presents presents Healthcare Employee Wage and Hour Collective Claims: Growing Litigation Threat Collective Claims: Growing Litigation Threat Avoiding, Defending and Settling FLSA Actions Against Hospitals and Providers A Li A Live 90-Minute Teleconference/Webinar with Interactive Q&A 90 Mi t T l f /W bi ith I t ti Q&A Today's panel features: Alison B. Marshall, Partner, Jones Day , Washington, D.C. Lee Schreter, Shareholder, Littler Mendelson , Atlanta Lee Schreter, Shareholder, Littler Mendelson , Atlanta Shanti Atkins, President & CEO, ELT , San Francisco Wednesday, May 5, 2010 The conference begins at: The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrants.
HEALTHCARE EMPLOYEE WAGE AND HOUR HEALTHCARE EMPLOYEE WAGE AND HOUR COLLECTIVE CLAIMS: A GROWING THREAT COLLECTIVE CLAIMS: A GROWING THREAT Alison B Marshall Alison B. Marshall Jones Day
Why Compliance Matters • Obama Administration has promised increased enforcement activity enforcement activity. • Plaintiffs’ bar has launched an aggressive nationwide campaign. p g • Potential high dollar exposure and disruptive litigation. 3
Increased DOL Activity • March 2009 -- announced addition of 250 new investigators • June 2009 -- Secretary Solis – “Make no mistake the DOL is back y in the enforcement business.” • November 2009 – Secretary Solis announced new worker awareness campaign; same month, DOL announced initiative targeting healthcare in Connecticut and Rhode Island targeting healthcare in Connecticut and Rhode Island • February 22, 2010 – DOL initiative targeting healthcare industry in NY announced • March 24, 2010 – DOL announced that it will no longer provide fact-specific guidance to employers through opinion letters. f t ifi id t l th h i i l tt • April 1, 2010 – DOL announced focus on assisted living employers in southeast for investigation of FLSA violations 4
Increased Private Bar Activity • Plaintiffs’ bar using websites like http://hospitalovertime.com • Aggressively encouraging hourly employees at hospitals and • Aggressively encouraging hourly employees at hospitals and healthcare facilities to join wage and hour lawsuits • Using publicly available data sources to identify employees/potential class members employees/potential class members • Cases started in Northeast – Multiple suits filed in a city on same day (e.g. NYC in March 2010) 2010) • Copycat litigation proliferating across country 5
Potential Exposure • December 2009, SSM Healthcare in St. Louis paid $1.7 million to nurses to resolve unpaid meal break claims. p • August 2009, Kaiser Permanente paid $1.4 million to settle class action for misclassifying project managers as exempt. • July 2009, Partners Healthcare paid $2.7 million to 700 employees who worked in more than one company-owned facility but were not having their hours properly aggregated. • March 2009, Tenet Healthcare paid $81 million to settle claims under California law for unpaid overtime under California law for unpaid overtime. • November 2007, Total Health Home Care Corporation paid $2 million to settle compensable travel time claims. 6
Collective or Class Claims or Both • FLSA -- § 216(b) collective action – opt-in class • State – Rule 23 class action – opt-out class St t R l 23 l ti t t l • Often see combination of two • 3 year statute of limitations for willful claims under • 3 year statute of limitations for willful claims under FLSA • Liquidated damages • Focus here will be primarily on the FLSA – state laws vary and need to be checked 7
Top Targeted Area: What Hours Count Count • Meal and rest breaks and automatic deductions • Pre- and post-shift hours P d t hift h • On-Call Time • Aggregation of Hours • Aggregation of Hours 8
What Hours Count? • Employees must be paid for work “suffered or permitted” by the employer even if the permitted by the employer even if the employer does not specifically authorize the work. 29 C.F.R. § 785.11. • So long as the employer “knows or has reason to believe” that such work is occurring, the employee must be paid for the hours, even if l t b id f th h if off-site or off-shift. 29 C.F.R. § 785.12. 9
