| Need Necessitates Changes in Protocol | <p>Signature HealthCARE, which operates 111 communities in 10 states, offers skilled nursing, home health, assisted living, and in-home care. The company employs approximately 15,000 individuals and delivers care to 9,000 residents and patients. <br></p><p>A great deal has changed since the COVID-19 pandemic hit in early March. Staff focused on being innovative and learning, as regulations and approaches to fighting the virus frequently changed, and leaders focused on protecting the spirit and vitality of residents and staff members during the daily challenges of COVID.<br></p><p>“There’s no doubt our staff have been personally and professionally challenged,” says Tracy Jansen, chief human resources officer at Signature. “With the needed adjustments and standards that came with the pandemic, many of our standard protocols had to be re-evaluated and modified in order to adapt.”<br></p><p><img src="/Monthly-Issue/2020/November/PublishingImages/1120_TracyJansen.jpg" alt="Tracy Jansen" class="ms-rtePosition-1" style="margin:5px;width:219px;height:195px;" />These adaptations included an increased and evolving workload due to the demands of protecting residents from COVID-19, implementing mandated screening requirements, increased use of personal protective equipment, and taking the added responsibility of having no volunteers as communities had to close to nonessential workers. <br></p><h3>Staff Evolve</h3><p>Signature communities also had to close to residents’ family members. “That meant our staff, in addition to the responsibilities of medical care, had to take on a greater level of responsibility for the mental and psychosocial health and wellness of our residents,” says Jansen.<br></p><p>As restrictions were put into place, staff helped expand telehealth as a source of communication for families and residents and engaged them in new kinds of activities that were within the boundaries of infectious control guidelines.<br></p><p>In the meantime, while staff focused on these changes at work, they themselves faced challenges with their families at home due to the pandemic, and Signature stepped in to help. <br></p><h3>Supporting Staff Heroes</h3><p>As staff are supporting residents and patients, corporate leaders support staff in communities in need by setting up meal pantries with healthy snacks available to staff. Signature has provided more than 10,000 pounds of food to be distributed to various facilities for staff, plus free meals at work. <br></p><p>If a staff member tests positive, Signature has meals delivered to them at home during their quarantine. Additionally, in instances where COVID-19 has significantly affected a facility, Hero or COVID Pay is supplied. COVID Pay is supplemental pay for staff specifically treating COVID-positive patients, says Jansen. Hero Pay is also supplemental pay for being a hero during the pandemic and, while not directly working with COVID patients, working in a facility that has a significant number COVID patients.<br></p><p>Signature provides financial support programs as well. “Other support programs for staff include a loan program for employees that offers a low interest rate, access to child-care resources, flexible work scheduling for families, next-day payroll advances, and enrollment for child-care flexible spending accounts after the normal enrollment deadline,” says Jansen. <br></p><p>In an effort to provide funds as easily as possible, Signature restructured its Dependent Flex Care Program. </p><p>Traditionally, funds become available as employees contribute through payroll deduction. But for the past several months, the employee’s entire election will be front-loaded for immediate access for reimbursement up to $5,000, tax deferred.<br></p><p>Signature also partnered with TrueConnect, a voluntary employee-benefit program, to help assist staff with low-risk, easily accessible loans as a part of their benefits package. The service includes free financial counseling and planning for staff. Loans under $5,000 require no credit check and have a low annual percentage rate.<br>Signature employees also receive a PayActiv Benefit in which they can get up to a $500 advance loan that is paid back over two paychecks.<br></p><h3>Spiritual Help</h3><p>Spirituality plays a big role at Signature, and leaders help answer the call as requests come in. “In regard to the emotional and spiritual health of our staff, Signature offers a Spiritual Call Center where employees can seek counsel to find a listening ear, to connect in prayer, and find comfort and connect to community resources as the pandemic continues to increase difficulties, emotionally, physically, mentally, and financially,” says Jansen.