Obtain Legal Advice From A Lawyer
Posted by: John Gilliland
May 08, 2007

Recently, I attended a program presented by a human resources professional.  It was quite good in terms of how to use a progressive discipline system, identification of common problems, etc. He was very knowledgeable in those areas.  Unfortunately, some of the information given concerning legal requirements was not correct.  The presenter did not know an employment lawyer was in the audience and, out of courtesy, I simply kept quiet. 

Non-lawyers giving legal advice in employment matters seems to occur rather often.  Unfortunately, the advice given may not be correct.  That's not to say they are intentionally giving bad information.  Rather, they simply don't know what they don't know or how courts may view various issues.  At other times, it seems to be because they feel compelled to give an answer instead of admitting they don't know something. 

If the individual is an HR professional (e.g. certified by the Society for Human Resource Management, "SHRM"), the problem rarely is that what is stated is completely wrong.  Instead, it is a matter of important nuances and identifying exceptions.  For example, the person may say that, to be lawful, a deduction from an employee's wages must be either required by law or approved by the employee.  That is correct in some states, but not in all.  Some states require more than simply the employee's consent, specifying what the deduction must be for and required elements for the consent form.  Employment law varies greatly from state to state. 

Of course, your HR personnel must be aware of basic legal requirements of the laws they are administering.  From a legal perspective, the HR expertise is in implementing and administering the laws.  But, that is different than giving legal advice or attempting to apply complex laws or court decisions to specific factual situations.  For that, advice of a knowledgeable employment/labor lawyer should be sought. 

In our practice, we see far too many situations in which employers have receive legally incorrect advice from non-lawyers.  It is unfortunate but too many persons seem unwilling to simply say, "I don't know. I'm not a lawyer." and then encourage the persons to whom they are speaking to seek legal advice.

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Salary Surveys Can Implicate Antitrust Laws
Posted by: John Gilliland
April 19, 2007

There are several lawsuits underway around the country in which nurses are suing hospitals under the antitrust laws for sharing nonpublic information with each other concerning nurses wage rates. The nurses allege the hospitals entered into a wage fixing conspiracy that has had the effect of suppressing wages in the hospitals' market area.

Employers, who are competitors, take some risk when they share wage and benefit information or what they charge for services. While it may be done innocently, such sharing can easily implicate the antitrust laws because of how easily it can result in price fixing or otherwise restrain competition.

Whenever competitors get together, they must be careful in sharing information. It does not matter if it's for lunch, golf, or a trade association meeting. The result can be the same - information is shared that results in less competition.

Think of it this way, if you know what your competitors are paying caregivers, it will affect what you pay your caregivers. If you know what a competitor charges for services, it will affect what you charge.

The risk is when you and your competitors act together. It does not have to be a formal agreement. A wink and a nod or unstated "understanding" can be enough to prove a conspiracy.

The risk of antitrust violations is so great that trade associations are increasingly including warnings when they sponsor meetings at which competitors gather. Typically, the warning is something like this:

"Because of federal and state anti-trust laws, certain topics are not proper subjects for discussion at any XYZ functions. In many cases, our members are competitors and any action or agreement which may eliminate, restrict or govern competition among members or their colleagues could be a violation of anti-trust laws. Those violating the anti-trust laws are subject to severe criminal and civil penalties.

This means that we must not discuss any items falling with the realm of competitive practices, such as current or future prices or charges; discounts for cash payments; terms of service; productivity rates; profit levels; salaries and wages; credit terms; or refusal to deal with a particular third-party payor or equipment vendor.

Please adhere strictly to these guidelines during all XYZ functions to protect yourself and your company from liability."

There are ways to lawfully conduct salary or price surveys, but they must be carefully structured to avoid antitrust implications. The U.S. Department of Justice and the Federal Trade Commission both recognize that sharing of information, when done properly, can benefit consumers. Those agencies have established guidelines to follow to avoid antitrust sanctions. The guidelines are at:

http://www.ftc.gov/reports/hlth3s.pdf

Often, small employers think the antitrust laws only apply to big corporations. That is not the case. Whenever competitors share information, the antitrust laws maybe implicated.

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Resources Concerning Employees and the Military
Posted by: John Gilliland
April 13, 2007

The War on Terror has led to many employers having to deal with employee absence due to military service and then their return and re-entry into the workforce.  As could be expected, legal disagreements can arise over both the employers? and the employees? rights and responsibilities.

The basic federal law dealing with job protection and rights of reinstatement for employees who participate in the Reserves and National Guard is the ?Uniformed Services Employment and Reemployment Rights Act (?USERRA?) If you employ or have employed anyone who is in the military or returning from active duty, you need to have a basic understanding of its provisions.

