Transcript surgerycentercoalition.org

PROBLEMS COMMON TO
SURGERY CENTERS
Presented by Beth Hinsdale-Piller, Esq.
at Surgery Center Coalition
March 10, 2015
90 Woodbridge Center Drive
Woodbridge, New Jersey 07095
TOPICS OF DISCUSSION
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New Laws
Hiring an Employee
Unlawful, Inappropriate and Unprofessional Conduct at the Workplace
Common Problems Between Employees at the Workplace
Terminating an Employee/Post-Termination
NEW LAWS TO BE AWARE OF
• Pregnant Worker’s Fairness Act (N.J.S.A. § 10:5-12) – amends the NJLAD by expressly
banning pregnancy discrimination and imposing new workplace accommodation
requirements on employers.
• “Pregnancy” under the Act means pregnancy, childbirth, or medical conditions related
to pregnancy or childbirth, including recovery from childbirth.
• “Reasonable Accommodations” for Pregnant Employees means: bathroom breaks,
breaks for increased water intake, periodic rest, assistance with manual labor, job
restructuring or modified work schedules, and temporary transfers to less strenuous or
hazardous work; unless the employer can demonstrate that providing the
accommodation would be an undue hardship on the business operations of the
employer
NEW LAWS TO BE AWARE OF cntd.
• Social Media Passwords (N.J.S.A. § 34:6B-5, et seq.) – Employers cannot require or
request a current or prospective employee to provide or disclose any user name, or in any
way provide access to, a personal social media account (i.e. Twitter, Facebook, LinkedIn,
Google Plus, Instagram, etc.)
• Employers may not retaliate or discriminate against an individual for refusing to
comply with such a request or demand, or for opposing same.
• Law does not prohibit employers from accessing or viewing any publicly available
information from an employee’s personal account.
NEW LAWS TO BE AWARE OF cntd.
• Ban on Pay Secrecy (N.J.S.A. § 10:5-12(r)) – Amendment to NJLAD banning retaliation
against employees who discuss their compensation with co-workers if the purpose of the
discussion is to assist in investigating potential discriminatory conduct concerning “pay,
compensation, bonuses, other compensation, or benefits.”
• The Opportunity to Compete Act a/k/a “Ban the Box”:
• Prohibits employer requests for criminal history information during the “initial
employment application process,” which includes both the job application and the
first interview of the job applicant.
• Under the Act, employers also cannot post job advertisements indicating that persons
who have been arrested or convicted of a crime will not be considered for
employment.
• Employers may run a criminal background check on an applicant after the first
interview or, as is common practice, after a conditional offer of employment has been
extended to the applicant.
NEW LAWS TO BE AWARE OF cntd.
• Paid Sick Leave – Bloomfield recently became the ninth locality in New Jersey to require
employers to provide sick leave to their employees, joining Jersey City, Newark, Passaic,
East Orange, Paterson, Irvington, Trenton and Montclair. The sick leave laws of each
locality are similar, i.e. requiring up to five (5) days of paid sick leave annually. New
Jersey state legislature is currently considering a state-wide sick leave bill.
HIRING AN EMPLOYEE
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Background Checks
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Opportunity to Compete Act/“Ban the Box” (discussed in “New Laws” Section above)
Under federal law, employers should ensure that any background check is job-related and consistent with
business necessity.
According to EEOC’s Guidance on arrest and conviction records, Title VII race or national origin
discrimination occurs in 2 primary situations with background checks: (1) when employers treat criminal
history differently for different applicants/employees based on their race or national origin (disparate
treatment); or (2) when an employer’s neutral background check policy or practice disproportionately impacts
protected individuals based on race or national origin (disparate impact) unless the policy is job-related and
consistent with business necessity.
