Category: Articles

NLRB Moves Closer to Banning Use of Noncompetes and Other Restrictive Covenant Agreements

Posted on | by Emina Poricanin

On May 30, 2023, the National Labor Relations Board (“NLRB”) General Counsel, Jennifer Abruzzo, issued a memo titled “Non-Compete Agreements that Violate the National Labor Relations Act.” The memo details how the NLRB views non-compete agreements between employers and employees and suggests that, generally, non-compete agreements violate employees’ rights under the NLRA. Importantly, a memo is not a decision, meaning there is no decision holding that a non-compete violates the NLRA.

By way of background, Section 7 of the NLRA protects employees’ rights, and it is an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise” of rights guaranteed under Section 7. The NLRA applies to employees that are represented by a union, and those that are not represented by a union.

According to the memo, non-compete agreements violate the NLRA unless they are “narrowly tailored to address special circumstances justifying the infringement on employee rights.” The memo describes the following types of protected activities that non-compete agreements allegedly suppress:

  1. Concertedly threatening to resign for better conditions: Non-compete agreements can discourage employees from collectively threatening to quit as a negotiation tool for better working conditions due to fear of limited employment opportunities and potential legal consequences.
  2. Carrying out concerted resignations for better conditions: The agreements can discourage group resignations intended to improve working conditions, as employees might fear being unable to secure new employment due to the non-compete restriction.
  3. Seeking or accepting employment with a competitor: Non-compete agreements can deter employees from pursuing employment with local competitors to improve their working conditions, as this could potentially breach the agreement.
  4. Soliciting co-workers to work for a local competitor: Employees may fear inviting co-workers to join a local competitor due to the potential legal ramifications associated with breaches of non-compete agreements.
  5. Seeking employment to engage in protected activities: Non-compete agreements can discourage employees from seeking new jobs to engage in protected activities, like union organizing, at the new workplace, as the agreements limit their mobility and potential employment opportunities.

The potential implications of this memo could be vast. It suggests that employers should exercise caution when requiring non-compete agreements and that such agreements should be narrowly tailored to specific, valid business interests. It specifies that “a desire to avoid competition from a former employee is not a legitimate business interest that could support a special circumstances defense.” The memo could also potentially open the door for legal challenges against overbroad non-compete agreements.

Employers should review their template noncompetition agreements to ensure that they do not run afoul of the NLRB’s memo and, where appropriate, update and re-issue amended agreements to current employees.

Further Update on NY Healthcare Budget

Posted on | by Emina Poricanin

Since our alert on the status of the healthcare (and home care) budget was issued, we have received more information about the wage (not benefit) changes to home care worker compensation. We’ve also received a significant influx of questions about the minimum wage, benefit, timeline, programmatic, and other implications of what is – to our best understanding – a very rough draft of the final budget language regarding the home care worker minimum wage and wage parity provisions. Although the ink has not even been run on this language (let alone dried), here’s a high-level overview of our current understanding of the numbers and the timeline for home care worker wages.

Although the ink has not even been run on this language (let alone dried), here’s a high-level overview of our current understanding of the numbers and the timeline for home care worker wages.

CMS Releases Guidance Regarding End of COVID Staff Vaccination Requirements and Other Protocols

Posted on | by Emina Poricanin

The Centers for Medicare & Medicaid Services (CMS) released a new regulatory memo QSO-23-13-ALL entitled Guidance for Expiration of the COVID-19 Public Health Emergency (PHE) on May 11, 2023. The memo outlines each waiver CMS put into place during COVID-19 and how the end of the PHE will affect those waivers. Additionally, the memo outlines timelines for certain regulatory requirements issued through the PHE. This memo applies to Long Term Care, Intermediate Care Facilities, and other provider types.

