Employment at Will
Chap 20- Questions 2 & 3:
Write a paper (500-750 words) that addresses the Review Questions 2 and 3 in chapter 20 (legal aspects of health care administration (11thed), Pogzar). Include a rationale for your answers.
Prepare this assignment according to the APA guidelines 6th.
2. Using the hospital as a setting, give two examples of what would violate the NLRA.
3. How do patients’ rights come into play during a strike?
Week 6- Lecture Notes: Employment at Will
This module examines the various laws, rules, and regulations that govern the aspects of employment in health care. It covers the concept of employment at will with particular focus on when it is overridden by other legislation; issues around hiring and termination of employment; life with unions and the regulations that manage the relationship between an employer and a union; and a general summary of labor laws that affect health care entities.
Employment at Will
The concept of employment at will basically states that an individual’s employment with a company can be terminated at any time, without specified reason, by either the employer or the employee. Most people think employment at will is employers terminating employees for no reason and without redress. The concept that the employee may terminate the relationship without a reason at any time is frequently missed; however, it happens every time an employee issues a notice of resignation. In addition, the concept of termination without cause by the employer is not realistic. Employers must generally show cause for termination for poor performance, although they can dissolve the job and conduct a layoff for financial reasons.
There are clear public policy exceptions to employment at will. An employee cannot be terminated for reporting patient abuse, for example, since health care employees are mandated by law to report such actions. They are also mandated by statute to report child or vulnerable person abuse, and their jobs are protected if they do. Whistleblower laws also protect employees if they disclose wrong-doing in the organization to a public entity or to someone with enforcement authority. However, such a report needs to involve a suspected violation of law, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to the public health and safety. Idle reports without documentation or valid evidence are not protected.
Another public policy is protection against retaliatory, or wrongful discharge. This protects employees against arbitrary and capricious discharge, requires that there be “for cause” evidence, and must tie back to an action the employee took that upset the employer or its representatives. For example, if an employee complains of harassment on the job from a supervisor or person in authority and is fired days later for “substandard performance,” the employer must present a strong basis of documentation over time of specific examples of the poor performance, evidence of feedback, and corrective action from the manager, and documentation of lack of employee improvement. Absent these key elements, the firing could be deemed retaliatory in response to the employee’s complaint.
Hiring and Job Performance
There is a legal body of requirements regarding fair and equitable hiring of employees. The effective organization will have clear and specific policies for hiring employees, including clear and specific job descriptions that have been validated for accuracy; list specific criteria reflecting the skills and abilities needed to perform each specific job; and include salary ranges benchmarked to fair market value. Along with the hiring criteria, clear hiring policies also need to protect the employer’s right to make changes in the job description when there is need.
The application process for hiring must be designed to realistically determine the qualifications of applicants and how they fit the job requirements. This requires an application form that specifies information directly relevant to the job and does not request information that is not relevant, such as race, age, and marital status. These components may place an individual into a category that is protected against discrimination, and any job application must be blind to these components unless they can be proven to be directly relevant to successful performance on the job. A strong Human Resources department will validate every data point on an application to ensure that it is relevant to the job or is appropriate to meet a regulatory requirement, such as history of criminal behavior.
All hiring criteria must be directly tied to the requirements of the job description. For example, if the job requires lifting heavy weights on a regular basis, the criteria may include the ability to lift 50 pounds above the shoulders, but it cannot include “men only.” In nursing positions, it may be tempting to require that all nursing applicants have a bachelor’s degree in nursing (BSN). However, if an associate degree (AD) nurse applies and is rejected, the employer would have to demonstrate what specific criteria necessary for the performance of the job was met by the BSN and not the AD. This will be hard to do for the average nursing role, since AD graduates perform these roles with great success across the country. A more relevant requirement would be to mandate a BSN or appropriate BS degree for all management positions, since it can be shown that this level of preparation includes management skill training which is not true of the AD curriculum in general.
Since hospitals are responsible for the acts of their employees through respondeat superior, it is essential that appropriate background checks are performed. This must include a check for civil or criminal penalties in order to assure that employees are not predisposed to commit illegal acts. Reference checks are another important component. It is very important to ensure that someone talks to the last employer of record. Some facilities even require a credit history in order to validate all employers of record and to confirm the last employer listed on the application form. Most employers, however, will not release performance history, but will only confirm prior employment and dates of hire and termination. The smart reference checker asks, “Is this employee eligible for rehire?” In many cases, former employers will verify the employee is eligible for rehire if it is true. If the response is no or an inability to answer, it indicates the need for more in-depth investigation. However, the “rehire” question can be tricky in that former employers as a matter of policy will not answer the question as a defense against possible future litigation. Another approach is to ask the candidate to share copies of their last two performance appraisals. Some candidates will self-screen out of the hiring process upon this request, but this data is generally more valid than personal references provided by the candidate.
Finally, an effective organization has a strong performance appraisal and management system. Research has shown that people perform more effectively in their job when given feedback, both praise and suggestions for improvement. The effective performance appraisal system provides both. Feedback should be tied to specific job accountabilities drawn from the job description in addition to special and specific work the employee may have done in the appraisal period. In general, if an employee is being terminated for poor job performance the evidence and documentation of performance management must be found in the appraisal system.
