How to Avoid (or Decertify) a Union

As you may have noticed, organized labor has taken a new interest in attempting to unionize nursing homes. What's more, the National Labor Relations Board has been certifying union elections in nursing homes at a rate unprecedented in recent years. This unwelcome news comes at a time when nursing homes face increasing regulation, decreasing public resources and growing competition for staff and residents. In short, it's another headache that nursing homes don't need at this point. What can be done to relieve it?

First of all, let's address why this is happening. Nursing home staffs have, of course, always been a fertile field for union organizing due to their typically low pay and demanding workloads. The advent' of John Sweeney as President of the AFL-CIO stimulated new interest by the Service Employees International Union and the National Union of Hospital and Health Care Employees (1199) in organizing these and other health care workers. Sweeney, a former president of the SEIU, has had long experience in this arena. He put that experience to use this past summer by fielding hundreds of college-based volunteers to spread the union word among nursing homes and other employers throughout the coun-try. He has also supported training of organizers to "infiltrate" facilities by having them seek employment as staffers and working from within.

This is one reason (though not the only one) that the NLRB has received and approved the largest number of organizing petitions from nursing home staffs since 1991. Further, under new NLRB guidelines, the time between the filing of an election petition and the actual elec-tion has been reduced radically, from months to weeks -- an average of about 42 days, in fact. This is barely enough time for nursing home management to react and go through the early stages of panic before the election date hits. It's not a pretty picture for the unwary.

This is especially unfortunate, since there are several ways nursing homes can avoid this scenario before it ever becomes a threat. In fact, these methods can be applied by nursing homes that have already been organized, and help lead them toward the "promised land" of union decertification. It boils down to today's labor-management version of the three R's: Recognition. Repetition, Reinforcement.

Before explaining this, I'd like to lay out the context in which this is occurring. In the labor environment of the 1990s, the issues are not as focused as they once were on such tangibles as wages and benefits. Today it's more a matter of "Does the employer care?" Is the em-ployer treating its employees with re-spect and dignity? Can you trust the employer? These concepts are very dif-ficult to pin down but, believe me, today's trained organizer understands them thoroughly and knows how to put them to very effective use.

In short, trust -- or lake of same -- has become the major issue. Very simply, if management can retain employees' trust, it has reasonably little to fear from today's organizing activity. Once it begins to lose that trust, however, that is another story-and owe trust is lost, it is very, very difficult to get it back. Rebuilding employee trust takes about a year in a non-unionized facility, and two-to-three years in a unionized facility, according to rules of thumb I have developed over the years. Patience is very much in order -- but that patience will be rewarded.

The three R's, as I mentioned, are recognition, repetition and reinforcement. Let's start with recognition, which is the first step in any program designed to inspire employee trust. It is the corner-stone of what I call your labor relations action plan -- a formalized plan similar to any financial or marketing plan you might routinely devise. Like these other plans, it covers a fixed period -- say, one year. Recognition can begin with an employee survey every nine months or so on such issues as pay (in non-unionized facilities only; unionized ones have a problem which I'll explain later), staff-ing, performance improvement and other is sues. These surveys genuinely seek employees' opinions and give them feed-back within about one month.

Another component of recognition would be an awards program -- "Em-ployee of the Month" or "Best Sugges-tion," for example. The program would be overseen by a five-to-seven-member committee with employees forming the majority. Winners are publicized, re-ceive thanks and get a cash award large enough to be meaningful (but not so large as to be interpreted as a bride).

This process should be conducted on a regular, routine basis-repetition. Employees will, over time, begin to at least understand why lee-than-satisfactory situations-concerning pay or staffing, for example-exist. They may not look or even agree with the reasons, but they'll understand. Beyond this some genuine improvements may occur, with employees' responsibility for this being directly acknowledged-and that?s reinforcement.

Consistent adherence to this approach will build and strengthen the employee trust that is the crucial issue in today?s labor relations. It can, and often does, lead to their questioning the necessity for a union (and for paying union dues).

What about the facility that has a union in place, where trust as presumably been eradicated? What works then? I submit that the exact same approach works; it just takes longer.

There is also, for these facilities, a legal consideration that must be taken into account. On the basis of a relatively recent decision, E. I. DuPont DeNemours and Co., 311 NLRB 983(1993) ("DuPont") [also see a related case, Electromation, Inc., 309 NLRB 990(1992) ("Electromation")], the NLRB has ruled that it is illegal for a unionized employer to establish an employee committee to deal with issues pertaining to wages, hours or working conditions; these issues are considered by the NLRB to be mandatory subjects of collective bargaining.

This does not necessarily rule out the use of surveys or the committees that I have described, however. Issues that still be addressed include such matters as employer/management communications, quality of care and productivity. Even on this more-restricted basis, the three R's can, and will, work.

