GW GARFUNKEL WILD P C ATTORNEYS AT LAW

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW 5 th Annual NY Metro ASC Symposium: Top 5 HR Issues That Affect Your Bottom Line November 2, 2018 Presented by: Great Neck, NY (516) 393 -2200 Tom Jacobs Andrew Zwerling Sal Puccio Chief Executive Officer and Co-Founder of Med. HQ Partner/Director Garfunkel Wild, P. C. Partner Garfunkel Wild, P. C. Hackensack, NJ (201) 883 -1030 Stamford, CT (203) 316 -0483 Albany, NY (518) 242 -7582 © 2018 GARFUNKEL WILD, P. C.

Introduction Top 5 HR Issues That Affect An ASC’s Bottom Line: • Sexual harassment. • Wage and hour claims. • FMLA/ADA/Workers’ Compensation claims. • Company culture. • Recruiting. The Link Between All Five: Employee Engagement • GW Employee engagement is the emotional commitment an employee has to the ASC and its goals. Employee engagement is the extent to which employees feel passionate about their jobs, are committed to the ASC, and put discretionary effort into their work. www. garfunkelwild. com 2 © 2018 GARFUNKEL WILD, P. C.

Impact of HR Risk Events A. B. C. D. E. Negative impact on profitability. Distracting to senior managers. Sours organizational culture. Handled correctly, can be a plus! Impact on insurance rates: liability and workers’ compensation. F. Settlement costs and other “soft” costs. GW www. garfunkelwild. com 3 © 2018 GARFUNKEL WILD, P. C.

Sexual Harassment: The Starting Point For Discussion In New York GW Distribution Of Written Sexual Harassment Policy: Deadline Of October 9, 2018. Mandatory Annual Anti-Sexual Harassment Training By All Employers No Later Than October, 2019. www. garfunkelwild. com 4 © 2018 GARFUNKEL WILD, P. C.

What is Sexual Harassment? Sexual harassment is a form of sex discrimination and consists of unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature. Sexual harassment becomes illegal when: 1. Submission to such conduct is made either explicitly or implicitly a term of condition of an individual’s employment; 2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions; and 3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. The first two categories refer to “quid pro quo” (Latin meaning “this for that” or “something for something”) sexual harassment, in which the employee is implicitly or explicitly requested to submit to sexual demands in exchange for employment benefits or to avoid adverse employment consequences. The third category – a hostile work environment – exists when verbal or nonverbal behavior in the workplace is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive GW www. garfunkelwild. com 5 © 2018 GARFUNKEL WILD, P. C.

Examples Of Sexual Harassment GW Physical - Touching, pinching, patting, grabbing, brushing against a person’s clothing, body or hair, initiating unwanted sexual activity, rubbing or touching anyone sexually in the presence of another, exposing oneself, requiring the employee to wear sexually suggestive clothing, blocking a doorway or impeding a person’s movement. Verbal - Name-calling, belittling, sexually explicit, provocative or degrading language, sexually explicit jokes, comments about a person’s anatomy, questions or comments about a person’s sexual practices or preferences, sexual noises or remarks. Visual – Sexual pictures, writing or objects, staring someone up and down, leering, sexually oriented gestures, winking, blowing kisses, standing or sitting too close, inappropriate emails and internet usage, gawking or trying to embarrass a person who looks different. www. garfunkelwild. com 6 © 2018 GARFUNKEL WILD, P. C.

Harassment Factors To Consider • • • GW Who Can Be A Victim? Employees, interns, independent contractors and vendors or those employed by a company providing services in the workplace or third parties visiting the entity. Victim does not have to be the person targeted by the harasser, but can be a third party who is offended by it or finds it unwelcome. Who Can Be A Harasser? Anyone in the workplace. Management and supervisors, co-workers, subordinates, patients, residents, clients or customers, other non-employees (vendors, contractors, interns, security), members of the public (visitors). Gender is not a factor. Sexual harassment can occur between males and females, or between parties of the same sex. (The term “sex” includes sexual orientation, gender identity and the status of being transgender. ) Sexual harassment that occurs because the victim is transgender is also unlawful. www. garfunkelwild. com 7 © 2018 GARFUNKEL WILD, P. C.

