Employment Law Best Practices for Long Term Care

2/13/2017

DISCLAIMER EMPLOYMENT LAW BEST PRACTICES FOR LONG TERM CARE EMPLOYEES This presentation reflects the views of its author, which are not necessarily the views of OHCA or Lane Powell PC. It is intended to provide general information only. It is not intended to provide any legal opinions or advice applicable to any particular situation, JEFF DUNCAN BRECHT and does not create an attorney-client relationship with any attendee or reader. [email protected] / 503.778.2162 If you would like more information regarding whether we may assist you in any particular LANE POWELL PC matter, please contact one of our attorneys, using care not to provide us any confidential information until we have notified you in writing that there are no conflicts of interest and that OHCA Spring Gala we have agreed to represent you on the specific matter that is the subject of your inquiry. Salem, OR – March 8, 2017

OVERVIEW TAKING THE WIND OUT OF WHISTLEBLOWER CLAIMS

• Taking the Wind out of Whistleblower (Retaliation) Claims • Your Employees, Your Facility, and Social Media, Oh My! • The Straight Dope on Dope • Breaking Up is Hard to Do

ALL-TOO-COMMON STORY . . . WHISTLEBLOWER RETALIATION

Adverse employment action motivated by an employee’s exercise of protected whistleblowing rights.

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TYPICAL ELEMENTS OF AN EMPLOYMENT RETALIATION/WHISTLEBLOWING CHARGES. . . WHISTLEBLOWER CLAIM: CHA-CHING!

• Employee engaged in a protected • The EEOC has reported that it recovers whistleblowing activity. about $173 million per year for these sorts • Employer knew of the protected activity. of claims. • Employee suffered adverse employment action. • Causal connection between the protected activity and the adverse action.

BUT . . . AND …

That $173 million amount That $173 million dollars does NOT include the does not include the amount amount of “benefits” paid to attorneys to recovered through litigation. prosecute and defend those retaliation-based claims.

AND … WHISTLEBLOWER PROTECTIONS ABOUND

That $173 million dollars does • Many statutes not factor in the amount of time employers spent to • Employee complains about practices believed to be illegal defend against whistleblower • Human nature to retaliate claims.

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LET’S LOOK AT SOME STATUTES WITH WHISTLEBLOWER-TYPE RETALIATION PROVISIONS

COMMONALITY AMONG THESE LAWS? ORS 441.655 “IMMUNITY PROVIDED REPORTER OF ABUSE”

• Whistleblower-Related Anti-Retaliation • “Anyone who makes a report pursuant to ORS 441.630 to 441.650 shall not be subjected to any Protections retaliation by any official or employee of a long term • Typical language: It is unlawful for any person to care facility for making a report, including but not limited to restriction of otherwise lawful access to “discharge or in any other manner the facility or to any resident thereof, or, if an discriminate against any employee because such employee, to dismissal or harassment.” employee has” complained about a workplace practice that the law is intended protect against.

OAR 411-054-0028 (RCF AND ALF) ORS 659A.199 “WHISTLEBLOWING”

• “4) IMMUNITY AND PROHIBITION OF RETALIATION. • Employer acts unlawfully if it takes • “(a) The facility licensee, employees and agents must not retaliate in any way adverse action against an employee against anyone who participates in the making of an abuse complaint, including “for the reason that the employee has but not limited to restricting otherwise lawful access to the facility or to any in good faith reported information resident, or if an employee, dismissal or harassment. that the employee believes is evidence • “(b) Anyone who, in good faith, reports abuse or suspected abuse shall have of a violation of a state or federal law, immunity from any liability that might otherwise be incurred or imposed with rule or regulation.” respect to the making or content of an abuse complaint.”

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• 659A.233 DISCRIMINATION FOR REPORTING CERTAIN AND ANOTHER OREGON WHISTLEBLOWER PROTECTION FOR EMPLOYEES VIOLATIONS

• • ORS 659A.230: Employer acts “It is an unlawful employment practice for an unlawfully if takes adverse action employer to discharge, demote, suspend or in any against an employee, among other manner discriminate or retaliate against an employee reasons, “for the reason that the with regard to promotion, compensation or other employee has in good faith terms, conditions or privileges of employment for reported criminal activity by any the reason that the employee has in good faith person.” reported possible violations of ORS chapter 441 or of ORS 443.400 to 443.455 or has testified in good faith at an unemployment compensation hearing ….”

