ICYMI: The DOL and EEOC Have Been Busy In January

 

Earlier this month, the DOL and EEOC issued informal and formal guidance on a number of issues.  The DOL issued new FAQ on federal tax credits available to employers until March 31 who voluntarily provide FFRA leave.   The EEOC issued a formal opinion letter that non-U.S. citizens who are employed outside the U.S. need not be included in the notices required to be provided by U.S. employers by the OWBPA.   Other opinion letters were also issued (as well as proposed regulations on voluntary wellness plans under GINA and the ADA), but it remains to be seen how long those actions will survive the change in administrations.  President Biden has frozen all non-final regulations and agency actions for 60 days while his new appointees review and re-consider them. Finally, the EEOC approved (by a divided Commission) a final regulation revising the EEOC’s conciliation procedures. 

On New Year’s Eve, the DOL added new material to its COVID FAQs.  The mandatory medical and family leaves of absence created under the FFCRA expired on December 31.  However, the latest stimulus package passed before Christmas created tax credits to employers who voluntarily provide such leave to qualified employees until March 31, 2021.   Employees who exhausted their FFCRA leave in 2020 would not be entitled to new leave.  

SEC. 286. EXTENSION OF CREDITS FOR PAID SICK AND FAMILY LEAVE. (a) IN GENERAL.—

Sections 7001(g), 7002(e), 7003(g), and 7004(e) of the Families First Coronavirus Response Act are each amended by striking ‘‘December 31, 2020’’ and inserting ‘‘March 31, 2021’’. (b) COORDINATION WITH TERMINATION OF MANDATE.— (1) PAYROLL CREDIT FOR PAID SICK LEAVE.—Section 7001(c) of the Families First Coronavirus Response Act is amended by striking ‘‘paid by an employer which’’ and all that follows and inserting ‘‘paid by an employer— ‘‘(1) which are required to be paid by reason of the Emergency Paid Sick Leave Act, or ‘‘(2) both— ‘‘(A) which would be so required to be paid if such Act were applied— ‘‘(i) by substituting ‘March 31, 2021’ for ‘December 31, 2020’ in section 5109 thereof, and ‘‘(ii) without regard to section 5102(b)(3) thereof, and ‘‘(B) with respect to which all requirements of such Act (other than subsections (a) and (b) of section 5105 thereof, and determined by substituting ‘To be compliant with section 5102, an employer may not’ for ‘It shall be unlawful for any employer to’ in section 5104 thereof) which would apply if so required are satisfied.’’

                . . . .

            (3) PAYROLL CREDIT FOR PAID FAMILY LEAVE.—Section 7003(c) of the Families First Coronavirus Response Act is amended by striking ‘‘paid by an employer which’’ and all that follows and inserting ‘‘paid by an employer— ‘‘(1) which are required to be paid by reason of the Emergency Family and Medical Leave Expansion Act (including the amendments made by such Act), or ‘‘(2) both— ‘‘(A) which would be so required to be paid if section 102(a)(1)(F) of the Family and Medical Leave Act of 1993, as amended by the Emergency Family and Medical Leave Expansion Act, were applied by substituting ‘March 31, 2021’ for ‘December 31, 2020’, and ‘‘(B) with respect to which all requirements of the Family and Medical Leave Act of 1993 (other than section 107 thereof, and determined by substituting ‘To be compliant with section 102(a)(1)(F), an employer may not’ for ‘It shall be unlawful for any employer to’ each place it appears in subsection (a) of section 105 thereof, by substituting ‘made unlawful in this title or described in this section’ for ‘made unlawful by this title’ in paragraph (2) of such subsection, and by substituting ‘To be compliant with section 102(a)(1)(F), an employer may not’ for ‘It shall be unlawful for any person to’ in subsection (b) of such section) which relate to such section 102(a)(1)(F), and which would apply if so required, are satisfied.’’.

 . . ..

(5) COORDINATION WITH CERTAIN EMPLOYMENT TAXES.—Section 7005(a) of the Families First Coronavirus Response Act is amended by inserting ‘‘(or, in the case of wages paid after December 31, 2020, and before April 1, 2021, with respect to which a credit is allowed under section 7001 or 7003)’’ before ‘‘shall not be considered’’. (c) EFFECTIVE DATE.—The amendments made by this section shall take effect as if included in the provisions of the Families First Coronavirus Response Act to which they relate.

Q:  I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? (added 12/31/2020)

A:  Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS.  Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).