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Harasser’s Intent Is Irrelevant GW • Harassment is unlawful even if it is not motivated by any sexual or discriminatory intention. • It is no defense that one engaged in behavior that may in the past have been deemed acceptable or tolerated. www. garfunkelwild. com 12 © 2018 GARFUNKEL WILD, P. C.

The Situs Of The Harassment Sexual harassment can occur at functions outside the workplace. Locations off-site and during off-hour activities can be considered extensions of the workplace. For example: GW • Annual meetings. • Business trips. • Holiday parties. • Sporting events. • On social media. www. garfunkelwild. com 13 © 2018 GARFUNKEL WILD, P. C.

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Who Can Be Liable? GW • Entity. • Supervisors who fail to intervene and report. Supervisors have a mandatory duty to report harassment where they know or have reason to know of its existence. • The harasser. • Peers who join in the harassment. www. garfunkelwild. com 15 © 2018 GARFUNKEL WILD, P. C.

Potential Consequences To The Harasser GW • Lawsuit and personal liability. • Loss of job. • Loss of spouse. • Loss of reputation. • Loss of licensure (OPMC and OPD proceedings). • Negative publicity. • Potential criminal charges. www. garfunkelwild. com 16 © 2018 GARFUNKEL WILD, P. C.

Broader Consequences Of Harassing & Disruptive Behaviors GW • Toxic work environment. • Diminution of quality of services and productivity. • Diminution of staff morale. • Increased staff turnover. • Increase in staff and patient complaints. • Increased risks of litigation. • Adverse effect on reputation with clinical and non-clinical staff and patients (who may indicate dissatisfaction in patient surveys). www. garfunkelwild. com 17 © 2018 GARFUNKEL WILD, P. C.

Impact Of Sexual Harassment Specific To Medical Profession GW • Negative impact on quality of medical care. • Greater risk of medical errors and adverse patient outcomes. www. garfunkelwild. com 18 © 2018 GARFUNKEL WILD, P. C.

Best Practices To Prevent Sexual Harassment GW • Consistently demonstrate professional behavior. • Enforce policies in a consistent manner. • Do not perpetuate inappropriate office banter; take action to stop it. • Do not be a “silent participator. ” • Avoid sharing highly personal information of a sexual nature. www. garfunkelwild. com 19 © 2018 GARFUNKEL WILD, P. C.

Critical and Required Internal Policies and Practices GW • Encourage the reporting of sexual harassment by victims and bystanders, and enforce a zero-tolerance policy and anti-retaliation policy in your ASC. • Supervisors must report any harassment that they observe, know of or have reason to know of, even if no one is objecting to the harassment or complaining about it. • Do not ignore a known situation of potential or actual sexual harassment or discrimination; take complaints and reported concerns seriously and do not prejudge the allegations during the investigatory process. • Make sure your ASC’s internal complaint process is prompt, thorough and fair in investigating suspected sexual harassment. www. garfunkelwild. com 20 © 2018 GARFUNKEL WILD, P. C.

Wage and Hour Agenda • • GW Trend toward Wage and Hour Lawsuits and Targets of Investigations/Lawsuits. Brief Introduction To Overtime and Related Claims. Specific Legal Issues, Challenges Facing Employers. Preventing/Defending Overtime and Related Claims. www. garfunkelwild. com 21 © 2017 GARFUNKEL WILD, P. C.

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Why Is Overtime Awareness A Growing Concern for Employers? GW www. garfunkelwild. com © 2017 GARFUNKEL WILD, P. C.

Trends In Lawsuits/Investigations • • • GW According to figures from federal lawsuit filings, litigants filed a total of 8, 954 FLSA cases between January 1, 2015, and December 31, 2015, a 253% increase from 10 years ago. For comparison purposes, plaintiffs filed 8, 086 FLSA cases in 2014. And that is an increase of more than 30% since 2011. In 2015, the U. S. Department of Labor collected a record $248 million in back wages for over 240, 000 employees who had not been paid in compliance with the Fair Labor Standards Act (FLSA). First Quarter 2018 = 1, 847 filings already. Reporting does not count cases pending with DOL, State Lawsuits, or asserted pre-lawsuit. Much of this liability could have been avoided had the employer reviewed and changed its pay policies. www. garfunkelwild. com 23 © 2017 GARFUNKEL WILD, P. C.

