2013, We Love the Elderly sends Jill aletter indicating that it does not believe that she is entitled toFMLA leave because she is not an eligible employee. Jill, however,claims she cannot physically work. She proceeds with the surgery.On March 18, 2013, We Love the Elderly terminates Jill forexcessive absenteeism.

HYPO #4: ISSUES1) Is Jill an eligible

employee?2) Had she worked for We

Love the Elderly for at least a year at the time she requested leave?

3) Can the time during which Jill was classified as an employee of Nurses R Us while working at We Love the Elderly's facility be used to determine the length of her employment with We Love the Elderly for FMLA eligibility purposes?

HYPO #4: TAKEAWAYS

• You must count the time an employee works for you as a temp when determining FMLA eligibility.

• What about PRN employees?• In a joint employer situation, a

secondary employer may be required to reinstate a temporary employee who takes FMLA leave through the primary employer.

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HYPOTHETICAL #5 : RETURN FROM LEAVERobert works for the County as a parole officer. His job requires him tooversee adult parolees in an effort to minimize recidivism, facilitatereentry into society, and protect the community. His job duties includemany offsite activities, such as visiting parolees in their homes,performing drug screenings, ensuring compliance with court orders, andtestifying in court. In January 2010, Robert begins experiencing severepain in his back and hips that is ultimately diagnosed as sacroiliac jointdysfunction. He continues to perform his job duties, but is unable totravel and therefore performs many of his duties from his office. Many ofhis offsite duties are temporarily reassigned to his co-workers, whichcauses friction in the office. In April 2010, Robert takes FMLA leave andhas surgery. On July 10, 2010, Robert’s FMLA leave expires. At that time,his doctor indicates that he is still not able to return to office work, butmay be able to walk with a cane in 2-3 more weeks, and unassisted 2weeks after that. Robert’s doctor is unsure of when he will be able toresume all of his regular offsite duties. Can you terminate Robert’semployment? Or should you extend Robert’s leave of absence?

HYPO #5: ISSUES

• Would terminating Robert violate the FMLA?

• Should you consider any other laws prior to terminating Robert?

HYPO #5: TAKEAWAYS1) Review your FMLA policy to ensure that it does

not indicate that employees who fail to return from FMLA leave after exhausting their twelve weeks will be automatically terminated.

2) Always remember to consider the interplay between the FMLA and other laws, such as the ADA, when making employment decisions.

3) If an employee requests an extension of leave beyond 12 weeks, consider the length of the requested leave and whether the additional time off will enable the employee to return to work and perform all of the essential functions of his or her position.

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HYPOTHETICAL #6 : LACK OF COMMUNICATIONIma Payne begins working for PDQ Care Center, a large facility, in 2007. In2009, Ima begins suffering health problems, including cellulitis, low cranialspinal fluid, chronic headaches/migraines and complications from a priorvascular surgery. These health problems cause Ima to have extreme troublebending, stooping and walking. On May 28, 2009, Ima informs PDQ’s humanresources director that she needs to take a leave of absence to undergomedical treatment for these problems in the hospital. Over a month later,PDQ sends Ima an FMLA healthcare provider certification form, which she hasher doctor complete promptly and return to PDQ. On the form, Ima’s doctorindicates that her anticipated date for returning to work is August 28, 2009.PDQ does not have any further communication with Ima until late August whenthey inform that she will be terminated because her doctor did not clear herto return to work until August 28, eight days after Ima’s 12 weeks of leaveexpired on August 20. Prior to this communication, PDQ had not notified Imathat she was eligible for FMLA leave, the amount of time she had available, orthe date on which her reinstatement rights expired. Ima claims that had sheknown that there was a problem with her August 28 return date, she wouldhave complied with the August 20 deadline as the last few days she was offwere just precautionary.

HYPO #6: ISSUES• Did Ima give proper

notice of her need for leave?

• Did PDQ give Imaproper notice that her leave was FMLA-qualifying?

• Can Ima assert an interference claim even though she received 12 weeks of FMLA leave?

