HealthCareLaborReportLabor activity, trends & events January/February2010HealthCareLaborReportLabor activity, trends & events January/February2010 Health Care Human Resources Checklist for 2010 H H ealth care employers can expect increased regulatory oversight and rulemaking initiativesin2010 now that President Obama’snomineesand appointees have become situated in variouspositions throughout government.Theyalso can expect increasedemployment litigation, especially collective or class action filings in the wage and hour area. Below is a list of specific human resource (HR) items hospitals may wish to pay special attention to in 2010, identified by G. Roger King, Esq., of Jones Day. Upcoming issues of Health Care Labor Report will explore some of these concerns in greater detail. ¦ Enhance efforts related to wage and hour compliance. The US Department of Labor (DOL) is hiring hundreds of new investigators for its Wage and Hour Division. Additionally, plaintiffs’ attorneys are aggressively pursuing class action lawsuits in the wage and hour area and increasingly are soliciting all classifications of health care employees. Accordingly, health care employers should consider the following steps: . Conducttrainingsessionsforallsupervisory levels to ensure, to the extent possible, a basic understanding of the requirements of the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws.At a minimum, such training should cover: (1) the proper classifi- Continued: See HR CHECKLIST Page 2 What’s Pending in the 2010 Congressional Session? The election of Scott Brown (R-MA) to fill the Senate seat long held by Sen. Ted Kennedy and the loss of the Democrats’filibuster proof majority in the Senate... The uncertainty about further progress and passage of health care reform... The shift in focus to the economy, jobs, financial reforms... and the budget for FY2011... The fast approaching mid-term elections... All these leave open the question of what 2010 holds for congressional action on the employee- relations front. What about “card check,” for example? The Employee Free Choice Act (H.R. 1409/S. 560) would eliminate secret ballot elections in union organizing campaigns, replacing that with a requirement that an employer recognize a labor union if a majority of its workers sign authorization cards. The bill also would make initial collective bargaining contracts subject to binding arbitration if no agreement was reached within 120 days of union recognition. While the prospect for passage of “card check” this year now seems even less likely, the AHA, working directly and with our Coalition for a Democratic Workplace partners, will continue to vigorously oppose the legislation. We also will continue our advocacy efforts opposing legislation mandating unreasonably strict guidelines that could jeopardize – and Continued: See PENDING, Page 6 AHA Health Care Labor Report, January/February 2010 Page 1 © 2010 IRI Consultants, Inc. Health Care Labor Report Labor activity, trends & events HR CHECKLIST Continued from Page 1 cation of employees as either exempt or nonexempt; (2) the requirement that employers who deduct wages for a bona fide meal period actually provide an uninterrupted 30 minute meal period for non-exempt employees; and (3) the prohibition on employees working off the clock and not reporting their time for pay purposes, particularly overtime pay. See the Employee Relations section of the AHA Web site under “Issues” at www.aha.org for helpful resources related to wage/hour compliance. . Involve representatives of HR, the payroll department and various operating units in ensuring that all required employee compensation is being properly included in the applicable base pay rate for overtime pay calculation purposes. Such coordination is especially important for hospitals given the considerable number of differentials, bonuses, incentive pay and other types of compensation that often is available to employees and that must be included in the employee’s rate of pay for proper payment of overtime compensation. .HRshouldcoordinatewiththepayrolldepartment and operation representatives to ensure that all hours work by non-exempt employees at various hospital facilities are aggregated or counted toward the 40-hour work week for overtime pay calculation as required under the FLSA or applicable state laws. Review and coordination is especially important for health care systems that own or operate multiple locations and have employees working full-time, part-time or on a per diem basis at one or more of such facilities. . Review how meal periods are being implemented throughout the hospital to ensure that employees who are not compensated for meal periods are receiving an uninterrupted 30-minute meal break as required by DOL regulations. . Review policies related to travel time, time- clock rounding, attendance at educational programs and other pay-related issues to ensure compliance with the FLSA. . Finally, and perhaps most importantly, consider conducting a wage and hour audit to address the above issues and enhance compliance effortsrelatedtotheFLSAandstatewage and hour laws. Such audits can be