 

Q:  I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? (added 12/31/2020)

A:  Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

The U.S. Equal Employment Opportunity Commission (EEOC) announced last week that the Commission approved a formal opinion letter in response to a request asking for clarity regarding whether employees who are not U.S. citizens and work outside of the United States for American employers (or foreign firms controlled by American employers) are required to be included in disclosure requirements pursuant to provisions of the Older Workers Benefit Protection Act (OWBPA), which amended the Age Discrimination in Employment Act of 1967 (ADEA).

The EEOC also announced the approval of a final rule revising the Commission’s informal conciliation procedures once an investigation has found probable cause of discrimination.  The regulation was published in the Federal Register last week and is schedule to become effective on February 16, 2021.   As explained by the EEOC, fewer than half of the Charges in which probable cause of discrimination is found are resolved through conciliation. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Ohio Modifies Ohio Civil Rights Act and Shortens Limitations Periods

 

What a long strange trip it has been.  Yesterday, Governor DeWine signed H.B. 352 into law.  While it is a scaled down version of what passed the Senate before Christmas, it addresses long-standing concerns with Ohio employment discrimination legal procedures and makes them more consistent and often still more generous than exist under federal law. Among other things, it generally shortens the limitations period for 4112 claims and some federal statutory claims to two years, requires exhaustion of remedies, incorporates specific federal defenses, and makes damages subject to tort cap limits, etc.  It still retains the right of employees to bring certain age discrimination and injunctive relief claims directly in court.

First, it shortens the limitations period for claims under O.R.C. § 4112, and federal claims under §§1981a, 1983 and 1985 to two years (from the existing six years), which is still twice as long as the federal limitations period under Title VII, the ADEA and the ADA, etc.  (The limitations periods for those federal statutes vary from state to state because they “borrow” the analogous state limitations period).  The limitations period begins to run from the date when “the alleged unlawful discriminatory practice was committed.”  This period will be tolled for Chapter 4112 claims as long as a Charge is pending at the OCRC, except that if the Charge was not filed until less than 60 days before the limitations period was about to lapse (i.e., on day 670), then the tolling will last another 60 days after the Charge is no longer pending at the OCRC.

Second, similar to federal law and with a few exceptions, it requires employees to first file a Charge with the Ohio Civil Rights Commission, before filing a lawsuit.   The time period for filing a Charge is the same as for filing a lawsuit: two years.   Employees may still request a right to sue letter from the OCRC prior to the conclusion of any OCRC investigation, but the OCRC may not issue the right to sue unless the Charge has been pending at least 60 days.

Third, with certain exceptions, employees cannot file suit unless they have a Right to Sue letter, have waited at least 45 days after requesting a RTS letter and 60 days since filing a Charge, or have received a letter where the OCRC found probable cause of discrimination to have occurred.   These conditions do not apply if the employee is only seeking injunctive relief or if the employee filed a timely charge with both the OCRC and EEOC and the EEOC has issued a right to sue letter (or if filing a lawsuit for age discrimination under §4112.14).   But, if the employee initially sought only injunctive relief from a court and later amends his or her complaint to include a claim for damages, the employee must have filed a timely OCRC Charge and comply with the right-to-sue letter requirements.   

Fourth, as with federal law, it eliminates individual liability of managers and supervisors under the statute.  The legislation notes that it intends to overrule the Ohio Supreme Court’s Genaro decision and to instead follow long-standing federal law on this issue.  

Fourth, it explicitly adopts the federal standard and affirmative defense from Faragher, for sexual harassment claims. 

Sixth, it makes verdicts for Chapter 4112 claims subject to the tort caps for non-economic damages.  

Seventh, it makes Chapter 4112 the sole and exclusive remedy for employment discrimination, which is similar to federal law.  In other words, there cannot be a common law wrongful discharge claims for violation of public policy against employment discrimination.

Finally, while it retains under §4112.14 the existing right of employees not subject to an arbitration agreement to file suit for age discrimination claims seeking only reinstatement, back pay, costs and attorney’s fees and the existing election of remedies, it added a few wrinkles.   The employee must still elect remedies (i.e., bring this direct action without being able to sue for compensatory or punitive damages or being required to file an OCRC Charge).   These direct actions are still subject to the new two year statute of limitations as described above.   Like other 4112 claims, that limitations period may be tolled if the employee filed a Charge with the OCRC making the same allegations. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Refuses Employee Claim for Age Discrimination and to Award Attorneys Fees to Prevailing FMLA Plaintiff

