Many employers are now including rules about employees’ use of social media in employee handbooks. Employers often write such rules with an eye to preventing employees from posting negative comments about the employers’ business online. Since 2010, the National Labor Relations Board (NLRB) has been reprimanding employers who implement social media policies in the workplace that discourage employees from being critical of working conditions.

Section 7 of the National Labor Relations Act (NLRA) gives employees the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the NLRA prohibits an employer from taking any action to “interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”

In several cases, the NLRB has ruled that employees fired for posting disparaging remarks about their workplace in violation of their employers’ social media policies were unlawfully discharged. The decisions for these cases cite overly broad social media policies in employee handbooks that run afoul of the Section 7 and Section 8 protections afforded to employees under the NLRA. Essentially, the NLRB has taken the position that employees have a right to criticize their employer’s conduct or workplace conditions on social media as long as the criticism is “concerted” (i.e. involves at least two employees).

One interesting development, however, has arisen in the case of Noel Canning v. NLRB where the D.C. Circuit Court of Appeals held that the January 2012 appointments of three NLRB members were unconstitutional. This ruling could result in the invalidation of several key NLRB decisions affirming the above social media positions. Until that is clear, however, employers should consult an attorney prior to implementing a new social media policy or discharging an employee for his or her social media activity.

Partner Mary Louisa L’Hommedieu presented at the OPRA Spring Conference. See her PowerPoint attached.

Moving Forward with Healthcare Reform – OPRA

Section 6102 of the Patient Protection and Affordable Care Act (also known as “PPACA” or simply the “Affordable Care Act”) requires nursing and skilled nursing facilities to have in place an effective compliance and ethics program by March 23, 2013.

The federal government included the provision requiring this mandatory compliance and ethics program in order to detect and prevent criminal, civil, and administrative violations of the Affordable Care Act.

There are 8 required components for a Nursing Facility’s compliance and ethics program under the PPACA:

1) Compliance procedures applied to the facility and its agents that are reasonably capable of reducing criminal, civil and administrative violations of the PPACA

2) “High level personnel” of the facility must oversee compliance with the program and these individuals must have the resources and authority to assure compliance

3) The facility must exercise due care not to delegate substantial discretionary authority to individuals whom it knows or should know have a propensity to engage in violations of the PPACA

4) The facility must take steps to communicate effectively its compliance standards and procedures to all employees and other agents, such as by requiring participation in training programs or by issuing publications explaining what is required

5) The facility must take reasonable steps to comply with its ethics program’s standards and procedures, such as by utilizing auditing systems designed to detect violations of the PPACA. The facility should also have in place a reporting system whereby its employees and agents could report PPACA violations by others without fear of retribution

6) The facility’s program must consistently enforce its standards through appropriate disciplinary mechanisms, including discipline of individuals responsible for the failure to detect a violation

7) When the facility detects a violation, it must take reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect violations of the PPACA

8) The facility must periodically undertake reassessment of its compliance program to identify changes necessary to reflect any changes within the facility

There have not been any regulations published to date that address this provision of the PPACA. The Office of Inspector General (OIG)’s Compliance Program Guidance for Nursing Facilities and the OIG Work Plans can serve as tools for the development of a compliance program under the PPACA. Finally, every compliance and ethics program must be tailored to the issues of each facility.

For additional guidance in implementing the mandatory compliance and ethics program under the PPACA, contact DLM Legal’s health care practice attorneys at info@dlmlegal.com or 216.635.0002.

Pursuant to new Federal Regulations, the U.S. Department of the Treasury has initiated a “Go Direct” program by which all federal benefits are to be paid electronically.  These benefits include social security, supplemental security income, railroad retirement, and civil (non-military) retirement.  All nursing home residents who still receive their federal benefits by paper check are to establish direct deposit accounts to a bank or credit union by March 1, 2013.

Federal benefit funds may be deposited into either a resident’s own bank or credit union account or into a Resident Trust Account established and maintained by the Nursing Home.  Residents may also deposit funds into a Direct Express card, but the Treasury Department recommends the direct deposit option for nursing home residents.

The Treasury Department has provided a form (FMS form 1200) to enroll residents into direct deposit with a bank or credit union.  Residents may also be enrolled online at www.godirect.org.  Information required to complete the form include the resident’s account number, routing number and claim number.  A resident may also choose to have their benefits deposited directly with the nursing home in a Resident Trust Account.

For more information on the “Go Direct” initiative and the move toward direct deposit of federal benefits, please visit www.godirect.org or speak with our attorneys.

On February 12^th, Ohio Governor John Kasich released his budget proposal (HB 59) to foster job creation and enhance Ohio’s economy. HB 59 includes new tax provisions that will affect Ohio businesses. One main provision included in the bill is to reduce the sales tax rate from 5.5% to 5% and to start taxing services including:

• legal
• accounting
• parking lots
• haircuts
• insurance

Take a look at this chart from the Governor’s office to see the full list of taxable services.

Because the sales tax would be expanded, the budget would also reduce local sales tax rates of many Ohio counties and transit authorities, and a three-year moratorium would be place on any local sales tax increases.

Also included in HB 56 are the following tax reforms:

• $2.1 Billion dollar income tax cut, which is a 20% cut over three years.
• $1.9 Billion small business tax cuts over three years. The income tax on nearly all Ohio small business would be reduced by 50% on the first $750,000 of earnings.
• Eliminate severance taxes for small-volume natural gas providers, and the taxes will change from 20 cents-per-barrel to a flat tax of 4%. This increase will help fund the new tax cuts.

To learn more about HB 59, please click here.

On January 1^st, the use of background checks for home-health workers expanded due to new legislative and administrative rules.  The Ohio Attorney General’s Office’s Medicaid Fraud division was concerned with inconsistencies in regulations, so new rules were enacted to strengthen the checks and create consistent standards across different state agencies. Prior to this, a criminal act could be disqualifying in one agency but not in another.

Important changes to the use of background checks include:

• employees must be re-checked every 5 years
• more state and national databases must be searched, including registries that list sex offenders, inmates and abusive caregivers
• the checks now apply for care recipients who are neither elderly nor minor.

Home health agencies are concerned with the cost of these additional background checks.  The cost for the background checks increased to $28 per check, and there is an estimated amount of 23,000 to 24,000 employees in Ohio who have been employed five years or longer.