Fortunately, the United States Department of Labor maintains an excellent website to help employers and employees understand the requirements of USERRA.  It is at:

Another helpful resource is Employer Support of the Guard and Reserve (?ESGR?).  ESGR is a Department of Defense agency established to gain and maintain active support for National Guard and Reservists by both public and private employers. It even provides an informal mediation service to provide assistance in resolving employment conflicts that can result from military membership, training or other service requirements.  ESGR?s website is filled with resources of interest to both employers and employees.  It is at:


Our firm also will publish an article on our website in the near future to help you understand your obligations under USERRA.

There is one last website to mention. That is Military OneSource.  Military OneSource provides many resources for active duty, Guard and Reserve members and their families.  A wealth of issues are addressed on its website and it offers 24/7 telephone support to answer questions and provide counseling.  It can be an invaluable resource for your employees who are members of the military and for their families.  Go to:

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Be Honest in Preformance Reviews
Posted by: John Gilliland
April 09, 2007

The news always has some interesting examples of employment law issues.

A timely example is the current controversy concerning the U.S. Department of Justice?s firing of eight United States Attorneys.

Totally aside from the question of whether or not those dismissals should have occurred (we will try to be non-political on this blog), the situation illustrates how what is in an employee?s personnel file makes a difference in the event of discharge.

From press reports, it appears the Department of Justice claims the eight attorneys were discharged due to poor performance.  However, at least some of their personnel files apparently are not consistent with that charge. If so, the Department of Justice should have consulted an employment lawyer before giving poor performance as the reason.

It happens so often - a discrimination or other wrongful discharge suit is filed against an employer.  The employer says the discharge was not due to unlawful discrimination or other reason.  Rather, the employer is adamant that the employee?s discharge was due to poor performance.

One of the first things the employer?s employment lawyer will do is ask to see the employee?s personnel file.  All too often, the employer?s ?poor performance? defense is not supported by what is in the personnel file.  There is nothing to document poor performance.  Indeed, just the opposite is often the case - the employee?s file contains glowing performance reviews.

In this situation, what would you believe - the employer?s self-serving claims of poor performance or the documents in the employee?s personnel file?

Accurate and complete documentation of an employee?s performance is one of the most valuable things an employer can do to successfully defend claims of discrimination or other wrongful discharge.  The written documentation will speak much louder and more forcefully than anything the employer later says verbally.

Of course, giving good performance reviews and ignoring progressive discipline is much easier than being honest and pointing out areas of needed improvement.  However, unless what is said is true, it will come back to haunt.  

When evaluating an employee?s performance, be honest and accurate. You are doing no one any favors when you pretend an employee?s performance is good when it is not. Think about it - aside from how inaccurate documentation can come back to haunt, how is an employee expected to improve his or her performance if you aren?t honest in identifying areas of needed improvement?

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Workforce Development Audit
Posted by: Jennifer Milligan
May 19, 2006

Recently I had a client fax me a notice of an audit by Indiana Workforce Development to review.  This is the first one of these types of audits that has been brought to my attention.  I contacted the Investigator responsible for conducting the audit to find out exactly what Workforce Development was investigating.   I was told by the Investigator that it is a routine audit to see if the company is complying with the state and federal reporting requirements (i.e. number of employees, etc.)  He also mentioned that they would check the status of any independent contractors and determine if the company has them properly classified as independent contractors and not employees.

What does this mean to you?

Simply giving an individual the title of ?independent contractor? is not enough to make them an independent contractor.   Whether or not an individual is properly classified as an independent contractor is dependent upon all the facts of the actual circumstances involved.  The test can be different for various purposes.  Some of the purposes for which a worker's status must be determined are:  FICA, IRS, Negligence, FUTA, Minimum Wage and Overtime Pay, Unemployment Compensation, Workers Compensation, Anti-Discrimination Laws, Employee Benefits, Immigration and Naturalization Act, OSHA, and Licensure.  

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Welcome
Posted by: Jennifer Milligan
March 06, 2006

Welcome to the Homecare Employment Law Blog.  The goal of this blog is to provide employers, with an emphasis on homecare and hospice providers, with up-to-date information on various employment issues affecting how you operate. 

Some of you may be familiar with our firm and may be familiar with the authors of this blog as well.  Gilliland Markette & Milligan LLP is an Indianapolis based law firm that represents employers, focusing on healthcare providers, including homecare and hospice providers, around the country.  

The authors contributing to this blog are John Gilliland and Jennifer Milligan.  Over the past twenty years, John Gilliland has represented a large number of homecare and hospice providers, as well as other health care providers, ranging from solo practitioners to large hospitals.  John has spoken all over the country on subjects ranging from fraud and abuse to wage and hour. 

Jennifer Milligan practices primarily in the area of employment law.  Jennifer has represented various management clients, including a large number of homecare and hospice providers.  Jennifer has also spoken and written a great deal on various employment issues, including both state and federal issues.   

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