Healthcare’s Wage & Hour Claim Challenge: Practical Steps to Protect Your Organization May 3, 2011
Reid Bowman, Esq. • General Counsel of ELT. • Over 25 years of HR and labor employment law experience, primarily working with multi- state employers. • Designs strategic ethics, wage & hour, discrimination prevention, and employment law compliance programs.
Bradley Strawn, Esq. • Shareholder, Littler Mendelson. • Concentrates his practice advising employers in complex class and collective actions involving overtime and other wage-related claims. • Routinely advises employers on legal compliance and litigation prevention measures relating to wage and hour.
Agenda The Numbers Tell the StoryThe Numbers Tell the Story Greater Enforcement by the DOLHealthcare is a Major Target Key Risk AreasTargeted AreasPractical Compliance SolutionsPractical Compliance Solutions Training Solutions that Tangibly Reduce Risk and Deliver a ROI.
A Question For You Do you consider wage and hour issues to be the number one employment law risk facing your organization? Yes No
Wage & Hour Class/Collective Actions: The Flood Continues All Other Of the 4,152 Employment Law 9% employment class action lawsuits filed in federal or state court in 2010, 3,785 (or approx. 91%) were wage Wage and hour related & Hour complaints! 91%
Wage & Hour Lawsuits BecomingStronger Focus for the Plaintiff’s Bar • Non-government wage and hour settlements in 2010 remained high. For the top 10 settlements in 2010: Total: $241M Average: $22M Median: $14.8M
The Beat Goes On Total Number of FLSA Cases *8,000 12.4% Increase 6,825 6,073 from 2009-20106,000 5,3934,0002,000 0 2008 2009 2010What does this all mean? More class/collective action players for the future. *http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness2010.aspx
New Challenges and Old Problems Healthcare is a Major Target
The New DOL • Secretary of Labor Hilda Solis: “Make no mistake the DOL is back in the enforcement business.” • National public awareness campaign: “We Can Help” • “Bridge to Justice” Campaign
DOL’s Enforcement Approach “Plan, “Plan, Prevent, and Protect””• Encourages employers to “find and fix” violations before theDOL Investigators arrive.• Employers are expected to design and implement plans to avoidviolations of workplace laws.•According to the DOL: "[a]ny employers that seek to excludeworkers from the FLSAs coverage will be required to perform aclassification analysis, disclose that analysis to the worker, andretain that analysis to give to WHD enforcement personnel whomight request it.” Bottom line: DOL making obligation to “find and fix” anaffirmative duty; absence of those action viewed as acompliance failure. – From 4-26-2010 DOL Regulatory Agenda
Targeting Healthcare Employers • Focus on industries "known for employing vulnerable workers" Healthcare specifically referenced • February 22, 2010, DOL Press Release: – 66% of healthcare employers investigated by Albany office in last 5 years violated – Collected more than $2 million in back wages – Announced major compliance initiative targeting New York healthcare employers
Heightened Government Enforcement • December of 2009: SSM Healthcare pays $1.7 million in back wages to nurses for work done during unpaid meal breaks to settle DOL lawsuit. • February, 2010: Missouri hospital pays $280,000 to employees for unpaid pre- and post-shift work, and work during auto-deduct meal periods.
A Question For You In the past 12 months, has your organization been faced with a wage & hour claim from current or former employees? Yes No I don’t know
Health Care Class Actions Are All Over the Map Wage Hour Class/Collective Action Complaints Against Healthcare Organizations Since 1/1/09 WA MT ND AK 4 MN 1 ME SD WI OR ID 3 52 VT NH WY MI NY MA IA CT RI 14 NE 1 30 32 PA 2 IL IN 9OH 5 154 NV UT 1 NJ CO KS MO 4 WV MD DE 3 1 1 3 CA 7 KY 3 VA 4 2 OK 1 TN 20 1 NC AZ NM AR D.C. 2 SC MS AL GA 1 HI 22 TX LA 1 12 10 FL 95
Thomas & Solomon• Small law firm in Rochester New York began targeting large health care systems with wage and hour class actions in 2008• 2008 T&S filed class/collective actions against healthcare systems in Rochester, New York• Quickly moved to Buffalo and Syracuse, New York• Spring 2009, filed class/collection actions against Pittsburgh-area healthcare systems
Thomas & Solomon• September 2009 filed actions against 5 Boston healthcare systems• November 2009 filed actions against 7 Philadelphia-area healthcare systems• March 2010 filed more than 20 federal and state court cases against almost every major healthcare institution in New York City• New healthcare employers added to www.hospitalovertime.com website frequently. Website lists healthcare employers in 48 states, the District of Columbia, Guam, Philippine Islands, Puerto Rico, and Virgin Islands.