Why The Increase In FLSA Lawsuits Three main reasons: 1) Employers are finding it difficult to stay up-to-date on current (and ever evolving) wage and hour laws, i. e. , Wage Theft Prevention Act, Increase in Minimum Wage, Change of Exemptions to Overtime, Change in Circumstance Created by Lawsuits, and/or misclassification of employees, i. e. , nurses, IT Helpdesk, salaried employees. 2) Permissive Class/Collective Litigation Covers More Claims; and 3) Plaintiffs’ attorneys receive their attorneys’ fees from You (the employer). Even the smallest infraction can lead to large attorneys’ fees. GW www. garfunkelwild. com 24 © 2017 GARFUNKEL WILD, P. C.

Damages For Overtime Violations GW • Actual damages – amount of unpaid hours. (Usually see unpaid overtime premium rate, i. e. straight time paid at 50 hours, but 10 hours of overtime not paid at time and one half). • Liquidated damages – Double actual damages as a penalty. Statutory. • Attorneys’ Fees. Plaintiffs can recover their attorneys’ fees. On collective/class actions, fees are tens of thousands of dollars. • Personal Liability – owner/manager controlling schedule can be personally liable. www. garfunkelwild. com 25 © 2017 GARFUNKEL WILD, P. C.

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Brief Review of Overtime And Related Legal Requirements GW www. garfunkelwild. com © 2017 GARFUNKEL WILD, P. C.

Overtime Is A Federal And State Requirement for Hourly, Non-Exempt Employees GW • The federal overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempt, employees covered by the FLSA must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. • States have corresponding overtime laws, i. e. , The New York State Minimum Wage Orders contain the State’s overtime requirements. • Typically, State laws are more protective of employees than the FLSA. • Differences include: rates of minimum wage, record keeping, statute of limitations, and class action v. collective action. www. garfunkelwild. com 27 © 2017 GARFUNKEL WILD, P. C.

Class and Collective Actions • • • GW Collective Actions: Under the FLSA, a Plaintiff can sue on behalf of him/herself and also on behalf of a class of similarly situated employees. – This could result in the entire office being swept up in a federal lawsuit. Under State law, class actions are permissible. – Under New York State law, if a Plaintiff can demonstrate a class exists, all class members are included in the lawsuit, unless they choose to opt out. Typically, attorneys for employees bring a lawsuit alleging both. Creates an analysis of how a department or institution treats “similarly situated” employees. Makes record keeping and policies important. www. garfunkelwild. com 28 © 2017 GARFUNKEL WILD, P. C.

Applicable Time Periods for Violations GW • FLSA – Two year statute of limitations, three year for willful violation. • New York Labor Law – 6 year statute of limitations. • Relevant because with assessment of damages, discussed later, fines and fees could be significant. • Also relevant to record keeping policies. www. garfunkelwild. com 29 © 2017 GARFUNKEL WILD, P. C.

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Wage and Hour Law Practice Points GW www. garfunkelwild. com © 2017 GARFUNKEL WILD, P. C.

Common Errors in Applying Overtime Rules • • • GW Schedule and Pay Periods. Tracking/Recording Overtime. What is compensable time. Automatic meal deductions. Discipline for working overtime. Improper Deductions. Rounding errors. Required compensation. Record Keeping. Dual role employees. Misclassification of Employees. www. garfunkelwild. com 31 © 2017 GARFUNKEL WILD, P. C.

Failing to retain required records • • • GW In addition to overtime requirements, the FLSA also imposes specific record keeping obligations. – Each employer shall preserve for at least three years payroll records, collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years. – State Laws Also Supplement FLSA Record Keeping Obligations. NY Wage Theft Prevention Act. Wage Statements. – Dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages. www. garfunkelwild. com 32 © 2017 GARFUNKEL WILD, P. C.

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Misclassification of Employees • • GW Exempt v. Non-Exempt. Independent Contractors. www. garfunkelwild. com 34 © 2017 GARFUNKEL WILD, P. C.

Overtime Exemptions GW • The FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees, and also exempts certain computer employees. • To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations. • Note NYS change in salary level as of December 31, 2016. www. garfunkelwild. com 35 © 2017 GARFUNKEL WILD, P. C.

