Legal Issues in the Workplace

1. 12 Legal Issues in the Workplace

2. Learning Outcome 1

3. Legal Issues • Impact every aspect of health care delivery • Federal and state laws influence how health care is given and reimbursed. • Administrators and managers need to be familiar with laws and legislation related to: • Nursing practice; • Administration; • Labor management; and • Employment

4. Legal Issues, (cont.) Necessary to know the kinds of situations that could lead to litigation, and to take steps to avoid being sued

5. Reasons for Becoming Familiar With Legal Workplace Issues • Health care environment is changing and increasing in complexity. • Rising costs result in managed care environment. • Dissatisfied RNs due to workplace issues • E.g.: adequate staffing and mandatory overtime

6. Reasons for Becoming Familiar With Legal Workplace Issues, (cont.) Employment of racially and ethnically diverse workers, as well as women Laws/legislation in place to protect from discrimination The American public’s litigious tendencies are heightened in the health care field.

7. Learning Outcome 2

8. The Fair Labor Standard Act (Federal Wage and Hour Law) • Regulates minimum wage, overtime, equal pay, record keeping, and child labor • Mandatory overtime is used by health care organizations to manage inadequate staffing. • Requires overtime after exceeding 40 hrs/wk, as 1% an employee’s regular pay

9. Equal Employment Opportunity (EEO) Laws • Resulted from years of racial discrimination • Expanded by federal government by prohibiting discrimination on basis of: • Sex; • Age; • Religion; • Physical impairment; • Pregnancy; or • National origin

10. Equal Employment Opportunity (EEO) Laws, (cont.) States may also have own EEO laws. Nurse managers should be familiar with both state and federal laws when hiring.

11. Family and Medical Leave Act (FMLA) of 1993 • Requires employers with 50+ workers to provide up to 12 weeks/year of unpaid, job-protected leave • Eligible employees must: • Have been employed for at least 12 months; and • Completed 1,250 hrs of service during 12-month period

12. FMLA Employee and Employer Rights • Employee has right to: • Return from leave to the same or equivalent position; and • Take leave on an intermittent or reduced-time strategy if needed for serious health condition of self or child, spouse, or parent • Employee has obligation to provide employer with a 30-day advance notice if need for leave is expected.

13. FMLA Employee and Employer Rights, (cont.) Employer has right to: Require medical certification for a claim for leave associated with a personal illness or to care for a seriously ill child, spouse, or parent; and Require certification that employee is eligible to return to work if leave was taken for personal illness

14. Labor-Management Laws • Include legislation about unions, collective bargaining, and strikes • The National Labor Relations Act (NLRA), or Wagner Act, of 1935 • Governs collective bargaining • Taft-Hartley Amendment of 1947 • Excluded not-for-profit hospitals from definition of “employer”

15. Labor-Management Laws, (cont.) Overturned when act was further amended in 1974 Unionization illegal until 1964, when Kennedy amended the act by executive order Law requires 10-day notice if planning to strike.

16. Learning Outcome 3

17. Title VII of the 1964 Civil Rights Act • Protects from discrimination based on race, national origin, sex, color, and religion • Promotes employment based on ability and merit • President Johnson strengthened act with executive orders in 1965 and 1967: • Created affirmative action component

18. Age Discrimination • Age Discrimination in Employment Act of 1967 • Prohibits discrimination solely on basis of age against people aged 40–70 • Applies to employers of 20+ persons

19. The Pregnancy Discrimination Act of 1978 • Prohibits sex discrimination against women who are or might be pregnant • Women unable to work for pregnancy-related reasons are entitled to disability benefits and sick leave.

20. Physical or Mental Disabilities Discrimination • Americans with Disabilities Act (ADA) in 1990 • Prohibits discrimination and delineates enforceable standards • Prohibits inquiries and medical examinations intended to gain information about an applicant’s disabilities before a conditional job offer

21. Sexual Harassment • Guidelines established by the Equal Employment Opportunity Commission (EEOC) in 1980 • Defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: • Submission to such conduct is made explicitly or implicitly a term or condition of employment;

22. Sexual Harassment, (cont.) Defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: Submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual; or Such conduct has the purpose of reasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

23. Learning Outcome 4

24. Collective Bargaining • Activities between labor and management concerning employee relations, such as negotiation of formal labor agreements and day-to-day interactions • Initially, NLRA only recognized three bargaining units: • All professionals • All nonprofessionals • Guards

25. Collective Bargaining, (cont.) In 1991, U.S. Supreme court ruled for recognition of up to eight categories.

26. Four Parts of the NRLA Every Nurse Manager Should Know • Section 7 • Section 8A • The definition of supervisor • The definition of employer

27. Sections 7 and 8A • Section 7: Employees have right to organize, but rights of those refraining are protected. • Section 8A identifies five categories of unfair labor practice restricting employee rights: • Interference with right to organize • Domination

28. Sections 7 and 8A, (cont.) Section 8A identifies five categories of unfair labor practice restricting employee rights: Encouraging or discouraging membership in a union by preferential treatment of union or non-union employees Discharging an employee for giving testimony or filing a charge with the NLRB Refusal to bargain collectively

29. Definition of Supervisor • Supervisors are excluded from coverage, and have no right to organize or engage in collective bargaining.

30. Definition of Supervisor, (cont.) NRLA definition: Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of authority is not merely a routine or clerical nature, but requires the use of independent judgment (29 U.S.C. 142.11)