Polsinelli PC. In California, Polsinelli LLP

The Ruby Files: Managing the Challenging Employee

Eric E. Packel, Robert J. Hingula, Joan Killgore, Teeka Harrison

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• 39 years old• Married• In Vitro• Recent reentry into workforce• Just hired as Unit Supervisor at Hospital• Paid $42,000 a year ($850 a week)

Who is Ruby R. Breaker?

Job Description

Unit Supervisor Job Description

Job Title: Unit Supervisor

Department: Medical/Surgical Unit

Reports to (title): M/S Manager

Status: Exempt

Performance Expectations

A. Performs job specific responsibilities; consistently

supports patient centered environment.

B. Demonstrates accountability for own actions and

decisions.

C. Follows policies, procedures, and standards.

D. Assumes responsibility for risk and safety issues

associated with position. Participates in performance

improvement activities.

F. Utilizes resources efficiently and effectively.

G. Participates as a member of a team to achieve

organizational goals.

H. Participates in department decision-making.

Job Specific Responsibilities

I. Essential Functions (essential functions as defined in the

"Americans with Disabilities" Act)

A. Demonstrates competence in the areas of critical thinking,

interpersonal relationships, and technical skills.

B. Demonstrates ability to provide care/service safely and

efficiently for each patient.

C. Educates patients and compiles necessary information for

complex appointments.

D. Communicates as needed with appropriate disciplines to

ensure scheduled tests, diagnostic procedures, follow up care and

appointments are coordinated.

E. Collaborates with intake scheduler to determine appropriate

patient scheduling and record collection.

F. During intake process, assists in identifying patient needs and

initiates appropriate referrals to support services.

G. Supervises the efficient, economic, and competent

performance of the Unit.

H. Assists in the development of the clinical goals and objectives

of the Unit in collaboration with the Unit Manager.

I. Supports and promotes the principles of service excellence in

all interactions with patients, their family members, their other

health care providers and all members of the staff.

Job Description cont’d

J. Acts as a consultant to other members of the nursing and

clinical staff for patients with complex health problems requiring

specialized nursing care.

II. Nonessential Functions

A. Other duties as assigned by the Executive Director.

III. Minimum Requirements

A. Education/Training Required

High School Diploma [X]

Bachelor's Degree in Nursing [X]

Other: 3-5 years of Nursing Experience [X]

B. Skills and Experience

· Clinical knowledge of nursing practice specific to surgery.

· Working knowledge of licensure/regulations for nursing.

· Working knowledge of regulatory requirements that must be

complied with, i.e., The Joint Commission, State Board of

Nursing.

· Ability to communicate effectively with an interdisciplinary

clinical team including multispecialty physicians.

· Ability to communicate effectively with hospital and medical

center personnel and the community.

· Ability to be flexible when needed, firm when needed, and to

work well under pressure.

· Basic computer skill set for data entry and EMR usage.

C. Physical and Mental Requirements

Lifting up to Pushing on wheels up to Manual Dexterity

[X] 40 lbs. [X] 150 lbs. [X] Medium

Vision: Adequate to perform the essential functions of the job such as:

ability to use computer; to identify and respond to safety issues; to

type documents and the ability to read and write.

Mental: Adequate to perform the essential functions of the job such

as: ability to receive instructions and follow through to completion; to

conceptualize, plan, organize and communicate concepts and

instructions.

Phone Call

Executive Exemption

• Salary not less than $455 a week;

• “Primary Duty” managing the enterprise or a

customarily recognized department or sub division;

• Must “customarily and regularly” direct the work of

at least 2 or more FTE’s;

• Authority to hire or fire, or the employee’s

suggestions as to hiring, firing, advancement and

promotion must be given particular weight.

Definitions

• “Primary Duty” = principal, main, major or

most important duty the employee performs.

• “Customarily and Regularly” = greater than

occasional but less than constant; includes

work normally done every workweek, but

does not include isolated or one-time tasks.

Administrative Exemption

• Salary of $455 per week;

• “Primary Duty” performance of office or non-

manual work directly related to the

management or general business operations

of the employer or employer’s customers;

• Primary Duty includes exercise of discretion

and independent judgment.

What About Ruby?

• Executive Exempt?

• Administratively Exempt?

• Other Exemption?

A Brief Look Ahead:

• March 2014 – President Obama directed

D.O.L. to update regulations

• D.O.L. proposed rules submitted June 2015.

• Comment period ended.

• Proposal - $970 a week salary ($50,440.00 a

year)

• Automatic annual adjustments.

Secretary Tom Perez

• We “are back in the enforcement business,

putting more cops on the beat and giving them

more resources to protect working families who

bear the greatest burden when labor standards

are violated.”

U.S. Department of Labor

Wage and Hour Division

400 State Avenue

D.O.L. Suite 1010

Kansas City, Kansas 66101

Telephone: (913) 551-5721

Complaint FAX: (913) 551-5730

January 6, 2016

Scheduled Appointment:

Date: January 22, 2016

Time: 9 a.m.

Re: Appointment with Wage and Hour Investigator

The Wage and Hour Division (WHD) of the U.S. Department of Labor is responsible for administering and enforcing a number

of federal labor laws, including the Fair Labor Standards Act (FLSA). This letter is to inform you of the agency's plans to visit

your establishment on January 22, 2016 to determine your compliance with the FLSA. The enclosed pamphlet briefly

describes the FLSA.

