Let’s Get Practical:
A discussion of common
employment issues
SAMANTHA S. OTERO
MCCANDLISH HOLTON, PC
RICHMOND, VIRGINIA
(804) 775-3868
SOTERO@LAWMH.COM
Recent Employment Law Updates
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 Effective July 1, 2013, employers must report every new hire
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to the New Hire Reporting Center (a part of the division of
Child Support Enforcement) within 20 days of employment
commencing.
The AMA designated obesity as a disease. This will likely
mean that courts will find the obese persons have a
disability.
The Fourth Circuit held in 2013 that Virginia employers do
not need to post notices informing employees of their right
to unionize.
Last summer the Department of Labor issued Fact Sheet
#71 – Internship Programs under the Fair Labor Standards
Act - which essentially states that interns in the for-profit
private sector will be viewed as employees. Six criteria apply
if the employer wishes to escape payment of wages.
EEOC is focusing now on religious discrimination
Top Reasons Why Health Care Practices Seek
Employment Law Advice
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 Wage and Hour Issues (Fair Labor Standards Act)
 Family and Medical Leave Act paperwork
 Americans with Disabilities Act
 Physician Issues
 Hiring/Employment Contracts/Noncompetes
 Firing/Poor Performance, Unacceptable Conduct
 Unemployment Claims
 EEOC filings and responses
 Employee Handbooks
Wage and Hour Questions
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 Can I deduct from a provider’s pay if they are not
performing up to expectations?
 Are nurses automatically exempt from
overtime/minimum wage requirements?
 Can I have exempt employees clock in and out?
 What if a nonexempt employee is working off the
clock?
Family and Medical Leave Act Paperwork
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 FMLA paperwork (in general)
 First round – paperwork to be sent to EE within 5 business days of receiving a
“request”
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Second Round – designate leave
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HD Publication 1420- Employee Rights and Responsibilities: Outlines EE rights
and duties under FMLA.
WH-381 – Notice of Eligibility and Rights and Responsibilities: Sets forth
specific rights and responsibilities as an employee of the company.
WH-380E or WH-380F– Certification of Health Care Provider for
Employee's/Family Member’s Serious Health Condition: This form must be
completed and returned to the ER within 15 calendar days of EE’s receipt.
Job Description (if leave is for employee’s condition): This should be provided
to any health care provider who will be certifying the need for leave.
HIPAA form – can be included but should not be required
WH-382 – Designation Notice – to be sent within 5 business days of
determining that leave qualifies as FMLA leave
Third Round – if leave is for continuous period or if intermittent leave may
amount to more than 12 weeks, send a letter to EE 2 weeks before his leave
will expire, reminding him of end of leave period, and requesting that he
submit any questions/information he may have regarding a continuing need
for leave.
Americans with Disabilities Act
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 Is leave an accommodation under the ADA?
 YES! If reasonable and “defined”
 Review precedent
 Review other leave policies
 If an EE does not request an accommodation, are
we obligated to provide one?
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Possibly – you should engage in the collaborative process.
Physician Contract Issues
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 Are our employment agreements up to date?
 Practices should have their physician agreements reviewed by counsel
every 2-3 years, particularly if you have noncompete agreements.
 Noncompete agreements should contain disclaimers –
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Allowing for the practice to agree in writing to proposed employment by
former physician.
Explaining that nothing in the agreement should be read to preclude
physician from performing any work that is not competitive with the
practice.
Can we modify noncompetes for individual physicians?
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Yes, but be careful. You have to prove that the restrictions are reasonable
with respect to your legitimate business interests, so if each contract has a
different geographic area or time restriction, you will have a more difficult
time doing so.
 Can we have different contracts for different
specialties/practices/locations?
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Of course – so long as you are able to maintain the increase in
administrative burden.
Physician Behavior Issues
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 Can we terminate a physician if he treats staff
poorly? Issues to consider:
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Termination provision in contract? Will the behavior
amount to “cause”?
Do you have a policy covering physician behavior and if so,
was the physician notified of it?
What is the precedent – have you allowed other physicians
to remain employed in spite of their poor treatment of staff?
Is this a shareholder and if so, is all paperwork in
order/signed? Is the “buy-in” paperwork consistent with the
physician’s contract?
Unemployment Claims
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 Can be handled by ER without representation
 EE must have performed service “during 30 days” (whether or
not consecutive) or for 240 hours
 Misconduct cases
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Be proactive with documenting behavior in writing – citing any policies that
were violated
Have policies that address specific behaviors
Have EVERY employee sign an acknowledgement that they have received the
policies
When response is due to VEC, attach signed acknowledgement page, policy
that was violated, and warning(s) given to employee and explain that basis for
termination was due to additional violations of policy.
 Voluntary Quit cases
 If EE gives notice of resignation, try to avoid letting her go immediately
 If EE is a no-call/no-show, send letter confirming that, pursuant to policies,
she has resigned
 If EE outright quits, send documentation confirming her resignation and the
date on which it occurred
EEOC Charges
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 ER should engage legal representation
 EE has 300 days from the date of the discrimination, to
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file a Charge
ER will receive a Charge and possibly a Request for
Information from the local EEOC office, containing
allegations by the current or former EE
Mediation is always an option, as is a continuance
ER will be required to submit a Position Statement
EEOC will (eventually) respond with a Right to Sue
letter or it will take the case itself
EE has 90 days following receipt of Right to Sue letter,
to sue
Employee Manuals
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 “Required” provisions
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Contract disclaimer
At-will employment reference
Sexual harassment policy and reporting language
Religious accommodation reference
Disability accommodation reference
Workers’ compensation reporting language
Attendance policy
Behavior expectations
Overtime provisions/classifications/work hours
Family and Medical Leave Act provision – for ERs with more than
50 EEs within 75 miles
“No right of privacy” language
Confidentiality – for both proprietary information and HIPAArelated issues
Contact Information
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McCandlish Holton’s large Health Care Practice Group represents
physician practice groups, hospitals, payors, and long term care
providers in regulatory, transactional, reimbursement and
employment law matters.
www.lawmh.com
Jeremy A. Ball
(804) 775-3801
jball@lawmh.com
Dominic P. Madigan
(804) 775-3858
dmadigan@lawmh.com
Jamie Baskerville Martin
(804) 775-7216
jmartin@lawmh.com
Samuel C. Haisley
(804) 775-3885
shaisley@lawmh.com
Thomas W. McCandlish
(804) 775-3838
tmccandlish@lawmh.com
Samantha S. Otero
(804) 775-3868
sotero@lawmh.com
Sara Hendon Heisler
(804) 775-3861
sheisler@lawmh.com
Jennifer L. Ligon
(804) 775-3842
jligon@lawmh.com
Alana M. Ritenour
(804) 775-3886
aritenour@lawmh.com