Workplace issues remain in the spotlight in 2007. The new Democratic Congress and state legislatures are moving to enact, or have enacted, new workplace legislation, including changes to the National Labor Relations Act, new anti-discrimination laws, leave requirements, and increases in the minimum wage. Legislation seeking to curb identity theft and protect the privacy of medical information continues to impact the aging services industry. Also, dealing with disasters in the workplace remains a concern for aging services employers. Employers in the aging services industry should be aware of the following critical developments and should take proactive steps to ensure workplace policies are consistent with these trends.

Legislative Trends

Employee Free Choice Act
On March 1st, the U.S. House of Representatives passed legislation, known as the "Employee Free Choice Act" (H.R. 800), that would fundamentally alter the balance of labor relations in the United States to favor unions. The bill would end 70 years of NLRB-supervised secret-ballot representation elections, require employers to recognize unions based on union authorization cards signed by employees with little appreciation of their significance, to say nothing of the adverse consequences of union representation, give arbitrators authority to write first-time collective bargaining contracts when employers are unable to reach agreement with the employees' newly certified representative after 90 days, and impose significant financial and other penalties on employers who violate employees' rights during a union organizing campaign or first contract drive.

Two hundred forty-one members voted in favor of the bill, and 185 opposed the measure. Thirteen Republican representatives voted with the overwhelmingly Democratic majority. Attempts to weaken the bill through amendments offered by Republicans were defeated. Identical legislation is expected to be proposed by Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-MA) in the next few weeks. While the administration has previously signaled its opposition to the bill, the White House issued a formal rebuke of the measure, stating: "H.R. 800 would strip workers of the fundamental democratic right to a supervised private ballot election, interfere with the ability of workers and employers to bargain freely and come to agreement over working terms and conditions, and impose penalties for unfair labor practices only on employers--and not on union organizers--who intimidate workers."

Anti-Discrimination Laws
Since the beginning of 2007, the Senate Health, Education, Labor and Pensions Committee and the House Education and Labor Committee approved legislation prohibiting employers and insurers from discriminating against employees based on genetic information. This legislation is expected to pass the full Senate and the House later this year. If so, President Bush has indicated he will sign the bill.

State lawmakers also have expanded those protected by state anti-discrimination laws. Many states, most recently Iowa in 2006, have enacted prohibitions on employer discrimination based on genetic predisposition or family history. Also, the District of Columbia enacted legislation prohibiting discrimination based on gender identity or expression, and the Washington state legislature prohibited Washington employers from discriminating against applicants or employees based on sexual orientation.

Leave Laws
Congress is expected to consider legislation expanding employees' leave rights in 2007. Senator Dodd of Connecticut has pledged to introduce legislation both requiring paid leave under the Family and Medical Leave Act and expanding the Act's coverage to smaller employers. Senator Kennedy of Massachusetts announced that he will reintroduce the Healthy Families Act which would provide for paid sick leave.

States have expanded protections for those who are serving in the military, and certain jurisdictions now impose obligations on employers with regard to military spouses. For example, Minnesota requires employers to provide time off in certain cases for military spouses for homecomings, funerals and send off events, while New York mandates ten days unpaid leave for any purpose. San Francisco, meanwhile, became the first locality in the United States to enact legislation requiring all private sector employers in the city to provide paid sick leave benefits to employees.

Minimum Wage
Both the House and Senate passed bills increasing the minimum wage to $7.25 per hour by 2009. However, the bills differ regarding tax relief for small employers. Accordingly, the House and Senate will have to conference over the final legislation to be sent to the White House.

However, even if Congress fails to enact a new federal minimum wage, over a dozen states have enacted new minimum wage legislation including, Connecticut; Hawaii, Oregon; Rhode Island, Vermont, and Washington. Furthermore, as both the House and Senate bills raise the minimum wage over time, employers in many other jurisdictions with higher current minimums may not be affected immediately by a federal increase.

In light of these changes, aging services organizations should review their employment policies to ensure that they cover any new protected classifications and new leave laws. Employers also should train their managers and supervisors regarding updates to EEO and leave laws. Employers should review the minimum wage in the states where they operate and ensure that all posting and payroll practices are consistent with current law.

Privacy Trends

Identity Theft
According to the Federal Trade Commission, identity theft ranks as the nation's top consumer fraud complaint. Recognizing the growing problem, most states, including Michigan and New Jersey, have enacted laws in one form or another seeking to prevent identity theft from occurring. Some of the laws include requiring businesses (including employers), for example, to implement reasonable safeguards to protect personal information, to notify individual affected by a security breach, and to limit the use and disclosure of certain information, including social security numbers. Another example is the Disposal of Personal Records Law in New York which requires covered businesses to ensure that disposed records are free of personal information. A number of bills that would encompass many of these requirements also are currently being considered in Congress.