NLRB Decision Restores Protection for “Worker Outbursts”

Posted on | by Emina Poricanin

In a decision that will impact employers’ ability to enforce civility and professional conduct rules in the workplace, the National Labor Relations Board (“NLRB” or the “Board”) released a decision in Lion Elastomers LLC II, 372 NLRB No. 88 (2023), that has profound implications for both employers and employees. The underlying facts involved an employee who was disciplined and dismissed after a heated exchange with managers allegedly concerning working conditions. In its decision, the NLRB determined that the employee’s conduct was protected conduct and the Company was barred by the National Labor

Relations Act from taking adverse employment action against the employee on that basis. The result of the decision is that employees engaged in workplace activism and union-related activity will have significantly greater legal protection, even when such activism involves profane, harassing, or vulgar conduct. Employers contemplating disciplinary action will need to be mindful of yet another basis of “protected activity” in their analysis.

NYC Passes Law Prohibiting Employment Discrimination on the Basis of Height or Weight

Posted on | by Emina Poricanin

On May 11, 2023, the New York City Council adopted a bill to amend the New York City Human Rights Law to include prohibitions on discrimination based on height and weight. This bill adds “height and weight” to the list of categories protected by Title 9 of the New York City Administrative Code, specifically to prohibit discrimination in connection with employment, housing, and access to public accommodations because of a person’s actual or perceived height or weight. Today, May 26, 2023, New York City Mayor Eric Adams signed the bill into law, announcing that “[n]o one should ever be discriminated against based on their height and weight.” The Bill will be effective 180 days from now, or November 22, 2023.

Of importance to employers, the law provides for exemptions (i.e., there is no prohibition on discrimination based on height or weight) where:

  1. Preferential treatment on the basis of height or weight is required by federal, state, or local law or regulation;
  2. An individual’s height or weight could prevent them from performing the essential functions of the job with or without an accommodation; or
  3. A certain height or weight is reasonably necessary for the normal operation of the business.

The Bill charges the New York City Commission on Human Rights with identifying particular jobs or job categories that fit into the above exceptions. Employers should update their employee handbooks (yet again) to account for these new protected characteristics and review any job descriptions that may be affected by these legal changes.

Update on NY Healthcare Budget: Implications on Home Care

Posted on | by Emina Poricanin

Sections of the health care budget seem to be slowly being released as the Legislature and the Governor work feverishly to finalize the New York State budget this week. By all accounts in Albany, the New York State budget will be finalized by the end of this week.

We have received what appears to be a close-to-final summary of the Minimum Wage Act and Wage Parity Law amendments that would take effect upon the adoption of the final budget. As relevant to our readers, this document indicates that the Budget would amend the law to provide the following:

  1. The home care worker wage parity hourly amounts of $3.22 and $4.09 would be reduced by $1.55 effective as of January 1, 2024. This would result in a New York City wage parity rate of $2.54 (instead of $4.09) and the Long Island/Westchester rate of $1.67 (instead of $3.22). If this is indeed the final budget language, we expect that this will not only reduce the wages of those workers who receive their wage parity as a wage (instead of a benefit), but that the plans will also reduce their reimbursements. It remains to be seen whether any such reduction will be by $1.55 or $1.55+overhead. Providers are advised to very carefully implement any wage reductions; the New York Labor Law governs (with strict penalties for noncompliance) the process of reducing wages or changing benefits.
  2. The $1.00 minimum wage increase that is scheduled for October 1, 2023 would be postponed to January 1, 2024. The new law would also cap the minimum wage of home care workers at the general minimum wage + $3.00.
  3. The law would be amended to allow the Department of Health greater authority to collect information from payers and providers about the wages and benefits being paid to home care workers. The owners of agencies would need to certify that the payroll records they are providing to the Department are “true,” under penalty of perjury. Failure to make such payroll records available may result in immediate suspension of the agency from Medicaid (including MLTC Medicaid), and the Department of Health will be empowered to direct MLTCs to suspend any payments to the provider.
  4. The law would be amended to allow the Department of Health greater oversight over managed care organizations, including the contracted rates of payments between such plans and the providers. The stated intent of this amendment is to provide for greater transparency and better enforcement of wage violations. This amendment could also open the door to providers making more kickback-type complaints against plans related to rate-setting between plans and providers.
  5. The Verification Organization program would be void and replaced by EVV.