conducted on a system-wide, hospital, or representative unit basis. ¦ Strengthen awareness of and compliance with Occupational Safety and Health Administration (OSHA) regulations and related workplace safety requirements. The DOL has announced increased enforcement initiatives in this area for 2010, making this an especially important focus for hospitals this year. . Review OSHA and state safety rules and regulations. . Ensure that all required entries into safety logs and other reporting criteria required by OSHAand state regulatory agencies are being complied with and regularly monitored. . Follow OSHA and Centers for Disease Control and Prevention guidance related to influenza vaccinations and related precautionary procedures and protocols to prevent and control the spread of contagious diseases. ¦ Consider appropriate disease avoidance and control procedures in advance of potential future pandemics. Expected future increases in pandemic issues facing hospitals will require HR attention and advance planning. The recent debate and controversyovervaccinationrequirements, useofmasks January/February2010 and other protective equipment have highlighted the need for hospitals to devote more thought to this area. Hospitals have traditionally required that employees be tested and receive vaccinations for certain contagious diseases (e.g. TB, rubella, mumps, chicken pox), but concerns have been raised about the extent to which hospitals can mandate such protection. . Determine in advance what type of requirements the hospital will impose on employees for disease avoidance and control. . For employers with unionized health care workers, carefully review the provisions of existing collective bargaining agreements to determine what rights and options are available with respect to requiring employees to comply with disease avoidance and control procedures.Forexample,mandatoryinfluenza vaccinations may be a mandatory subject of bargaining with an incumbent union, depending on the management rights clause, other provisions of the hospital’s labor contract or the parties’past practices in this area. ¦ Understand the organizational implications of the new Genetic Information Nondiscrimination Act (GINA). . Review requirements of the new GINA and ensure that the hospital is fully compliant with this new law. Continued: See HR CHECKLIST, Page 4 AHA Health Care Labor Report, January/February 2010 Page 2 © 2010 IRI Consultants, Inc. Health Care Labor Report Labor activity, trends & events January/February 2010 What’s the Potential 2010 Focus on the Regulatory Front? Here’s a snapshot of potential activities from agencies that regulate health care employers: National Labor Relations Board (NLRB) ¦ Modification of rules permitting employer restrictions on employees’ use of company email. ¦ Changes to the timeframe for scheduling organizing elections. ¦ Increasing scrutiny of hospitals’ human resources policies for compliance with the latest NRLB’s decisions about confidentiality, civility, compensation, loitering and access to the hospital. ¦ Limiting the definition of supervisors. ¦ Restricting the definition of independent contractors. US Department of Labor (DOL) ¦ Increased enforcement of wage and hour requirements, including expansion of protections for meal and rest periods. ¦ Investigations of compliance with the Genetic Information Nondiscrimination Act . ¦ Examination of compliance with new regulations under the Family and Medical Leave Act . ¦ Increased obligations on employers under the Labor-Management Reporting and Disclosure Act. ¦ More vigorous enforcement of requirements around proper classification of independent contractors. DOL’s Office of Federal Contract Compliance Programs ¦ Increased scrutiny of Affirmative Action Plan (AAP) compliance by federal contractors, including requirements for subcontractor obligations. ¦ Implementation of new requirements for federal contractors and the recipients of certain federal grants covered by President Obama’s 2009 Executive Orders. ¦ Issuing final rules on federal contractors obligations to post notice of employee rights. ¦ Compliance checks for requirements that federal contractors use E-Verify system to determine employment eligibility. ¦ Expansions of who qualifies as a “federal contractor.” Occupational Safety and HealthAdministration ¦ Increased scrutiny of compliance with requirements about employees’access and use of personal protective equipment. ¦ Examination of compliance with the Centers for Disease Control and Prevention’s directives related to influenza vaccinations and related precautionary procedures and protocols to prevent and control the spread of contagious diseases. ¦ Issuing new ergonomics regulations, could include standards related to “safe patient lifting.” ¦ Increased burdens imposed on employers to demonstrate regulatory compliance. ¦ Assessing higher penalties for regulatory violations. Equal Employment Opportunity Commission (EEOC) ¦ Increased enforcement of nondiscrimination requirements in traditional areas of EEOC jurisdiction, such as national origin and gender. ¦ Expansion of agency jurisdiction to new