Meal and Rest Periods • Meal and rest periods not required under FLSA. • Short breaks (generally 5 to 20 minutes) are hours worked and • Short breaks (generally 5 to 20 minutes), are hours worked and compensable. • “Bona fide” meal or break periods (typically 30 or more minutes) do not count towards hours worked provided employees actually do not count towards hours worked, provided employees actually take the break and are “completely relieved from duty” during that time. 29 C.F.R. § 785.18. • California requires employers to provide a 30-minute meal break • California requires employers to provide a 30-minute meal break for any person who works a period of more than five hours. 10
Meal and Rest Periods cont’d • Ex.: LPNs in the pediatric intensive care unit are given 30-minute meal breaks. Routinely, they are interrupted by requests to meal breaks. Routinely, they are interrupted by requests to assist patients or to answer phones for the unit. Given their workloads, they also frequently eat lunch at a desk while completing charts. Does the 30 minutes count? p g – Yes. According to a 2008 DOL opinion letter, such breaks would have to be counted since the meal periods are spent working on tasks predominantly for the benefit of the g p y employer. 11
Automatic Deductions • Subject of numerous collective actions currently pending (e.g. Fengler v. Crouse Health; Camesi v. University of Pittsburgh g y g Med. Ctr.; Gordon v. Kaleida Health) • Issue is whether employers should or should not take automatic deductions for meal breaks. • Ex.: A skilled nursing facility automatically deducts one half-hour for meal breaks each shift. Upon hiring, the employer notifies the employees of the policy and of their responsibility to take the break break. Is this lawful? Is this lawful? – Yes, but the employer must monitor to ensure that the breaks are actually taken without interruption. 12
Pre- and Post-Shift Hours • Hours worked prior to or after an employee’s principal activity are not compensable time unless they are an activity are not compensable time unless they are an “integral and indispensable” part of those activities. 29 U.S.C. § 254. • But, if the hours worked are integral and indispensable, they will count as hours worked even if not authorized by the employer if the employer “knows not authorized by the employer if the employer knows or has reason to believe” that such work is occurring. 13
Pre- and Post-Shift Examples • Ex. 1: LPNs assigned to a busy critical care unit routinely stay post-shift to complete their time sheets and notate patient charts. post shift to complete their time sheets and notate patient charts. Compensable? – Yes. This work is integral to performance of their job duties. • Ex 2: A medical tech chooses to change into and out of his • Ex. 2: A medical tech chooses to change into and out of his scrubs and hairnet in the locker room at the hospital. Is this time compensable? – No. As employees have the option and ability to change into No As employees have the option and ability to change into these items at home, changing gear is not a considered a principal activity and is not likely to be compensable. 14
On-Call Time • Periods of inactivity while on duty are hours worked and compensable and compensable. 29 C.F.R. § 785.15. 29 C F R § 785 15 • Periods during which an employee is “completely relieved from duty“ and which are long enough to enable him to use the time effectively for his own enable him to use the time effectively for his own purposes are not hours worked.” – The relevant distinction is whether the employee is “engaged to wait” or “wait[ing] to be engaged” -- the former is compensable, while the latter is not. 15
On-Call Time cont’d. • Ex. 1: Hospital requires its hourly nurses to carry a pager during 1-hour lunch breaks, but they are allowed to leave the hospital with no other restrictions. Compensable time? t i ti C bl ti ? – No, because they are allowed to leave the premises and have few restrictions on their time. Employees required to remain on-call on or close to the employer’s premises such that they cannot use the p y p y time effectively for their own purposes, however, are considered to be working and the hours compensable. • Ex. 2: Hospital requires its hourly on-call equipment repair technician to carry a pager remain sober be available on twenty minutes notice and carry a pager, remain sober, be available on twenty minutes notice, and answer calls usually 3 or 4 times per shift. Compensable time? – Probably yes. Frequency of the calls will be a factor. 16
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