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Discrimination/Protected Groups: sex, sexual or affectional orientation, gender or gender identity or expression,
race, creed, color, religion, national origin, ancestry, age, marital or political status, atypical hereditary or cellular
blood trait, disability or handicap, domestic partnership or civil union status, sexual orientation, pregnancy,
childbirth, medical condition related to pregnancy or childbirth, genetic information or refusal to submit to a genetic
test
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Wages/Salaries: Minimum wage is $8.25/hour in New Jersey. Overtime must be paid to non-exempt employees
(i.e. office staff) at the rate of 1-1/2 x the employee’s “regular hourly rate” of pay for all hours worked in excess of
40 hours in a workweek. Exempt employees (i.e. surgeons) must be paid on a salary basis of at least $455 per week
in New Jersey.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE
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Drugs and Alcohol at the Workplace
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Employees are entitled to a safe, healthy and efficient working environment.
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Being under the influence of illegal drugs or alcohol on the job poses serious safety and health risks to the user and
to those who work or come in contact with the user in the workplace.
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The use, sale, purchase, transfer, possession or being under the influence of illegal drugs or alcohol in the
workplace poses unacceptable risks for safe, healthy and efficient operations and is grounds for immediate
discipline up to and including termination of employment.
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Prescribed medical treatment: An employee undergoing prescribed medical treatment with any drug that may
impair his/her ability to perform his/her job without posing a safety risk to himself/herself or others must report
this treatment to his/her supervisor. An employee may continue to work under the influence of a prescribed drug
only if, after consultation with a medical professional, it is determined that such use does not pose a safety risk and
the employee’s job performance is not negatively impacted and/or cannot be reasonably accommodated.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Sample Scenarios re. Drug/Alcohol Problems at the Workplace
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Scenario 1: A surgeon arrives to work reeking of alcohol, but appears to be functioning.
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Supervisors and other management personnel should be trained to detect the signs and behavior of
employees who may be using illegal drugs or alcohol at work.
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An employee reasonably believed to be under the influence of alcohol or illegal drugs should be
immediately prevented from engaging in further work and should be prohibited from returning to work
until negative test results are received.
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Reasonable belief means objective facts sufficient to lead a reasonable prudent person to conclude that a
particular employee is under the influence of alcohol drugs. Reasonable belief may be based upon such
things as direct observation of the possession or use of a drug or alcohol, slurred speech, unsteady gait,
patter of unusual or abnormal conduct or erratic behavior, information provided by a reliable and credible
source, work-related accidents which cannot be readily explained, and deviations from safe working
practices, unusual absenteeism, sudden forgetfulness.
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Employees may be disciplined, up to and including termination, for being under the influence of drugs or
alcohol.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Sample Scenarios re. Drug/Alcohol Problems at the Workplace
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Scenario 2: A nurse is suspected to be under the influence of prescription drugs.
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Company policy should be implemented requiring employees to report any prescribed medical treatment
with any drug that may impair his/her ability to perform his/her job without posing a safety risk to
himself/herself or others.
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An employee should be permitted to continue to work under the influence of a prescribed drug only if,
after consultation with a medical professional, it is determined that such use does not pose a safety risk
and the employee’s job performance is not negatively impacted and/or cannot be reasonably
accommodated.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Sexual Harassment
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Sexual harassment is unlawful and is not tolerated under any circumstances.
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Sexual harassment occurs when one employee, typically a supervisor and/or person in a position of power, attempts to make
another employee’s submission to unwelcome sexual demands or overtures or other action based on a protected category a
condition of an employment decision of any kind affecting that employee.
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Examples of sexual harassment include: a promise of favorable employment action in exchange for sexual favors, or an implicit or
explicit threat that if the employee does not accede to the sexual demands or overtures, the employee will lose his or her job,
receive unfavorable performance reviews, be passed over for promotion, or suffer other adverse employment consequences.
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Sexual harassment specifically often consists of unwelcome sexual touching and comments. For example, such conduct includes:
physical contact such as hugging another or placing one’s arm around the other; sexual flirtations, advances and propositions;
sexually degrading words used in reference to an individual; and teasing, jokes, remarks of a sexual nature; and viewing of or
drafting emails or electronic bulletin board messages or web sites containing offensive or sexual pictures, messages or jokes
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Illegal harassment may occur even if the actor did not intend to injure or harass the victim. It is no excuse or justification for the
conduct that the actor was only “joking.” The conduct would still constitute harassment even if the victim is strong enough to
endure it without any emotional or physical impact, harm, or damage.
