he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N

he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N - Start

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he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N - Description

National Labor Relations Board v CSS Healthcare Services Inc No 10 13736 11th Cir Mar 30 2011 Healthcar had hired Victoria Torley to perform some startup work for a subsidiary health program Torley57557s assignment was to seek accr editation and gr ID: 42968 Download Pdf

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he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N




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Presentations text content in he federal appeals court in Atlanta has enforced a National Labor Relations Board NLRB decision finding that a nonunion inhome health care services company violated the National Labor Relations Act N


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he federal appeals court in Atlanta has enforced a National Labor Relations Board (“NLRB”) decision finding that a non-union, in-home health care services company violated the National Labor Relations Act (NLRA) by ter- minating an employee for engaging in protect- ed concerted activity. National Labor Relations Board v. CSS Healthcare Services, Inc. No. 10- 13736 (11th Cir. Mar. 30, 2011). Healthcar had hired Victoria Torley to perform some “startup” work for a subsidiary health program. Torleys assignment was to seek accr editation and gr ants for the new pr o- gram. She was paid by the hour and received direction from and reported to the companys CEO. Once the accr editation application was filed, Torley was told to take a hiatus with the understanding that she would be called back if and when additional work became av ailable. Two weeks later, CSS invited Torley back to work as a behavioral specialist. After orley began attending staff meetings at SS, she started supporting workplace com- plaints raised by other employees. She told other employees at a staff meeting that they would have more leverage to get their com- plaints remedied if they “formed a collective bargaining unit.” Torley then approached the CEO and informed him that she and other employees had formed a collective bargaining unit. Shor tly ther eafter the CEO found that the accreditation application Torley submitted for the subsidiary health program had been denied. The CEO terminated Torley based on her failure to get the new program accredited. Torley filed a charge with the NLRB against CSS Healthcare, alleging she was unlawfully termi- nated for engaging in the protected concerted activity of attempting to or ganize her co-work- ers. CSS argued that Torley was not protected by the NLRA because the law only applies to employees” and Torley was an “independent contractor. The Administrative Law Judge, the NLRB and, on review, the U.S. Court of Appeals for the Elev enth Cir cuit agr eed that Torley was an employee, that she engaged in protected con- certed activity, and that she was terminated unlawfully as a result of that activity. Further, they agreed that the companys stated reason for terminating Torley was pretextual. CSS Healthcare is one in a growing number of cases where totally non-union employers have been forced to defend themselves at the NLRB and were found to have violated the NLRA in eacting to an emplo ee engaged in protected concerted activity, even when no union is on the scene. Whether unionized or not, your organi- zation and its super visors need to understand the limits of employees right to engage in “protected concerted activity,” as well as man- agement lawful r esponses to such activity. An update on current labor, employment, benefits and immigration issues concerning the health care industry All we do is work SM Inside... From the Labor Board ........... 2 Medical R esidents Stipends Subject to FICA Taxes ............................. 3 2010-2011 NNU and Affiliate Strikes and Threatened Strikes................ 3 Health Car orker Conscience R egulations Narrowed .............................. 4 Vol. 39  No. 1  Spring 2011 It Takes a Sharp Eye to Spot “Protected Concerted Activity actice ips: What does pr otected concer ted activity” look like? As in Healthcare pr otected concer ted activity need not inv olv labor union or emplo ees talking about joining a labor union. E xamples of protected concerted activity include:  Employees wearing buttons advocating par ticular cause;  Employees making statements that appears to attack their emplo ers rep- utation or the employees supervisor, including on Facebook and other social media sites;  Employees complaining about employer work policies or terms and conditions of employment; and  Employees handing out leaflets in the parking lot while off duty. To avoid potential unfair labor practice charges, health care employers who suspect employees are engaging in protected concerted activity should immediately contact the Jackson Lewis attorney with whom they regularly work before responding to such activity.
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Third-Party Contract Workers Can Handbill on Company Property he National Labor Relations Board (“NLRB”) has ruled that employees of third-party contractors and vendors may handbill on company property in non- working areas. It reasoned that the vendors employ- ees right to engage in union activity outweighed the right of the primary employer to prohibit non-employ- ees from distributing materials on its property. New York New York, LLC 356 NLRB No. 119 (3/25/11). This ruling will have a profound impact on health care employers as they regularly engage contractors or vendors, such as agency nurses or nurses aides, food services and environmental or cleaning services, to perform selected health care and ancillary services. Employers may prevent their own off-duty employees fr om accessing interior ar eas of its pr operty. However, in the case before the NLRB, the employer could not bar the contractors employees from accessing the interior ar eas of the pr operty to engage in union solic- itation and distribution of literature because there was no evidence that the company maintained a rule