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. Continue Reading Lessons From Changes to New York State’s Sexual Harassment Laws

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. Continue Reading Recent Case Law Regarding Health Plan Assignment of Benefits

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.” Continue Reading NLRB Prohibits Hospital from Banning Union Pins or Badges

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. Continue Reading Austin City Council to Consider Mandatory Paid Sick Leave

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. Continue Reading Department of Labor Announces Stricter “Primary Beneficiary” Test for Interns

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.

Continue Reading NLRB Establishes New Test for Determining Whether Workplace Rules Violate the NLRA

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 provide for individual arbitration alone. The NLRB and certain employees claim that precluding joint, class, or collective claims in the courts or in arbitration violate employees’ rights to collective action under Section 7 of the National Labor Relations Act. Husch Blackwell will keep you updated on the status of the law once the decision comes down from the Court. For now, you can learn more about the concerns of the Justices and the unusual position of two U.S. government agencies in this blog on Husch Blackwell’s Labor Relations Law Insider.

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 discrimination (including sexual harassment) by resident physicians and necessitate that hospitals comply with federal Title IX regulations and guidance. The ruling also opens the door for residents who experience sex discrimination to sue under Title IX, thereby avoiding the complex administrative exhaustion process required to file a similar claim under Title VII of the Civil Rights Act of 1964, which generally governs sex discrimination in the workplace. For more information on this new development, visit the legal alert authored by Derek Teeter and Lorinda Holloway.

Earlier we wrote that two Fifth Circuit cases seemed to reach inconsistent determinations about the availability of punitive and pain and suffering damages under the FLSA and ADEA. The Fifth Circuit previously expressed its intent to interpret the remedies provision under the FLSA and ADEA consistently with each other. Please see our discussion at via our January 13 blog post.

One of those opinions has been withdrawn and a new opinion substituted, but the inconsistency remains, The Vaughan v. Anderson Regional Medical Center decision was first issued on December 16, 2016 (we discussed the first issued version in our prior post). But because the opinion contained some manifest inconsistencies with the Pineda v. JTCH Apartments, LLC opinion issued just three days later, the plaintiff in Vaughan requested a rehearing en banc. Although the court denied the petition for a rehearing en banc, the court withdrew the prior opinion and substituted a new opinion. The new Vaughan opinion reaches the same ultimate conclusion and holding as the prior opinion, but it contains a few revisions that make clear its holding on ADEA remedies does not extend to FLSA remedies. But still, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.
Continue Reading In the 5th Circuit, Pain and Suffering and Punitive Damages Recoverable under FLSA, not ADEA