Adam Abrahms Quoted in “Health-Care Employers Lack Clarity on Joint Employee Issues”

Bloomberg BNA Health Care Daily Report

Adam C. Abrahms, Member of the Firm in the Employment, Labor & Workforce Management and Health Care and Life Sciences practices, in the firm’s Los Angeles office, was quoted in the Bloomberg BNA Health Care Daily Report, in “Health-Care Employers Lack Clarity on Joint Employee Issues,” by Mary Anne Pazanowski. (Read the full version – subscription required.)

Following is an excerpt:

Health-industry employers hoping for clarification on liability issues with respect to employees they share with others have been disappointed.

The U.S. Supreme Court Jan. 8 passed on reviewing a decision in which the U.S. Court of Appeals for the Fourth Circuit said that DirecTV may be held liable as a joint employer of technicians hired by an intermediary. The technicians claimed they were misclassified as independent contractors and stiffed on overtime pay. They won their case against DirecTV under the Fair Labor Standards Act, and DirecTV sought Supreme Court review.

Individuals who technically are employed by one company but are contracted out to do work for another are referred to as joint employees. The rules governing these workers are in a state of flux, and, while the DirecTV case involved the telecommunications industry, a decision would have had implications for health-care industry employers as well.

The joint employee issue “absolutely is an issue of paramount concern” for health-care providers, Adam C. Abrahms, a member of Epstein Becker & Green’s Labor and Employment and Health Care and Life Sciences practices, told Bloomberg Law. The issue will become more prevalent as industry collaboration and consolidation grow, and more work is shared between related and unrelated providers, he said. Abrahms is in the firm’s Los Angeles office. …

Health-care employers had been hoping for guidance on the joint employer question under the Fair Labor Standards Act and other laws, Abrahms said. The “lack of clarity is problematic,” he said.

Two entities, such as a hospital and a physician practice, often contract with one another to ensure adequate staffing at the provider’s facility. Outsourcing of tasks to an outside entity also is common. It is important for both parties to understand their rights and liabilities with respect to people who work for both, Abrahms said.

The Supreme Court’s decision means everything “stays the same,” Abrahms said. The Fourth Circuit applied the FLSA’s broad definition of employment to the technicians. …

Another complication for these entities is that there isn’t a single standard for every employment-related law, Abrahms said. The FLSA contains one test, but the National Labor Relations Board, which handles workplace complaints and union organizing, recently established its own new test, reversing course from a broader standard established during President Barack Obama’s administration. …

Abrahms said health-care employers need to ensure labor and employment lawyers are called in to review any transaction that could result in a joint-employment situation, as well as to review contracts between staffing agencies or independent contractors and providers. Transactional lawyers may not be focusing on the types of issues in which labor and employment counsel are expert, he said.