Unfortunately, there are employees who cannot or will not perform the job acceptably. Some simply don’t have the needed skill sets, while others may have attitudinal or motivational deficiencies. The decision of whether they are performing the job must be made in the context of the requirements in the job description and the performance appraisal, and not because the manager has a personal reaction to the employee. In order to protect the organization from legal action for wrongful discharge, the organization must have the following written policies and procedures and have made them available at hire to the employee:
1. A policy that specifies how the performance appraisal system works, including the time frame of the appraisal process, the approach, and the parties accountable for performing it;
2. A policy that specifies how the corrective action process is implemented and followed, and examples of the behaviors that can trigger corrective action; and
3. A policy that specifies the due process and grievance rights of the employee.
When implementing the corrective action process, the one essential component is effective, specific, focused documentation. When an employee engages in action that is unacceptable in the work place, the first step in most processes is a verbal counseling. Many managers will provide verbal counseling but forget to document the conversation in the employee’s file. That is an important step. If the employee continues the behavior, the next step is generally a written corrective action. When writing a corrective action, it is essential to report facts, not hearsay, rumors, or other vague findings. For example, documenting that “on Monday, March 21, 2007, you said_________ to your co-worker, Sally, who found that offensive. The witnesses present, Joe, John, and Lula, confirmed that they heard you say that. This is unacceptable since our policy requires treating co-workers with respect” is more effective than “I’ve heard that you have made offensive comments to female staff. Don’t do it again.” If the employee continues the behavior, more specific instances must be documented and a final written warning given. At this point, it is a good idea to have a witness present for the conversation with the employee and to involve Human Resources in the preparation of the final warning. After the final written warning, if the employee continues the behavior, termination is a viable option.
There are some circumstances wherein the corrective action process does not have to have all the steps completed. In a situation where the employee broke the law, put a patient in danger, took drugs while working, and other major issues, direct and immediate termination may be the only acceptable response. In these situations, the Human Resource department must be involved; if the employee holds a license to practice, the action may have to be reported to that board or to state agencies.
When an employee is terminated, he or she may be able to file for unemployment benefits. Not everyone who leaves a job will qualify, though. If the employee committed a crime or engaged in unprofessional behavior, unemployment benefits may not be granted. The facility may sometimes oppose the employee’s application for unemployment due to the circumstances of the departure. Generally in layoff situations, the employee will qualify and the facility will not oppose it. The information on unemployment should be given to the employee as part of the termination, when one occurs, along with his or her due process rights of appeal or grievance.
When taking an employee through the corrective action process, it is critical that the steps of your facility’s policy are followed explicitly. There must be substantial and accurate documentation of specific instances of failure to observe the rules. The documentation should be able to substantiate that the corrective actions and termination were not arbitrary, capricious, discriminatory, or retaliatory. Human Resources representatives are expert in these areas, and can be of great value to the health care administrator having to go through this unpleasant experience.
Dealing with Labor Unions in Health Care Organizations
In 1935, Congress passed the National Labor Relations Act (NLRA) which defines unfair labor practices and establishes processes for hearings in cases of allegations being made. It established the National Labor Relations Board (NLRB), which is responsible for investigating claims of unfair labor practices and for regulating elections regarding unions. Employees have the right to engage in collective bargaining and to form a union to do so. If the employer contests the attempt to form a union, an election process is required. Current law requires a secret ballot, and the period leading up to the election is a time often filled with contention and difficulty, as both the union representatives and the health care entity’s management attempt to get their messages out to employees. The NLRB is responsible to monitor activities and react to allegations of unfair labor practices during this period. It is very important for the health care administrator to be fully conversant with the regulations that impact this difficult period.
When a union forms, there has typically been a growing frustration between employees and employers that escalates when employees feel that they are not listened to, that their work environment is increasingly negative, that management does not care about them or may be actively hostile, and that they have nothing to lose by attempting to form a union to address their grievances. Organizations with healthy workplace relationships between managers and staff, where people see their leaders and can talk to them regularly, and where staff feels supported and valued rarely see active union organizing efforts. It is also important to note that the entire organization does not have to be upset to get a union drive started; a single department may initiate it and try to get others to come on board. Conducting regular employee opinion surveys, monitoring and taking action on the results where problems are identified, and communicating with staff regularly and in a transparent and trustworthy manner on issues that are good and bad are all approaches that can immunize against the employee dissatisfaction that leads to unionization.
If a union drive begins, it is important to know the respective rights of each side.
Rights of Employees
4. Employees have the right to organize and bargain collectively with employer’s leadership;
5. Employees are free to solicit and distribute union information in non-working hours;
6. Employees have the right to picket; and
7. Employees have the right to strike if they feel their issues are not being adequately addressed.
Rights of Management
8. Management has the right to receive a 10-day advance notice of a strike;
9. Management has the right to hire replacement workers for strikers;
10. Management has the right to restrict union organizing and other activities to prescribed areas in the facility and grounds;
11. Management has the right to prohibit union activity during working hours; and
12. Management has the right to prohibit supervisors and other management personnel from participating in union activity.