areas of discrimination such as marital status or sexual orientation if Congress enacts pending legislation in these areas. ¦ More high profile lawsuits brought by EEOC against employers. ¦ Expanded investigations of disability claims brought under the Americans with Disabilities Act Amendments Act of 2008. ¦ Increased claims related to pay practices under the Ledbetter Fair Pay Act. AHA Health Care Labor Report, January/February 2010 Page 3 © 2010 IRI Consultants, Inc. Health Care Labor Report Labor activity, trends & events HR CHECKLIST Continued from Page 2 ¦ Determine the compliance implications of the new Family Medical Leave Act (FMLA) regulations. . Review the new regulations under FMLA, paying particularly attention to those new provisions or clarifications that expand certain options and opportunities for employers to exercise some control over this area. ¦ Determine whether the hospital is a federal contractor and therefore subject to various regulations and other requirements. With the potential availability of federal stimulus dollars for hospitals and the expected increased enforcement initiatives by the DOL with respect to federal contractors, it is especially important for hospitals to determine whether they have federal contractor status during 2010. In addition, it is critical for hospitals to understand that, by Executive Order, the Administration has added new requirements for federal contractors and the recipients of certain federal grants beyond the requirement of developing and implementing an Affirmative Action Plan (AAP). Many federal contractors also are now required to use the federal government’s E-Verify system to determine the employment eligibility of current employees and new hires. . Review federal contracts and grants to determine if the hospital is subject to the jurisdiction of the DOL Office of Federal Contract Compliance Programs and understand the many HR-related requirements that are associated with such jurisdiction. ¦ Prepareforincreased“socialnetworking” labor and employment issues. With the increasing popularity of texting, Twitter, Linked-In, Facebook and blogsites, hospitals should be prepared for new and increased HR issues related to social networking in the workplace. . Modify or redraft confidentiality policies and procedures to include coverage of the above-noted communication modalities. Policies should make clear that neither patient nor proprietary employer information can be relayed on such sites. Hospitals should consider consulting labor counsel to help draft such a policy to avoid running afoul of employee privacy and labor organizing protections. . Educate staff about hospital policies and procedures regarding social communications and communicate clearly to employees that any public posting of patient, proprietary or other confidential information on such sites may be subject to review and place an employee in a potential disciplinary situation. . Determine lawful ways to “e-round” or monitor non-confidential blogs and social networking sites to guard against harassment and other types of improper communication that may be initiated by hospital employees. Such “e-rounding” also may provide valuable information regarding employee opinions and issues in the workplace. However, employers need to be aware that any information they obtain from such rounding—just like any other type of traditional rounding—cannot be used to retaliate or discriminate against employees in respect to their rights as provided for in federal and state labor and employment laws. For example, because employees generally have a right to express views regarding their terms and conditions of employment on such sites and to join together to unionize, any information learned from e-rounding cannot be used to discriminate against employees exercising a right to organize under the National Labor Relations Act (NLRA). January/February 2010 ¦ Review hospital HR policies for compliance with recent NLRB decisions. With a newly-constituted National Labor Relations Board (NLRB), hospitals can expect increased scrutiny of their HR policies and many policies that a hospital may believe are appropriate could be found by the NLRB to “chill” employee rights to unionize. Recent examples where the NLRB has found labor law violations include improperly drafted policies dealing with confidentiality, civility, compensation, loitering and access to the hospital. . Review, with experienced labor law coun sel, whether the hospital’s solicitation, distri bution, access and other HR policies and pro cedures are compliant with recent decisions of the NLRB. ¦ Determine appropriate level of hospital control over “hosted” independent contractor employees. Generally, employees of hosted employers are the legal responsibility of the host employer with respect to certain discrimination laws and requirements to prohibit harassment on the hospital’s campus. Further, hospitals should be aware that hosted employees could be unionized and be utilized by their union representatives to initiate an organizing campaign on the hospital’s campus. Continued: See HR CHECKLIST, Page 5 AHA Health