Health and Employment Law Update

Presentation on theme: "Health and Employment Law Update"— Presentation transcript:

1 Health and Employment Law Update
6/15/2017 Health and Employment Law Update Cedar Rapids - Iowa City - Chicago June 15, 2017 Joseph W. Younker Melissa A. Carrington copyright © Bradley & Riley PC All Rights Reserved

2 Presentation Overview
Issues in Unemployment Law 6/15/2017 Presentation Overview Health Law Update Employment Law Update U.S. DOL: post-election updates Title VII and sexual orientation discrimination Employment arbitration agreements with class action waivers FMLA interference Employment investigations copyright © Bradley & Riley PC All Rights Reserved

3 Health Law Update American Health Care Act (“AHCA”)
“Replace and repeal” of Affordable Care Act (“ACA”) Major changes: Individual market Medicaid Employer market No individual/employer mandate No cost sharing and income-based subsidies Minor changes to Medicare Some patient protections remain

4 Health Law Update (cont’d)
Unchanged (for now) ACA provisions: Child can remain on parents’ plan until 26 No lifetime, annual limits on essential health benefits External review (appeal rules) Limits on pre-existing condition exclusions No rescission of coverage Limits on waiting periods First-dollar coverage of preventative care benefits Essential health benefits

5 Health Law Update (cont’d)
Changes/New Concepts Shared Responsibility Rule New tax credits Over the counter reimbursements HSAs Cadillac Tax COBRA tax credits

6 Health Law Update (cont’d)
Changes/New Concepts (cont’d) Continuous coverage Medicaid Patient Stability Fund Next steps

7 DOL: Status of Overtime Rule
Issues in Unemployment Law 6/15/2017 DOL: Status of Overtime Rule Rule raising minimum salary level for White Collar exempt employees (Executive, Administrative, and Professional) from $23,660 to $47,476 To be effective December 1, 2016; enjoined Nov. 22, 2016 Status of Appeal to Fifth Circuit DOL Sec. Acosta on overtime rule Increase to match inflation? Request for Information to be issued Holding pattern until Sec confirmed, Alexander Acosta confirmed as Labor Secretary on 4/27/17 Decision by E.D. Texas DOL under the Obama Admin appealed New administration reply brief not due until 6/30 Sec Acosta: minimum salary threshold should match inflation—around $33K? Acosta considered overtime rule jump to $47,476 to be too drastic, difficult for employers to plan for Sec Acosta announced to House subcommittee on 6/7 that DOL intends to issue Request for Information to solicit public feedback on the issue of salary increase, expected to request input on likely economic impact copyright © Bradley & Riley PC All Rights Reserved

8 DOL Withdrawal of Independent Contractor, Joint Employer Guidance
Issues in Unemployment Law 6/15/2017 DOL Withdrawal of Independent Contractor, Joint Employer Guidance June 7, 2017: DOL withdrew WHD Administrator’s Interpretations on independent contractors (AI No ), joint employers (AI No ) AIs targeted misclassification, “fissured workplace” Advanced broad definitions of employee, employer under FLSA DOL Wage and Hour Administrator David Weil Not through formal agency rule making process Under the fissured workplace premise, workplace models such as franchising and the use of independent contractors and temporary employees are believed to contribute to greater wage and hour violations. Enforcement priority. (a) the degree of control exercised by the alleged employer; (b) the worker's investment in the business; (c) the degree to which the worker's opportunity for profit and loss is determined by the alleged employer; (d) the skill and initiative in performing the job; (e) the permanency of the relationship; and (f) the extent to which the work is an integral part of the alleged employer's business. Roeder v. Directv, Inc., No. C LTS, 2017 WL , at *9 (N.D. Iowa Jan. 13, 2017) copyright © Bradley & Riley PC All Rights Reserved

9 DOL Independent Contractor Guidance AI 2015-1
Issues in Unemployment Law 6/15/2017 DOL Independent Contractor Guidance AI FLSA: employ = “suffer or permit to work” Multi-factor “economic realities” test: the extent to which the work performed is an integral part of the employer’s business; the worker’s opportunity for profit or loss depending on his or her managerial skill; the extent of the relative investments of the employer and the worker; whether the work performed requires special skills and initiative; the permanency of the relationship; and the degree of control exercised or retained by the employer Created presumption of employment copyright © Bradley & Riley PC All Rights Reserved