This morning, the Sixth Circuit issued a few employment decisions that may be of interest to employers and employees.  In the first case, the Court rejected the plaintiff’s age discrimination claim where she had been fired for insubordination.   Pelcha v. MW Bancorp, Inc.,  No. 20-3511 (6^th Cir. 1-12-21, amended 2-19-21).  The Court reiterated that the Supreme Court has held the ADEA does not permit mixed-motive cases, unlike Title VII.  Further, her evidence of stray remarks by the Bank’s president about an employee who was 40 years older than her were too vague and unrelated to her situation to constitute direct evidence that she had been fired because of her age.    In the second case, the plaintiff physician was denied prevailing party attorney fees in his FMLA claim by the arbitrator because he had failed to educate the arbitrator that the statute prevailed over contrary language in the arbitration clause and because he failed to submit any definitive evidence of the fees he was claiming.

In the first case, the plaintiff teller was fired by her long time banking employer for insubordination for refusing to submit a written request for time off until the day before her day off even though such requests were due a month in advance.  She argued that this was pretext for age discrimination.  The district court granted summary judgment to the employer and she appealed.

The plaintiff attempted to argue that she had proved age discrimination with direct evidence based on a few inflammatory statements that the Bank’s president made about another employee who was 40 years older than the plaintiff and that he wanted to hire younger tellers.  The Court disagreed.  “In reviewing direct evidence, we look for “evidence from the lips of the defendant proclaiming his or her . . . animus.”  . . .Inferences are not permitted.”

“Direct evidence is evidence that proves the existence of a fact without requiring any inferences” to be drawn.  . . . In other words, direct evidence is “smoking gun” evidence that “explains itself.”

                . . .

In determining the materiality of allegedly discriminatory statements, we consider four factors, none of which are dispositive: “(1) whether the statements were made by a decisionmaker . . . ; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.”

             . . . None of the statements were related to [the plaintiff]’s termination. In fact, they were not made in relation to any termination decision and were about an entirely different employee. Additionally, nothing in the record suggests that the statements were more than isolated remarks. Here, it appears as though these statements were only made once or twice to certain higher-level management employees.

                . . . Hiring younger tellers does not require the termination of older employees.

 . . ., in terms of timing, the comments in question come from late 2015 or early 2016, more than six months before her termination. We have previously suggested that time spans of six or seven months can be temporally distant.

That being said, such statements could be considered as circumstantial evidence to argue pretext if the plaintiff attempted to prove her case through burden shifting and to raise a “plausible inference of discrimination.”     Nonetheless, the Court found that the plaintiff failed to prove that the employer’s explanation for her termination – that she was insubordinate – was pretext for age discrimination.

First, the plaintiff could not prove that the explanation had no basis in fact.  She argued that she was not insubordinate because she had submitted a written request one day in advance and had obtained verbal approval a month in advance.  However, the Court pointed out that she had been required by her manager’s policy to submit the written request a month in advance and she had admittedly told her manager that she refused to do so because she disagreed with the policy.  She did not ultimately submit her written request until the day before her took time off.  Her “late completion of the form could not cure her original refusal to follow Sonderman’s directive.”

She also could not prove pretext with the isolated and sparse comments that the Bank president had made about another situation. Those comments “were not directed towards Pelcha, not directed towards anyone near Pelcha’s age, and not made in connection with any termination decision at all.”

She also could not show that her employer changed its explanation for her termination by also later documenting issues with her negative attitude and contribution to a negative work environment.  Prior decisions have held that “providing “additional, non-discriminatory reasons that do not conflict with the one stated at the time of discharge does not constitute shifting justifications”.

In addition, she could not show pretext by arguing that the employer failed to comply with its own progressive disciplinary policy.   The policy was clear of the typical steps in the process and clarified that some offenses would justify skipping some or all of the steps.  In conclusion, “an ‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’”

Ultimately, she also could not satisfy the prima facie case because she could not prove that she was treated more harshly than another, younger employee because the fact that a younger co-worker may have neglected to turn in the form is not the same as insubordination in refusing to turn in the form. “Neglecting to complete a time off form and defiantly refusing to do so upon being asked by a superior are significantly different actions.”

