When an Employee is Accused of a Crime......
Posted by: John Gilliland
July 26, 2007

Okay, I've been tardy again. The past two weeks have passed so quickly.

Last week I had the pleasure of being in San Antonio to speak at the ...home health line recruitment and retention conference. It was an excellent conference with wonderfully receptive and engaging attendees. My part was to discuss the legal issues that arise from recruitment and retention activities. I may address some of those in future postings on this blog.

Today, however, I want to mention something in the news that has an employment twist to it. Have you been following the Michael Vick matter? He is the quarterback for the Atlanta Falcons who has been indicted in connection with dog fighting.

Some of the discussion in the media concerns what the Falcons should do in light of his indictment. Of course, in terms of the indictment, he is innocent of the charges until proven guilty. On the other hand, some are calling for the Falcons to take significant disciplinary action against him before the criminal proceedings are concluded.

What do you do as an employer if an employee is charged with a crime that you believe reflects poorly on your agency? Should you wait for the outcome of the criminal proceeding? Or, should you act on your own before guilt or innocent is determined in court?

Of course, what you want to do depends on the nature of the crime and the impact you believe it has on your agency. However, in general, I think you should retain the flexibility to act based on your own investigation of the situation rather than being bound to the outcome of the criminal proceeding.

There are reasons an individual may not be convicted of the crime, but you are still satisfied conduct occurred that requires disciplinary action. For example, certain evidence of guilt may not be admissible in the criminal proceeding, but you know it exists. Or, there may be a plea bargain that affects the criminal proceeding but not your own conclusion that the conduct occurred.

The point is that you may not want to be bound by the outcome of the criminal proceeding. There may not be enough evidence to convince a jury that a crime was committed beyond a reasonable doubt, but you are still satisfied conduct occurred that does not meet your agency's standards for its employees.

Do not say in handbooks that discipline may occur due to "conviction of a crime." Instead, say discipline may occur for "conduct that would constitute a crime and could adversely affect the agency's operations or reputation." Give your agency flexibility.

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"Low Census" Policies Usually Are Not a Good Idea
Posted by: John Gilliland
June 01, 2007

Unfortunately, there may be times when an agency does not have enough patients to justify full employment for all of its current employees.

Last week, I talked briefly about the value of a written layoff policy being developed far in advance of ever thinking a layoff may be necessary.

Sometimes, rather than having a layoff, an agency will consider using a "low census" policy.  the term "low census" is taken from the hospital environment.  It generally refers to a policy of encouraging employees to take paid or unpaid time off in lieu of the employer implementing layoffs.

Is a low census policy a good idea?  I don't think so.

Management usually pursues a low census policy believing it is more fair for all employees to suffer a little rather than having a few employees lose all of their regular income under a more traditional layoff.

Whether or not this is true is questionable.  A low census policy can result in more employee dissatisfaction rather than less.  If 20 full-time employees each suffers a reduction in his or her hours of work by two hours per week rather than one employee being totally laid off, after a time, the agency will probably have 20 unhappy employees rather than just one.  Plus, the 20 unhappy employees are all at the workplace affecting the entire atmosphere; one laid off employee may be very unhappy, but he or she is not at the workplace. 

The increasing use of PRN employees in home care, rather than regular full-time or part-time employees, in many ways accomplishes the same thing as a low census policy without the hard feelings.  By "PRN employees," I mean employees who may accept or reject an assignment when offered but, if they accept the assignment, must work its schedule.

The beauty of PRN employees is that their use naturally adapts to the patient census.  When there are few patients, they simply are not offered assignments.  While they may look for work elsewhere, it is different emotionally than having a regular full-time or part-time schedule reduced.

Irrespective of whether your agency opts for a traditional layoff, a low census policy, or large use of PRN employees, my point is simply that you need to think about how you will deal with needing to reduce your workforce long before you actually need to do so.

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Adopt A Layoff Policy Far In Advance
Posted by: John Gilliland
May 25, 2007

From the news, it seems like more layoffs are happening than a few years ago.  It's made me think back to the late 1990s when many home health agencies had to reduce to the size of their workforces to stay in business.   It was a sad time for the industry.  However, it did show how valuable a written layoff policy is.  Agencies that had written policies found the reduction in their workforces went smoothly. Those that did not have written policies experienced confusion and hard feelings. The time to develop a layoff policy is long before you think you will ever need one.  The worst time is when you are in the midst of having to reduce the size of your workforce.  If you have the policy in place before you need it, the layoff then simply becomes a matter of implementing that policy, and employees will be more accepting of how the layoff occurs than if you try to develop the policy in the heat of the moment. A good layoff policy should address several things:

• Short Term vs Long Term Layoff?  Do you want to distinguish between a short term layoff and a long term layoff?  Say, for one that is for 30 days or less verses one for more than 30 days?  Often, employers do want to make such a distinction with more formality given to the longer layoff. 