Modus Operandi• Obtain employees’ names and addresses from publicly available directories of healthcare licenses.• Send “investigatory” letters to employees’ homes to offer assistance in protecting employees’ rights.• Obtain “consents” through word of mouth, home mailings, and website: hospitalovertime.com.• Target largest healthcare employers in specific cities.
Modus Operandi (cont’d) • Simultaneously file actions against largest healthcare employers in target cities. • Boilerplate complaints with virtually identical claims asserted against all targeted employers. • Issue press releases to garner media attention. • Generally file motion for conditional certification with complaint or very soon after filing of complaint. • Force employees to fight on two fronts by filing claims in state and federal court.
What to Expect: Solicitation Plaintiffs’ firms are hiring outside companies to send email blasts to employees of target companies. Below is actual text from one such email:-----Original Message----- From: Hours Worked [mailto:firstname.lastname@example.org] Sent: Monday, January 04, 2010 3:50 PM To: [INSERT NAME] Subject: You May Not Have Been Paid For All The Time You Were Permitted To Work IF YOU WORKED AS AN HOURLY EMPLOYEE FOR A HEALTH CARE FACILITY OR HOSPITAL OUR INVESTIGATION SUGGESTS THAT... YOU MAY NOT HAVE BEEN PAID FOR ALL THE TIME YOU WERE PERMITTED TO WORK! PROTECT ANY AMOUNT YOU MAY BE OWED BY CALLING NOW. (this is not a sales program)BECAUSE OF SEVERAL EMPLOYMENT LAWS, EVERY DAY YOU DELAY MAY ELIMINATE YOUR ABILITY TO RECOVER MONEY. CALL TOLL-FREE FOR NO OBLIGATION INFORMATION (888) 668-3817
What to Expect: Solicitation• Lawyers are using vendors such as “services to lawyers” (http://servicestolawyers.com/home/), traditionally used for medical malpractice, workers compensation claims and car accident cases, to spam employees of hospitals and healthcare providers with this type of information.• Email addresses can be identified either by: – Identifying a domain name (email@example.com) and obtaining an employee roster – Obtaining a list of employees (such as nurses) from a professional licensing board
The “Copycat” Problem• Major players like Thomas & Solomon have provided a roadmap to other plaintiffs’ firms – “Copycat” firms piggyback on the efforts of others by copying publicly available work product and strategies – Electronic resources facilitate information sharing among Plaintiff’s firms practicing in same industry (i.e. “Pacer” federal court filings readily available to the public)• Carlson Lynch – At least two recent auto-deduct class actions against major hospital systems in Illinois – Also hit healthcare systems in PA & Ohio
Other Law Firms Now Looking at Healthcare Employers• Joseph Sellers of Cohen Milstein – Lawyer who filed huge gender discrimination class action v. Wal-Mart recently filed wage hour class action against Gentiva• Klafter Olsen, major class action law firm – auto-deduct meal break case against Kindred• Blumenthal, Nordrehaug & Bhowmik, California – Several class actions against Kaiser—IT misclassification• Outten & Golden, New York – Ruggles v. Wellpoint: significant nurses misclassification collective action• Shavitz Law Group, Florida• Morgan and Morgan, Florida - Shavitz & Morgan – high volume firms targeting smaller employers
Pay Practices1. Auto Deductions for Meal Periods.2. Deductions for Short Meal/Rest Breaks.3. Exception Time Reporting.4. Rounding.5. Early Arrivers and Long Punching.
