1. Hot Labor & Employment Issues
Impacting HR Florida Members
John E. Lyncheski, Esq.
Cohen & Grigsby P.C.
Naples/Bonita Springs FL

2. FLSA Wage & Hour Lawsuits

3. FLSA Lawsuits
• “Old” Law—New (and Big) Problems
• Emerging as #1 in employment cases filed
• Florida is #1 in the USA
• Healthcare & Hospitality are target
industries
• Healthcare vulnerability
• 24/7/365
• Decentralized supervision
• 250 new DOL W&H investigators
• “Morgan & Morgan”
• “Class” & “Collective” actions

4. Common FLSA Violations
• “Regular rate”
• Misclassification as “exempt”
• Improper deductions from exempt
employee’s salary
• Failure to count all hours “worked”
for overtime calculation
• “Off the clock” work
• Lunch periods: A Minefield
• Preliminary/Postliminary work
• Tipped employees
• 8 & 80 in healthcare

5. RN FLSA Overtime Cases

6. Nurse FLSA Lawsuits
• Thomas & Solomon, Rochester, NY
• PA, NY, IL, FL, NC & MA cases
• “Copycats”
• Florida??
• Overtime
• Lunch periods
• Preliminary/Postliminary work
• “Big ticket” cases

7. FLSA Section 7 (j)
• “8 & 80”
• More stringent state laws
• PA cases:
1. Pocono Health System
2. Catholic Health East
3.Crozer-Chester MC &
Crozer-Keystone HS

8. FLSA Prevention Advice
• Vulnerability Audit
• Timekeeping Practices
• Payroll Practices
• Policies
• Supervisor Training
• 8 & 80 ???
• Part-time Employees

9. Wage Sharing
Antitrust Class Actions
(SEIU)

10. Sharing of Wage, Benefit & ???
Information = “Price Fixing” =
Antitrust Violation!!!

11. DO IT RIGHT OR NOT AT
ALL
• Intermountain Healthcare
Case as Guide
• No “Old Boy” Network
• “Blind” Data

12. NLRB
2009 & Beyond

13. Most “Significant” 2009-10
NLRB Decisions
• Cintas Corporation
• Community Medical Center
• Continental Group, Inc.
• DLC Corp. & Durham School Services
• Legacy Health System
• New York Presbyterian Hospital &
Racetrack Food Services
• Sequoias Portola Valley
• Texas Dental Association

14. OBAMA NLRB RECESS
APPOINTMENTS
• Craig Becker
• Mark Pearce

15. Craig Becker
• Associate GC SEIU &
AFL-CIO
• Writings/Positions
• Failed Senate
confirmation
• Legislate by “Rule”
• EFCA

16. National Mediation Board
• Railway Labor Act
• May 2010
• Legislate by Rule
• On Hold

17. Significant NLRB Decisions
Likely to be “Reversed” by
Obama Board
• Oakwood Healthcare Center, Inc.
• Oakwood Care Center
• Harborside Healthcare, Inc.
• Elmhurst Care Center
• Alexandria Clinic
• Dana/Metaldyne
• The Register Guard
• Toering Electric Co.

18. Two Member NLRB Decisions
• Board had only 2 members
(Schaumber & Liebman)
December 2008- April 2010
• Delegation of authority
• Decided hundreds of cases
• Split in Circuits

19. New Process Steel, L.P. v. National Labor
Relations Board,
560 U.S. ___, June 17, 2010
• Under §3(b) of NLRA, delegation clause, Board
authorized to delegate its powers only to a
“group of three or more members”
• Vacancy clause: “shall not impair the right of
the remaining members to exercise all of the
powers of the Board”
• Quorum = three
• Two member decisions invalid
• More than 500 decisions
• What does this mean?