Care Labor Report, January/February 2010 Page 4 © 2010 IRI Consultants, Inc. Health Care Labor Report Labor activity, trends & events HR CHECKLIST Continued from Page 4 Therefore, hospitals will want to continue to review all contracts and arrangements with outside vendors and contractors that have an employee present on the hospital’s campus. . Determine whether the hospital’s solicitation, distribution and other HR policies should be included in contracts with outside vendors and independent contractors that have employees on the hospital’s campus. Hospitals should be aware that the more control the hospital exercises over such hosted employees, the greater the possibility that the hospital could be found to be a joint employer under the NLRA and other federal employment law statutes. However, when balanced with the need to control such employees for patient quality of care and safety reasons, some hospitals may find it is a minor risk they want to assume. Hospitals should consult with their labor and employment counsel regarding the risk/reward balance of exercising such increased control. . Implement requirements with vendors and independent contractors that employees who enter the hospital’s campus are required to abide by influenza vaccinations or other disease prevention and control procedures and protocols of the hospital. ¦ Think strategically about the labor and employment implications of employed physicians. Hiring physicians as employees in lieu of their traditional role in many hospitals as independent contractors raises a number of implications under labor and employment law. For example under the NLRA, employed physicians are eligible to join a union and to form a bargaining unit unless they are in a supervisory position as defined by §2(11) of theNLRAorareservinginamanagerialemployee classification as defined by NLRB case law. .ConsiderthepotentialHRimplicationsofan increasing number of hospital employed physicians. Hospitals should anticipate that such physicians potentially may be more influential than independent contractor physicians with respect to hospital policies and procedures, including compensation and benefit matters. Employed physicians also may be active as “informal” leaders, especially during nursing union organizing drives and in labor contract renegotiation situations. Accordingly, communication plans and other “outreach” initiatives to employed physicians are increasingly important in all health care workplaces. ¦ Implement employee “rounding.” . Develop and implement “rounding” policies and procedures for all senior hospital management representatives on all shifts for all areas of thehospitalinadditiontothe“e-rounding”noted above. Pay particular attention to evening, night and weekend shifts that often do not receive much management interaction. Employees on these shifts often believe they have little or no “voice” in the hospital’s operations. ¦ Monitor the changing health care union landscape. . Monitor the developments with respect to the formation of new health care unions, such as the new nurses “Super Union” (the National Nurses Union—NNU) and the merger or cooperation agreements between unions such as the new agreement between the Service Employees International Union and the California Nurses Association/National Nurse Organizing Committee. . Hospitals that are presently unionized also January/February 2010 should pay close attention to the local impact of such activities because their incumbent union may be subject to being “raided” or displaced by another union. ¦ Be aware of potential legislative developments related to labor and employment. . Closely monitor, through the AHA and state hospital associations, congressional activities related to labor law reform and the enactment of new employment laws. Although it appears that the Employee Free Choice Act (EFCA) will not be enacted in its present form with its controversial card- check feature, there remains a strong possibility that this year Congress may consider some type of expedited NLRB-conducted election and mandatory arbitration requirement for a first contract. Be aware of other health care related initiatives pending in Congress, such as safe patient handling (“no lift”) and nurse/patient safety (“mandatory ratios”) bills. . Consider potential HR issues associated with health care reform, including especially a tax on certain types of benefit plans, and other legislation, such as new employee leave requirements, that may be considered by Congress in 2010. ¦ AHA Health Care Labor Report, January/February 2010 Page 5 © 2010 IRI Consultants, Inc. Health Care Labor Report Labor activity, trends & events PENDING Continued from Page 1 even prevent – health care workers’ from properly caring for their patients or limit hospitals’ ability to employ existing patient care resources appropriately and effectively. Although legislation to amend the National Labor Relations Act and reverse existing board guidance on when charge nurses are classified as “supervisors” has not yet been introduced during the current congressional session, the AHA continues to oppose such measures because