Pay Practices (con’t)6. Pre- and Post-shift Computer Logging and Other Activities.7. Discrepancies Between Time Records and Other Electronic Records.8. Remote Work.9. Garbage In, Garbage Out.10. Failure to Include Bonuses, Incentives, and Commissions in Overtime Calculation.11. Editing Time Records.
A Question For You In 2011, my organization is spending more on wage and hour compliance and risk management: Yes No I don’t know
The Good News• Despite rising number of claims, there are measures employers can take now to strengthen defenses and make themselves a less attractive litigation target.• Many “preventative steps” can be quickly implemented with little or no cost.• Most healthcare employers already have the basic compliance structure in place on which a more elaborate wage and hour compliance model can be built.
Building a Good Faith Defense to Off-the-Clock Claims• Key problem for healthcare employers is lack of sufficient evidence to establish proper timekeeping and “good faith” defense to off-the-clock claims.• Compliance model should be targeted toward building evidence of employer’s good faith efforts to ensure employees accurately report and are paid for all working time.
Obstacles to Effective Compliance Model • Employees and managers have misconception about respective legal obligations and what is compensable working time. • Employees are often careless timekeepers. • Some managers may instruct employees to work off-the-clock due to budgetary restrictions. • Some unscrupulous employees may falsely claim off-the-clock work.
What is a Faragher/Ellerth Defense? • In certain areas of the law, courts have recognized something called the “doctrine of avoidable consequences,” which prevents a party from recovering damages where the injured party could have avoided harm through reasonable efforts.
What is a Faragher/Ellerth Defense?• Used for 10+ years in Title VII matters, following US Supreme Court decisions in Faragher and Kolstad.• Courts have now started to recognize the validity of this defense in wage and hour actions.
What if We Don’t Use Preventive Measures?• Recent nationwide collective action lawsuit (1/20/10) filed against Northwestern Memorial Healthcare in Illinois alleges that failure to use remedial measures constitutes evidence of employer “bad faith” and “willful” wage and hour violations: – “Despite this ‘off-the-clock’ work, defendant did not provide additional compensation to Plaintiff or other class members, nor did it take ameliorative measures to ensure that such ‘off-the-clock’ work ceased occurring.”• Failure to adopt any remedial measures could be used against a healthcare company in wage and hour litigation.
Element 1: Adopt and Publicize Clear Timekeeping Policies and Procedures• Timekeeping policies should appear in handbooks, ethics policies, and collective bargaining agreements.• Require signed receipt to demonstrate knowledge of policies and procedures.
Element 1: (cont’d) Adopt and Publicize Clear Timekeeping Policies and ProceduresRecommend policies should:• Define working time with examples that target most common misconceptions.• Address meal periods, and instruct employees on what to do if a meal period is interrupted or missed.• Prohibit off-the-clock work but advise that in the event work is performed, employees will be paid.• Require immediate reporting of off-the- clock work within 72 hours of occurrence.
Element 1: (cont’d)Adopt and Publicize Clear Timekeeping Policies and Procedures Recommend policies should: • Provide a mechanism for employees to report off-the-clock work. • Require advance authorization for overtime except in the event of an emergency. • Advise employees that no one is authorized to require off-the-clock work. • Require employees to pursue alternative complaint mechanism by calling 1-800 number if no response received from initial complaint within 5 business days.
A Question For You Regarding wage and hour training, in the next 12 months, my organization is: Already conducting training Planning to implement training Considering training I don’t know
Element 2: Training• Train both managers and employees regarding FLSA and state law wage and hour requirements and Company timekeeping policies and procedures.• Training should involve interactive learning model with examples targeted toward common violations (i.e., missed meal periods, improper supervisory instructions, and volunteering).
Training ROI• Prevent inadvertent federal and state law violations.• Prevent claims: • Policies are clear and irrefutable. • Plaintiff credibility? • More difficult to certify a class.• Reduce damage awards and potentially build a good faith defense.• Build a culture of compliance.