HYPO #6: TAKEAWAYS

• Follow the FMLA’s notice provisions religiously.

• Communicate clearly with employees during their leave about when the leave expires and when they must return in order to ensure reinstatement to their position.

• If it appears that the employee is going to exceed his or her available allotment of leave, make sure that you communicate this fact to them in writing and the consequences for taking more than 12 weeks of leave.

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HYPOTHETICAL #7 : SERIOUS HEALTH CONDITIONLucy Legg began working for Serious Care in 2000 as a CNA. Throughout heremployment, Lucy suffered from periodic leg and back pain and bouts ofanxiety. These ailments require Lucy to see her doctor every two to threemonths and take prescription medication. On September 30, 2009, Lucyspeaks to Serious’s HR Department about her medical condition and seeksleave to attend an appointment at 1:00 pm the following day with a specialistto whom she has been referred by her primary doctor. The FMLA coordinatorapproves Lucy’s request, but instructs her to notify her supervisor when sheleaves for the appointment the following day. Rather than taking a ½ day off,however, Lucy takes the entire following day off. During the morning, shestops by her primary physician’s office to confirm her referral and get aprescription refilled. She then proceeds to her 1:00 pm appointment. Whenshe returns to work the following day, she is written up under Serious’sattendance policy, which utilizes a points system. Employees who accumulatethree points in a rolling four month period are subject to discharge. Thepolicy does not count FMLA absences. Lucy, who had already accumulated 2 ½points in the last two months, is given a ½ point for missing ½ of the previousday and a ½ point for failing to notify her supervisor of her absence inaccordance with the policy. As a result, Serious terminates Lucy. Has Seriousviolated the FMLA?

HYPO #7: ISSUES

1) Was Lucy’s entire absence on October 1 FMLA qualifying?

2) Can Serious Care discipline Lucy for her absence from work on the morning of October 1?

3) Was Lucy able to perform her job duties on the morning of October 1? Does that matter?

HYPO #7: TAKEAWAYS

1) Carefully scrutinize requests for FMLA leave to ensure they are for qualifying reasons.

2) Do not allow (or require) employees to take more FMLA leave than necessary.

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HYPOTHETICAL #8 : DESIGNATING FMLA LEAVE

Nancy Knockedup is a certified nursing assistant (CNA) whobegan working at OLD, Inc., a long term care nursing facility,in 2005. In January 2011, Nancy informs OLD’s HR Directorthat she’s pregnant and will need to take FMLA leave for thebirth of her child in August. In April, Nancy brings in a notefrom her OB/GYN that indicates that she cannot lift morethan ten pounds and must have ten minute breaks everyhour. OLD has a policy that it only provides light duty workassignments for work-related injuries or to comply with theADA. As Nancy’s request for light duty does not fall intothose categories, OLD’s HR Director explains to Nancy thatsince she cannot perform her job duties as a CNA, she willhave to take FMLA leave. Nancy states that she does notwant to take FMLA because she is “saving” it for the birth ofher child.

HYPO #8: ISSUES1) Can OLD require Nancy to

take FMLA leave?2) Can Nancy choose to use

any paid time off she has available to her under OLD’s policies instead of FMLA leave?

3) What options will OLD have when Nancy exhausts her FMLA leave in July?

4) Does this situation trigger any other laws that OLD should consider?

HYPO #8: TAKEAWAYS1) Always designate FMLA qualifying leaves as FMLA

time.2) Always run paid time concurrently with FMLA time

(except where the employee is on FMLA leave as a result of a workers comp injury and is receiving workers’ comp benefits).

3) Be aware of the Escriba decision.4) Consider intermittant leave if the prenatal condition

resolves itself.5) Modify your light duty policy to make it clear that you

do not provide light/modified duty except in cases of work-related injuries or as required by the ADA.

6) Monitor the EEOC’s decisions regarding pregnancy accommodations.

