Courts recognize the complication that exists when determining what constitutes actionable harassment where a healthcare employee is a caretaker for a patient with diminished capacity. The Fifth Circuit Court of Appeals recently reviewed this issue in a Title VII case that highlights the risks posed to employers in the healthcare and social assistance industries by patient harassment and violence: Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (February 6, 2019). In Gardner, the Fifth Circuit explained the risks to healthcare employers when it reversed summary judgment on a nurse assistant’s claim for hostile work environment and retaliation, holding that a genuine dispute of material fact existed as to whether an assisted living facility took reasonable precautions to prevent sexual harassment and physical violence by a resident.

Background

Gardner was a Certified Nursing Assistant employed at the Plaza Community Living Center, an assisted living facility, and “often worked with patients who were either physically combative or sexually aggressive.” Gardner had been assigned to work with a patient who had been diagnosed with multiple “physical and mental illnesses,” and had a reputation for groping female employees, as well as a history of violent and sexual behavior toward both patients and staff at the facility. Gardner alleged that she put up with propositioning and sexual assault by the patient on a regular basis, but that when she complained to the administrator at the facility, she was told to “put [her] big girl panties on and go back to work.”
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In the wake of the #MeToo Movement, New York, California and a number of other jurisdictions, both local and state, have passed new laws aimed at combatting sexual harassment in the workplace.  The New York laws require written sexual harassment prevention policy, assurance that all current and new employees, and even applicants for employment, receive a copy of the policy, and mandate annual sexual harassment training for all employees.  In addition, New York law now provides that employers can be liable for sexual harassment of nonemployees in the workplace, such as contractors, vendors and subcontractors.  Recent legislation prohibits employers from using mandatory arbitration provisions in employment contracts or nondisclosure agreements except when this is the victim preference.  Let me suggest that there are some important lessons to be learned from these laws.
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There were several recent court decisions that have addressed the right of medical providers, acting under assignments of ERISA plan benefits from patients, to seek plan documents and summary plan descriptions, and to sue plan fiduciaries.

In one case, the district court dismissed the action, holding that the patients had not assigned their rights to sue the plan for statutory penalties. The provider attempted to obtain a retroactive assignment, but the Eleventh Circuit court of appeals held that the provider was not a participant nor a beneficiary in the plan and thus had no standing to bring a claim.
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The National Labor Relations Board (the “Board”) recently held that a California hospital illegally maintained a dress code policy that effectively prohibited employees from wearing pins and badge reels with union insignia.  The hospital’s policy at issue required that “[o]nly [employer] approved pins, badges, and professional certifications may be worn.” In addition, employees were only permitted to wear identification badge reels with “approved logos or text.”
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The Austin City Council is scheduled to vote Thursday, February 15 on a proposed city ordinance which would require all private businesses in the city to offer employees at least 8 paid sick days (or 64 sick leave hours) annually.

Under the proposed ordinance, employees would accrue 1 hour of paid sick leave for every 30 hours worked, with the ability to start using the sick leave as soon as it is earned.  If passed, eligible workers would be able to use sick time if they are hurt or ill, need to care for a family member who is injured or sick, require medical attention or have a doctor’s appointment for preventative care, among other things.  If an employee does not utilize all earned sick leave during the applicable year, any accrued, unused leave may be “rolled over” to the next year.
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As is par for the course with the start of a new presidential administration, many changes to employment laws are anticipated, with several already underway. The most recent of which is the test used to determine whether interns must be classified as employees for purposes of the Federal Labor Standards Act. The question of when a person stops being an intern and starts being an actual employee has long been a gray area. On January 5, 2018, the U.S. Department of Labor (DOL) announced in a press release it was rescinding its previous six-part test used to determine whether interns at for-profit companies are employees and thus subject to federal minimum wage and overtime laws. Instead, the DOL will now use the so-called “primary beneficiary” test favored by several appeals courts.
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The National Labor Relations Board (“NLRB”) recently adopted a new and employer welcomed standard for determining whether facially neutral workplace rules unlawfully interfere with the exercise of employee rights that may be protected by the National Labor Relations Act (“NLRA”).

Going forward, the NLRB will consider the following factors:

  • the nature and extent of the potential impact on NLRA rights, and
  • legitimate justifications associated with the rule.


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Mere months after the Kindred Healthcare decision enforcing an arbitration agreement between a nursing home and holders of a late resident’s power-of-attorney, the U.S. Supreme Court heard argument in another case that healthcare employers will want to watch. The Court’s decision in Epic Systems Corp. v. Lewis will determine the enforceability of arbitration agreements that

The U.S. Court of Appeals for the Third Circuit held recently that Title IX of the Education Amendments of 1972 (“Title IX”)—which prohibits sex discrimination in the “education programs or activit[ies]” of entities receiving federal financial assistance—can apply to residency programs at hospitals. The ruling may profoundly impact how hospitals respond to complaints of sex