Original Publish Date: August 4, 2020
During a storm or other emergency, a command from the captain of a vessel for “all hands on deck” means that all crew is to report to the deck immediately and help navigate the ship through the storm. With the COVID-19 pandemic stubbornly continuing to spread through the country, medical institutions are findings themselves in a similar, precarious, all hands on deck position. Understandably, the concern over timekeeping and payroll is rarely at the forefront. However, once the pandemic is controlled, as is usually the case, past payroll issues can form the genesis of class actions, which can cost healthcare institutions millions in wage-and-hour litigation.
This article provides a few helpful tips for medical human resources personnel to handle rapid increases in labor force and labor hours, which can occur during a time of a pandemic. Specifically, this article looks at how medical institutions can prepare for these situations by: (1) conducting a top-level internal audit of the facility’s policies; (2) speak with outside labor and employment counsel to become comprised of all recent and emerging wage-and-hour laws; (3) document any temporary or permanent changes in wage-and-hour policies that are implemented as a result of Covid-19; and (4) communicate with employees about the facility’s focus on the employees’ safety.
Conduct an Internal Audit of Current Wage-and-Hour Policies and Practices
During local or national calamities, medical, fire, and safety institutions frequently see a rapid, substantial, but temporary, increase in their labor force and total workhours. These quick and necessary spikes in workflow sometimes lead to a buildup and slowdown of timekeeping and payroll processing. Unfortunately, it is not unusual for class, collective, or representative wage-and-hour claims to follow. The 1992 Los Angeles Riots, 9/11, and the H1N1 flu pandemic all resulted in numerous wage-and-hour class, collective, and representative actions, which cost medical, fire, and safety institutions across the U.S. millions of dollar on litigation, judgments, and settlements.
Accordingly, during a pandemic, the human resource department of a medical facility should, as one of its initial tasks, conduct an internal audit of wage-and-hour policies and practices. The reason is obvious – if the facility is relying on outdated or non-complaint wage-and-hour policies during a temporary increase in its workforce or workhours, potential damages are compounded. Relatedly, a predetermining factor for any class or collective action is whether there is a central unlawful policy or practice. Therefore, even though a detailed audit is preferred, even a top-level review of facility-wide wage-and-hour policies, can minimize potential risk of class-level exposure.
Specifically, human resource personnel should review the following areas, which form the bases of the most common wage-and-hour class and collective claims:
Wage Payment Policies
Meal and Rest Break Policies
Educate Yourself on New and Emerging Laws
It is difficult to stay ahead of the curve on all developing cases and legislation, federal and state, with respect to wage-and-hour requirements. Without knowing all recent and emerging laws, there is no way to confirm lawful compliance of the facility’s policies. Consultation with your labor and employment counsel is the optimal method to become informed of the most recent legal changes and developments. Because the facility’s administrators will be more aware of the facility’s policies and practices, and the facility’s labor and employment counsel should be cognizant of all developing and emerging L&E laws, even a one or two hour conference call to be apprised of all new wage-and-hour laws and regulations will make the facility capable of expeditiously amending outdated policies and practices. Below is just a few examples of the most recent substantial changes to the law that will have a ripple effect for hospital employees, particularly during emergency situations, when all hands on deck are required.
Overtime in California
Overtime pay in California is based on the employee’s “regular rate of pay,” which is not always an employee’s normal hourly wage and must include almost all forms of pay that the employee receives. Recently, the California Supreme Court ruled that an employer must calculate the regular rate of pay by dividing the employee’s total compensation by the number of non-overtime hours an employee worked during the pay period, rather than the total number of hours the employee worked, including overtime hours. (Alvarado v. Dart Container Corporation of California).
Reporting Time Pay in California
The California Court of Appeal has also held that where an employer requires an employee to call in or otherwise contact the employer within two hours to find out if he or she needs to report for a given shift, reporting time pay may be owed when the employee is not needed, even though the employee does not have to come in to work. Employers using any sort of “call-in” system for shifts should review their policies and practices. (Ward v. Tilly’s, Inc.)
Fair Work Week Legislation in Oregon and Chicago
Under Oregon's new law, businesses (including medical facilities), that have more than 500 employees must start giving workers seven days' notice of their shifts by July 2018 and two weeks' notice by July 2020. Workers must also receive a minimum of 10 hours of rest between shifts or they will qualify for time-and-a-half pay.