• Who Will Be Laid Off?  For each kind of layoff, establish how those who will be laid off will be selected.  It does not have to be by seniority, but you probably will want to use seniority for purposes of choosing between otherwise equally qualified employees.
  
  If you use seniority, is it seniority with your agency or in the job?  Often, I have found employers initially say "with our agency, of course" but, then, change their minds as they think about it, because they need to retain the employees who are most experienced in the job affected.

Also, are layoffs done agency wide?  Or, by job title or office? 

• Affect on Employment?  What is the affect on employment of being laid off?  You will find it easiest to say that employment ends upon being laid off as part of a long term layoff.  Typically, in a short term layoff, employment does not end because it is simply temporary for a short time.

• Use of Benefits?   If the layoff does not terminate the employee's employment, what is the situation concerning benefit continuation during the layoff?  Can the employee use paid time off to receive pay during the layoff?
  
  Remember the time to develop your agency's layoff policy is before you think you will need it. Take the time to do it now
  
  Sometimes, health care providers try to use a "low census" policy rather than a layoff.  I will talk about those next week.

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Supreme Court Sets Broad Retaliation Test
Posted by: Jennifer Milligan
July 07, 2006

Working as a forklift operator, Sheila White was the only woman in the Burlington Northern & Santa Fe Railway Company?s maintenance department in the Memphis, Tennessee train yard in 1997.  During her employment, White complained to Burlington Northern officials about gender discrimination.  After her complaint of gender discrimination, she was reassigned to a less desirable laborer position-although with the same pay and benefits.  White filed a complaint with the EEOC about the demotion; later she was accused of insubordination toward a supervisor and suspended without pay.  More than a month later, the company found she hadn?t been insubordinate, reinstated her and awarded her back pay. 

White sued Burlington Northern for retaliation based in part on the transfer and the suspension.  White won $43,500 in damages plus medical expenses and attorney fees.  Burlington Northern appealed the lower court decision and ultimately this case was heard by the United States Supreme Court.  Burlington Northern & Santa Fe Railway Co., v. White, 2006 WL 1698953. 

Applying a much broader test for retaliation than had previously existed in many federal judicial circuits, the Supreme Court ruled that Burlington Northern?s suspension of White and the transfer of White to a less desirable job independently established an actionable retaliation claim. 

Until now to prove a retaliation complaint, plaintiffs in certain circuits had to show not only job-related adverse conduct by the employer but an ?ultimate employment decision?, such as a firing. 

However, in this recent decision by the Supreme Court, Justice Stephen Breyer wrote that neither element is necessarily required to create a claim for retaliation under Title VII.  Rather, any action that materially injures or harms an employee who has complained of discrimination and would dissuade a reasonable worker from making or supporting a charge of discrimination can constitute actionable retaliation.

What does this decision mean to you?  This is a big victory for employees.  This decision is likely to boost the number of retaliation claims being brought nationwide.

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Working From Home: Tips for Successful Telecommuting
Posted by: Jennifer Milligan
March 08, 2006

There is a growing trend of employers allowing their employees to work from home.  In our law practice, it is possible for one of us to work from home and a client wouldn’t even know we are away from the office.  It makes for a much more family friendly work environment.  If you plan on allowing your employees to work from home you should consider implanting a written policy that covers the following:

1. The job positions or types of position for which telecommuting is available.
   
2. Any conditions the employees must meet to telecommute (i.e. length of service and past work performance).
   
3. Minimum requirements for a home office (i.e. fax machine and high speed internet access).
   
4. Types of equipment employer will provide and types of equipment employees are expected to provide.

Similar to any other employment policy, it’s not enough to have a telecommuting policy.  You must apply the policy fairly.  Otherwise, you could potentially be subjecting yourself to charges of discrimination.

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English-Only Rules-Employer's "English-only" Policy Legally Permissible under Title VII
Posted by: Jennifer Milligan
March 08, 2006

As an employer, can you have an “English-only” policy?  Under limited circumstances you can.   A federal district court in New York granted partial summary judgment in favor of an employer on the narrow issue of whether the employer’s policy requiring sales personnel to speak “English-only” in certain limited circumstances constituted an unlawful English-only rule in violation of Title VII.  EEOC v. Sephora USA, LLC, 2005 WL 2234024.  The employer’s policy required sales personnel to speak English only on the sales floor whenever customers were present or in times of business need (i.e. when safety concerns were at issue).  The Court concluded that the limited circumstances in which the employer used its English-only policy were consistent with the suggestions provided by the EEOC in its Compliance Manual. 

The EEOC’s Compliance Manual provides that an English-only rule would be justified in situations where:  (1) there are “communications with customers, coworkers, or supervisors who only speak English”; and (2) where “workers must speak a common language to promote safety”.  These were the same circumstances provided in the employer’s policy in the Sephora case.  If you have an English-only policy in place, or plan on implementing one, you need to make sure your policy satisfies the justifications set forth by the EEOC. 

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