<br></p><p>Signature’s corporate office has also adopted buildings to supply a steady flow of goody bags, cards, words of encouragement, and prayer, she says. The company-wide prayer chain also receives prayer requests and helps keep a continuous prayer chain going.<br></p><p>Every bit helps, as staff juggle the personal and professional challenges of COVID. “Our staff have to deal with family members who have lost employment and the related financial challenges that brings, they have children at home who are learning or preparing to return to school and have the need for child care, especially for some of our single-parent employees,” says Jansen.<br></p><p>“And this is not even mentioning the fact that, every day, they deal with the constant concern of bringing the virus home. But despite these challenges, our dedicated employees are relentless and have remained steadfast, vigilant, and committed. They are our true heroes.”</p> | 2020-11-01T04:00:00Z | | Workforce | | Signature HealthCARE offers skilled nursing, home health, assisted living, and in-home care. |
| How Hands-on Nursing Home Ownership Works | <div>At
times, it seems appropriate to highlight the way in which nursing homes operate
in the real world versus some of the misperceptions that can cloud the views of
what we do in the long term and post-acute care profession.</div><div><br></div><div>A
case in point is the idea that owners of skilled nursing centers are not
involved or care about the residents who live in their buildings. Often, it
seems, the larger the ownership group, the more talk there is of owners being
focused on other things rather than the people who live in their communities.</div><br><p>I
work for the Portopiccolo
Group, and that idea could not be further from the truth,</p><p>Previously, I worked for
several nursing home chains and when Portopiccolo/ClearView acquired Smith
County Health and Rehabilitation in July 2019, I was unsure about what the
changes would bring.  <br></p><p>By that I mean, any
previous acquisition I have been through as an administrator, the new owner overpromised
when it came to lending support to meet the daily needs of the facility.</p><p>But, as I began to see
the owner and the upper-level management in the building engaging the residents
and staff, I gained some hope. Months later, I realized Portopiccolo Group
had kept every promise they made. We did have everything we needed, and
they did ensure the residents were our No. 1 priority.  </p><p>Whether it be equipment,
building renovations, supplies, operating cash, or good old moral support, we
have it every day without fail.  </p><p>There have been times in
the past when I spent my own money on supplies that were needed. With this
company, they are excellent at controlling waste, but not slashing. It doesn’t
matter if it’s a resident wheelchair, or a kitchen fryer, or petty cash to buy
the staff lunch, we always have it. </p><p>I see our owner and our executive
operators quite frequently. For instance, just recently I witnessed our owner
in a COVID-affected building talking to residents and staff to make certain
they have everything they need, and that they were OK. He was doing the right
thing when nobody was looking and putting his own health at risk to make
certain his stakeholders know he cares for them. </p><p>I can’t put into words
how proud I am to be a part of this company. I am grateful that even during
this pandemic Portopiccolo Group is growing as a company because every building
they buy is one more building full of residents and staff that will finally get
the support and resources they need. They will be genuinely cared for by
their owners and management team.</p><p><em>Alan
A. Hall is administrator of Smith County Health and Rehabilitation, Carthage, Tenn.</em></p><p></p> | 2020-09-25T04:00:00Z | <img alt="" src="/Breaking-News/PublishingImages/740%20x%20740/dr_staff.jpg" width="398" style="BORDER:0px solid;" /> | Management;Workforce | Alan A. Hall | At times, it seems appropriate to highlight the way in which nursing homes operate in the real world versus some of the misperceptions that can cloud the views of what we do in the long term and post-acute care profession. |
| Watch Out for Wage-Hour Minefields | <div></div>
<div>
In the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages. Employers that do so without fully understanding wage and hour implications put themselves at risk for devastating liability. Federal law makes it easy for employees to pursue claims as a group and provides successful plaintiffs automatic doubling of back pay. Simple mistakes can create liability in excess of $100,000, and, occasionally, over $1 million. <br></div>
<div><br></div>
<div>As staffing challenges grow, maintaining appropriate levels is more important and complex than ever. The Centers for Medicare & Medicaid Services’ (CMS’) Five-Star Quality Rating System is based partly on nursing staff per resident. In 2019, CMS updated staffing ratios and added an automatic downgrade to one star for facilities that report at least four days per quarter with no registered nurse on site. Many states also impose stringent staffing ratios. <br></div>
<div><br></div>
<div>Employers that rely on payroll companies for wage calculations retain responsibility. Vendors can—and do—make errors, especially when employers don’t understand the overtime implications on incentives and bonuses.</div>
<div><br></div>
<div>Following are some issues and potential pitfalls that long term care employers and their payroll and human resources departments should watch for.</div>
<h2 class="ms-rteElement-H2">Fair Labor Rules</h2>
<div>The general rule under the Fair Labor Standards Act says employers must pay overtime to non-exempt workers for all hours over 40 in a work week at not less than one and one-half times the employee’s regular rate, as spelled out in Title 29 of the U.S. Code of Federal Regulations (CFR). That “regular rate” is not necessarily the employee’s base rate. <br></div>
<div><br></div>
<div>To calculate the regular rate, divide total renumeration in a work week by the total hours worked (including overtime hours). Do not include dollars or hours paid but not worked, such as vacation. </div>
<div><ul><li>Shift Differentials/Incentives. Generally, shift differentials must be included in the employee’s regular rate of pay for determining overtime. The same is true for incentives offered to fill open shifts or work certain days.</li>
<li>Payroll Pointer. Premium pay for working on a “special day” (holiday, weekend, or scheduled day off) that is not less than the employee’s overtime rate can be excluded from the regular rate and counted toward the employer’s overtime obligation in some circumstances, according to the CFR. Given the complexity of this determination, employers should consult with legal counsel.</li>
<li>Payroll Pointer. Employers can limit the need for some complex rate calculations by carefully structuring bonuses to be based on a percentage of total earnings before the employee provides the services. In that case, per federal code, the employer does not need to recalculate overtime on the bonus payment.</li></ul></div>
<div>For example, the employer could offer a retention bonus of 15 percent of the employee’s annual straight-time and overtime earnings. Because the percentage applies to the employee’s overtime earnings, no further calculation is needed. <br></div>
<div><ul><li>Multiple Rates. When different rates are paid for two different jobs, the default rule is to pay overtime based on the weighted average (that is, total compensation divided by total hours worked).</li>
<li>Discretionary Bonuses. Payments made to employees without obligation or prior promises may be excluded from the regular rate and not subject to overtime calculations. Discretionary bonuses are uncommon; think twice before excluding any bonus from the regular rate.</li>
<li>Nondiscretionary Bonuses. Most nondiscretionary bonuses must be included in the regular rate for the weeks when the bonus was earned. Referral bonuses do not need to be included, according to U.S. Department of Labor guidelines, if “1.) participation is strictly voluntary; 2.) recruitment efforts do not involve significant time; and 3.) the activity is limited to after-hours solicitation done among friends, relatives, neighbors, and acquaintances.”</li></ul></div>
<div><img src="/Monthly-Issue/2020/February/PublishingImages/legal_staff-chart.jpg" class="ms-rteImage-1" alt="" style="margin:5px;" /><br><br>A bonus is considered nondiscretionary under federal regulations if the employer has promised, agreed, or even implied that it would pay it. Examples include attendance, production, quality, and retention bonuses. The employer must identify each work week during which the employee earned overtime and calculate the additional overtime due.</div>
<div><br></div>
<h2 class="ms-rteElement-H2">Adding it Up</h2>
<div>Fictional employee, Pat, works for a center as both a certified nurse assistant (CNA) and as a certified medical assistant (CMA). Pat earns $13.00/hour as a CNA and $15.00/hour as a CMA. All nursing department employees receive a $1.00 per hour shift differential for hours between 2 p.m. and 10 p.m. and a “pick-up” premium for filling vacant shifts, which varies based on the urgency of the need. Pat’s schedule for a recent workweek is on the facing page.</div>
<div><br></div>
<div>Pat also received a $30.50 attendance bonus for this work week. In total, Pat worked 49 hours and earned $808.50 in straight-time wages. </div>
<div><br></div>
<div>Pat’s regular rate of pay for overtime calculation purposes is $16.50/hr. ($808.50 divided by 49 hours). This regular rate calculation is where payroll often trips up, failing to include the bonus amount or using one hourly rate instead of the weighted average. Incorrect calculations can result in liability for underpayments, or in the alternative, consistently overpaying employees on top of their costly incentives.</div>
<div><br></div>
<div>Beware, users of outside payroll companies—many may default to using the hourly rate the employee happens to be working when the overtime hours occur without telling the employer they are doing so. In order to legally use this method instead of the weighted average rate, the employer and employee need an advance agreement, according to 29 CFR. Sec. 778.419. <br></div>
<div><br></div>
<div>Additionally, since many work weeks end over the weekend (when premium pay is more likely), using that method will base overtime pay on a rate higher than the weighted average. <br></div>
<div><br></div>
<div>Total compensation can be determined with the formula (40 hours x Regular Rate) + (OT hours x 1.5 x Regular Rate). Here’s how the math works out for Pat in this example: </div>
<div>40 hours x $16.50 = $660. </div>
<div>9 hours x 1.5 x $16.50 = $222.75</div>
<div>Total compensation owed is $882.75. </div>
<div>Calculating instead just additional overtime due (Regular Rate x 1.5 x OT hours) and then adding in straight-time wages would reach the same total amount. <br></div>
<div><br></div>
<div>An easier path? Not so fast: The Labor Department recently proposed revisions and clarifications to the “fluctuating work week” (FWW) method of determining overtime for non-exempt employees who receive bonuses, which allows employer and workers to agree to a weekly base for all hours worked with only additional half-time pay for hours above 40.</div>
<div><br></div>
<div>While the proposal would extend FWW rules to bonus payments, the new model is not likely to have broad applications in long term care staffing where non-exempt employees generally have set base and variable OT hours. Long term care employers that may need workers to stay late or meet surge needs may find it difficult to convince employees to work an overtime hour for what may feel to them like a half-hour’s pay. </div>
<h2 class="ms-rteElement-H2">Getting it Right</h2>
<div>These are just a few of the many rules and approaches to properly attract and retain workers through properly calculated bonuses and overtime. There are other compensation arrangemewnts that can alter calculations and allow employers to fully pay and motivate employees while controlling labor costs. There could be state and local regulations, too.</div>
<div><br></div>
<div>But the headaches of getting it right usually pass with experience, attention to detail, and some help from experts when needed. The pain of getting it wrong while scrambling to keep fully staffed through creative overtime and bonus and incentive packages can last much, much longer. </div>
<div> </div>
<div><em>Michaelle L. Baumert is a principal in the Omaha office of Jackson Lewis. She is a seasoned litigator and has extensive experience in human resources counseling with an emphasis on wage and hour issues. She can be reached at Michaelle.Baumert@jacksonlewis.com or 402-827-4270. Catherine A. Cano is an associate in the Omaha office of Jackson Lewis, representing management in all areas of labor and employment law. She can be reached at Catherine.Cano@jacksonlewis.com or 402-391-1991. </em></div> | 2020-02-01T05:00:00Z | <img alt="" src="/Monthly-Issue/2020/February/PublishingImages/legal_t.jpg" style="BORDER:0px solid;" /> | Legal;Workforce | Michaelle L. Baumert and Catherine A. Cano | In the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages. |
| DOL Issues Final Rule on Salary Exemption Levels | <div></div>
<div>
<img src="/Monthly-Issue/2019/November/PublishingImages/hr_BrookeNixon.jpg" alt="Brooke Nixon" class="ms-rtePosition-1" style="margin:5px 15px;" />A long-awaited Final Rule from the U.S. Department of Labor (DOL) raises the minimum salary level for certain workers to $35,568, or $684 per week. This rule, which will go into effect Jan. 1, 2020, affects nearly every skilled nursing, assisted living, and post-acute care facility in the country.</div>
<div><br></div>
<div>“For the first time in over 15 years, America’s workers will have an update to overtime regulations that will put overtime pay into the pockets of more than a million working Americans,” said Acting U.S. Secretary of Labor Patrick Pizzella. <br></div>
<div><br></div>
<div>Looking back a few years to the end of 2016, business owners and human resources professionals were scrambling to comply with DOL amendments to the Fair Labor Standards Act (FLSA). In 2014, President Barack Obama had directed DOL to update and modernize the overtime regulations, and subsequently, DOL issued its final rule on May 18, 2016, raising the minimum salary level to $913 per week, or $47,476 annually. The 2016 Rule was set to go into effect Dec. 1, 2016.</div>
<h2 class="ms-rteElement-H2">Duties Exemptions from Overtime</h2>
<div>Although the FLSA requires overtime pay for most employees, some are exempt from those requirements. To be exempt, an employee must meet both the duties test (workers perform certain duties detailed in the FLSA) and the salaries test (workers are paid on a salary basis at a certain amount per week). Under the duties test, employees must perform certain duties before they can be exempt under the FLSA. <br></div>
<div><br></div>
<div>The most commonly used exemptions are the executive exemption, the professional exemption, and the administrative exemption. All three of these exemptions are commonly used in long term and post-acute care (LT/PAC) facilities.</div>
<div><br></div>
<div>For example, administrators of long term care facilities will meet the duties test for an executive exemption if their duty is managing the facility, if they regularly supervise two or more full-time employees (or part-time equivalents), and have the authority to hire and fire employees (or their recommendations on hiring and firing carry significant weight). </div>
<h2 class="ms-rteElement-H2">Exemptions in Care Settings</h2>
<div>The professional exemption is often used in the LT/PAC care field for certain nurses, doctors, and other professionals in these facilities. Finally, individuals working in LT/PAC facilities may meet the duties test for an administrative exemption if their primary duties are the performance of office or nonmanual work directly related to the management of the facility and they regularly exercise discretion and independent judgment on matters of significance. This exemption may be used in LT/PAC settings by the human resources or financial director. </div>
<div><br></div>
<div>However, the 2016 Rule did not alter the duties test. Instead, it primarily focused on updating the salary levels necessary for executive, administrative, and professional (EAP) employees to be considered exempt. <br></div>
<div><br></div>
<div>Under the rule prior to 2016, and the rule that is currently in effect today, the minimum salary level for an EAP employee to be eligible for the exemption to overtime is set at $455 per week, or $23,660 annually. </div>
<h2 class="ms-rteElement-H2">The 2016 Final Rule</h2>
<div>Businesses everywhere spent the latter part of 2016 seeking advice from attorneys and accountants and reviewing employee pay rates, exempt versus nonexempt positions, and timekeeping policies. Critics complained that the 2016 Rule set the minimum salary level at an unreasonably high rate, thereby excluding millions of employees from being eligible for an exemption even though they perform exempt job duties.</div>
<div><br></div>
<div>As a result, many businesses would be forced to change the pay structure of their employees and possibly institute layoffs due to budget concerns. In response, a coalition of business groups and numerous states brought suit against DOL, challenging the 2016 Rule and requesting injunctive relief.</div>
<div><br></div>
<div>On Nov. 22, 2016, mere days before the Dec. 1 effective date, the U.S. District Court for the Eastern District of Texas issued a nationwide injunction blocking the 2016 Rule from going into effect. The court concluded the plaintiffs demonstrated a likelihood that DOL had exceeded its rule-making authority. The preliminary injunction only temporarily blocked the rule until the court could make a final decision.</div>
<div><br></div>
<div>For most of 2017, businesses were in limbo. The 2016 Rule had not gone into effect, but some business owners had already made significant changes to their business practices and employee pay rates. Other businesses decided to wait it out and see how the court would ultimately rule. On Aug. 31, 2017, the Texas federal court granted summary judgment for the plaintiffs challenging the rule. This decision effectively invalidated the 2016 Rule in its entirety.</div>
<h2 class="ms-rteElement-H2">The 2019 Final Rule</h2>
<div>Fast-forward to March 7, 2019, when DOL issued a new proposed rule increasing the minimum salary level and, after a comment period, issued the Final Rule Sept. 24, 2019. For an employee to be considered exempt under the FLSA, and not be paid overtime, the individual must meet the traditional duties test detailed above (which has remained unchanged) and be paid on a salary basis of at least $35,568 per year, or $684 per week. </div>
<div><br></div>
<div>Accordingly, any worker in a LT/PAC facility who is currently considered exempt from overtime but who makes less than $35,568 per year must be evaluated. After Jan. 1, 2020, EAP employees working in such a facility must be paid overtime unless they meet the duties test and be paid the minimum salary. <br></div>
<div><br></div>
<div>The highly compensated worker level was increased from $100,000 to $107,432. The Final Rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level. Unlike the proposed rule, the Final Rule provides that DOL will update the thresholds “more regularly in the future” but did not specify that changes would be made every four years.</div>
<div><br></div>
<div>DOL’s stated goal is to enable employees who have been classified as exempt to receive a pay raise (at least to the new $35,568 level) or to be reclassified as nonexempt so they can receive overtime pay. According to DOL, this Final Rule should impact approximately 1.3 million workers in the United States. <br></div>
<div>Employers now must make a decision to either reclassify these employees as nonexempt or raise their salaries to the new exemption rate. <br></div>
<div><br></div>
<div>The time to address this matter is now. These changes are sure to inspire a fresh round of FLSA compliance lawsuits in 2020 for employers that do not address or fail to address them effectively. </div>
<div> </div>
<div><span class="ms-rteThemeForeColor-2-0" style="">Potential Steps to Consider</span><br class="ms-rteThemeForeColor-2-0" style=""><ul><li><span class="ms-rteThemeForeColor-2-0" style="">Identify nonexempt positions—those employees making less than $35,568.</span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">Identify which of those positions to increase to the new exempt salary level. </span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">For those employees required to be reclassified as nonexempt, determine whether changes should be made to their job duties or work schedule to limit overtime hours. </span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">Calculate a new hourly rate for classified employees that will closely approximate current total annual salary compensation for all hours worked to limit the impact on the labor budget.</span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">Consider alternate employment structures, such as salaried nonexempt employment.     </span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">Draft comprehensive communication and training plans to help reduce the projected costs associated with the transition. </span></li><span class="ms-rteThemeForeColor-2-0" style="">
</span><span class="ms-rteThemeForeColor-2-0" style="">
</span><li><span class="ms-rteThemeForeColor-2-0" style="">Train new hourly employees on timekeeping requirements and on what exactly constitutes hours worked that are due payment. For example, time spent working on mobile devices at home must be tracked and factored into the overtime analysis.</span></li></ul></div>
<div><em>Brooke Nixon is a partner at Constangy, Brooks, Smith & Prophete. She can be reached at bnixon@constangy.com.</em></div>
| 2019-11-01T04:00:00Z | <img alt="" src="/Monthly-Issue/2019/November/PublishingImages/hr_t.jpg" style="BORDER:0px solid;" /> | Workforce | Brooke Nixon | The most commonly used exemptions are the executive, professional, and administrative exemptions. All three of these exemptions are commonly used in LT/PAC facilities.
|