As noted above, employers may prohibit union organizing activities on paid work time and on the premises of the facility, but they cannot interfere with activities offsite, while the employees are on break, or at meals. During an organizing effort, unions typically put out a great deal of printed information for employees, including cards to sign. Many employees do not read the cards prior to signing them, but if enough employees sign cards the union can trigger an election. It is not unheard of for employees to be duped into signing cards by a union representative who tells the employees that they are only signing to express interest in a union or to get more information. In fact, the cards generally indicate that the signature empowers the union to represent the employee in a union drive. Employers can provide counter-balancing information and education to offset the union’s publications. Unions may make promises to employees to “get them better salaries and working conditions,” but the reality is that the union cannot compel the facility to do anything except bargain. Many employees become confused and upset during this period, and it is a major distraction for the leadership team, since all other activities will take a back seat to addressing the union campaign.
If the union wins the election and is certified, certain other regulations come into play:
13. The employer cannot discriminate against an employee solely on the basis of his or her union membership;
14. The employee is entitled to have a union representative with them in any discussion with a manager;
15. The employer must bargain in good faith with representatives of the union in collective bargaining;
16. The employer may not dominate or control the union, or take a position in support of one union in the midst of a competition between two unions to win the election;
17. The employer may not offer financial assistance or exclusive access to the work site to one union when it is in competition with another to win the election;
18. The union cannot coerce or threaten employees, particularly if the employees do not support a strike action; and
19. Neither party can legally breach a contract reached through collective bargaining once it has been signed.
The Norris-LaGuardia Act and a 1974 amendment to the NLRA delineated procedures regarding strikes in health care settings due to the prevailing public interest in seamless provision of health care services. They specify procedures that limit the ability to strike in health care settings and can create a Board of Inquiry to assist arbitrators in resolving differences between the unions and management. This legislation also requires the union to give the health care facility a 90-day written notice before the collective bargaining agreement expires. There must also be a 10-day written notice prior to strike, picket activity, or refusal by union members to work.
Administrators of a health care organization that has a union or is undergoing a union drive to an election need effective legal counsel to ensure that no unfair labor practices allegations against the facility can be substantiated and that opposition to the union drive is legal and grounded in accurate facts. The best option of all is for the organization to create a positive, supportive workplace, in such a way that the union organizers recognize the facility is unlikely to vote for a union.
Other Relevant Labor and Workplace Legislation
There are a number of other laws and statutes that affect the workplace.
The Fair Labor Standards Act
The Fair Labor Standards Act was enacted in 1938 to establish a national minimum wage; overtime for many employees set at 1.5 times the hourly salary; and the maximum worked hours per week (except for exempt staff).
The Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972
Both Acts prevent discrimination in employment and hiring practices on the basis of race, color, religion, gender, or national origin. This was landmark legislation in the early 70s, when gender was considered a protected category for the first time.
Occupational Safety and Health Act of 1970 (OSHA)
This legislation enabled a federal agency to develop and enforce standards on health and safety in the workplace and in specific occupations. Health care facilities must report OSHA violations and injuries to employees if they fall into one of the OSHA categories. As a result of this legislation, many hospitals formed safety committees to ensure that the hospital is in compliance with OSHA and its own policies on workplace safety and health. They may do this through the creation of policies and procedures, regular walking safety rounds, and a variety of workplace inspections and audits. Examples of items that are monitored include exposure of staff to contaminated body fluids, contagious diseases such as tuberculosis or measles, hazardous materials, and radiation. Annual training and competency testing for all staff is an important part of maintaining occupational safety and a healthy workplace environment.
Family Medical Leave Act of 1993
This legislation provides temporary medical leave to employees of up to 12 weeks unpaid (or paid, at the discretion of the employer) in any 12-month period, for the following events:
20. Birth or care of a child;
21. Adoption of a child;
22. Care of an immediate family member with serious health problems; or
23. Inability to work due to a serious health condition with certification by a physician.
24. The employee cannot lose their job or health insurance during the FMLA period and must be restored to their current or an equivalent job when they return to work. A twist on this act that has given managers nightmares is the ability to take intermittent FMLA, which may be a day or two at a time. For instance, the parents of a child needing full-time care may want to alternate being home to provide the care for their child.
State Labor Laws
The states each have their own labor laws that address such issues as wages and hours (for instance, states can set minimum wages higher than the Federal minimums, but not lower); child labor laws, to regulate the number of hours and types of jobs that children under 18 may be able to perform; and Workers Compensation, a program to give employees wage benefits when out of work for work-related injuries. It is required that employers provide workers compensation benefits, although the amounts paid vary by state. One of the most common workers compensation injuries in health care is back pain due to the effort in moving patients.
There is extensive legislation, rules, and regulations that impact the work environment in health care settings. It would indeed be a challenge for one who is not an attorney to keep up with all of them. The Human Resources director and staff are experts in various areas of these laws, and should be an administrator’s first resource of choice for questions. If an attorney is required, the organization should be sure to select one with special expertise in employment and labor law.
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