Hostile Work Environment

HEALTH CARE WORKER'S RIGHTS TO NON-BIASED WORKPLACE

All long-term care facilities must occasionally deal with a hostile resident. Solving this problem is particularly difficult when that hostility is directed at employees with protected characteristics, such as gender or race. Most long-term care residents were born before the Civil Rights Act of 1964 and may have been raised with a different set of values or ideas of what behavior is socially acceptable. In addition, residents may have conditions that affect their mental capacity or ability to control impulsive behavior. When a resident's behavior interferes with an employee's performance or creates an offensive atmosphere in the workplace, it creates a hostile work environment.

To read the full article which appears in the August 2010 Healthcare Provider's Legal Resource, click here to take you to the August newsletter, then click on "Nursing Homes" in the left column to take you directly to the article.

By Rebecca M. Fowler, rfowler@dsda.com

VETS Reporting

IT'S TIME FOR VETS REPORTING. ARE YOU SURE YOU ARE IN COMPLIANCE?

The Vietnam Era Veterans' Readjustment Act, better known as VEVRAA, requires all federal contractors and subcontractors to report annually to the Secretary of Labor the number of employees and new hires in their workforces, by job category and hiring location, who are qualified covered veterans under VEVRAA.

Federal contractors and subcontractors are required to fill out either a VETS-100 or VETS-100A form.

• The VETS-100 form applies to employers with federal contracts that were entered into before December 1, 2003 and have a value of $25,000.00 or more.

• The VETS-100A form applies to employers with federal contracts entered into on or after December 1, 2003 in the amount of $100,000.00 or more.

Employers with federal contracts that do not meet the applicable monetary thresholds are not required to file VETS forms. Employers with contracts which fall into both categories are required to file both forms. A government contract means any agreement or modification thereof between any person and a department, agency, establishment or instrumentality of the United States for the purchase, sale, or use of personal and nonpersonal services.

The filing deadline for 2010 VETS-100 and VETS-100A reports is September 30, 2010. The DOL accepts VETS reports from August 1 through September 30 and encourages online submissions. Click here to access the VETS website.

For answers to other frequently asked questions regarding VEVRAA, click here.

For 2010 VETS-100 and VETS-100A forms, click here.

By Kenneth T. Short, kshort@dsda.com

EEO-1

SEPTEMBER 30 IS THE DEADLINE

September 30 is also the deadline for EEO-1 Reports. Under the law, you are to file an EEO-1 report if

• You are a private employer subject to Title VII with at least 100 employees, or

• You are an employer with federal government contracts of $50,000 or more and have 50 or more employees.

The report describes the gender and racial/ethnic make-up of your employees (not applicants). There are very specific categories and definitions that must be used.

The law allows you to collect such data by "visual surveys" of the work force or by post-employment records where the employee voluntarily submits such data. If you keep records, they must be kept separate from the employees' personnel files or any file which might be referred to in making employment-related decisions.

For more information, click here.

By Kristen L. Brightmire, kbrightmire@dsda.com

Joint Employer Liability

VERIZON IS FOUND RESPONSIBLE FOR PAYING PAST DUE WAGES TO THE EMPLOYEES OF ITS CONTRACTORS

When does a business become the employer of its contractor's employees? Well, generally, that happens only when the contractor fails to pay its employees in accordance with the Fair Labor Standards Act, and those employees name you as an additional defendant in their suit to collect back wages. Although there are a number of standards used by courts to determine if the business is a "joint and integrated employer," many courts adopt rules which make liability pretty hard to avoid.

In a recent federal court case from Maryland, the court found that Verizon was indeed a joint employer with its contractor Utilities Maldonado, Inc. The court relied on such facts as the training Verizon provided to all of its cable installation contractor's employees regarding OSHA requirements and the tasks required to properly install cable. The employees reported for work at Maldonado's shop, and were then transported to the Verizon installation location. Mr. Maldonado was present at the work site each day and gave orders to his employees. Verizon supervisors were also present to monitor the work and gave orders if Maldonado was not there or if there was an emergency. Verizon thought it was just doing a good job of quality control.

Here's the rub. The Maldonado employees were typically working 12 to 16 hours a day, 5 or 6 days per week. Maldonado, however, paid for only 10 hours per day, all at the straight time rate. In addition, Maldonado made payroll deductions for state and federal taxes, but forgot to remit those taxes to the government. After a couple of years, the employees had had enough, quit and brought suit against Maldonado, Verizon and others. Maldonado, of course, quickly fled and Verizon was left holding the bag.

The FLSA defines "employer" as any person acting directly or indirectly in the interest of an employer in relation to an employee. The FLSA regulations provide that "where the employee performs work which simultaneously benefits two or more employers" a joint employment relationship will be considered to exist. And, although at least one court has held that a general contractor/subcontractor relationship does not necessarily establish joint employment, it does not preclude that possibility.