WHISTLEBLOWING PROTECTIONS UNDER THE YOUR COMPANY IS NOT UNIONIZED, SO WHO CARES NATIONAL LABOR RELATIONS ACT (NLRA), ABOUT THE NLRA AND WHISTLEBLOWING?

• Employees have the right to engage in • Some non-union employers believe “concerted activities” for collective that the NLRA does not govern any bargaining “or other mutual aid or aspect of non-union businesses. protection.”  That can be a costly misconception. • Protected activities can include discussing • The NLRA applies to private union wages, benefits, and other work-related and non-union facilities and other terms and conditions. workplaces. • Employers are prohibited from interfering with those rights.

NLRA: MUST FACILITIES TOLERATE EMPLOYEES WHAT IF THE EMPLOYEE’S GRIPE-FEST-FILLED WHO FLAUNT THEIR DISLOYALTY? IS SUCH RANT DOESN’T EVEN MENTION “UNIONS”? CONDUCT EVEN WHISTLEBLOWING?

• The NLRB grants employees substantial latitude to criticize (blow the whistle on) their employers, • The NLRA does not only especially related to wages, hours, and working protect “union” talk. conditions. • However, NLRB also recognizes that at some point an employee’s “complaint” or “report” can move beyond comments that are merely prejudicial to the employer, so that the comments lose protections of the Act.

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WHAT ABOUT EMPLOYEES WHO DISCUSS NLRA: WHAT ABOUT EMPLOYEES WHOSE “CONFIDENTIAL” WAGE INFORMATION? COMPLAINT DISCLOSES OTHER “RESIDENT” COULD THAT BE A TYPE OF WHISTLEBLOWING? INFORMATION?

• Yes. • Employee must comply with HIPAA • Generally, the NLRB’s position is that if and other resident privacy an employee complaint/discussion (such protections. as a social media posting) pertains to • If you discipline employee, make wages, hours, or working conditions, sure it is for a privacy violation— the employee’s right to discuss such not for reporting resident issues. issues outweighs your right and interest in keeping that information private.

NLRA: SO WHEN IS A WHISTLEBLOWING NLRA: WHAT ABOUT WORKPLACE COMPLAINTS COMMENT NOT REALLY A THAT CONTAIN PROFANITY? WHISTLEBLOWING COMMENT?

• Complaints/reports that are maliciously false are • The Act protects a certain amount of not protected. vulgarity/profanity. • But just because a comment is not 100% true • If the complaint was an impulsive/knee-jerk does not mean it is not protected by the Act. act, the NLRB is likely to give the employee • Assume that innocent or negligent mistakes are the benefit of the doubt that it was a heat- protected. of-the-moment act (and protected). • Employers have the burden to prove malicious falsehood, and not just a mistake.

WHICH EMPLOYEES IN YOUR FACILITY GETS TO SUE FOR WHISTLEBLOWER RETALIATION? WHICH EMPLOYEES IN YOUR FACILITY GETS TO SUE FOR WHISTLEBLOWER RETALIATION?

• Employees who participate in a whistleblowing- related “protected activity,” such as: And the employee suffers an filing a complaint or charge/report unlawful act adverse employment action participate as a witness because of the protected oppose an unlawful employment practice whistleblowing activity. prohibited … AND

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WHAT’S AN ADVERSE EMPLOYMENT ACTION? DO SELF-PROFESSED WHISTLEBLOWERS HAVE IMMUNITY FROM DISCIPLINE?

• Not hired Not necessarily . . . • Fired • Whistleblowing protections have limits, and facilities should analyze related incidents on a case-by-case basis. • Demoted • Whistleblowing protections apply to legitimate, proper, good • Reduced wages faith reports of abuse, neglect, unsafe conditions, and rule • Reduced benefits violations. • Whistleblowing protections do not apply to conveniently • Reduced workplace opportunities invented reports that are made to avoid termination or • Cruddy reassignments discipline for unrelated/unprotected workplace conduct.

