Work in the Time of COVID-19: FAQs for Employers

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In This Issue

Say It Ain’t So! – Just when you thought things couldn’t get much worse for skilled nursing facility providers in terms of civil money penalties and other survey sanctions, it did. All of a sudden, we’ve noticed in our practice a marked uptick in the number of providers wanting to challenge deficiencies via the Informal Dispute Resolution process.

United States Department of Labor Publishes Overtime Final Rule – On May 18, 2016, the United States Department of Labor (DOL) published its Final Rule updating overtime regulations under the Fair Labor Standards Act. The DOL proposed a Final Rule in June 2015 and asked for public comment regarding the salary threshold for white collar overtime exemptions and whether changes should be made to the duties tests for those exemptions. The Final Rule changed salary thresholds but made no changes to the duties tests.

HB2 and You: A Short Guide for North Carolina Employers – Any North Carolinian not living under a rock has seen or heard something about North Carolina House Bill 2 by now. But what does this law, also known as the Public Facilities Privacy and Security Act, mean for private employers in North Carolina when it comes to managing employees? Not as much as you might think. Let’s dig into it.

NLRB Continues to Target Employers’ Social Media Policies – In recent years, the National Labor Relations Board has placed increasing scrutiny on employers’ social media policies. The NLRB has specifically focused on whether such policies unlawfully interfere with employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “protected concerted activities” for the purpose of their mutual aid and protection. This issue was addressed yet again in the case of Chipotle Services LLC. In a decision issued on March 14, 2016, the NLRB administrative law judge concluded that Chipotle’s social media policy, and its application of that policy toward an employee who posted tweets on social media regarding wages and working conditions, violated the NLRA. Because Section 7 applies to all employers meeting the jurisdictional requirements of the Act (not just unionized workplaces), the impact of the Chipotle case is potentially far reaching.

W-2 Phishing Scams: Don’t Take the Bait – In recent weeks, hundreds of businesses around the country have been hit by an email phishing scam that is both brilliant in its exploitation of workplace power dynamics and potentially devastating in its effects. This particular scam, includes widely reported cases involving the Milwaukee Bucks and Snapchat.

New Resource for Advance Directives Information/Training – For the past several years, I’ve been involved with an organization known as the NC Partnership for Compassionate Care (NCPCC), which is designed to be an umbrella organization that brings together the many groups in North Carolina, such as SNFs, health care trade associations, hospices and hospitals, that have been working on end-of-life health care planning initiatives. This year, the North Carolina Bar Association Health Law Section partnered with NCPCC and with Hospice and Palliative Care in Winston-Salem to hold advance directives clinics in 21 North Carolina counties, where citizens could come, learn about living wills and health care powers of attorney, and actually execute those documents.

A Huge Success – Fifth Annual Jessie F. Richardson Foundation Golf Tournament for Nicaraguan Elders

Special thanks to the over 100 long term care providers and members who joined us on Thursday, May 5, at the Rock Barn Golf Club and Spa for the 5th Annual Jessie F. Richardson Golf Tournament for Nicaraguan Elders. With your help we raised nearly $90,000 and had a record number of teams and players. More important, we had a great day of fun and fellowship, renewing old friendships and helping indigent seniors in Nicaragua.

The proceeds of this year’s tournament will be used for multiple projects at the hogare de ancionos, or “home of the ancients,” in Jinotepe, Nicaragua, which is now a national training center for elder care. Projects include equipment for the training room, completion of a suite of care-based training videos for staff and others, installation of a grey water system, furniture replacement, and a variety of capital improvements. I’m always so amazed how many of our clients and friends come to this tournament and by those who donate even when they can’t make it. It’s rare that I bump into a client or friend at a convention or elsewhere when I’m not asked, “How’s the project in Nicaragua?”

You guys have really taken this project and these people into your hearts, and that constantly warms mine. Several folks have asked me when our next trip to Nicaragua is going to be, and the answer is most likely early 2017. I like to go, and take our North Carolina supporters when we can, every couple of years to see the amazing progress at the center and reconnect with our Nicaraguan friends. I wish I could take all of you with me so you could feel firsthand the love and appreciation the Nicaraguan people – from staff to residents to local officials – feel for their North Carolina brothers and sisters.

Thank you again for all you do! ~ Ken

Congratulations to Ken Burgess – From the Marketing Department
Ken Burgess was honored with the North Carolina Bar Association’s (NCBA) 2016 Health Law Distinguished Service Award “in recognition of his lifelong achievements and outstanding contributions to health law, and his exemplary service to health care professionals, the bar, and the general public.” The award was presented during the section’s annual meeting in April.

The Health Law Distinguished Service Award was created in 1993 and has only been awarded 11 times (including Ken) in the past 23 years.

Ken has served as a health care lawyer, with over 30 years of experience, and as a community volunteer. He has long been an advocate for educating North Carolina families on the importance of having honest discussions about end-of-life health care decisions. This passion, over many years of leadership and service, helped lead to the collaboration between the NCBA and the North Carolina Partnership for Compassionate Care on the “Got Plans” (formerly known as “A Gift to Your Family”) initiative. This is now a statewide effort to help advance end-of-life health care planning for individuals.

Ken has been recognized by Chambers USA, The Best Lawyers in America® and Super Lawyers magazine in health law. He’s also served on numerous boards and committees in the health care and legal fields, including twice serving as president of the North Carolina Society of Health Care Attorneys, the N.C. Medical Society Ethical and Judicial Affairs Committee, the North Carolina Autism Society board, the Future Care Foundation board and the American Health Care Association National Legal Committee, and has worked with the Jessie F. Richardson Foundation serving indigent elders in Nicaragua, for which he was named the organization’s 2008 National Volunteer of the Year.

At Poyner Spruill, Ken has advised hospitals, skilled nursing facilities, assisted-living communities, and related long term care vendors on licensure, certification, survey, fraud and abuse, operations, risk management, certificate of need, and business issues. He previously served as senior counsel to the national long term care trade association in Washington, D.C., where he was responsible for administering the association’s legal assistance litigation fund, and overseeing all regulatory, facility operations and clinical staff of the association. In addition, he served as general counsel to ALFA (Assisted Living Federation of America), the national assisted living trade association in Washington, D.C.

Other Notable Accomplishments for our Health Law Attorneys

Chambers USA, America’s Leading Lawyers for Business, has ranked five practice areas and 14 Poyner Spruill attorneys as leaders in their respective fields. We received rankings, which identify the firm as a leader in North Carolina for outstanding work in health care, banking and finance, bankruptcy/restructuring, environment, and general commercial litigation. Attorneys from the health law section recognized by Chambers USA include Ken Burgess, Wilson Hayman, Todd Hemphill, and Steve Shaber.

Iain Stauffer was named to the North Carolina Bar Association’s Health Law Council, the governing body for the Health Law Section, for a three-year term beginning this Fall.

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