Given the variety of standards used to determine a joint employer relationship, we can't offer any specific advice on how to ensure quality control over your contractors without getting caught in this trap. But, we believe that sound business practices will go a long way to protect you from inheriting the liability of an unscrupulous contractor. Put your contractors on notice, through a written contract if you have one, that they are required to comply with state and federal wage and hour laws, and include a provision that requires the contractor to indemnify you if you are required to pay any wages the contractor should have paid. And, periodically review some of your contractor's payroll records to make sure that wage and hour requirements are being met. This is particularly important when you know that your contractor's employees are working overtime, or you have some reason to suspect the employees are not being paid minimum wage.

By Rebecca M. Fowler, rfowler@dsda.com

DOT Drug Testing

DOT IMPLEMENTS NEW DRUG AND ALCOHOL TESTING REGULATIONS, EFFECTIVE OCTOBER 1

The Department of Transportation regulates the drug and alcohol testing of covered employees. While the individual agency determines who will be tested, under what circumstances, and the consequences of positive results, the DOT has a standard section addressing the "how". This is commonly referred to as Part 40. For example, the Federal Motor Carrier Safety Administration has regulations addressing when drivers of commercial motor vehicles are covered by the testing regulations, when they are to be tested, and what employer responses are required. But the FMCSA, like the other DOT agencies, rely upon Part 40 to tell them how the testing must be conducted - the science side.

Some of the changes include the following: employers will now follow the Health and Human Services (HHS) requirements for testing procedures and protocols; new laboratory requirements, including the testing for MDMA (Ecstasy), lowering cutoff levels for cocaine and amphetamines, and adding initial testing for heroin; and MROs will need to be re-qualified every five years.

What does this mean for employers required to comply with DOT drug and alcohol testing?

• If you have contracts with collection facilities and/or laboratories, be sure they are and remain in compliance with these new regulations. An employer cannot escape liability by passing the buck. You are ultimately responsible.

• Check to ensure your MRO understands the new requirements. Again, you are ultimately responsible for the proper testing of your covered employees.

• If your written policy specifically addresses any of these topics, you may need to amend that policy and re-issue it to covered employees.

This does not affect any drug or alcohol testing you may be conducting under Oklahoma's Standards for Workplace Drug and Alcohol Testing Act.

By Kristen L. Brightmire, kbrightmire@dsda.com

Estate Planning

ESTATE PLANNING 101

No, you've not entered the twilight zone. Yes, the Employer's Legal Resource has an estate planning reference.

While this is undeniably not a traditional employment issue, our Trusts & Estates group put together such an informative e-newsletter recently that we felt it important to bring it to your attention. It discusses several aspects of estate planning and how to protect your family and your assets. Articles include:

• Eight Simple Estate Planning Considerations
• Dying without a Will: Oklahoma Law on Intestate Succession
• Using a Trust Now Can Help Save Probate Costs Later
• The Federal Estate Tax Repeal - Here's the Bad News
• Oklahoma Discretionary and Special Needs Trust Act

To read this e-newsletter, please click here. As with the Employer's Legal Resource, please feel free to forward the e-newsletter to anyone who might be interested.

What's New

ANNOUNCEMENTS

CONGRATULATIONS TO OUR ATTORNEYS LISTED AS OUTSTANDING BY BEST LAWYERS®

Best Lawyers® states it is the oldest peer-review publication in the legal profession. They compile lists of outstanding attorneys by conducting exhaustive peer-review surveys. Individual attorneys highlighted from our firm are as follows:

Best Lawyers® also has a profile of our firm. Click here to review the Firm's entire profile.

Dates to Remember

Calendar of notable events

September 22, 2010

Elise Brennan is moderating a national webinar on The Joint Commission's recent change to the hospital medical staff standards. This is sponsored by the American Health Lawyers Association. For more information click here.

September 28, 2010

Jeffrey C. Rambach will be speaking to entrepreneurs & small business owners at the Tulsa Metro Chamber Sourcelink meeting. The topic covers succession planning in small business. The meeting will be held at the Hillcrest Oklahoma Heart Institute Lecture Hall 1 from 7:30 a.m. to 9:00 a.m. For more information click here, or contact Warren Unsicker - Small Business Center Program Manager at 918-560-0235. Email: warrenunsicker@tulsachamber.com

September 29, 2010

Elise Dunitz Brennan will be speaking at a conference titled Drugs, Sex and Rock & Roll at the Hard Rock Hotel & Casino for the Oklahoma Assisted Living Association. The topic is actually about the change in lifestyle of the elders in assisted living centers including legal medical marijuana, alcohol and sexual relationships. Contact Penny by for more information.

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