There is also the psychological con-cern that unionized employers will be reluctant to reach out to employees in any way, whether for fear of upsetting the union or simply because they've given up and automatically refer employee concerns to the union. It only strengthens the union, of course, when employees see it as their only recourse. It is crucial that front-line supervisors be trained to be responsive to employee concerns. They must show that they are open to hearing employee concerns on all matters other than those defined as subjects of bargaining.

Recognition, repetition and reinforcement come into play again. Recognizing the need for concern, repeatedly address-ing those concerns and reinforcing the positive results will re-establish trust and again, increase questioning of the need for a union. And in the "real world," I can attest, nursing home union decertifications do occur.

The bottom line is that today's em-ployer must be proactive with respect to employees' concerns. Ideally, that should always be the case. In today's labor-management environment, employers really have no choice.

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Employment Practices Liability

Considering the Insurance Option

Over the past decade employment related litigation has burgeoned. New federal statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act, the enlargement of remedies like compen-satory and punitive damages, and new and ever expanding ton theories advanced by the plaintiffs bar, have led many corporate executives to feel under a stare of siege.

Damage awards, particularly when punitives are involved, can run into the multimillions. Even a successful defendant may end up spending over $50,000 to defend a protracted litigation. In some cases employment suits have forced employers into bankruptcy or even dissolution.

It is therefore of the utmost importance for employers to be well versed on all potential measures they can take to reduce employment-related risk. One such measure is insurance.

Traditional Policies

Under certain circumstances companies and managers have been successful in obtaining coverage for employment claims under traditional insurance policies. These include Comprehensive General Liability Insurance (CGL); Director's and Officer's (D&O); Errors and Omissions (E&O); Fiduciary Responsibility Insurance (FRI); Workers' Compensation; Homeowners (for individuals); and excess insurance policies.

These forms of insurance are not typically offered by the insurance industry with employment practices litigation coverage in mind. Nonetheless, some courts have interpreted coverage terms very broadly. For example in Solo Cup Co. v. Federal Insurance Co., the Seventh Circuit held that a carrier had the obligation to defend allegations of discrimination under an excess Liability umbrella policy. While purely intentional acts were not encompassed within the policy definition of "occurrence," the court reasoned that claims of disparate impact discrimination were covered because that theory does not demand proof of discriminatory intent. Similarly, in Interco Inc. v. Mission Ins. Co., the Eighth Circuit determined that an insurer had a duty to defend alleged "intentional and/or reckless" act because recklessness could fall within the policy definition of occurrence. In other cases courts have allowed coverage of employee claims for emotional distress and mental anguish under "bodily injury" or "personal injury" endorsement language. Indeed, some plaintiffs' attorneys have had the acumen to recite the physical manifestations of alleged injuries in their complaints in the hope of accessing the deep pocket of an insurance company.

To counteract what the insurance industry views as overly broad judicial construal of standard insurance policies, many such policies now contain employment practices exclusion provisions that expressly disclaim coverage of employment related claims. Even policies which allow some employment claim coverage now virtually always restrict it to exclude many of the most frequently asserted causes of action.

Employment Practices Liability Insurance

However, in recognition of the need for protection in these employment litigation fraught times, in the early 1990s, insurance companies began to devise a new insurance product specifically designed to provide coverage for employment discrimination, sex harassment, wrongful discharge, negligent supervision, and work related defamation claims. Pioneers of this new product, known as Employment Practices Liability Insurance (EPLI) included Reliance Insurance Company of Illinois, Lloyd's of London. Chubb & Sons Inc. and Lexington Insurance Co. Today over 50 carriers offer some sort of EPLI product.

Since EPLI is relatively new, the policy is far from uniform. Insurers offer widely ranging kinds of coverage at vastly different rates, making comparison and selection difficult for the consumer.

The starting point for a cost-benefit analysis is usually cost. In the current mar-ketplace, premiums for EPLI start in the neighborhood of $4, 000 but are more typ-ically in the range of $10, 000 for a medium size concern. Available deductibles can be as low as $I, 000 to $2, 000 or as high as $20, 000 to $25, 000 per claim. (Price and deductible levels are in a stale of some flux as carriers are just beginning to garner adequate actuarial data to appropriately cost this new product.)

Benefit analysis is a highly individu-alistic and involved affair. It is a vast oversimplification to say that the most expensive policies are the best, since the degree and nature of protection needed by every organization differ markedly.

Notably, while your insurance bro-ker may with the best of intentions endeavor to find an EPLI policy that fills the gaps in your firm's insurance portfolio, agents rarely have the legal know-how to guide you towards policies that will provide effective projection in the rapidly transmuting terrain of employment law.

For one thing, the precise language used to define terms such as "the insured," "an insured event," "claimant," "claims," "loss," and "damages" on the policy will be of critical consequence in the context of employment litigation. To illustrate, should comprehensive protection of indi-viduals be desired, the definition of "the insured" should include not only the corporate entity, but current, former and prospective officers, directors, managers, nonmanagerial personnel and perhaps independent contractors.