ADOPT A POLICY THAT ENCOURAGES EMPLOYEES TO FACILITY TIPS REGARDING WHISTLEBLOWING MAKE SUGGESTIONS AND COMPLY WITH MANDATORY REPORTER OBLIGATIONS

Facilities should: • How to report . Analyze rules and policies to make • Who to report to sure they could not have a “chilling • Protections against retaliation effect” on making complaints, reporting concerns, making • It takes a village… mandatory reports, concerted activities….

TRAIN MANAGERS AND SUPERVISORS MORE WHISTLEBLOWER POLICY AND PRACTICE TIPS

• Train on how to respond to a whistleblower’s complaint. • Remind supervisors that they serve as Analyze initial facts and circumstances. guardians of anti-retaliation compliance Investigate. (and your facility’s culture). Confer with legal. • Be vigilant for “good natured” pranks, Protect evidence. comments, and workspace indignities. Protect witnesses. Respond appropriately.

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TIPS TO AVOID WHISTLEBLOWER RETALIATION CLAIMS YOUR CULTURE OF ENCOURAGING WHISTLEBLOWERS

• Remind employees to report retaliation (and • Periodically remind employees of the complaint how to report). procedure. Establish employee tip line. • Reward “best” safety ideas. Establish internal reporting process. • Actively seek complaints from employees who have raised problems or concerns. Deal with all reports promptly. • Involve HR (early and often) in employment • Remind subject of complaint/report that decisions that might be related to whistleblowing. retaliation is prohibited. • Make sure no retaliation is involved in the decision • Follow-up. making process.

RESPOND PROMPTLY (REINFORCE YOUR CULTURE) DOCUMENT YOUR POLICY, TRAINING, RESPONSE … CULTURE

• Proactively engage employee to nail down You work hard to comply with allegations of whistleblower’s complaint/report. whistleblower protection / anti- • Provide employee with a copy of non-retaliation retaliation laws. policy. • Make sure to document those efforts. • Offer to assist the employee if problems persist. • Do it contemporaneously. • Follow-up to ensure there have been no further incidents. • Implement a document retention policy.

FINAL THOUGHTS … POTENTIAL BENEFITS OF ENCOURAGING A YOUR EMPLOYEES, YOUR FACILITY, AND “WHISTLEBLOWER CULTURE” AT YOUR FACILITY SOCIAL MEDIA, OH MY! • Reduces adverse stigma of reporting problems. • Reduces instances of misconduct. • Reduces retaliation. • Strengthens workforce cohesion. • Increases likelihood that employees will report misconduct internally first and allow you to analyze reporting obligations.

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OREGON LAW PROHIBITS EMPLOYERS FROM: DARN TWITTERVERSE!

• Sometimes employees “report” unlawful workplace activity via • Requiring employees to social media. disclose the username and • Or they post workplace photos password for their personal that may violate HIPAA or that social media accounts. could be construed as derogatory to your residents.

OREGON LAW PROHIBITS EMPLOYERS FROM: OREGON LAW PROHIBITS EMPLOYERS FROM:

• Forcing employees to allow the employer to view the • Forcing employees to employees’ (non-public) “friend” the employer. accounts.

AND AS OF JANUARY 1, 2016: NARROW EXCEPTIONS:

Oregon employers have been • Employer may require employee to disclose password and other prohibited from requiring an employee account access information if account was provided by, or on behalf of, the employer, or to be used on behalf of the employer. to: • Employer may use or require employee to share content from social • Establish or maintain a personal media account to comply with state and federal laws or to conduct a social media account, or employment investigation. • Allow the employer to advertise on • Employer may access information and content posted by or about an his or her personal social media employee that is publicly available. account.

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BUT BE CAREFUL … INCREASING SCRUTINY

• Labor and employment law enforcement agencies (like the EEOC and BOLI) are focusing more and more on employer’s social media-related employment practices. • Employer use of social media as tool to discover misconduct makes them vulnerable to agency action and private whistleblowing lawsuits.

SAFEST BET? DON’T USE SOCIAL MEDIA TO MAKE SAFEST BET? DON’T USE SOCIAL MEDIA HIRING DECISIONS TO “MONITOR” YOUR EMPLOYEES.