Authority for this investigation is contained in Section 11(a) of the FLSA. Section 11(a) states, "The Administrator or his

designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices

of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make

such transcriptions thereof), question such employees, and investigate such facts, conditions, practices or matters as he may

deem necessary or appropriate to determine whether any person has violated any provision of this chapter or which may aid

in the enforcement of the provisions of this chapter.“

I will visit your establishment on January 22 at 9 a.m. to determine such compliance. The normal procedure is to hold an

opening conference with a representative of the company, check certain records for a two-year period, interview a

representative number of employees, and hold a closing conference to discuss the results of the investigation.

In order to conduct the investigation with as little disruption to your business operations as possible, please have available for

our inspection on the above date, all documents providing the following information for the last two years (December 2013

through December 2015) ending with your last completed payroll:

D.O.L.

Complaint

• Time & payroll records for the time period listed above. Records need to be on a pay period basis. (e.g., time cards and payrollsummaries for each pay period).

• An extra copy of each of the following payrolls: your last completed payroll (prior to our appointment), payroll for 6 months ago, 12 months ago, 18 months ago and 24 months ago. Each payroll shall include job titles of all employees.

• A list of all salaried employees who worked during the time period please include (name, title, yearly salary, and dates of employment as a salaried employee).

• List of all employees employed during the time period (name, address, phone number and dates of employment.)

• List of all employees under age 18, which have worked during the time period, including names, addresses, telephone numbers, date of birth, and dates of employment.

• Total number of employees for the business and total number of employees for the enterprise.

• A list of all employees that received bonuses, including the amount of bonus, date bonus was paid, purpose of bonus and the time period the bonus represents.

• Legal name and trade name of the business and tax identification number.

• Records demonstrating your gross annual dollar volume of sales. Please provide these records for the past three (instead of two)years-2013, 2014, 2015.

• Names and addresses of all locations and other facilities and businesses that are partially and/or fully owned by any of the owners.

• Name and address of your corporate office, corporate officers, owners and percentages of ownership for each location.

• Date business began operations and if incorporated, date and state of incorporation.

We request that you have all of the listed documents available on the designated meeting date pursuant to the authority contained in Section 11(a) and (c) of the FLSA and in Part 516 of the Code of Federal Regulations.

Per section 15(a)(3) of the FLSA, you are prohibited from retaliating against any person who files a complaint with the Wage and Hour Division or who cooperates with a Wage and Hour Division investigation. You are also prohibited from retaliating against youremployees for accepting payment of the wages owed to them or from requiring your employee to return or decline

payment of the wages owed to them.

Every effort will be made to conduct this investigation expeditiously and with a minimum of inconvenience to you and your employees. However, please note that the above is not intended to be an exhaustive or final list of records to be examined.

If you are unable to be present on the date and time indicated, you may designate a representative to act on your behalf. Additionally, should you or your representative be unable to attend the scheduled meeting, please notify me as soon as possible but no later than the preceding business day.

If you have any questions, feel free to call me at

Sincerely,

Wage & Hour Investigator

Enclosures

Handy Reference Guide, ELSA

Fact Sheet #44

Fact Sheet #77A

HIPAA

• The HIPAA Privacy Regulations govern the use and disclosure of confidential protected health information (“PHI”)

• HIPAA applies to “Covered Entities” – Typically health care providers (including physicians and hospitals)

and health plans

– An employer is generally not a “Covered Entity” – but the employer’s health plan is a “Covered Entity”

– HIPAA is not at issue when an employee provides his/her health information to an employer (e.g., back to work letter)

• A Covered Entity is permitted to use and disclose PHI in many situations without a patient’s authorization

• If a use or disclosure of PHI is not permitted, then in most cases the PHI can only be used or disclosed pursuant to a patient’s written authorization A Covered Entity can be sanctioned for its workers’ unauthorized use and disclosure of a patient’s PHI

What Do I Do?

• Contact counsel

• Gather documents/examples

• Analyze impetus – why is this happening?

• Newly disgruntled employee(s)?

• Previous audits?

• Inform supervisors

• Ensure posters posted

• Ensure compliance with record keeping

Additional Preparation

• Audit classifications

• Correct inappropriate timekeeping and pay

practices; if it was inappropriate, determine

when it began, who affected, etc.

• If certain records do not exist, be prepared to

explain why

What Can D.O.L. Do?

• Interview witnesses

• Review records

• Site visit

• Additional interviews

• Employer conference

In Ruby’s Case…

• Notice a lunch deduction

• Witness mentions being “deprived of FMLA”

• D.O.L. notes for further use??

• What if proposed rules were in effect already?

• Grandfather clause in D.O.L. rules?

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FMLA Concern

• Ruby told Investigator she may not be able to take time off for in vitro because she does not have enough PTO

• In vitro covered by FMLA?• In vitro a disability? Accommodations?

Scope of Investigation

• Limited to those records?

• Can it expand?

• Compliance with other laws:

– USERRA, FMLA, ERISA, etc.

Settlement Conference

Settlement in Ruby’s case:

• Back pay

• Reclassification

• Others reclassified

What if Hospital Doesn’t Settle?

• Attempt negotiation

• Accept DOL Findings

• DOL file suit and defend?

Ruby, Ruby, Ruby

• What will she do next?

– Continues her job at Hospital

– Carpal tunnel issues

– Complains about her job on Facebook

– Legal representation? Termination? Quits?

Find out on March 8, 2016, 12:00 CST!

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