10 DOL Joint Employer Guidance AI 2016-1
Issues in Unemployment Law 6/15/2017 DOL Joint Employer Guidance AI Horizontal joint employment: employee has two or more technically separate but related or associated employers e.g. two restaurants with shared managers, shared coordination of employee scheduling, share benefit of employees’ work Vertical joint employment: where one employer provides labor to another employer and the workers are economically dependent on both employers Employer engages intermediary employer (e.g. staffing agency, subcontractor) to provide workers Expansive interpretation of joint employment Consequences: Under the FLSA, each of the joint employers must ensure that the employee receives all employment-related rights under the FLSA (including payment of at least the federal minimum wage for all hours worked and overtime pay at not less than one and one-half the regular rate of pay for hours worked over 40 in a workweek, unless an exception or exemption applies). Furthermore, joint employers must combine all of the hours worked by the employee in a workweek to determine if the employee worked more than 40 hours and is due overtime pay. copyright © Bradley & Riley PC All Rights Reserved

11 Title VII, Sexual Orientation Discrimination
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 341 (7th Cir. 2017): Title VII prohibits discrimination on the basis of sexual orientation Sex-based stereotyping Associational discrimination Direction of federal law Compliance with state, local law

12 Issues in Unemployment Law
6/15/2017 Enforceability of Class Action Waivers in Employment Arbitration Agreements Does class/collective action waiver in arbitration agreement with employee violate the NLRA? Federal Arbitration Act, 9 U.S.C. § 1 et seq. Concerted activity, unfair labor practices, Sections 7, 8 of NLRA, 29 U.S.C. §§ 157 – 158 D.R. Horton Inc., 357 NLRB 184 (2012) Recent circuit split National Labor Relations Board v. Murphy Oil USA, Inc. (No ) In D.R. Horton, the NLRB ruled that an arbitration agreement under which employees were required to waive the right to bring class or collective actions violated the National Labor Relations Act (NLRA). FAA establishes liberal policy in favor of arbitration. SC consolidated NLRB v Murphy Oil with two cases: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris Set for the October 2017 term copyright © Bradley & Riley PC All Rights Reserved

13 FMLA Interference: Massey-Diez v. UICMS
Facts Plaintiff was a PA formerly employed at UICMS in North Liberty, IA. Patient charting: dictation within 24 hrs of patient visit and the transcription reviewed and signed within next 48 hrs. Plaintiff provided great patient care, but had difficulty timely updating patient records (e.g. Fall of 2012, had over 200 delinquent records).

14 FMLA Interference: Massey-Diez v. UICMS (cont.)
Facts Plaintiff broke her foot and took FMLA leave and then intermittent leave. When she took leave, she had 31 incomplete charts. While on leave, UICMS inquired about when she would return to work and asked her to attend to her charting inbox. This included responding to patient phone calls, attending to prescription refills, sending messages, performing triage, and reviewing lab tests.

15 FMLA Interference: Massey-Diez v. UICMS (cont.)
Facts Plaintiff did not decline to do work or express reservations. No one at UICMS stated or implied that failure to comply would result in adverse employment action. When she returned, she continued to have charting problems and UICMS did not renew her contract. She filed lawsuit alleging, among other things, interference with FMLA. District Court granted UICMS MSJ.

16 FMLA Interference: Massey-Diez v. UICMS (cont.)
Result 8th Circuit affirmed, ruling that although UICMS’s conduct approached the line of unlawful interference, it was not. Law It is unlawful for an employer to interfere with employee’s FMLA rights. 8th Cir. has never addressed issue of whether and under what circumstances contacting an employee on FMLA leave with respect to work is unlawful interference.

17 FMLA Interference: Massey-Diez v. UICMS (cont.)
Law Looking at other cases, 8th Cir. stated there is a general distinction between receiving nondistruptive communications such as short phone calls and requesting the employee to pass along institutional knowledge or property, on the one hand, and requiring an employee to complete work related tasks or produce work product, on the other hand. Analysis Plaintiff voluntarily performed work while on leave and at no time did UICMS state completing the work was a condition of her employment. As a result, UICMS did not unlawfully interfere with her FMLA leave.