20. NLRB 2010 -????
• Five Member Board
• Political Stalemate
• 3 v. 2
• August 2010?
• 3 v. 1
• What Lies Ahead?

21. Stay Tuned

22. U.S. Department of
Labor
U.S. DOL
SECRETARY
SOLIS

23. U.S. DOL
Statement of Regulatory &
Deregulatory Priorities
• “Good jobs for everyone”
• Specific “strategic outcomes”
• All DOL Agencies
• “Vulnerable workers in traditionally
less safe industry sectors”
• Healthcare workers
• All regulatory projects must support
one or more strategic outcomes

24. US DOL Regulatory Agenda
• Advice Exemption
• LMRDA Sec. 203(c) 209 U.S.C.
§433(c)
• Employer-Consultant Arrangements
• Persuader Activities
• Obligation to Report
• May 24, 2010 Comment Meeting
• Changes Landscape in Union
Organizing
• Employer “Free Speech”

25. Regulatory Agenda
Employee Benefits Security
Administration (ESBA)
• Lifetime Income Options
for Participants and
Beneficiaries in
Retirement Plans

26. EBSA Regulatory Agenda
• Definition of “Fiduciary”-
Investment Advice
• State & Local Government
Health Care Arrangements
for Non-Governmental
Employees
• GINA

27. Employment Standards
Administration (ESA)
• Family & Medical
Leave Act
• FLSA Recordkeeping
Obligations
• Child Labor
Regulations

28. DOL FLSA Opinion
Letters
May 2010

29. U.S. Department of Labor
Interpretation Letter No. 2010-3
• June 22, 2010
• FMLA
• “Son or daughter”
• “Of a person standing in loco
parentis”
• Eligible even if no “biological or legal”
relationship with child
• Employer may require “reasonable
documentation or statement of a
family relationship”
• “Simple statement”

30. U.S. Department of Labor
Interpretation Letter No. 2010-3
• Not required to show “day-to-day care
and financial support”
• Unmarried partners
• Same sex partners
• Even if biological parent or both a
mother & father
• “Neither the statute nor the
regulations restrict the number of
parents a child may have under the
FMLA”

31. U.S. Department of Labor
Interpretation Letter No. 2010-3
• Administrative interpretation and
opinion letters do not require
agency to go through notice and
comment process
• As long as the letter merely
clarifies the interpretation of
existing rules and definitions

32. Child Labor Penalties
• June 17, 2010
• Increased to $6,000 per violation
• Was $900
• Illegally employing 12 or 13 year old
• Under 12 increased from $1,150 to
$8,000 per violation
• $11,000 where injury, willful or
repeat offender

33. Florida Union Activity

34. SEIU
• Andy Stern
• Mary Kay Henry
• California Battleground
• What Lies Ahead?
• SEIU
• “SEIU Florida Healthcare”
• Florida is a Prime Target

35. OTHER UNIONS ACTIVE
IN FLORIDA
• CNA/NNOC
• Teamsters
• AFSCME
• AFT
• FSEA
• IUOE
• OPEIU
• Laborers
• ETC.

36. SOCIAL NETWORKING
• Facebook
• Plaxo
• Linked In
• Twitter
• Blogs
• Etc., etc.

37. Social Networking
• Potential employer liability
• FTC Guidelines 16 C.F.R. § 255
• “New media” endorsements
• False or unsubstantiated
endorsements
• Failure to disclose material
connection
• Even if not authorized or known
• Must “maintain internal
procedures”

38. SOCIAL NETWORKING
• Health Care Considerations
• Confidentiality
• HIPAA

39. SOCIAL NETWORKING
• A Social Media Policy is a Must
• Monitor
• Camera Phone Prohibition

40. LEGISLATION

41. EMPLOYEE FREE CHOICE
ACT
• Card Check Recognition
• Increased Penalties
• Access To Injunctive Relief
• 120 Day First Contract
• Mandatory Arbitration

42. Workplace RESPECT Act
• Will change the NLRA Section 2
(11) definition of a “ statutory
supervisor”
• Will reverse the effect of the
NLRB’s Kentucky River
(Oakwood Healthcare) Charge
Nurse decisions
• Labor’s #2 priority

43. Labor’s Florida
Healthcare
Initiatives
• Staffing Ratios
• Care Giver Overtime
Bans

44. IMPACT OF HEALTH CARE
REFORM ON EMPLOYERS
• Patient Protection and
Affordable Care Act
(“PPACA”)
• Health Care and Education
Affordability Reconciliation
Act of 2010
• LR&FSA of 2010!!!!

