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 individuals 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 employees 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 employers 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 bachelors 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.
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