Several main employment issues, highlighted in recent legal actions, will affect ASCs and other employers in 2018. One of these hot topics is subject to a U.S. Supreme Court decision, which is expected to settle a major issue over arbitration agreements, says Ed Boniske, JD, attorney with Higgs, Fletcher & Mack in San Diego.
The Supreme Court has mandated that arbitration contracts are enforceable. Arbitration contracts are documents that outline when an employer and employees are required to settle disputes in arbitration, and they are prevented from inclusion in class action lawsuits. Even if there is an issue that involves exposure to all employees, they can’t bring class action, Boniske says.
But in a decision by the United States Court of Appeals for the 9th Circuit (Morris v. Ernst & Young), justices vacated a district court’s order compelling individual arbitration in an employees’ class action, alleging that Ernst & Young misclassified employees to deny overtime wages. The court held that it was a violation of the National Labor Relations Act to require employees to sign an agreement that precludes them from bringing a concerted legal claim regarding wages, hours, and terms or conditions of employment. (Read the court’s opinion at: http://bit.ly/2o23J5u.)
“The 5th Circuit has gone in the other direction,” Boniske says. “This matters because there are 4 million Americans working under arbitration agreements. If the court decision is in favor of employees, it invalidates arbitration agreements.”
If the Supreme Court decides in favor of arbitration agreements, then employers can continue to use these and be protected from class action suits. Even for smaller businesses, like independent ASCs, arbitration agreements could be useful.
Another hot topic involves joint employer issues. “We’re seeing more and more of these on the litigation front,” Boniske says. “More employers are dragged into lawsuits that involve someone who worked for the employer, even for a couple of days or weeks.”
In joint employer issues, there is a staffing agency and the staffing agency’s client. Employees of the staffing agency, who work for the client, might sue both the staffing agency and the client company. In the case of ASCs, it would be as if a staffing agency nurse sued both the ASC and the nurse’s actual employer.
The lawsuits might deal with wage statements, overtime, work conditions, and other issues. The upshot is that ASC owners cannot assume they are safe from workplace lawsuits from contract workers.
“If you have control and direct their day-to-day workflow, you have potential liability as a joint employer,” Boniske warns.
One strategy that might help prevent risk from a joint employer issue is for the ASC to make sure the staffing agency follows wage and labor laws. ASCs also can sign a contract that makes the staffing agency responsible for paying for the defense of any lawsuits brought about by a staffing agency’s employees.
A third area of legal concern involves disability issues. “This is an area where you can get into trouble very quickly,” Boniske says. “Under federal law, your obligation is to accommodate employees with disabilities.”
Employers might forget that this law also pertains to people who must take time off of work because of an injury or illness. For smaller employers, this can create a significant burden as they are required to keep the employee’s position open, but they also must find someone to perform the work while the employee is off work. Employers are expected to first engage with the employee to find out what kind of accommodation they will need, Boniske says.
“You should engage in a good faith process to determine the nature of their disability and what accommodations you might offer,” he says. “This doesn’t just mean accommodations to the workplace; it also might include an extended leave of absence or reduction in schedule.”
There is an exception to the rules when there’s undue hardship to the employer. “That’s the one where I get a lot of calls,” Boniske says. “People ask, ‘What if my business can’t afford to have an open seat?’”
Keeping a job open for a sick or disabled employee can be a big burden, but it might not qualify as an exception, depending on individual details of the case.
“The court will consider the length of disability and the nature of the restriction,” Boniske says.
“If I have a client who gives me specific facts about the employee’s issue, then I can guide them through the process,” he explains. “Be very careful, work slowly, document every step, and make sure you’re checking the boxes: documenting when you first had a conversation with the employee, how you offered an accommodation, and the employee’s response.”
Documentation is very important, particularly if the employee is fired later.
There is another issue employers should keep in mind about these cases involving disability: “Accept the medical notes you receive from healthcare providers,” Boniske advises. “Often, employers will say, ‘They got this doctor’s note, but I don’t buy it.’ It’s not up to you to make that decision.”