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HYPOTHETICAL #9 : RESTORATION RIGHTSEllen was hired by RX, Inc., a pharmaceutical sales company, in2000 as a sales manager. Over the years, she worked her way upthe ladder in RX’s sales division. In January 2010, she is promotedto Regional Vice President (RVP) of sales for the SoutheasternRegion. As RVP, she is responsible for overseeing the work of ateam of six sales managers. In May 2011, Ellen takes FMLA leave toundergo kidney replacement surgery. While she is on leave,several of her subordinates lodge complaints about hermanagement style, claiming that she is hostile, inflexible,chronically inaccessible, overly demanding and has a tendency toplay favorites. While investigating these complaints, RX discoversmany additional problems with Ellen’s performance, such asincomplete expense reports and unpaid invoices from third partyvendors. As a result, RX makes the decision to demote Ellen.When Ellen returns from leave, her superiors meet with her andinform her that she has the choice of accepting a demotion orleaving the company.

HYPO #9: ISSUES

• Has RX violated the FMLA by failing to reinstate Ellen to her position as RVP upon her return from leave?

• Can Ellen claim that she is being penalized for taking FMLA leave?

HYPO #9: TAKEAWAYS

• Remember that no employee is bulletproof. Employees who exercise federally-protected rights are not insulated from discipline from poor performance.

• If you make the decision to discipline or discharge an employee who is on FMLA leave, make sure that you are acting on the basis of documented facts. You as the employer will bear the burden of proving that you acted for a legitimate reason. Fully investigate and verify all allegations before acting on them.

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HYPOTHETICAL #10 : INTERMITTANT LEAVEManny worked as the Maintenance Director for Handy Helpers Healing Home (H4), along-term care facility. From approximately three years, Manny suffered fromweakness and pain in his left hand and wrist. In 2008, Manny had wrist surgery andwas out on FMLA leave for 12 weeks. Thereafter, Manny continued to haveproblems with his wrist. Approximately one year after his surgery, Manny appliedfor intermittent FMLA leave. In support of his request, Manny submitted a HPC formindicating that he needed to have surgery for which he would miss two weeks ofwork, and extensive post-surgery physical therapy. H4 approved the request.

Pursuant to H4’s attendance policy, in the case of intermittent FMLA leave,employees are required to submit medical documentation for each absence inorder for the absence to be applied against the employee’s FMLA status. Mannyprovided documentation for all his absences prior to his surgery. Following hissurgery, however, he was not as consistent. Over the course of several months,Manny was absent from work on many occasions. When he was disciplined underH4’s attendance policy for these absences, H4’s HR Director reminded him of thedocumentation requirement and encouraged him to provide doctor’s notes for hisabsences that were covered under his approved intermittent leave. Manny failedto provide the requested documentation and was ultimately terminated after heincurred too may absences under H4’s policy.

HYPO #10: ISSUES

1) Does H4’s attendance policy violate the FMLA?

2) Is Manny required to comply with H4’s “doctor’s note” policy?

HYPO #10: TAKEAWAYS1) Do not implement policies or practices that

impose additional certification or verification requirements on employees taking intermittent leave beyond those specifically permitted by the FMLA.

2) When employees seek intermittent leave, obtain as much specific information as possible regarding the nature and, more importantly, duration of the leave.

3) Require recertification whenever the original certification expires.

4) Develop an intermittent leave policy that specifies that the employer will investigate all instances of suspected abuse of the policy.

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ENACTMENT OF NEW FMLA REGULATIONS• Went into effect on March 8, 2013• Implement the FMLA amendments under the National

Defense Authorization Act of 2010 and the Airline Flight Crew Technical Corrections Act

• New regulations make several minor changes:– Military Family Leave– Airline Flight Crew FMLA Leave– Physical Impossibility– Increments of Leave– Removal of Model FMLA Forms (now on DOL’s

website)• New FMLA Poster• New FMLA Forms

STRATEGIES FOR KEEPINGYOUR WORKPLACE UNION FREE

SPENCER A. KINDERMANGILPIN GIVHAN, PC

Grandview II3595 Grandview Parkway, Suite 400

Birmingham, Alabama 35243(205) 547-5540 (Main)