• If disciplined employees can show they • Even a passing glance at an were disciplined because the employer employee’s social media learned of a protected status or activities could disclose protected by viewing the employees social media status or activities. posting(s), the employer may be found liable. • Social media monitoring may also have a chilling impact on protected activity.

SO … WHEN YOU DRAFT (OR REVISE) YOUR SOCIAL YOUR SOCIAL MEDIA POLICY SHOULD INSTEAD … MEDIA POLICY:

• Encourage employees to resolve workplace • DO NOT discourage employee participation in social concerns internally. media by threatening sanctions and policies against those who post disparaging remarks regarding your company • State that discriminatory remarks, harassment, (such remarks could include protected whistleblowing). bullying, threats of violence, and similar • DO NOT over-broadly define “confidential information.” inappropriate behavior is not tolerated in the • DO NOT require employees to report on co-workers’ workplace and is not acceptable on social media. social media activities. • Forbid employees from making statements on behalf of the facility without authorization.

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THE STRAIGHT DOPE ON DOPE MEDICARE / MEDICAID PARTICIPATION CONFLICT

• Facilities that participate in Medicare and Medicaid represent, as a condition of participation, that they agree to comply with all federal and state law. • But, as of today, marijuana is illegal under federal law.

EMERALD STEEL FABRICATORS, INC. V. BUREAU OF LABOR AND DUTY TO ACCOMMODATE MARIJUANA? INDUSTRIES, 348 OR. 159, 190, 230 P.3D 518, 536 (2010)

• Not in Oregon (at this time) • Held: ORS 475.306(1) authorization of the use of medical marijuana is preempted by the Controlled Substances Act making the use of marijuana, a Nothing in ORS 475B.400 (Findings) to 475B.525 (Oregon Health Schedule 1 Drug, illegal. Since the employee using medical marijuana was Authority) shall be construed to require: engaged in illegal use of drugs when the employer discharged him, the protections under ORS 659A.112, including the duty to engage in the interactive “(2) An employer to accommodate the medical use of process, do not apply. marijuana in the workplace.”

ORS 475B.413

BOTTOM LINE ON MARIJUANA (FOR NOW) BREAKING UP IS HARD TO DO

• Yes, you can still have drug free employment policies. • Yes, you can fire employees for using MJ.

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BASIC LAWS AFFECTING TERMINATIONS BASIC LAWS AFFECTING TERMINATIONS

o Title VII and ORS 659A o Uniformed Service Employment Rights Act . Prohibits termination due to race, color, religion, gender, national origin, sexual orientation . Prohibits termination based on military service o Age Discrimination in Employment o FMLA/OFLA . Prohibits discrimination if over 40 years old . Prohibits termination based on serious health condition of family member of employee o Americans with Disabilities o Retaliation Laws . Prohibits terminating employee based on disability or perceived disability . Prohibits termination in retaliation for engaging in legal right (e.g., workers’ compensation, EEOC/BOLI complaint, request for accommodation) o Pregnancy Discrimination . Prohibits termination based on pregnancy/childbirth

WRONGFUL DISCHARGE LAWSUITS CAUSED BY… WRONGFUL DISCHARGE CLAIMS ARE COSTLY IN TIME AND MONEY

o Even if your facility wins …. o Poorly documented decisions you still have attorney fees, time with attorneys, o Poorly reasoned or sudden distraction terminations that surprise employee o Verdicts and Arbitration o Decisions based on unlawful reasons awards are often six (and sometimes seven!) figures

DEFENSIBLE TERMINATIONS START WITH TIMELY, PRE-TERMINATION DECISION ACCURATE PERFORMANCE REVIEWS CONSIDERATIONS CHECKLIST

o Protected class? o Accurate reviews are the right thing to do. o Recent medical leave? o Inaccurate reviews make o Recent complaint? terminations more difficult. o How do performance reviews and personnel o Untimely reviews create risk of file look? retaliation and discrimination. . Do these files contradict your reason?

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THANKS. TERMINATION TIPS ANY QUESTIONS?

o Have management witness present. o Truthfully state basis for decision. o Compliance with wage payment laws (final pay check). o Post-termination benefits in return for release? o Neutral post-separation references. o How will your facility respond to terminated employee’s claim for unemployment benefits?