45. IMPACT OF HEALTH CARE
REFORM ON EMPLOYERS
• PPACA § 4207 amends FLSA
• Mandatory breaks for nursing mothers
• Unpaid
• Reasonable amount of time
• As needed
• Private, secluded area
• One year
• Almost all employers
• State laws

46. “IMMEDIATE” IMPACT OF
HEALTH CARE REFORM ON
EMPLOYERS
• “Grandfather” Provisions (3/23/10)
• Dependent Coverage (9/23/10 or 1/1/11)
• Whistleblower protection
• Small business tax credit (tax year 2011)
• Elimination of co-pays for preventative
services (1/1/11)
• Prohibits dropping persons when they
become ill (9/23/10)
• Over-the-counter meds-HRA or FSA-
(2011 tax year)

47. “IMMEDIATE” IMPACT OF HEALTH
CARE REFORM ON EMPLOYERS
• Form W-2 must report cost of employer
provided health care (2011 tax year)
• Denial of coverage to children with pre-
existing conditions (9/23/10)
• Elimination of lifetime caps on
coverage of “essential benefits”
• NEW plans-discrimination in favor of
higher wage employees
• NEW plans-protection of patients’
choice of doctors
• NEW plans-preauthorization before
seeing ob-gyn MD
• NEW plans-access to emergency care
without preauthorization

48. “Employee” or
“Independent Contractor”

49. Employee Misclassification
Prevention Act
• Independent Contractor
Proper Classification Act
• Make use of ICs more difficult
• Harsh penalties for
misclassifying employees as
independent contractors

50. Taxpayer Responsibility,
Accountability and Consistency
Act
• Amends tax code to make
it more difficult to classify
“workers” as independent
contractors

51. Nurse and Patient Safety
Protection Act
• Requires OSHA to
establish a standard for
the manual lifting of all
patients

52. Patient Safety and Abuse
Protection Act
• Federal Law
• Long Term Care Facilities
• Mandatory Background Checks
• Disqualifying Criminal Records
• Florida: Long Term Care
Background Check Legislation

53. Arbitration Fairness Act
• Will invalidate mandatory
pre-dispute arbitration
agreements
• 2010 DOD Appropriations
Act amendment
• Not limited to employment
relationships

54. Rent-A-Center West, Inc. v. Jackson
561 U.S. ___ (June 21, 2010)
• Federal Arbitration Act
• Clauses in arbitration agreements
calling for arbitrator, as opposed
to court or agency, to decide
arbitrability enforceable
• Challenge based on
unconscionability

55. Sexual Orientation
Discrimination (ENDA)
• Passed House in November 2007
• Did Not Make it Out of Senate
• President Bush Would Have Vetoed
• On the Agenda for Congress
• Obama Will Sign
• Numerous Local Laws/Ordinances
• Stay Tuned—Just a Matter of Time

56. Protecting Older Workers
Against Discrimination Act
(POWA)
• Would reverse Gross v. FBL Financial
Services, Inc.
• Employee burden to prove that age was
“main factor” for adverse employment
action
• Mixed motive jury instructions not proper
in ADEA case
• Proof of “motivating factor” will shift
burden to employer to show ADEA
compliance

57. EEOC Proposed
Rulemaking
• “Differentiations Based on
Reasonable Factors Other
than Age”
• Smith v. City of Jackson

58. Paycheck Fairness Act
• Amends Equal Pay Act
• Compensatory Damages
• Punitive Damages
• Narrows “any factor other than sex”
defense
• “Job-related, bona fide reason related to
business necessity” for pay disparity
• Bars retaliation for sharing wage
information
• EPA litigation spike likely result