(205) 547-5553 (Direct)(205) 547-5621 (Fax)

Email: skinderman@GilpinGivhan.comWebsite: www.GilpinGivhan.com

A PERFECT STORM

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DECLINE IN UNION MEMBERSHIP

UNIONS’ RESPONSEIncreased Organizing

Coordination & Cooperation Between Unions

Change to Win Federation

The Corporate Campaign

Legislative Agenda

Employee Free Choice Act – The Irony

UAW’s Foreign OEM Organizing Strategy

Stacking the NLRB

THE ECONOMIC CRISIS

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PRESIDENT BARACK OBAMA

“PACKING” THE BOARD• Chairman Mark Pearce

Represented plaintiffs and unions in private practice

• Wilma LiebmanFormer lawyer for the Teamsters and the Bricklayers

• Craig BeckerAssociate General Counsel at the AFL-CIO and the SEIU

• Sharon BlockFormer NLRB attorney, DOL official

• Richard GriffinGeneral Counsel for the International Union of Operating Affairs

• Nancy SchifferDeputy General Counsel for UAWNLRB Attorney

• Kent Y. HirozawaRepresented unions in private practiceNLRB attorneyChief Counsel for Chairman Pearce

• Recess appointment controversy• Noel Canning Decision

WHY SHOULD NON-UNION EMPLOYERS BE CONCERNED ABOUT THE NLRB?

• Pro-Union Agenda• Sole goal is to increase

unionization of the American workforce

• Want to remove Employers from the process

• Discarding long- standing Board precedents and rules

• Pursuing activist enforcement initiatives

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NLRB “QUICKIE” ELECTIONS• Proposed Rules to make it easier

for Unions to organize • Response to failure of Congress to pass

EFCA• Originally proposed in 2011 to become

effective in 2012• On December 20, 2011, U.S. Chamber

of Commerce and Coalition for a Democratic Workplace filed suit

• Court ruled Proposed Rules invalid due to NLRB’s lack of quorum

• Reissued in February 2014• Comment period expired on April 7,

2014• Public Hearings conducted on April 10-

11, 2014

“STACKING THE DECK”• Compressed time frame between

petition and election• Pre-election hearing within 7

days and no right to post hearing briefs

• Employer SOP within 7 days before evidence taken

• Unit Composition issues decided after election

• Expanded Excelsior List must be submitted within 2 days

• No judicial review of order directing election until after election

• Post hearing election within 14 days of election

THE NLRB’S QUESTIONABLE RATIONALE FOR THE NEW RULES

• Petition to election shortened potentially from current 38 day average period to 25 or fewer days.

• FY 2012, the median time for an election was 38 days.

• 95% of all elections held in less than 2 months.

• FY 2012, 92% of all elections by pre-election agreement.

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SPECIALTY HEALTHCARE – NEW STANDARD FOR “UNIT APPROPRIATENESS”

• Mobile nursing home sought review of Regional Director’s decision finding stand-alone unit of CNAs appropriate

• Presumption of appropriateness for unit of clearly identifiable group of employees

• Burden on Employer to demonstrate proposed unit not appropriate

• Employers face risk of a proliferation of multiple, small bargaining units within a single facility

• Unions hope for a “domino effect”

NLRB’S FAILED POSTING REQUIREMENT

• NLRB issued rule requiring all employers to post a notice informing employees of rights under NLRA

• Physical and electronic posting

• Failure to post is an ULP• Lawsuits filed against

NLRB challenging the rule by business groups and U.S. Chamber of Commerce

WHEN IS A UNIONNOT A UNION?