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Considerations to Prevent (or Minimize) Potential Wage and Hour Claims GW www. garfunkelwild. com © 2017 GARFUNKEL WILD, P. C.

Staffing Considerations To Consider For Overtime GW • Nurses paid at hourly rates – weekly hours worked, lunch breaks, pre- and post-shift work. • Front Office Staff – receptionists, sales, marketing, insurance intake, etc. - Staff coming in early or staying late to finish paperwork or to attend meetings. • Back Office Staff – Billing/coders, payroll, etc. - Staff working late to complete monthly billing, staying after shift or before shift to file time-sensitive claims or appeals. www. garfunkelwild. com 37 © 2017 GARFUNKEL WILD, P. C.

Policy Consideration to Limit Exposure GW • Employers may have policies restricting overtime or requiring preapproval, but cannot deny overtime pay if an employee actually works additional hours even in violation of policy. • Arbitration provisions or agreements with employees to arbitrate all disputes over wages, including FLSA, NYLL, etc. , and waiver of class/collective actions. Waiver must be clear and specific. • Record keeping measures. • Payroll company/software assistance. • Clock in/out systems with history. www. garfunkelwild. com 38 © 2017 GARFUNKEL WILD, P. C.

Automate Service & Automate Compliance GW www. garfunkelwild. com 39 © 2017 GARFUNKEL WILD, P. C.

Top 10 Risks of Being an Employer Risk Areas Level Related Risk Cost Weighing Factored Risk Low Discrimination Medium High low medium high $25, 000 $50, 000 $100, 000 1. 00 $25, 000 $50, 000 $100, 000 low medium high $25, 000 $50, 000 $100, 000 0. 10 $2, 500 low medium high $25, 000 $50, 000 $100, 000 0. 25 $6, 250 $12, 500 $25, 000 low medium high $25, 000 $50, 000 $100, 000 0. 50 $12, 500 $25, 000 $50, 000 low medium high $25, 000 $50, 000 $100, 000 1. 00 $25, 000 $50, 000 $100, 000 low medium high $25, 000 $50, 000 $100, 000 0. 15 $3, 750 low medium high $25, 000 $50, 000 $100, 000 0. 25 $6, 250 $12, 500 $25, 000 low medium high $25, 000 $50, 000 $100, 000 1. 00 $25, 000 $50, 000 $100, 000 Unemployment low medium high $25, 000 $50, 000 $100, 000 0. 10 $2, 500 Work Comp low medium high $25, 000 $50, 000 $100, 000 0. 20 $5, 000 $10, 000 $20, 000 Employee Attendance Employee Work Productivity FMLA, ADA, etc Hostile Work Enviornment Inappropriate Work Behavior Involuntary Termination Sexual Harassment $5, 000 $7, 500 $5, 000 $10, 000 $15, 000 $10, 000

Top ASC Manager HR Concerns* 3. 2% 6. 5% 26% 6. 5% 58% * September 2013 CASA survey

Involuntary Terminations A. Thorough communication about job responsibility/process/method changes. B. Transition training, conversations. C. On-the-job coaching. D. Career and career path counseling. E. Planning ahead for impact of termination on others. F. Proactive, professional termination action when warranted. G. Effective recruiting and hiring. GW www. garfunkelwild. com 42 © 2017 GARFUNKEL WILD, P. C.

Improving Physician Utilization “We have found negative staff interactions to be one of the top reasons physicians choose not to use a particular surgery center. ” – Scott Christiansen, CEO, Root 3 Growth Marketing

Results

Cost of Employee Turnover • Not All Turnover Is The Same – Leadership Instability – Core Team Engagement Issues – Support Staff Effectiveness • Is there any such thing as “good turnover”?

How to Mitigate The RN Shortage? A. Constant recruiting. B. Networking with local associations and RN training programs. C. Referral and sign-on bonuses. D. Encourage proactive communication from employees. GW www. garfunkelwild. com 46 © 2017 GARFUNKEL WILD, P. C.

Managing Multi-Generations in the ASC Millennial Branding. “The Cost of Millennial Retention Study. ” 3 August 2013.

Thank You!