59. Sick Leave Legislation
• Healthy Families Act
(1 hour paid leave for every 30
worked)
• Emergency Influenza
Containment Act (5 paid
days for contagious illness, e.g.
H1N1)
• FMLA amendments

60. Retiree Health Benefits
Protection Act
• ERISA amendment
• Retired plan participants &
beneficiaries
• Prohibits profitable
companies from
canceling/reducing health
benefits or increasing out-of-
pocket costs

61. Mandatory Immunization

62. HEALTHCARE
HHS OIG Exclusions
• Employment
Implications
• Need to Inquire
• Don’t Take Lightly

63. ADA Amendments Act
(“ADAAA”)
Regulations
Far exceed expectations
of the compromise
legislation which became
effective January 1,
20009

64. Assume Disability Always
Attempt Accommodation--
• ---
Not quite true, but not far off!
• “Broaden” appears 5 times in
Findings & Purpose
• Potentially millions not “disabled”
under ADA will be considered
“disabled” under ADAAA
• Regs take ADAAA to next level

65. EEOC

66. Congress & Courts Have Expanded
EEOC’s Enforcement
Responsibilities
• Americans with Disabilities Act
Amendments Act (ADAAA)
• Genetic Information
Nondiscrimination Act (GINA)
• Lilly Ledbetter Fair Pay Act
• Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S.
53 (2006) (Expanding scope of
actionable retaliation).

67. President Obama’s Ballooning
EEOC Budget:
• Fiscal Year 2009
$14 Million Increase to
$341.9 Million
• Fiscal Year 2010
$23 Million Increase to
$367.3 Million
• Fiscal Year 2011
Proposes $18 Million
Increase to $385.3 Million

68. “Coupled with our 2010 budget increase,
these funds will allow us to build on the
progress we’ve made in hiring frontline staff,
reducing a burgeoning inventory of charges,
and increasing productivity . . . It will also
permit us to continue our focus on systemic
enforcement.”
--Acting EEOC Chairman Stuart Ishimaru (D)
February 1, 2010
EEOC had a net gain of 155 new staff in 2009.
EEOC seeks to add 140 more attorneys,
investigators, mediators, and support staff by end
of fiscal year 2010.

69. President Obama Appoints New
EEOC Leaders
• Jacqueline Berrien, Chair
• Victoria Lipnic, Commissioner
• Chai Feldblum, Commissioner
• P. David Lopez, General Counsel

70. EEOC Chair
Jacqueline Berrien
– Sworn in on April 7,
2010
– Formerly Associate
Director-Counsel to
NAACP Legal Defense
and Education Fund
– Significant litigation
experience.

71. EEOC’s Enforcement
Initiatives
Emphasis on systemic
discrimination that began in 2006.
--Investigate and litigate more class action /
pattern & practice cases
--Increased use of “Commission Charges.”
15 in 2008
39 in 2009
?? In 2010
--“E-Race” Initiative

72. What Can We Expect From
EEOC?
• Expect Aggressive Investigative
Tactics
--Extensive Requests for Information
--Increased Threat/Use of Subpoenas
--Increased Demands for On-Site Tours
and Witness Interviews

73. What Can We Expect From
EEOC?
• Investigations Apt To Trigger
Systematic Claims Will Prompt
EEOC To Expand Investigation
-- Charges Involving Failure to Hire/Promote
--Charges Implicating Involvement of Senior
Executives or HR Personnel
--Charges Involving Enforcement Priorities
and Political Interests Du Jour

74. What Can We Expect From
EEOC?
• Increased EEOC Litigation
Activity
• Deep Pockets
• Business Judgment?
• “Advocacy”

75. QUESTIONS AND
ANSWERS