In the second case, the Court denied the appeal of a physician who was denied in arbitration attorney’s fees as the prevailing party on his FMLA claim.  Gunasekera v. War Memorial Hospital, No. 20-1340 (6^th Cir. 1-12-21).   The physician asserted (correctly) that attorneys’ fees are awarded under the FMLA statute to prevailing plaintiffs.  However, the arbitrator reasoned that the arbitration agreement provided that each party would pay its own fees and, in any event, his attorney had failed to submit evidence of the attorneys’ fees accrued to that point during the hearing.    The Sixth Circuit found that a mere error of law by the arbitrator does not constitute the necessary manifest disregard of the law (if that standard even still applied) as required to overturn an arbitration award.  This was particularly true when the arbitration briefs failed to argue that the FMLA provision overrode the terms of the parties’ agreement.    More importantly, the physician failed to submit any evidence to the arbitrator of the amount of his fees. “In that brief, Dr. Gunasekera merely asserted that he was entitled to receive ‘all of his legal fees,’ which exceeded $35,000.”  Without concrete evidence upon which to base an award of a specific sum, the arbitration could not have erred in failing to award fees to a prevailing party under the FMLA.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

DOL Clarifies that Employees Need Not Be Paid for Time Spent Commuting To and From Work Even if Employee Worked from Home Part of the Same Day

 

At the end of the year, the DOL issued a number of FLSA opinion letters of interest to employers.  One involves the common situation where an employee works from home part of the day and works from the office for several hours.  Admn Op. No. FLSA2020-19.  In some scenarios, the situation arises because the employee has a personal appointment (i.e., medical or school or childcare) in the morning or early afternoon and the employer gave permission for the employee to work from home before and/or after the personal appointment.   The employee performs no work while commuting between locations and sets her own schedule. The employer inquired whether it was required to compensate the employee for his or her commuting time to or from the office on those days. “[W]hen an employee (a) chooses to perform some work before traveling to the office or (b) chooses to perform work at home after leaving the office, and in either case has sufficient time in between her telework and office work periods to use effectively for her own purposes, the time she spends traveling between home and office is not compensable.”

It is well known that an employer need not compensate an employee for time spent commuting to and from work before and after his or her workday. An employer also need not pay an employee for time spent on personal pursuits.  The question becomes whether the activity is primarily for the benefit of the employer or the employee.   However, it is also known that employees are supposed to be paid at least the minimum wage for their workday.

In general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities is considered compensable, a principle known as the continuous workday doctrine.  An employee is generally not considered to be on duty, and the continuous workday doctrine does not apply, until she has performed her first principal work activity of the day – that is, her first task that is integral and indispensable to the duties that she was hired to perform.  Unlike ordinary commuting time, travel that is part of an employee’s principal activity, such as travel between different worksites between the start and the end of the workday, is considered to be part of the day’s work and is compensable.

The DOL found that the employee’s travel time in the hypothetical scenarios was not compensable because the employee was either off duty or engaged in normal commuting.  Even though, for instance, the employee left work early to attend a school conference and re-commenced work from home after the school conference, the employee spent the time during her commute and attending the conference for personal reasons.  “Though the off-duty regulation speaks of an employee who has been ‘definitely told in advance that . . . [she] will not have to commence work until a definitely specified hour,’ it applies with equal force here where the employee may freely choose the hour at which she resumes working.”

Similarly, when an employee works from home prior to a personal appointment and then takes a break to visit her physician before driving to work, she has been off duty for the time that she spent driving and visiting her physician.   “Her time remains noncompensable until she reaches the office and resumes working.”

The DOL also concluded that travel time between home and office is not compensable under either the worksite to worksite doctrine or under the continuous workday doctrine.   While employees must be compensated for the time spent commuting worksite-to-worksite, commuting from home to worksite and visa versa is not the same activity, regardless of when it occurs because the employer is not requiring the employee to travel to or from home as part of her job.  Rather, she is travelling for her own purposes during off-duty time.

Off duty time is also not compensable under the continuous workday doctrine whether it occurs in the break room, off site or commuting while conducting personal errands.  The employee was also free to determine her own stop and starting times and was not required to commence work at a particular time during that day.  If the rule were otherwise, the employer could conceivably be required to pay for time that the employee spent napping for more than an hour, etc.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Ohio Court Rejects Non-Compete Clause to Prevent Surgeon From Changing Employers

 

Last month, the Ohio Court of Appeals affirmed a surgeon’s preliminary injunction against his former employer to prevent the enforcement of non-competition clause in his former employment agreement.  Castillo-Sang v. The Christ Hospital Cardiovascular Associates, LLC, 2020-Ohio-6865.   The Court agreed that that the clause was unreasonable in that it sought to prevent ordinary competition, not unfair competition, in attempting to prevent the surgeon from working for a nearby hospital.  The surgeon had already been trained before he was hired in 2015 and he possessed no confidential or trade secret information belonging to his employer.   Further, the clause put an undue burden on the surgeon in attempting to earn a living and provided a disproportionate benefit to the employer.  Finally, the clause injured the public’s interest when the surgeon was able to perform a necessary service which was in short supply.