18 Conducting an Effective Internal Investigation
In-House or Outsource? Training and experience Characteristics: objective, good listener and credible Knowledgeable: policies, culture and subject matter Past practice Resources: human and financial

19 Conducting an Effective Internal Investigation (cont’d)
In-House or Outsource? (cont’d) Conflicts: Is the accused or complaining party in upper management? Legal Privilege: In-house, non-attorney: likely no privilege Outsource to attorney: attorney-client privilege; work product privilege, if done properly and not waived

20 Internal Investigations (cont’d)
Investigation triggers Complaints of alleged policy violations, such as sexual harassment Formal or informal complaints Knowledge of alleged policy violations, even if no complaint Receipt of charge of discrimination and/or harassment from EEOC, Iowa Civil Rights Commission (“ICRC”) or local agency

21 Internal Investigations (cont‘)
What to consider Nature of the complaint or alleged policy violation. In-house, outsourced, authorities? Identify the investigator Gather and review any relevant documents Identify witnesses to interview What if new claims are raised or something unexpected happens?

22 Internal Investigations (cont’d)
Evidence collection Develop professional rapport Introductory comments: Generally: identify yourself and your role; identify nature of complaint and individuals as needed; explain purpose of interview; and no retaliation Attorneys give “Upjohn warning”: attorney represents employer; communicating with employee for purpose of giving legal advice to employer; interview is protected and confidential pursuant to attorney-client privilege; and that privilege belongs to employer, not employee

23 Internal Investigations (cont’d)
Evidence collection (cont’d) Questions generally: prepare questions that are open-ended, non-leading and non-judgmental EEOC Enforcement Guidance on Harassment sample questions for complaining party: “Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?” “How did you react? What response did you make when the incident(s) occurred or afterwards?” “How did the harassment affect you? Has your job been affected in any way?”

24 Internal Investigations (cont’d)
Evidence collection (cont’d) EEOC Enforcement Guidance on Harassment sample questions for accused: “What is your response to these allegations?” “If the harasser claims that the allegations are false, ask why the complainant might lie.” “Are there any persons who have relevant information?” “Are there any notes, physical evidence, or other documentation regarding the incident(s)?” “Do you know of any other relevant information?”

25 Internal Investigations (cont’d)
Evidence collection (cont’d) EEOC Enforcement Guidance on Harassment sample questions for third parties: “What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.” “What did the complainant tell you? When did s/he tell you this?” “Do you know of any other relevant information?” “Are there other persons who have relevant information?”

26 Internal Investigations (cont’d)
Evidence collection Confidentiality Interviews should generally remain confidential. Strict confidentiality cannot and must not be promised. Note that the NLRB requires employers to establish a “legitimate and substantial business justification” for requiring employees to keep investigations confidential, which outweighs their Section 7 rights under the NLRA.

27 Internal Investigations (cont’d)
Evidence collection Confidentiality Employee wants to record interview? Employee wants to bring a friend or co-worker? Note, union employees may have “Weingarten Rights.” Beware that investigator’s notes may be discoverable in subsequent lawsuit. Witness fails to cooperate. Defamation. Newell v. JDS Holdings, L.L.C., 834 N.W.2d 463 (Iowa App. 2013) (defamation claim can arise from intra-office communication). Consider using standard forms

28 Internal Investigations (cont’d)
Evidence collection Memorializing Overall, want to demonstrate that performed a prompt, thorough and objective investigation. Notes should be factual and avoid jumping to conclusions and making conclusive statements. Should interviewer be alone or bring someone to take notes? Record interviews? Beware that investigator’s notes may be discoverable. Note, attorneys may want to segregate notes related to fact gathering from notes related to mental impressions and legal advice. Written report summarizing issue, methodology, document review, witness interviews, policies and applicable law and conclusions and/or recommendations.

29 Internal Investigations (cont’d)
Resolution Addressing harassment Review discipline with HR to ensure it is consistent with policies and applicable law, proportional to the offense, and consistent with prior practice. Inform the complaining party and the accused of the conclusions. Thank the witnesses and inform them the matter had been resolved. Revise policies, as needed, and periodically inform and train all employees, especially supervisors, about the employer’s anti-harassment policy.

30 Issues in Unemployment Law
6/15/2017 Questions? copyright © Bradley & Riley PC All Rights Reserved

31 Issues in Unemployment Law
6/15/2017 Thank You Follow up questions can be directed to Joe Younker at and (319) or Melissa Carrington at and (319) NOTE: This material is provided for educational and information purposes only and should not be construed as legal advice. Cedar Rapids 2007 1st Avenue SE Cedar Rapids, IA 52402 Iowa City Tower Place One South Gilbert Street Iowa City, IA 52240 Chicago 320 W. Ohio Street Suite 3W Chicago, IL 60654 copyright © Bradley & Riley PC All Rights Reserved

