Category Archives: Employment Practices
The EEOC’s Application of Title VII to a North Carolina Nursing Center’s Work Restrictions Policy
Title VII of the Civil Rights Act of 1964 prohibits employers of 15 or more employees and engaged in interstate commerce from discriminating against employees on the basis of sex, in addition to other categories. Sex discrimination prohibited by Title VII includes pregnancy discrimination. This blog post addresses how the Equal Employment Opportunity Commission (“EEOC”) may have misapplied Title VII in the context of lifting restrictions at a nursing facility. On March 7, 2018, the Equal Employment Opportunity Commission filed a complaint asserting sex discrimination against a North Carolina rehabilitation and nursing center on behalf of two nursing assistants. The …
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Long Term Care Employment Issues Arising in Med Mal Litigation
The patient care and employee/employer behavior crossroads can be a perilous journey when a medical malpractice claim is filed. Now, the facility’s HR practices are placed under the microscope to determine if and what was known about the offending employee from the time of hire to the reported incident and steps taken by the employer to correct and more. Brian Inamine and Nancy Reynolds explored the interplay of employment issues for long term care facilities in a recent webinar – including abuse, medical diversion, med mal and more. Click here to view the recording of the complimentary one-hour webinar on …
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False Claims Act: Employment Claims
This third blog on the False Claims Act is a wakeup call to long term care facilities and management companies (“LTCs”) in their training and employment practices. It is well-known that LTCs have high employee turnover and difficulty finding applicants, especially for certified nursing assistants (“CNAs”). In response, many LTCs operate in-house training programs to cultivate a pool of qualified CNAs for hiring. Here’s the rub: LTCs can be sued under the False Claims Act (“FCA”) for providing services through unqualified or underqualified employees and seeking reimbursement for those services. In the U.S. Supreme Court’s Universal Health Services, Inc. v. …
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Employee Surveys: Survey Its Risks First
The long term care industry is known for high staff turnover, which can affect care. Often, staff separation can burden the available employees with extra duties or shifts. Residents bond with employees and mourn their separation. In response to this phenomenon, facilities and management companies have been encouraged to implement employee satisfaction surveys, which raise numerous red flags with employment law defense attorneys. Employers can use employee satisfaction surveys for a multitude of well-intentioned reasons: to make employees feel heard, to identify areas that need improvement, and to simply improve communication. A younger workforce that values their voice being heard, …
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NLRB Sacks Long Term Care Facility’s Attempt to Avoid Class Actions
In Service Employees International Union v. Montecito Heights Healthcare & Wellness Centre, LP, Case No. 31-CA-129747, the NLRB ruled that a skilled nursing facility’s arbitration provision in its alternative dispute resolution (“ADR”) policy requiring its unionized employees to waive their right to bring class actions or to act concertedly violated federal labor law. If you are non-unionized, do not stop reading here because this ruling has the potential of being applied to non-union workplaces. The nursing facility’s ADR policy expressly prohibited “employees from joining a class action or representative action.” Relying on precedent promulgated by the NLRB in Murphy Oil …
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You Snooze, You Lose: What an Employer Should First Do When Notified of a Legal Action
It is never pleasant to receive notice of a legal proceeding against you, and employers often wait until the last minute to deal with it, or do worse by trying to eliminate relevant evidence. Employers are reluctant to hire lawyers early because they believe it will be expensive and complicated. So, what should an employer do after it receives notice of a legal action? Do the three Ps: hire a Professional, Preserve evidence, and conduct a Preliminary Investigation. Hire a Professional Should an employer hire an attorney if it receives a lawsuit complaint or other notice of a claim? Absolutely, …
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Reducing The Risks of Employment Claims Relating to Long-Term Care Facilities: Part 1 – Preventing Lawsuits
Employers often believe there is no way to avoid employee claims and lawsuits, so they do nothing at all to prevent them. Or, employers, especially small employers, try to avoid any conflicts with employees and take a hands-off approach to managing employees for fear of causing a claim or lawsuit. Unfortunately, these passive approaches are not stemming claims, especially in California. As reported by the California Chamber of Commerce, employment claims and suits are on the rise, with wage and hour class action suits and retaliation claims leading the charge. Understanding the ever changing federal, state, and local laws affecting …
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Risky Business In California: Drug Testing Of Long-Term Care Workers
There may be no more vulnerable segment in our society than residents in long-term care (“LTC”) facilities – the aged, the physically disabled, the mentally and emotionally hurting. Not coincidentally, there may be no more powerful a group with the capacity to harm than those who care for LTC patients. Statistics don’t lie. According to the Office of Inspector General of the U.S. Department of Health and Human Services, 25% of Medicare patients in nursing homes suffered preventable injuries from 2008 to 2012. And, as reported by USA Today, “more than 100,000 doctors, nurses, medical technicians and healthcare aids are …
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