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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