Similarly, the Chicago City Council passed the Chicago Fair Workweek Ordinance, which requires large employers to provide workers with at least two weeks’ advance notice of their work schedules and compensate workers for last-minute changes. The Ordinance requires employers (including medical institutions) to give advance notice of work schedules; offer additional shifts of work to its own employees or long-term, temporary employees, if they are qualified to do the work, before offering the work to temporary or seasonal workers; creates a “right to rest” and allows employees to decline to work scheduled hours that begin less than 10 hours after their last shift ended; requires payment of “Predictability Pay” if employees accept shifts that begin less than 10 hours after their last shift ended. Safety-Net Hospitals, as that term is defined in 305 ILCS 5/5-5e.1, does not have to comply with the law until January 1, 2021.
The above list is of course non-exhaustive. Therefore, check with your local labor and employment counsel about recent legal decisions and emerging law that effect your facility.
Communicate with Employees Regarding Temporary Wage and Hour Practice Changes and the Facility’s Focus on Safety Precautions
A medical facility’s changes to wage-and-hour practices, which relate to Covid-19, should be documented and communicated to its employees. For example, employers may need to compensate employees for time spent during any kind of pre-entry screening process (e.g., temperature checks or Covid-19 testing). Additionally, an employee who reports to work but is sent home due to the facility’s screening precautions may be entitled to reporting-time pay. Another example is that per diem employees may be asked to make themselves available on much shorter notice thereby triggering on-call pay.
Employers must be prepared to revise their policies or in the alternative inform their employees of the temporary changes to ensure compliance. Given the instantaneous change in census needs for medical facilities, and particularly for those in Covid-19 hotspots, a medical facility should ensure not only that its practice is compliant with required wage-and-hour requirements but that its compliant practices are documented. Documentation is key in demonstrating compliance for any attorney or trier-of-fact who may be looking at wage-and-hour issues two or three years down the line.
Additionally, on a much more general and basic level, the facility must remember to communicate with its employees regarding employee safety. Being at the forefront of the fight with the pandemic, it is understandable that medical staff will be concerned about their safety to a higher degree than the rest of the population. Employees want to feel safe and expect that their safety is at the forefront of their employer’s business consideration. Medical staff are not immune to the information (and disinformation) being disseminated about Covid-19. The pandemic has evolved and, as seen, can escalate quickly. Accordingly, timely communicating with employees regarding proactive safety measures are key in, ensuring legal compliance, keeping employees informed of relevant practices and policies, and demonstrating to your employees the facility’s focus on their safety.
Therefore, at a minimum, a medical facility should continuously communicate with its staff about the following: (1) affirm the facility’s commitment to following all state and federal recognized safety precautions and the protocols that the facility has implemented to follow these safety precautions; (2) identify additional measures that the facility has taken that possibly supersede the practices suggested by the state and federal agencies; (3) educate the employees on the facility’s screening protocol aimed at prohibiting the spread of Covid-19 at the workplace and informs employees of their obligations in maintaining a safe-working environment; (4) inform employees of their rights and obligations should they contact Covid-19 or if they have been in close contact with an individual who has been diagnosed with Covid-19; and (5) reemphasize that the facility’s priority is and always has been ensuring the safety and wellbeing of its employees.
A bedrock of a good workplace environment is an employer’s visible commitment to their employers’ safety and welfare. The human resource department can play a great role in assuaging employees’ anxieties by continuously communicating information to the staff about the facility’s measures to ensure and enhance their safety. This, in combination with education of and compliance with relevant labor laws, will substantially minimize potential exposure for wage and hour class claims when the Covid-19 pandemic sunsets.
Alex Polishuk focuses his practice on navigating employers through the intricacies of California’s employment laws. An experienced litigator, Alex has successfully represented clients before state and federal courts, administrative agencies and arbitrators, for wage and hour, wrongful termination, harassment, discrimination, retaliation, whistleblower, equal pay, breach of contract, antitrust, trade secret and disability accommodation claims. Alex has extensive experience in representing employers in complex wage and hour claims, including class actions, collective and representative claims. Alex has represented Fortune 500 conglomerates, hospitals, hotels, public municipalities and local businesses. Learn more about Alex at www.polsinelli.com/professionals/apolishuk