When To Train • Should be integrated into employment relationship. • Should be done regularly to reinforce policies and understanding: – Employee orientation. – New manager training. – When there are new legal developments or policy changes. – Every 2 years. – More often for highly specialized compensation jobs.
Who Should Be Trained • Employee training should focus on the basics, such as: – Review of key policies. – Define hours worked. – No off-the-clock work. – Meals and rest periods. – Rules relating to OT. – Reporting and correcting errors, and misconduct.
Who Should Be Trained • Manager training should focus on employee topics, plus: – Compliance responsibilities. – Handling employee complaints. – Manager misconduct. – Prohibition against retaliation. – Good record keeping practices.
Training Solutions• Live Training: – Instructor led and tailored to audience (i.e., senior leaders). – When highly customized materials required.• E-learning: 40%+ (and growing) of employers today chose e-learning solutions. – Interactive and engaging – hands on experience. – Creates electronic records and employee acknowledgments. – Significant cost savings – Easy to reach bulk of managers and employees – repeatedly. – Content can be duplicated for evidentiary purposes. – Ensures exposure to policies
Online Training Advantage • Online training is consistent and repeatable. • As a result, can be presented to a jury or mediator exactly the way learner saw it. Clearly demonstrates that if after training employee violated policies, it was NOT because of lack of understanding, but deliberate attempt to circumvent employer’s pay rules.
Online Training Certification Page Employees must certify that they Have completed the course; Have reviewed your wage & hour and payroll policies and will abide by them; and Know who to call with any questions or concerns
Element 3: Certification of Time Records• Require non-exempt employees to review time records.• Daily review is ideal but something less frequent can be used provided employees have the opportunity to review actual records.• Provided records are correct, require employee certification as to accuracy.
Element 3:Certification of Time Records • If records are not correct, require employee to identify any inaccuracies to permit immediate correction. • Require employees to review accuracy of paycheck and, if systems permit, certify secondary review. On-line tools make this level of review more available. • Certification should cover off-the- clock work and meal periods.
Element 4: Adopt a Robust Complaint Mechanism• Most employers already have some type of complaint mechanism in place…..but• Existing complaint mechanisms often do not specifically reference wage and hour issues.• Revise existing complaint mechanism to ensure it specifically addresses wage and hour issues.• Publicize complaint mechanism in handbooks, open door policies, collective bargaining agreements, ethics handbooks, and other employee communication channels.
Element 4: (cont’d) Adopt a Robust Complaint Mechanism• Train managers and payroll personnel to be alert to payroll concerns and treat any complaints with same level of attention as other employee relations complaints (i.e., sexual harassment).• Promptly investigate payroll concerns using same techniques and controls as other types of internal complaints.• If determined to be appropriate, take prompt and effective remedial steps.• Effective remediation may require payment of back wages.
Element 5:Audit Time Records for Compliance • Adopt an audit protocol to ensure employees and managers are following policies and procedures. • Audit protocol should be designed to be discoverable in the event of future litigation as part of Companys good faith defense. • Promptly investigate and remediate any discovered violations. • Implement appropriate discipline for managers and employees in the event of violations.
Element 6:Impose Appropriate Discipline for Policy Violations by Employees and Managers • In some reported cases, employers have been criticized for quickly disciplining employees for timekeeping violations but not doing so for manager violations. • Manager misconduct is increasingly being characterized as “wage theft”. • Promptly address Manager misconduct. Where confirmed, consider it a serious violation of the Companys most important policies.
Element 7: Periodic Reminders• Timekeeping policies and procedures should be reinforced through available communication means.• Annual letter to all employees.• Newsletters.• Ethics alerts• Postings.• Refresher training.
A Question for You… If your organization may be interested If your organization in purchasing ELT’s online training may beand you would likein ELT solutions, interested an purchasingto follow uponline Sales Executive ELT’s with you, type "YES" in the box below. training solutions, and you would like an ELT Sales Executive to follow up with you, type "YES" in the box below.