We do not yet have access to the other parts of the Budget that are being discussed, such as the potential repeal or amendment of the CDPAP RFO. We will provide an update as more information becomes available.

Home Care Employers Take Note “Sweat Bill” Moves Closer to Becoming Law

Posted on | by Emina Poricanin

The SWEAT Bill (full text available here) is yet another well-intentioned but completely unnecessary anti-business piece of legislation that has been resurrected and gained traction with the New York Legislature in the last few days. As the legislative session is wrapping up this week, employee advocacy groups are working diligently in the last few days to ensure that this bill becomes a law. Employers that are in industries that are susceptible to wage claims, such as employers in the home care industry, should contact their local elected officials immediately to object to this bill becoming law.

As we had reported previously when this law was originally introduced several years ago (and, thankfully, had stalled in the Legislature since that time), the SWEAT Bill would allow alleged “victims” of wage theft to obtain a temporary lien against their employer’s (or alleged employer’s) assets upon the filing of a “wage claim.” (The term “wage claim” is not defined in the law and, thus it is unclear if a lawsuit has to be filed in order for the law’s provisions to be triggered, or whether a complaint to the Department of Labor would suffice).  In other words, a current or former employee could file a claim against their employer (or former employer) and immediately place a lien on that employer’s personal and real property. The problematic part of this bill is that it allows an employee to secure the lien without having prove any wrongdoing or error by the employer. The lien, once filed, would be in the amount of the alleged claim (which could be a class claim), plus liquidated damages. In effect, the employee lien could prevent an employer (or alleged employer in cases of fiscal intermediaries) from conveying, selling or transferring real or personal property while the employee lien is in place. The lien could impede a business’s attempts to sell the business or secure financing.

If the SWEAT bill is passed, employees and their attorneys will have significant new leverage to elicit, through threatened litigation or claims, favorable wage and hour payouts from employers. Employers, facing the prospect of expensive litigation and a lien, would be pressured into settling even the most meritless of claims. 

The SWEAT Bill was previously vetoed by Governor Cuomo. Perhaps the same fate will follow the bill with Governor Hochul, but no employer should sit idly by given the potential ramifications of this law. We encourage all our readers to contact their lobbyists, associations or attorney and the legislative officials directly to object to this bill becoming a law.

Home Health Care

Home Care Developments – NYS Governor’s Budget

Posted on | by MainStaff

Yesterday’s publication of the Governor’s Budget kicks off what promises to be an exciting Budget season for anyone in healthcare. In no particular order, below are the Proposals contained in the Governor’s Memorandum in Support of the Health and Mental Hygiene sections of the Budget:

  • The Home Care and Personal Care Workforce Recruitment and Retention programs would be renewed and extended through March 31, 2026.
  • MLTC moratorium would be extended until March 31, 2027. 
  • During the moratorium on MLTCs, all MLTC plans would be required to meet certain stated performance standards on or before October 1, 2024. The performance standards would include a plan’s commitment to contract “with the minimum number of [LHCSAs] needed to provide the necessary [PCA] services to the greatest practicable number of enrollees and the minimum number of [FIs] needed to provide necessary [CDPAS].” 
  • The proposed bill from the Governor states that “as of January 1, 2024, no entity would be permitted to provide, directly or through contract, [FI] services without an authorization as a [FI] issued by the Commissioner. ” The bill then contains a directive to the DOH Commissioner to “issue regulations, including emergency regulations, clarifying the authorization process, standards, and time frames.” It is not clear if this directive means that a whole new authorization process will be issued by the Department, or some modification of the prior authorization process will be conducted.
  • The wage parity law for CDPAP would be eliminated and replaced with reforms that would “better target the intent of wage parity.” The Governor proposes to establish a CDPAP “supplemental premium assistance funds” to ensure that healthcare workers in CDPAP maintain access to essential health care benefits. We are reviewing the proposed bill now, but it seems that this essential health care benefit would be Statewide, for all PAs, who do not otherwise have health coverage.
  • The Public Health Law would be amended to clarify that certain types of transfers of ownership interests for home care agencies do not require prior approval of the Public Health and Health Planning Council and could simply be done upon notice to the DOH.
  • In addition, the Governor proposes to amend the Public Health Law to reduce processing times for Certificate of Need applications that are submitted for new LHCSAs.
  • To increase the number of health care workers in New York State, New York would enter into Interstate Licensure Compacts and nurse licensure compacts that would make it easier for health care professionals that are licensed in other states to practice in New York, either physically or virtually.
  • The authorization for advanced home health aides would be extended for another six years.
  • Nurse staffing agencies would be required to register and report key data about their operations, with the goal of increasing transparency into the utilization and costs of contract labor.
  • The responsibilities for oversight of certain healthcare professionals would be transferred from the Department of Education to the Department of Health.
  • New York Would automatically increase the minimum wage, consistent with the year-over-year Consumer Price Index-W for the Northeast Region. Annual increases would be capped, and increases could be paused in the event of certain economic conditions.

