MHA's Society for Human Resources Administration

Ready or Not, Healthcare HR is Going Strategic

In many hospitals and health systems, HR remains an afterthought in the C-suite. But a wave of changes such as growing shortages of skilled professionals, and the linking of patient satisfaction scores to reimbursements will prompt a reassessment of HR in strategic planning.

Read more here.

Supreme Court creates potential safe haven from FLSA collective actions

The United States Supreme Court's recent decision in a consumer finance case may have given employers a creative way to limit their exposure to FLSA collective actions.  In its April 27 decision in AT&T Mobility LLC v. Concepcion, the Court struck down the California Supreme Court's common law rule prohibiting the enforcement of arbitration agreements containing collective/class action waivers, opening the door for employers to modify their arbitration agreements to include class-arbitration waivers.

While courts in the Fifth and Eleventh Circuits have long enforced arbitration agreements with respect to individual employment claims (including FLSA claims), until last week it was unclear whether an arbitration agreement that excluded the possibility of class-wide arbitration would be found enforceable.  This issue is particularly important in the context of FLSA claims, where individual claims are often small, and many cases are lucrative for plaintiffs' lawyers only if a class-wide or "collective action" can be brought.

The Supreme Court's April 27 decision removes some of this uncertainty by declaring that any state statute or law that precludes enforcement of a class/collective action waiver directly conflicts with the FAA and is therefore void as a matter of law.

In light of the Supreme Court's decision, employers should consider implementing or revising their existing arbitration agreements/plans to prohibit class or collective arbitrations.  By doing so, employers may reduce the risk of being subjected to a potentially crippling FLSA or Title VII collective/class actions.  Members of the Balch & Bingham Labor & Employment Practice Group have drafted and enforced employment arbitration agreements for many years and in both state and federal courts.  As such, we have the knowledge and experience to create and implement such agreements quickly and cost-effectively.

[ via Balch & Bingham ]

Payment of employees during full or partial emergency closures

Many of our hospitals and their employees have been or will be impacted by emergencies that cause full or partial closures. This issue is especially top of mind with recent tornadoes and flooding. 

Listed below is a white paper written by HRN Performance Solutions discussing payment of employees during full or partial emergency closures. The information contained in this paper is informational only and should not be substituted for professional human resources or legal advice.

Emergency Closures and Paying Employees
Most employers, at some time, will have to deal with bad weather, power disruptions or other circumstances that may require closing business for a day or altering working hours. Following is a discussion on pay practices in such circumstances.

Must employees be paid if you have to close because of bad weather?
Maybe. (Would you have expected any other answer but “maybe” given the complexity of HR law?) Severe weather can create many problems for employers. One common issue involves payment of employees if businesses are forced to close. Whether employees must be paid in such circumstances depends on a number of things including exempt/nonexempt status, the length of the closure (i.e., for a week,
a day or a part day), and state law.

What’s exempt status got to do with it?
Remember that under the federal Fair Labor Standards Act (FLSA), to be exempt, an employee, generally,
must be paid on a salary basis, among other requirements. To meet the “salary basis” test an employee must be paid a predetermined amount that can’t be reduced because of the quantity or quality of work performed, including partial day absences or lateness. The FLSA regulations make clear that salary deductions because of “employer or…operating requirements” would violate the salary basis test. Therefore, if an exempt employee is “ready, willing, and able to work, pay deductions may not be made for time when work isn’t available.”

So if we close early because of bad weather or a power outage must we pay employees?
Exempt Employees: Yes. To do otherwise would violate the salary basis test.
Nonexempt Employees: Probably not unless yours is one of the states that requires that employees be paid a minimum amount of pay for reporting to work.

What if we close for a whole day or even 2 days in a week, must they be paid?
Exempt Employees: Yes, same answer as above. Exempt employees must be paid.
Nonexempt Employees: No payment is required.

What if the closure lasts a week or more?
Exempt Employees: No. The FLSA regulations provide that, generally, an employee need not be paid for any workweek in which no work is performed.
Nonexempt Employees: No payment is required.

Can we require that employees use vacation time if the business is forced to close because of emergency or bad weather?
Exempt Employees: The federal FLSA does not address vacation pay. In general, as long as exempt
employees receive amounts equal to their regular salaries the FLSA isn’t violated by substituting vacation
pay. However, such an approach may create unintended problems, including serious morale issues, as some employees may have exhausted their vacation, thereby requiring that they be paid their regular checks, while others could be forced to use their vacation. Additionally, there may be state law requirements. Be cautious on this one.
Nonexempt Employees: Requiring a nonexempt employee to use his vacation days would be governed by
company policy.

What if an employee is unable to leave work on time because of bad weather or other circumstances?
Exempt Employees: There is no issue regarding exempt employees who must be paid their predetermined
regular salaries no matter how many hours they work.
Nonexempt Employees: If nonexempt employees work beyond their regular hours (or are allowed to do so)
because they are “stuck” at work, they would need to be compensated. There may also be overtime
implications.

What about state law?
Some states have “reporting pay” laws that require employees to be paid a minimum number of hours for
reporting to work, even if they are sent home early. Some states also have exceptions to their reporting pay requirements and don’t require such payments if the business closure results from threats to employees or property, recommendations by local authorities, public utility failure, or Act of God. Check your state law to determine if you’re subject to these types of requirements.

What should our company do?
While your business may never be destroyed or seriously damaged because of bad weather, it’s likely at
some point that snow, ice, rain, power outages, or other cause may require you to close. Most states do not impose reporting pay requirements; however, you’ll still need to determine how you’ll handle the situation. Some companies voluntarily implement policies that provide nonexempt employees with a couple of hours of pay for reporting to work. Others allow employees to use vacation time if desired. Some simply pay their nonexempt employees only for their “hours worked.” It’s wise to plan ahead and decide what your approach should be.

Curnis Upkins and Jim Martin are handling workforce issues for MHA during the Mississippi River flooding. Should you have questions or concerns about workforce issues, contact Curnis at 601.368.3302 or cupkins@mhanet.org or Jim Martin at 601.368.3308 or jmartin@mhanet.org.