barring its o wn off-duty employees from returning to interior areas of the facility. The Board found that the company could not restrict off-duty vendor employees fr om remaining inside the property or returning to interior, non-working areas for the purpose of union solicitation and distributions if it did not maintain and enforce a rule preventing its own employees from doing so. Ambiguous Handbook Policies Leads NLRB to Overturn Union Decertification Election he National Labor Relations Board (“NLRB”) has overturned a decertification election because it found that certain policies in the employers handbook could have a chilling effect on employees rights despite the absence of any proof that employees in fact were adversely affected by the rules. Jurys Boston Hotel 356 NLRB No. 114 (3/28/11). The policies in question prohibited employees from loitering after their shift, soliciting and distributing materials on company property, and wearing emblems or buttons on their uniforms. The loitering policy was found unlawful under the National Labor Relations Act (“NLRA”) because it could be read to bar off-duty employees access to a facilitys exterior non-working areas, such as a parking lot. The solicitation and distribution policy was ruled verbroad because it could be read to prohibit union- related solicitation during non-working times and distribution in non-working ar eas. Finally, the uniform policy was found overbroad because employees may wear union-related buttons and emblems, subject to several exceptions (such as patient care and safety), none of which applied to this employer. The employer had never disciplined employees for violating its rules and had nev er enfor ced any rules against union activity. In fact, the employer even took a “neutral, if not positive,” view about the union during the election period. In the handbook, the employer also specifically informed employees of their rights under the N LRA, “which supersede any possible interpretation of the rules in the handbook. Despite these factors, the NLRB found that the “mere maintenance” of these rules could have affected the results of the union decertification election because they “could be reasonably construed” by employees as precluding them from communicating about the union at their workplace. The Board ordered a second election. This case highlights the impor tance of maintaining unambiguous and lawful handbook rules. Even if a union loses an election to represent employees at a health car facility it could succeed in overturning the r esults of the election and for ce a r e-run if the employers handbook contains certain unlawful or ambiguous policies. From the Labor Board Continued on next page Practice Tips: Before there is any union-organ- izing activity, health care employers should review their solicitation/distribution and off- duty access rules to ensure they are lawful and consistently enfor ced. In addition, employers who contract with third-party vendors should consider doing the following:  Ensure their vendors contracts contain lan- guage r equiring the v endor to apply and enforce certain property rules as to their own employees.  Train their own managers concerning these rules and how to enforce them.  Train their managers to spot and report to top management any violations by a vendors employees, so that they can notify the vendor immediately to correct the problem. It is the vendors responsibility to supervise its own employees.
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Practice Tips: Health care employers (union and non-union) should review the following standard olicies for legality under the NLRA: 1. Access (off-duty employees and third-parties) . Confidentiality 3. Corporate Compliance 4. Discipline and Misconduct (work rules) 5. Dress Code 6. Investigation of Misconduct 7. Non-disparagement of the Employer/Supervisors 8. Social Media/E-mail 9. Solicitation and Distribution 10. Statements to the Media he question of whether medical residents are “students” exempt from FICA taxes (under 26 U.S.C. 3121(b)(10)) received a unanimous “no” answer from the U.S. Supreme Court. Mayo Fdn. for Med. Educ. & Research v. United States 562 U.S. ___, 131 S. Ct. 704 (2011). In reaching this decision, the Court relied heavily on an Internal Revenue Service (“IRS”) regulation interpreting the “student exemption.” It stated that individuals regularly scheduled to work at least 40 hours per week cannot claim the exemption. Chief Justice John R oberts wrote, “Mayo does not dis- pute that the Treasury Department reasonably sought way to distinguish between workers who study and students who work. Focusing on the hours an individ- ual works and the hours he spends in studies is a perfectly sensible way of accomplishing that goal. Health car emplo yers should review their pay prac- tices with respect to doctors in residency programs, and the hours spent working v ersus studying, to ensur appropriate tax withholdings are made. Medical Residents Stipends Subject to FICA Taxes he National Nurses United (“N NU”) union was founded in December 2009 when three nurses unions (California Nurses Association, United American Nurses, and Massachusetts Nurses Association) mer ged. Since the unification, many state unions have affiliated with the NNU. It now has more than 150,000 members. The follo wing is a chart of strikes by the NNU and its affiliate state unions since 2010. Facility Strike Date Temple University Med. Center (PA) 3/31/10 (28 days) Univ ersity of California Hospital 6/1 0/1 (prevented) Minnesota Hospitals (largest nursing strike in history) 6/10/10 (1 day) North Adams Regional (MA) 9/3/10 (averted 9/2) Childrens Hospital Oakland, CA 10/12/10 (3 days) Eastern Maine Med. Center (Bangor) 11/23/10 (1 day) Wilkes-Barre Hospital (PA) 11/24/10 (averted) Wilkes-Barre Hospital (PA) 12/23/10 (1 day) Washington Med. Center (DC) 11/24/10 (averted) Washington Med. Center (DC) 3/4/11 (did not return until 3/9 because of Temporary Agency Contract) Childr en Hospital Oakland, C 5/4/11 (5 days) Tufts Medical Center (MA) 5/6/11 (averted, scheduled for 1 day) 201 0-2011 NNU and Affiliate Strikes and Threatened Strikes
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