32 Ethics and Social Media
6/15/2017 Ethics and Social Media Cedar Rapids - Iowa City - Chicago June 15, 2017 Todd C. Jacobs Timothy J. Hill Natalie K. Ditmars copyright © Bradley & Riley PC All Rights Reserved

33 Overview What is social media
Five areas in which the ethical rules touch on social media use. Counseling clients Juries Maintaining client confidences Spoliation and preservation of evidence Wrongfully obtaining evidence

34 What is Social Media? Computer-mediated tools
That allow people to create, shape or exchange information In virtual communities and networks

35 What is Social Media?

36 Of adult internet users
Lots of Users 74% Of adult internet users

37 Lots of Data Every 20 Minutes Every day Every day 58 million tweets
1 million links shared 3 million messages sent 58 million tweets 70 million photos

38 What Makes Social Media Different?
Low Barrier Fast, simple, free Powerful Consequences Public, permanent False Privacy Your network, profile, and device

39 Counseling Clients

40 Rule 1.1 Competence Maintaining Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. [8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

41 Rule 2.1: Advisor to Clients
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

42 Advising Clients On Social Media Marketing
Five Key Risks Defamation Intellectual property violations Unauthorized release of client information Harassment or discrimination Deceptive or unfair practices

43 Juries

44 Juries ABA Formal Opinion No “Passive Review” of social media does not violate ethical rule forbidding ex parte communication with jurors. “Access request,” however, does. Oracle v. Google, No. C WHA – Order re Internet and Social Media Searches of Jurors (March 25, 2016) Judge asked parties and counsel to voluntarily refrain If no agreement, extent of searches would be revealed to juror so that privacy settings could be revised No arguments to jurors may be made based on information learned from social media But see Oregon State Bar Formal Opinion No “Access request” okay if full disclosure of lawyer’s role

45 Maintaining Client Confidences

46 Rule 1.6: Confidentiality of Information
“A lawyer shall not reveal information relating to the representation of a client” absent… Informed consent by the client; Implied authorization by the nature of the representation; or Extreme circumstances like preventing fraud, murder, etc.

47 In the Matter of Kristine Ann Peshek
Winnebago County assistant public defender for 19 years Maintained blog, “The Bardd Before the Bar – Irreverent Adventures in Life, Law and Indigent Defense” [sic] About one-third of her posts concerned her work

48 In the Matter of Kristine Ann Peshek
# This stupid kid is taking the rap for his drug –dealing dirtbag of an older brother because ‘he’s no snitch.’ My client is in college. Just goes to show you that higher education does not imply that you have any sense.

49 In the Matter of Kristine Ann Peshek
‘Dennis,’ the diabetic whose case I mentioned in Wednesday’s post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t managed well.

50 In the Matter of Kristine Ann Peshek
Illinois ARDC: Peshek’s blog entries contained sufficient information to reveal several clients’ identities, as well as those of judges Peshek insulted. Disposition: Suspended for 60 days by Illinois ARDC; reciprocal 60 day suspension by Wisconsin Supreme Court

51 In re Jesse Raymond Gilsdorf
Gilsdorf represented Fulmer on criminal charges for selling drugs. In discovery, Gilsdorf received a video of Fulmer selling drugs to an undercover agent.

52 In re Jesse Raymond Gilsdorf
Gilsdorf believed the video showed the authorities planting the drugs. He posted the video on YouTube in an apparent bid for public support. “Cops and Task Force Planting Drugs”

53 In re Jesse Raymond Gilsdorf
Gilsdorf later “watched the video ‘again and again’ on a ‘large television set’” after which he “changed [his] opinion” and decided the video did, in fact, show his client selling drugs.

54 In re Jesse Raymond Gilsdorf
Violations (Among Others) No consent under Rule 1.6 “[E]ven if [Fulmer] had given permission… [she] did not give ‘informed consent’ as required by Rule 1.6(a).” Conclusion: 5-month suspension

55 In re Herr, No 2012 SC 94 (Kan. 2013) Research assistant for Kansas Supreme Court; first job out of law school Discipline proceeding before a panel of the Court involving former Kansas Attorney General Phill Kline Watched hearing via computer in her office and live-tweeted her reations

56 In re Herr, No SC 94 (Kan. 2013)

57 In re Herr, No SC 94 (Kan. 2013) Holy Balls, There are literally 15 cops here for the Phil Kline case today …

58 In re Herr, No SC 94 (Kan. 2013) I predict that he will be disbarred for a period not less than 7 years.

59 In re Herr, No SC 94 (Kan. 2013) Associated Press saw tweets and contacted Court Before being terminated, Herr deleted tweets and “maybe” deleted the Internet history on her work computer. Disposition: Herr fired by her judge and formally censured by the Court.