If you’d like to read up on any of these proposals, please review the Health Care Briefing Book and the full Budget Briefing Book. These will contain summaries of the Governor’s proposals. 

We are reviewing the 1100 pages of proposed revisions to the law (see Bill Language) that would support the Governor’s plans and proposals and will discuss the details of the proposals with any clients who may have questions.   

NY DOH Announces New Deadline for Plans and Providers to Submit Wage Parity Certifications

Posted on | by Sam Sadovic

As we reported earlier today to our clients, the New York Department of Health (“DOH”) has announced that it has postponed the deadline for LHCSAs and FIs to submit the wage parity certification information (e.g., LS 300 and LS301 forms) from the current deadline of June 1 to October 1, 2022. The compliance deadline for MCO’s and CHHA’s receipt and review of providers’ compliance attestations will also be extended from June 1 to October 1, 2022. A link to the DOH’s announcement is not yet available, but anyone wishing a copy of the same can contact us.

The DOH’s announcement also states that “The Departments of Health and Labor are currently reviewing forms LS-300 and LS-301 to determine if amendments are required and may be providing additional guidance on the forms and audit process required to complete the forms in the coming weeks.”

This announcement provides significant relief to providers who have been struggling to find accounting firms to conduct and certify the results of audits of providers’ wage parity compliance. As the provider community knows, the DOL’s and DOH’s contemplated process for the wage parity compliance certifications has faced significant pushback from the professional accounting and auditor community. These additional months should provide much-needed time to amend the forms and the process.

If you received this alert from a third party or via social medial and would like to be added to our Home Care e-mail list, please visit poricaninlaw.com. You will be prompted to sign-up for our email list on our website.

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NYS Budget is Out What does it mean for Home Care?

Posted on | by Sam Sadovic

The final NYS Budget was released over the weekend. In addition to bail reform, gas price relief, childcare and other measures, the Budget contains a lot of relevant information for the home care industry. As we have already reported on the CDPAP changes from the Budget, this alert will focus on the remaining aspects of the Budget. 

1. FAIR PAY FOR HOME CARE IS IN, SOMEWHAT 

A 150% increase to the base wages of home care workers was not passed, however, the Budget states that beginning October 1, 2022, the hourly minimum wage for home care workers (which includes personal assistants and NHTD/TBI workers) will increase by $2.00. Starting on October 1, 2023, the minimum wage will increase again by an additional $1.00.

It is not clear how these increases will be funded. The Budget does not expressly appropriate funding for this increase in wages. Home care advocacy groups are working on ensuring that the necessary reimbursement comes through, and we have heard from various sources that the Legislature intends to “pick up” this issue post-Budget. To ensure adequate and timely reimbursement, providers should not only speak to their plans (who are also in a position to demand additional reimbursement from New York State) but also advocate and lobby with their local elected officials.

The Wage Parity benefits increases that were proposed by the Assembly and Senate are not in the Budget.