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The types of conduct described above need not even be directed at a particular individual for that individual to be the victim of
harassment; this is because the working environment in which an employee exists and work is directly affected by the treatment of
co-workers if they are the subject of harassment
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Employees may be disciplined, up to and including termination, for sexual harassment.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Sample Scenarios of Sexual Harassment at the Workplace
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Scenario 1: A surgeon pressures a nurse to perform sexual favors. The nurse declined the surgeon’s sexual
advances on numerous occasions.
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All employees are encouraged to report any incident of harassment to which they are subject, or which they
may have witnessed pursuant to the Center’s Complaint procedure.
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Upon being advised of the claim of harassment, the Center will promptly and thoroughly investigate the
matter.
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No retaliation whatsoever permitted against anyone who complains of any incident of harassment, or who
assists in the investigation thereof.
Scenario 2: A surgeon pressures nurse to perform sexual favors on only one occasion.
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One isolated act may be severe enough to create a hostile environment. Taylor v. Metzger, 152 N.J. 490
(1998) (finding single derogatory racial comment directed at a subordinate employee be a supervisor can
create a hostile work environment in violation of the LAD).
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Sample Scenarios of Sexual Harassment at the Workplace
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Scenario 3: A surgeon tells “sexually playful” stories in the Operating Room while a nurse and technician are
present. The technician reports the surgeon’s comments to the Center’s Administrator’s attention, but does not
raise the inappropriateness of the comments to the surgeon’s attention.
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Sexual harassment includes sexually degrading words used in reference to an individual; and teasing,
jokes, remarks of a sexual nature.
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The types of conduct described above need not even be directed at a particular individual for that
individual to be the victim of harassment; this is because the working environment in which an employee
exists and work is directly affected by the treatment of co-workers if they are the subject of harassment.
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All employees are encouraged to report any incident of harassment to which they are subject, or which
they may have witnessed pursuant to the Center’s Complaint procedure. The Complaint procedure
provides several individuals the employee may select from to report the harassment to.
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The employee is not required to complain to the harasser at any time about the harassment.
*NOTE: the 3 scenarios here all concerned examples of a supervisor
as the harasser and a subordinate as the victim. However,
unlawful harassment is not limited to supervisor-subordinate relationships. Any
employee may be responsible for sexually harassing any other employee, whether
subordinate or not.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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New Jersey Conscientious Employee Protection Act (“CEPA” or “Whistleblower Act”) (N.J.S.A. § 34:19-1, et seq.)
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This Act makes it unlawful for employers to take adverse employment actions against any employee who
discloses, objects to, or refuses to participate in certain actions that the employee reasonably believes are illegal
or in violation of public policy.
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Specifically, the law prohibits employers from taking retaliatory action against an employee if the employee
engages in the following activities:
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Discloses or threatens to disclose, to a Supervisor or public body an activity, policy or practice of the
employer that the employee reasonably believes to be in violation of the law;
Provides information to, or testifies before, any public body conducting an investigation, hearing or any
inquiry into any violation of the law; or
Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably
believes is in violation of the law, is fraudulent or criminal, or is incompatible with a clear mandate of
public policy, concerning public health, safety or welfare
Employees are provided annually with a copy of the Center’s CEPA policy, and the policy is posted for all
employees to view.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Electronic Communications and Social Media
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The Center’s email system, computers, and telephones should be used for business related purposes only. The
Center may, at any time, access the email system of any employee. As such, employees should maintain no
expectation of privacy or confidentiality in any email communications.
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Employees must exercise a greater degree of caution in transmitting the Center’s confidential information on
the e-mail system.
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Use of Social Media Sites on the Center’s Internet is prohibited unless done for business reasons. The Center
may monitor Internet use for compliance with this policy.
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Employees should exercise caution and good judgment in posting any material to any social medium. If the
Center is made aware that any employee has posted information on any social medium that would cause an
employee to be disciplined if the employee used the same language in the workplace or directly to a doctor or
supervisor at the Center, such employee may be subject to discipline up to and including termination of
employment.