• NLRB Region 13 held Northwestern Football players are employees

• Receive “economic benefit”

• Sign a tender• Spend 40-50 hours per

week “working”• Control over private

activities• Receive no academic credit• NU appealed decision

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NLRB ATTACKS A COMPANY’S RIGHT TO CHOOSE BUSINESS LOCATION

• NLRB v. Boeing• Trying to stop Boeing, based

in “closed shop” Washington state, from assembling aircraft at new plant in right-to-work South Carolina

• Bill introduced in House of Representatives to reduce NLRB’s power in response to the prosecution of Boeing

• Case settled

UAW – VOLKSWAGEN• Workers at VW Chattanooga,

TN plant rejected UAW• UAW contesting election

results• NLRB’s decision will be

significant

SOCIAL MEDIA INITIATIVE• Series of cases brought against union and

non-union employers challenging social media policies and decisions made regarding employees under those policies

• NLRB General Counsel issued report on January 25, 2012 summarizing Board’s approach

• Board’s Advice division is tracking all social media cases from all regions

• Very difficult to lawfully discharge an employee for making disparaging comments about Employer on Facebook or other social media sites

• Does communication involve terms and conditions of employment?

• Are other employees involved?

• Board is likely to find any Employer “non-disparagement” policy overbroad, even those containing “savings” clauses

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NLRB FINDS MANDATORY ARBITRATION PROGRAMS VIOLATE LAW

• On January 29, 2012, the NLRB held that certain mandatory arbitration agreements that prohibit class actions are unlawful

• Essentially invalidated most mandatory arbitration agreements used by employers

• Conflicted with U.S. Supreme Court precedent

• Overturned by the Fifth Circuit Court of Appeals on December 3, 2013.

• Rehearing denied by Fifth Circuit on April 16, 2014

INFLUENZA VACCINATIONS• On August 23, 2011, the

NLRB held in Virginia Mason Hospital, 357 NRLB 53, that a hospital whose nurses are represented by a union does not have the authority to unilaterally implement an employee flu vaccination program because, in the Board’s view, ensuring patient safety is not a core purpose of the enterprise.

• Overturned ALJ’s decision in employer’s favor

• Conflict with OSHA’s general duty clause?

ON THE NLRB’S“MOST WANTED” LIST…

• Policies prohibiting disclosure of "personnel information" and "wages and compensation“

• Confidentiality provisions in an employment agreements

• Policies prohibiting employees from discussing details of workplace investigations

• Policies prohibiting gossip in the workplace

• Employment at Will Disclaimers in Employee Handbooks

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LEGISLATIVE RESPONSE TOOBAMA BOARD’S ACTIVISM

• Protecting Jobs From Government Interference Act (H.R. 2587)

• Workplace Democracy and Fairness Act (H.R. 3094)

• On February 17, 2012, proposed joint resolutions introduced in both the House and Senate opposing the new election rules

• The House Committee on Education and the Workforce on March 5 held a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule,” to examine the NLRB’s renewed proposal to curtail employers’ and workers’ rights in union organizing campaigns.

HOW ARE HEALTHCARE EMPLOYERS FARING IN UNION ELECTIONS?

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

60%64%

72%67% 67%

74%72%

75%72% 71%

75%

52%56% 55% 56%

61% 59%62%

66% 68% 67% 69%

Health Care Non-Health Care

WHERE DO HEALTHCARE EMPLOYERS FACE THE GREATEST RISK?

Security Guards

Other/Combined

Professionals

Business Office Clerical

Skilled Maintenance

Technical

Service and Non-Professionals

RNs

3%

4%

7%

10%

10%

16%

20%

30%

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WHAT ISSUES CAUSE ORGANIZING IN THE HEALTHCARE INDUSTRY?

Equipment

Systems/procedures

Electronic medical records

Other

Physical work environment

Training

HR/Personnel Policies

Safety/security

Leadership "interpersonal skills"

Quality of patient care

Input in decisions that affect one's…

Job security

Workloads/distribution of work

Leadership "management practices"

Benefits

Staffing levels

Pay

1%

1%

2%

2%

2%

2%

2%

4%

7%

7%

7%

7%

7%

8%

12%

13%

17%

WHAT TACTICS ARE USED TO ORGANIZE THE HEALTHCARE INDUSTRY?