60 Spoliation and Preservation of Evidence

61 Rule 3.4: Fairness to Opposing Party and Counsel
A lawyer shall not … unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act…

62 Rule 4.1: Truthfulness in Statements to Others
… a lawyer shall not knowingly: Make false statement of material fact or law to a third person; or Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule1.6.

63 This is Murray Managing partner of office of prominent Virginia law firm 30+ years experience Former president of Virginia Trial Lawyers Association Northwestern alumnus

64 This is Murray’s Client

65 This is Murray’s Advice
“You have something (maybe plastic) on your head and are holding a bud with your I love Hot Moms shirt on. There are 2 couples in the background… both girls have long blond hair. Do you know the pic? There are some other pics that should be deleted.”

66 This is Murray’s Conduct
Signs discovery response: “I do not have a Facebook page on the date this is signed, April 15, 2009.”

67 This is Murray’s Undoing
Opponent subpoenaed Facebook, hired an expert, and proved that Murry’s client had deleted 16 photos, all of which were eventually produced. Murray also intentionally omitted the recommending deletion from a privilege log.

68 This is Murray’s End Murray’s Client: -$180,000.00 fine Murray:
- 5 year suspension

69 Spoliation Lessons N.Y. Cty. Lawyers’ Association:
“Removing social media posts is okay “provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence” “There is no ethical bar to ‘taking down’ such material from social media publications … particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer.”

70 Wrongfully Obtaining Evidence

71 Rule 4.3: Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonable should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding…

72 “The Philadelphia Lawyer”
Anonymous Philadelphia lawyer deposed unrepresented party The deposition testimony was harmful to the lawyer’s case Witness revealed she had a Facebook account After deposition, lawyer checked witness Facebook account.

73 “The Philadelphia Lawyer”
Lawyer asked Professional Guidance Committee whether he could have a third party attempt to “friend” the witness If permitted, the third party would provide the Lawyer information from the witness’s Facebook page for evaluation and possible use for impeachment at trial.

74 “The Philadelphia Lawyer”
The Answer: Not Allowed Rule 5.3: Lawyers are liable for professional misconduct by non-lawyers acting at their direction Rule 8.4: Contacting an unrepresented party in this manner would constitute both (a) deception, and (b) misconduct.

75 New ISBA Ethics Opinions
// Practice Tools // Ethics Opinions ISBA’s Ethics and Practice Guidelines Cmt.: Issues advisory opinions on “proper interpretation” of IA R. Prof. Conduct “Advisory only and are not binding upon any member of the ISBA” -- ? Avg. 2.5 Opinions per year – 2 so far in 2017

76 Iowa Ethics Op. 17-01 “When Lawyers Change Law Firms: Guidelines”
Applicability to in-house? Principles discussed Preliminary discussions: avoid disclosing client IDs, client matters Common law fiduciary duties owed to law firm Rule (c): prohibits engaging in dishonesty, misrepresentation

77 Iowa Ethics Op When new firm must perform conflict of interest analysis, “lawyer should notify lawyer’s current firm” – timing issue Disclose only enough info for new firm to run conflict check Disclosure of attorney-client, other privileged info or info prejudicial to client (i.e., publicly undisclosed corporate client transaction) is prohibited Old Firm required to allow new firm’s conflict check; new firm must keep confidential Joint notification to clients / non-disparagement “Brief Bank” – beware of taking

78 Iowa Ethics Op “When a Law Partner Holds Public Office: Guidelines When lawyer on municipal, county, state board or commission: Law Firm may represent client before a board, commission “inferior or superior” to that board Be mindful of Rule (e) – prohibition on stating or implying ability to influence gov’t entity Law firm may represent client before board, commission on which member of firm serves: Lawyer must disclose, recuse and sequester (at firm and commission) Reversal of prior Ethics Op. (1992)

79 Thank You Follow up questions can be directed to Todd C. Jacobs, Timothy J. Hill or Natalie K. Ditmars at and Cedar Rapids 2007 First Avenue SE PO Box 2804 Cedar Rapids, Iowa Ph: Iowa City Tower Place One South Gilbert Iowa City, Iowa Ph: Chicago 320 W. Ohio Street, Suite 3W Chicago, Illinois 60654 Ph: