Our employee benefits and executive compensation and labor and employment lawyers bring focused, practical solutions to our health care clients--including health care systems, hospitals, medical centers, long-term care providers and pharmaceutical manufacturers.
With our decades of experience working with employers in the health care industry, we understand the health care governance, reimbursement, corporate compliance, government and community relations, tax-exempt status, charity care, physician alignment and religious sponsorship issues our clients face. We anticipate how this rapidly evolving environment and continued change brought by the Affordable Care Act (ACA) impacts the employee benefits, executive compensation and labor and employment strategies deployed in response. We recognize the demands placed on health care HR teams and their resources, taking into account each client’s unique culture, mission and values in our strategic advice and counsel.
Employee Benefits and Executive Compensation
We offer solutions to the full range of employee benefits, executive compensation and physician compensation challenges our clients face. Whether drafting plan-related documents, counseling clients on plan administration or governance matters, or representing our clients’ interests in litigation, arbitration or before government agencies, we apply our experience to provide solutions that meet the unique needs of each client, its workforce and its plans.
Our lawyers work with our health care clients to develop, implement and maintain employee benefit plans – from defined benefit retirement plans to wellness programs – that meet the needs of diverse organizations and workforces. We understand that our role in plan design decisions is much more than simply determining whether a proposed change is legally compliant. As the health care industry continues to consolidate, we frequently advise clients on optimal solutions to maximize efficiencies during the post-closing integration process while addressing compliance needs.
We are in regular contact both formally and informally with the Internal Revenue Service (IRS), the Department of Labor, the Pension Benefit Guaranty Corporation, Health & Human Services, and state and local government agencies. We have successfully resolved many matters before these agencies, including threatened plan disqualification, deductibility of contributions, taxation of plan benefits, Pension Benefit Guaranty Corporation insurance coverage, prohibited transaction violations and operational plan deficiencies.
Our lawyers have significant experience in defending both ERISA and non-ERISA legal actions related to benefit plans and executive compensation arrangements in both federal and state courts. These matters include claims of breaches of fiduciary duties, benefit claim denials, multiemployer plan claims for withdrawal liability and delinquent contributions, and claims for subrogation or reimbursement and recovery of overpayments of benefits. Our collective experience includes defense of class actions, individual claims, and claims by the Secretary of Labor and the IRS.
Labor and Employment
Our Health Care Labor and Employment team adheres to the philosophy that we best serve our clients by anticipating and resolving employment issues before they ripen into litigation. We collaborate with in-house legal counsel, executives, managers and human resources professionals to address day-to-day workplace legal issues in a creative and effective manner.
We help health care clients develop in-house training programs on workplace issues and conduct audits of personnel policies, nurse staffing initiatives, wage and hour compliance, health workers background check processes and hiring, promotion and compensation practices. We also conduct comprehensive risk assessments, designed to uncover and solve employment law compliance issues and work with health care clients to develop appropriate prevention programs.
If the need arises, we defend all types of employment litigation including age, race, gender and other discrimination actions, wrongful discharge suits, breach of contract, wage and hour claims, executive compensation disputes, ERISA and benefits-related litigation, noncompetition/non-solicitation claims, trade secret, invasion of privacy, defamation and whistleblower suits. We are experienced in class action claims and have effectively crafted strategies to defeat class certification, establish the lawfulness of our client’s actions, achieve a favorable settlement or win at trial. Our team has relationships with leading economists, statisticians, organizational psychologists (testing) and sociologists, all of whom are necessary at times to prevail in class action cases.
Our lawyers also have significant experience handling traditional labor matters before the National Labor Relations Board in regions throughout the United States. We regularly counsel health care employers in all areas of traditional labor law, including labor relations strategy, union organizing campaigns, corporate campaigns, management training, collective bargaining and grievance arbitration.
Our Employee Benefits and Executive Compensation and Labor and Employment lawyers have decades of experience serving health care clients. The following is a sample of our representative matters.
Employee Benefits and Executive Compensation
- Provide regular day-to-day employee benefits counsel for several major health care systems; representative work includes amending existing plans for changes in benefit design and the law and implementing new strategic benefit designs.
- Collaborate with our clients, as well as third-party compensation and benefits consultants, to conduct comprehensive benefit plan operational reviews of existing benefit plan and executive and physician compensation arrangements, to identify areas of potential liability for noncompliance and implement a comprehensive strategy for risk mitigation.
- Counsel clients on strategic responses to the employer shared responsibility (“pay or play”) mandate, including application of the rules regarding offering coverage to “substantially all” (95 percent of) full-time employees; implementing recordkeeping systems for tracking and reporting hours of service under the new IRS rules; and evaluating employment classification and benefit eligibility options for part-time and non-traditional (e.g., registry, per diem) positions.
- Assist clients in planning for significant executive transitions, such as CEO successions, by identifying deferred compensation and retention plan strategies and working to ensure compliance with applicable tax rules and consistency with governance best practices.
- Assist health care systems with benefit plan integration issues following hospital and physician acquisitions, including assessment of strategic options, maintaining “protected” benefits, ensuring compliance with nondiscrimination rules and how/when to take advantage of controlled group transition rules, and streamlining the benefit plan administration process.
- Assist faith-based organizations with evaluating how “church plan” status applies to their organizations, assessing the pros and cons of church plan status and implementing an effective governance process for those plans maintained as a church plan.
- Represent clients in defending a range of claims under ERISA, including allegations of breach of fiduciary duties with respect to the selection and retention of 401(k) investment alternatives and associated plan fees.
- Advise clients and their boards, committees, and key stakeholders (e.g., HR, legal, finance) others on fiduciary and related matters. In particular, we assist clients and their investment committees regarding a multitude of investment issues for retirement plans, as well as foundations and other institutional investments. This includes fiduciary training, advice regarding ERISA and related law, negotiating investment agreements and side letters and other due diligence issues for all types of alternative investment vehicles. We have also assisted in the development of custom model portfolios, collective trust vehicles and private equity pools.
Labor and Employment
- Defend health care clients in Department of Labor audits and conduct system-wide wage and hour compliance assessments, saving clients hundreds of thousands of dollars in compliance costs.
- Provided counseling to a health system with regard to cross complaints of harassment and hostile work environment between male and female radiologists. We guided the internal investigation and worked with management to conduct a risk assessment of the possible outcomes, which resulted in the clinical director’s voluntary agreement to step down from this role without litigation or regulatory action.
- Represented a large multi-office physician practice group in connection with fraudulent use or misappropriation of prescription blanks. We coordinated the investigations and interviews of the employees involved as well as the reporting obligations of the various health care providers, including reports and notifications to the applicable prosecutor’s office, professional licensing boards, state offices of Drug Control and the Drug Enforcement Administration. We also coordinated preparation of the requisite reports required under state regulations and simultaneously handled all related employee disciplinary action and implementation of remedial measures.
- Represented a medical center and two former executives, the CEO and a Director, in defense of a whistleblower action filed by a former director. The jury returned a verdict on all counts in favor of our clients following a three-week trial. Our team also successfully defeated the plaintiff’s motion for a new trial and subsequent appeal.
- Successfully defended a hospital in winning summary judgment to dismiss a lawsuit alleging multiple state and federal claims, including pregnancy and disability discrimination, FMLA interference and retaliatory discharge.
- Negotiated on behalf of a hospital in contract negotiations with a state nurses association for a successor contract covering more than 2,200 professional employees. We achieved significant favorable changes in the defined benefit plan as well as health insurance.
- Negotiated on behalf of a residential care services provider in negotiations for a successor contract that conditioned future pay increases on increases in state funding and modified arbitration language to substantially limit the arbitrator’s authority in discharge cases.
- Defended a hospital in an unfair labor practice charge alleging it failed to bargain in good faith when it declared impasse and implemented its final offer. We settled the matter on favorable terms including extending the new agreement for an additional year with no additional changes or pay increases.
- Assisted a health care system with more than 25 unionized hospitals to make substantial changes to its defined benefit plan by assessing the different contract language and legal risk and developing a strategy to achieve the needed plan changes.
- Provided health care labor counsel and assisted a health care system defeat a surprise union representation petition filed by the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC) and assisted a labor relations team in handing CNA/NNOC its biggest defeat outside of California.
- Represented a health care system in developing a strategic action plan to defend against a union organizing drive initiated at one of its newly acquired facilities and move forward with favorable employee relations initiatives.
- Successfully challenged an election petition seeking to organize a group of hospital employees under the health care bargaining unit rules, resulting in the withdrawal of the petition before election.
- Represented another healthcare system in addressing union vulnerabilities and resolve unfair labor charges favorably for the client.