According to the Court’s opinion, the surgeon had completed all of his medical training prior to being hired by the employer practice. His employment agreement contained a one-year non-compete clause that only covered Hamilton and contiguous counties.  While he honed his cardiac surgery skills over the next four years, there was no evidence that the employer had provided or enabled any significant or additional training.  He informed the employer that he intended to leave and claims that he was told that the non-compete clause would not be enforced against him.  He obtained employment with a Kentucky hospital and filed suit to attack the non-compete clause when the employer indicated that it would seek to enforce the clause against him.  The trial court agreed with the surgeon and the Court of Appeals affirmed.

Restrictive covenants are disfavored in the law, and “[t]his measure of disfavor is especially acute concerning restrictive covenants among physicians, which affect the public interest to a much greater degree. . .  Noncompetition agreements must be strictly construed in favor of professional mobility and access to medical care and facilities. . . . “[C]ourts have recognized that the greater scrutiny is mandated by public-policy considerations, since limiting the ability of a physician to practice may affect the public’s ability to obtain medical care.” . . .But even though not favored, covenants not to compete in the medical profession are not per se unenforceable, and will be upheld if they are reasonable.  . . . And, courts will enforce covenants against physicians to the extent necessary to protect an employer’s legitimate interests; if there is no legitimate interest to be protected, the noncompete is unreasonable.

By way of example,

Ohio courts have found legitimate protectable interests in upholding physician covenants not to compete. In Owusu v. Hope Cancer Ctr. of Northwest Ohio, Inc., 3d Dist. Allen No. 1-10-81, 2011-Ohio-4466, the court upheld a physician’s two-year covenant not to compete, finding that the medical center had a legitimate business interest in prohibiting the physician from using physician referral connections he developed as a result of employment with the medical center and that he could not use these connections to build a new practice.

The Court found that the covenant provided more protection than necessary to protect the employer’s legitimate business interests.  Because the surgeon had agreed in the employment agreement that the clause was reasonable and necessary to protect the employer’s interests in confidential and trade secret information, he had to now prove with clear and convincing evidence that the restrictions were in fact unreasonable.    The employer pointed to confidential information that he had concerning its future expansion plans, its pricing structure and its referral network.   However, its arguments were unconvincing.

“The purpose in allowing noncompetition agreements is to foster commercial ethics and to protect the employer’s legitimate interests by preventing unfair competition—not ordinary competition.” . . . The prevention of ordinary competition is not a legitimate business interest that can be protected by a restrictive covenant. . . . Therefore, a covenant not to compete is “valid only when the competition [it] restrict[s] is somehow unfair.”

In this case, the employer failed to identify any “targeted” physicians that it planned to recruit, “targeted” specialties where it planned to expand or particular markets and definite marketing plans that it planned to execute.  Further, its primary hospital indicated that all of the surgeons received the same training and investment and the prices were set by government payors and insurance companies, not the employer.  Further, cardiologists were the primary source of referrals to the cardiac surgeons and other hospitals were its primary competition, not the hospital where the plaintiff found employment.   Indeed, the evidence indicated that cardiac surgeons spent no time soliciting patients or referring cardiologists for business.   There was no evidence that the surgeon possessed, let alone used, any of the employer’s confidential information, or engaged in unfair competition using such information.

The Court also found that the non-compete clause put an undue burden on the surgeon even though he voluntarily resigned his employment and had a job offer in Columbus.   The surgeon testified that he moved to Cincinnati to be near his wife’s family, who provided child care, and his wife was employed at a local hospital.  He argued that commuting to Columbus would be a hardship and physically exhausting in a stressful and demanding profession.

Third, the Court agreed that it would injure the public to restrain the surgeon from performing minimally invasive Mitral Valve surgeries, which have far fewer complications and far quicker recovery times, etc. for patients.  None of the other surgeons at his new hospital could perform that particular procedure.

Finally, the Court found irreparable harm to exist because the surgeon would have to move in order to comply with the non-compete clause.  The defendant’s witness had agreed that burnout was a genuine factor by depriving a surgeon of rest and/or family time.

Interestingly, the parties have a pending claim involving the surgeon’s allegation that the employer only enforced the non-compete against Hispanic physicians.  That claim was not part of the preliminary injunction hearing or this appeal.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.