they would undermine hospitals ability of rely on charge nurse supervisors to serve as a management voice to patients, families and other employees and to ensure continuity of patient care. In addition to the card check proposals, specific legislation of concern pending in the current Congress includes: Nurse Staffing Ratios Nurse Staffing Standards for Patient Safety and Quality Care Act of 2009 (H.R. 2273) ¦ Would require hospitals to implement staffing plans that meet specified ratios for direct care registered nurse-to-patient staffing levels for each unit and other requirements, including a requirement for input from nurses. ¦ Would allow an exception only for a declared state of emergency. ¦ Hospitals would be required to provide their staffing plan and annual updates to the HHS Secretary who would be authorized to conduct audits to ensure implementation of adequate staffing plans. ¦ Nurses would have a right to refuse assignments that would violate staffing requirements or for which they are not prepared and the bill includes whistleblower protections. Registered Nurse Safe StaffingAct of 2009 (S. 54) ¦ Would require hospitals to adopt and implement a staffing system that ensures a number of registered nurses on each shift and in each unit of the hospital to ensure appropriate staffing levels for patient care. ¦ Includes requirement for public reporting of certain staffing information, including a daily posting for each shift in the hospital of the current number of licensed and unlicensed nursing staff directly responsible for patient care. ¦ Prescribes recordkeeping, data collection, and evaluation requirements. ¦ Specifies civil monetary penalties for violations of such requirements. ¦ Includes whistleblower protections. National Nursing Shortage Reform and Patient Advocacy Act (S. 1031) ¦ Would require hospitals to implement nurse-to-patient staffing plans that provide adequate, appropriate, and quality delivery of health care services and protect patient safety. The bill establishes minimum direct care registered nurse-to-patient ratios for emergency, operating rooms, critical care and nursery units. ¦ Would prohibit hospitals from imposing mandatory overtime and layoffs to meet the required ratios. ¦ Would require hospitals post a uniform notice that sets forth nurse-to-patient staffing ratios and requirements and to maintain records of actual direct care registered nurse-to-patient ratios in each hospital unit.The HHSSecretary would be required to establish procedures to allow the filing of complaints against a hospital for violations. ¦ Also requires the Secretary of Labor to establish a federal safe patient handling standard to prevent musculoskeletal disorders for direct care registered nurses and other health care providers. January/February 2010 ¦ Nurses would have the right to act as a patient advocate and to refuse assignments that violate the requirements or for which the nurse is not prepared by education, training, or experience and the bill includes protections, including non-retaliation, for those who refuse an assignment. ¦ These requirements would be part of the Medicare and Medicaid conditions of participation for hospitals. Patient Lifting Nurse and Health Care Worker ProtectionAct of 2009 (H.R. 2381/S. 1788) ¦ Requires the Secretary of Labor to propose a standard applicable for direct-care registered nurses and all other health care workers on safe patient handling and injury prevention that requires the use of engineering controls to lift patients and eliminates manual lifting of patients except where patient care may be compromised. ¦ Employers would have to: (1) develop and implement a safe patient handling and injury prevention plan; (2) train workers on safe patient handling and injury prevention; and (3) post a uniform notice that explains the standard and the procedures to report patient handling-related injuries. ¦ TheSecretaryof Labor wouldbe authorized to conduct unscheduled inspections to ensure compliance with safety standards. ¦ Allows health care workers to refuse to accept an assignment in a health care facility that violates safety standards or for which such worker has not received required training and to file a complaint against employers who violate thisAct. ¦ Includes whistleblower protections and authorizes a private right of action for workers who have been discharged, discriminated, or retaliated against in violation of theAct. ¦ Health Care Labor Report Labor activity, trends & events A periodic newsletter produced by the American Hospital Association, the American Society for Healthcare Human Resources Administration, and IRI Consultants, Inc., highlights important labor activity trends in health care. Liberty Place, Suite 700 325 Seventh Street, NW Washington, DC 20004 202.638.1100 www.aha.org AMERICANSOCIETYFORHEALTHCAREHUMANRESOURCESADMINISTRATION 440 E. Congress Suite 400 Detroit, MI 48226 313.965.0350 www.iriconsultants.com OF THE AMERICAN HOSPITAL ASSOCIATION One North Franklin Chicago, IL 60606 312.422-3720 www.ashhra.org AHA Health Care Labor Report, January/February 2010 Page 6 © 2010 IRI Consultants, Inc.