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Cell phones should be turned to mute or shut off during working time. Employees are not permitted to make or
take calls on personal cell phones during working hours unless in the event of an emergency. This will include
all texting and use of cellular phone email access. Employees are prohibited from taking any pictures or
recording any conversations/footage with their cell phones in the workplace or making posts from their cell
phones to any social media sites during working time.
UNLAWFUL, INAPPROPRIATE AND UNPROFESSIONAL
CONDUCT AT THE WORKPLACE cntd.
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Other
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Employees should be professional, polite and show respect to everyone on the premises.
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All patients must be treated with respect and dignity. If a patient or family member exhibits inappropriate
behavior, the employee should remain respectful and dignified. The employee’s supervisor should be advised of
inappropriate conduct by any patient or family member.
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Crude, offensive, confrontational or inappropriate language is not permitted in the office at any time.
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All employees have a responsibility to maintain the confidentially of employee medical information.
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When appropriate, employees will receive safety training and will be provided with appropriate safety
equipment. Employees are responsible for observing safety rules and using available safety devices including
personal protective equipment.
COMMON PROBLEMS BETWEEN EMPLOYEES
AT THE WORKPLACE cntd.
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Sexual Harassment (See previous slides)
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Other Harassment Based on Protected Status: Harassment motivated by sex, gender or gender identity or
expression, race, creed, color, religion, national origin, ancestry, age, nationality, marital or political status, disability
or handicap, pregnancy or any pregnancy-related condition, childbirth, domestic partnership or civil union status,
affectional or sexual orientation, genetic information (including refusal to submit to genetic testing) atypical cellular
or blood trait or any other classification protected by federal, state or local law is unlawful and will not tolerated.
Employees are encouraged to report any such harassment pursuant to the Center’s Complaint Procedure. No
employee will be retaliated against for reporting harassment.
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Workplace Violence and Bullying
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Bullying is not tolerated. Bullying may include repeated verbal abuse, such as derogatory remarks or insults;
excessive undermining or sabotage of the performance of the employee; or verbal or physical conduct a
reasonable person would consider humiliating, threatening or intimidating.
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Employees are encouraged to report bullying of any employee pursuant to the Center’s Complaint Procedure.
No employee will be retaliated against for reporting bullying.
COMMON PROBLEMS BETWEEN EMPLOYEES
AT THE WORKPLACE cntd.
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Sample Scenarios for Discussion
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Scenario 1: Ben, a nurse, overhears another nurse, Kim, is getting paid more than he is. After hearing this, Ben
starts gossiping about Kim and falsely accuses her of misconduct to set her up. Kim is written up as a result of
Ben’s false statements. Ben then brags to another nurse, John, about what he did. No action is taken against
Ben.
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Should John report Ben’s actions?
What should the Center do if John complains about Ben’s actions?
What should Kim do when she is wrongfully written up as a result of Ben’s actions?
Should Kim directly confront Ben about his actions if she learns what has transpired?
Scenario 2: Dr. Nicole Black, a surgeon, repeatedly yells, insults and degrades Melissa Smith, a nurse, calling
her “stupid,” “dumb,” and an “idiot.” Many other employee have witnessed Dr. Black insulting and degrading
Ms. Smith on several occasions. Ms. Smith often feels hurt and upset by Dr. Black’s words.
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What should Melissa Smith do in this situation?
What should the Center do about Dr. Black if it is aware of Dr. Black’s insulting and degrading
comments to Ms. Smith, but no one has filed a complaint about Dr. Black?
What should the Center do if Melissa Smith files a complaint about Dr. Black?
What should the Center do if an employee other than Melissa Smith files a complaint about Dr. Black?
COMMON PROBLEMS BETWEEN EMPLOYEES
AT THE WORKPLACE cntd.
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More Sample Scenarios for Discussion
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Scenario 3: Mark, a nurse, is assigned to work in the operating room with another nurse, Jen. Mark and Jen do
not get along and often argue with each other in the operating room despite their supervisor’s instruction for the
two to remain professional.