Because employment records provide a rich source of information, to prevent identity theft in the workplace, businesses/employers should establish data privacy and security policies and procedures to protect the sensitive information they maintain about their employees, as well as their patients/customers. For example, employers should reduce or, if possible, avoid using Social Security numbers as a means to identify employees on insurance cards, claims forms, paycheck stubs, timecards, staff badges, etc. Employers should control access to sensitive employee information and have a plan in place in the event an identity thief strikes the workplace. Also, employers should provide annual training and written materials for employees on workplace policies and their responsibilities in handling sensitive information, and impose discipline for non-compliance.

Privacy of Medical Records
As aging services organizations are aware, the HIPAA Security and Privacy Rules require all covered entities to protect electronic protected health information ("EPHI") that they use, access, or disclose. While there are many aspects of compliance with these rules, due to the number of security incidents involving portable data storage devices, the Centers for Medicare and Medicaid Services recently issued guidance outlining strategies for safeguarding for EPHI that is accessed, stored, and transmitted by covered entities using portable data storage devices. The guidance provides that offsite use of and access to EPHI should be done only when necessary. The guidance gives examples of necessary circumstances, including: a home health nurse collecting patient data via a laptop or PDA during a home health visit, or a doctor, while out of his office, ordering a patient's prescription refill via a PDA.

If remote access to or use of EPHI is necessary, CMS expects the covered entity to conduct a risk analysis and develop risk management measures to reduce risks and vulnerabilities associated with the contemplated remote access. The analysis should consider potential risks associated with accessing, storing, and transmitting EPHI. The results of the analysis should be used to develop or enhance policies to minimize those risks as part of the organizations overall HIPAA compliance efforts.

Disasters in the Workplace
Fires, natural disasters, chemical or toxic gas releases, terrorist attacks, pandemics, and other emergencies pose a significant threat to employee safety. While employers may not be able to avoid these disasters, employers can take steps to reduce injuries, property damage, and interruptions to operations by having emergency procedures in place. The Occupational Safety and Health Administration ("OSHA") has developed guidelines for emergency planning, communications, and medical procedures.

OSHA recommends employers take the following basic steps in developing emergency plans:

• establish an emergency planning team and assign responsibility for developing the emergency plan;
• perform a hazard audit to determine all potential emergencies that could occur at the work site;
• analyze all business functions and operational systems, identify vulnerabilities, and determine how to minimize the impact of disruptions;
• consider the feasibility of establishing an alternative location from which to conduct business;
• become familiar with internal resources and identify workers with medical expertise, cardiopulmonary resuscitation training, or other skills that might be needed during emergencies;
• establish an emergency committee to address such issues as payroll and benefits distribution, incoming mail, job coverage, productivity, and morale during crises; and
• institute an ongoing program to keep workers apprised of changes to emergency plans and procedures.

In addition, employers with 11 or more employees who are required to have emergency action plans (and this includes many, including those with portable fire extinguishers who opt to evacuate their facilities in case of fire) must put their plans in writing, while smaller employers may communicate their plans orally. These plans describe how employees are to exit a facility in the event of a fire or other emergency. Employers must review the emergency action plan with employees each time it is developed or changed. A copy of the plan must be kept at the workplace and made available for employees to review.

Training must be provided for new employees and conducted annually for all workers. Employers must provide additional training when the plan is developed, new equipment, materials, or processes are introduced, procedures are updated or revised, and training drills reveal problem areas. Employers also must train workers to assist in the safe and orderly evacuation of employees. Emergency drills for all staff should occur annually, and management and employees should evaluate drill performance. Distinct alarms are necessary to alert employees to evacuate or take other planned action. Employers should have contingency plans in case an emergency disrupts communication and should establish emergency medical procedures.

Employers also must arrange appropriate evacuation assistance for handicapped employees and visitors with special needs. When asking employees to self-identify and describe their particular needs, employers should only ask for information that will facilitate emergency preparedness and response. In general, employers do not need to know the details of particular medical conditions to provide the kind of assistance disabled employees might need. Employers also should emphasize that any information provided will be kept confidential and shared only with staff who are responsible for handling evacuations or other emergencies in the workplace. Fire prevention plans specified by OSHA generally must accompany emergency action plans.

This article has been brought to you by AAHSA's Shared Services Partner and Platinum Business Firm Member, Aon Association Services, the program administrator for the AAHSA Directors and Officers Liability Insurance Program. Steve Baderian of Jackson Lewis is a panel counsel member for the insurance program which is underwritten by CNA.

For additional information regarding any of these developments, please contact Steven D. Baderian at (914) 328-0404. Mr. Baderian is a partner in the White Plains, New York office of Jackson Lewis LLP. Jackson Lewis is a national law firm representing employers exclusively in all matters relating to employment, labor, benefits, and immigration law and litigation.