Opinion surveys

Pressure from local clergy

Pressure from community…

Television ads

Faxing union literature

Posting of anti-hospital…

Newspaper ads

Pressure from politicians

Other

Organizing website

Selective contact by…

Email

Selective contact by union

Home Visits

Vocal employee advocates

Letters

Offsite meetings

Phone Calls

Leafleting / Handouts

1%

1%

1%

1%

2%

2%

2%

2%

3%

5%

5%

6%

8%

9%

9%

9%

10%

11%

13%

WHAT UNIONS ARE ORGANIZING THE HEALTHCARE INDUSTRY?

Other22%

AFSCME5%

IUJAT4%

NEMSA4%

OPEIU4%

UFCW5%NNU

9%

IBT11%

SEIU36%

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TRADITIONAL ORGANIZING TIMELINE

STEP #1 – ESTABLISH AND ENFORCE UNION FREE POLICIES

• Implement and Understand Union Free Policies– No-Solicitation / No-Distribution

Policy– Union Free Statement

• Distribute Employee Handbooks and Policies

• Enforce All Policies Uniformly– Attendance Policy– Corrective Counseling Policy– Involve HR in All Discharge

Decisions• Encourage Open Communication

– Open Door Policy– Discrimination / Harassment

Policies

STRATEGIES FOR KEEPINGTHE WORKPLACE UNION FREE

• Communicate to Employees the importance of the Employees’ stake in customer service, profitable revenue growth, cost control and yield

• Do not underestimate the importance of employees’ appreciation of their stake in a successful business and what must be done to achieve success

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OPEN DOOR COMMUNICATIONIS ESSENTIAL

Establish Open Doors to Management at All Levels for Suggestions and for Rapid Resolution of Complaints

• Open the doors at all levels• Publish your open door policy• Ensure it works• Suggest discussions with immediate

supervisor first, but do not mandate• OK to skip levels or bring to top• Ensure a response within a pre

established number of days• Make sure the process works as

advertised

STEP #2 – RISK ASSESSMENT• Research and Monitor Local Union

Activity– Websites– Participate in Local HR Groups

• Evaluate Potential “Units”– Change Size of Unit– Evaluate Status of Supervisors

• Annual Benchmarking of Wages and Benefits

• Evaluate Morale• Identify and Resolve any

Outstanding Employee Issues/Grievances – Wages– Staffing– Safety

KNOW THE ENEMY

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EVALUATE POLICIES AND PROCEDURES FOR COMPLIANCE

• Social Media• Employee Communication• Investigation Procedures• Confidentiality Provisions• At Will Employment

Disclaimers• No Solicitation/ No

Distribution Policy

STEP #3 – DEVELOP A COMPREHENSIVE TRAINING PLAN

• Carefully Screen Applicants• Conduct New Hire Orientation

– Review Union Free Philosophy– Encourage Open Communication of

Problems and Grievances– Ensure Company Help Line Number is

Communicated• In-Service Current Hourly

Employees on a Regular Basis on Policies and Procedures

• Consider Facility Sponsored Events– ED Lunch Roundtable– Barbecue– Combine with Resident Activities

• Train Management and First Level Supervisors

– How to Recognize Union Organizing– The “TIPS” Rule– How to Respond to Employee Questions– Responding to Workplace Issues

STEP #4 – PREPARE YOURGAME PLAN

• Identify Your Team– Management– Human Resources– Legal– Consultants

• Develop a Written Plan of Action of Steps That You Will Take

– Pre-Petition Organizing– Post-Petition/Campaign

Development• Create a Schedule for All Campaign

Communication– Kick-Off– Mid-term– Closing (25th Hour Speech)

• Consider Preparing Written Campaign Materials

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? QUESTIONS ?

Spencer A. Kindermanskinderman@GilpinGivhan.com(205) 547-5553 (Office)

Lynlee Wells Palmerlpalmer@GilpinGivhan.com(205) 547-5556 (Office)

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