2. BONUS PAY FOR HEALTHCARE WORKERS

Subject to federal participation and funding , the final Budget also includes a one-time bonus for “certain front line health care and mental hygiene practitioners…” According to the Budget bill, the bonus would apply to LHCSAs and FIs (among other healthcare providers) and is intended to “attract talented people into the profession at a time of significant strain…and reward them financially for their service.” However, the Budget defines eligible employees as “assistants” (presumably FI personal assistants) and “aides” (presumably LHCSA and CHHA aides) “that provide hands on health or care services to individuals…that received an annualized base salary of [$125,000] or less, to include [various healthcare professionals, as listed].” HHAs, PCAs, and PAs in CDPAP are not specifically listed as the types of personnel covered by the Budget bill. We have also heard this morning that the Office of Budget does not consider home care and fiscal intermediary direct care staff to be covered by this Budget bill. We are monitoring this issue and will update our readers as more information becomes available.

Per the Budget, worker bonuses would be commensurate with the number of hours worked during a vesting period, with the vesting periods being determined by a schedule published by the Commissioner of Health. The bonus program would provide for total payments not to exceed $3,000 per employee based upon the number of weekly hours worked in a vesting period.

The Commissioner of Health will develop forms and procedures to identify the number of hours of employees worked, and forms related to reimbursement to employers. Employers will track the number of hours worked by employees and submit claims for reimbursement of employee bonus payments. Employers will be responsible for determining if an employee is eligible under this law for the bonus.

Similar to the language in the Wage Parity Law, the Budget specifically states that “no portion of any dollars received from claims [for bonus reimbursement]…shall be returned to any person other than the employee to whom the bonus is due,” and, for wage parity providers, the Budget states that no portion of the bonus amounts can be used to reduce the “total compensation” required to be paid under the Wage Parity Law.

Compliance with the law will be monitored by the Office of the Medicaid Inspector General (“OMIG”). Inappropriate claims for bonus reimbursement will be treated as Medicaid overpayments and may be recovered as such. OMIG could also impose other penalties and exclude providers from Medicaid participation as punishment for any wrongdoing related to this bonus program.

3. LHCSA RFO HAS NOT BEEN REPEALED

Despite strong advocacy efforts, the LHCSA RFO has not been repealed. Under the law as it currently stands, the DOH is required to issue a LHCSA RFO. We do not know when that will happen, despite indications that the LHCSA RFO would be “implemented” on May 1, 2022. In view of the significant pushback that the CDPAP RFO has received, it is likely that the same advocacy and litigation will ensue once the LHCSA RFO results are announced.

4. MLTC RFO IS A NO-GO

The final Budget does not establish a MLTC RFO, as had been proposed by the Executive. Instead, the Budget commands the Department of Health to appoint an independent contractor to “generate a report that reviews and makes recommendations concerning the status of services offered by managed care organizations contracting with” the NYS Medicaid program. Thus, instead of a MLTC RFO, the State will conduct a study on and about managed care.

5. INDEPENDENT ASSESSOR IS ON TRACK FOR 5.1.22

The independent assessor provisions that are on track for May 1, 2022, have not been repealed through the Budget. However, the Budget contains a provision that sunsets the Independent Assessor (IA) selection no later than September 30, 2025. The Budget also significantly modifies the statute language that outlines the process by which an independent assessor is selected.

6. OTHER IMPORTANT HOME CARE RELATED ITEMS FROM THE BUDGET

A. The Medicaid Global Cap has been redefined. The methodology for calculating the cap has changed from a 10-year rolling average to a 5-year average and will now be based on the annual growth rate projections from the Centers for Medicare and Medicaid Services’ (CMS) actuary offices. The intention of the change is to provide a more accurate picture of Medicaid spending and growth of the Medicaid program.

B. As proposed by the one-house budget bills, the Budget includes enhanced rates for Private Duty Nursing in the medically fragile children program will now extend to care for those individuals after they reach age 23. Rates may be calculated by the Commissioner of Health from average 2020 Medicaid Managed Care payments.

C. The Budget includes a 1% rate increase for home care, hospice and other healthcare providers, as well as an elimination of the current 1.5% reduction to Medicaid rates.

If you received this alert from a third party or via social medial and would like to be added to our Home Care e-mail list, please visit poricaninlaw.com.You will be prompted to sign-up for our email list on our website.

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