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What should the supervisor do about Mark and Jen if they refuse to comply with her direction to be
professional?
Jen wants to improve her relationship with Mark. What should she do?
Scenario 4: Jorge is given the nickname “Taco” by his co-workers due to his Mexican ethnicity. The nickname
catches on and is now used by supervisors and doctors. Nurses and technicians now only refer to Jorge as
“Taco.” Co-workers hang Taco Bell signs up around the workplace as a joke.
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Is this considered harassment?
What should Jorge do in this situation?
How should the Center respond to a harassment complaint under these circumstances?
COMMON PROBLEMS BETWEEN EMPLOYEES
AT THE WORKPLACE cntd.
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More Sample Scenarios for Discussion
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Scenario 5: Nathan is made fun of on a daily basis due to his co-workers’ perception that he is a homosexual.
Nathan is not a homosexual. Is this still considered harassment?
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Scenario 6: Three employees are in the lunchroom discussing world events and the status of the war in
Afghanistan. One employee has a son currently stationed there and is speaking very passionately about the
war. A Middle-Eastern employee is sitting nearby and overhears part of the conversation. Is this considered
harassment?
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Scenario 7: Brian, a new doctor, witnesses one of the more senior doctors, Dr. John Smith, making comments
to the female nurses about their physique, their sexual experience and other sexual remarks. To his knowledge,
none of the women have complained to anyone about such conduct. Brian knows the comments make the
women feel uncomfortable and belittled, and he feels uncomfortable as well. However, he is afraid that his job
will be in jeopardy if he complains, due to retaliation. He also thinks that it must be the women who make the
complaint for it to be taken seriously by the Center. Are Brian’s assumptions true? Should he complain on
behalf of the women?
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Scenario 8: Linda is very attracted to her boss, Dan. Because they’re both single, she asks him over to her
house for dinner. After a very pleasant evening and a few too many drinks, they wind up spending the night
together. Could this be considered sexual harassment?
COMMON PROBLEMS BETWEEN EMPLOYEES
AT THE WORKPLACE cntd.
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More Sample Scenarios for Discussion
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Scenario 9: Jane is a technician. Through the course of the working day, Jane is subjected to suggestive jokes,
sexual remarks, and general questions about a woman’s sexual behavior. She is “accidentally” touched
repeatedly. Jane is not sure if she is being harassed since it is a male dominated atmosphere and such behavior
seems to be so common that even the supervisors engage in it. She is also afraid that if she complains, she will
be retaliated against with increased sexual behavior or, even worse, lose her job. Does such behavior by Jane’s
co-workers constitute sexual harassment? Should Jane complain or does she run the risk of retaliation?
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Scenario 10: Three employees are in the lunchroom discussing world events and the status of the war in
Afghanistan. One employee has a son currently stationed there and is speaking very passionately about the
war. A Middle-Eastern employee is sitting nearby and overhears part of the conversation. Is this considered
harassment?
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Scenario 11: Dr. George finds out that Jim complained to the Human Resources Department on October 1,
2013 about him. George harbors resentment toward Jim for several months, but does not retaliate because he
does not want the employer to get sued. In July of 2014, George finally gets his chance when Jim comes to
work one day 30 minutes late. George fires Jim and tells his colleagues that Jim “finally got what he deserved.”
Is this retaliation?
TERMINATING AN EMPLOYEE/POST-TERMINATION
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Discrimination/Protected Groups: No employee may suffer an adverse employment action, including termination,
on the basis of sex, sexual or affectional orientation, gender or gender identity or expression, race, creed, color,
religion, national origin, ancestry, age, marital or political status, atypical hereditary or cellular blood trait, disability
or handicap, domestic partnership or civil union status, sexual orientation, pregnancy, childbirth, medical condition
related to pregnancy or childbirth, genetic information or refusal to submit to a genetic test.
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References Post-Termination: While employers may provide negative references about former employees in
response to inquiries from prospective employers, they should proceed with caution. Employers cannot make
statements known to be false or act in reckless disregard of their truth or falsity.