If the company wishes to pass along the risk of costs for all kinds of claims, the definition of claim must cover not only lawsuits instituted in courts of laws, but charges filed with the Equal Employment Opportunity Commission and counterpart state and local agencies.

To ensure extensive loss indemnification, the "loss" and "damage" definitions should encompass sums paid in settlement, attorneys' fees awarded to plaintiffs, pre-judgment and post judgment interest, defense costs including expert and witness fees, front pay, pack pay, compensatory damages, and (if possible) liquidated and punitive damages. The extent of policy limits is also of key importance. The broadest possible definition of employment prac-tices violations may additionally be advisable. Employment counsel should be consulted to ensure that the kinds of claims to which your company is vulnerable are comprehensively covered.

Indeed at such point as your firm is seriously looking into the EPLI, it is imperative that it seek the advice of counsel with employment law expertise. Your attorney will be able to scrutinize the policy with an eye towards issues which, as noted earlier, agents are likely to be unaware of and even the most knowledge human resource and risk managers may not consider.

Customize Your Policy

The EPLI policies on the market are rarely offered on a take-it-or-leave-it basis. Terms can -- and should -- be negotiated.

One provision that is frequently a subject of negotiation relates to defense counsel. A major benefit of insurance is the duty of the provider to defend, which is broader than the duty to indemnify. In exchange for this benefit, policies virtually always provide that the insurer will select counsel and maintain control of the litigation.

Many employees are just as happy to let their carrier choose counsel. (Presumably, the insurance company will retain reputable and skilled attorneys.) Other employees may not have a preference for a specific law firm, but do want to at least participate in selection of counsel. Still others feel very strongly about using attorneys whom they know and trust. Whatever the case, negotiation of the selection of counsel provision to make it more flexible may be worthwhile. For instance, the policyholder might be able to get approval of its own lawyer if it agrees to pay any portion of the fees which may be higher than the rate charged by the insurer's attorney.

Evaluating the Employment Practices Liability Insurance Option

Ultimately, whether employment practices liability coverage is worth the cost is a highly individualized analysis which each enterprise must make for itself. However, any decision should include consideration of the following four factors.

Risk Vulnerability: Can your company afford to gamble? To what extent does it have the financial resources to weather several protracted litigations or a sizable loss? If a company can afford the expense of EPLI coverage but could not sustain a large damage award, insurance may be the product alternative.

Past Claim History: Have employment claims previously been filed against the company? How often? What monetary awards or settlement sums have been paid? Importantly, what is the trend of claims? A company which had numerous claims filed against it in the 1980s, but which received only a few in the early 1990s, and none for several years, probably has less of a liability concern than a firm that has received far fewer total complaints but which has witnessed a claim increase over the past five years.

Workforce Composition: What is the constitution of the workplace? Anyone can assert a contract or tort claim but discrimination laws largely protect specified classifications of employee. How have individuals in those protected classes fared at the company? Have a disproportionate number of older workers been paid off in recent years? What is the company's promotional record? Do women and minorities compose a large percentage of the rank and file, but only a small percentage of management? Such circumstances may not in fact result from discrimination but they present a picture that they will help plaintiffs establish a prima facie case.

Personnel Policy and Procedure: Does the firm undergo regu-lar personnel policy and procedure audits? Does it have a strong human resource department, an up-to-date employee handbook, well publicized antidiscrimina-tion and antiharassment policies and a fair and effective internal grievance system? To the degree good human resource practices exist, litigation risk is lessened. But the reverse is also 1.

After careful evaluation of the above four factors, a company may determine that the cost of EPLI is a worthwhile investment. Alternatively, the employer may choose to channel its resources towards risk preventive measures such as the reassessment of dismissal and promotional criteria, careful monitoring of internal employee complaints, and the overall strengthening of personnel policies. Most important, the employer must ensure that its human resource department has the sufficient expertise, authority, and funding to be a truly effective agent of risk reduction.

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How to Screen Out Troublemaking Employees...Legally

Far too many companies shoot from the hip when hiring people, figuring they can always get rid of them in a month or two if they don't work out. That's a recipe for trouble, thanks to the vast number of legal weapons that employees can now wield.

It always makes more sense to screen job candidates carefully... and hire only those who will fit in well. With the right screening techniques, this can be done.

Start by establishing a company philosophy. That might sound corny, but it helps. Whatever the company's goals may be, refine them, describe them and put them into a document that can be given to prospective employees. That document tells job applicants about the company's attitudes.

DISCOVERING ATTITUDES

Find out about candidates' attitudes. The applicable questions are perfectly legal as long as they dovetail with the company's business-related philosophy statement and as long as all interviewers ask all applicants the same questions. All applicants should also be evaluated according to the same standards.

Effective questions for rooting out potential troublemakers:

  • If we were to call your former employers, what would they tell us about you?
  • Do you think you should be able to criticize management?
  • How do you react to rumors on the job?

QUALITIES TO LOOK FOR

What you're looking for in the answers to all of these questions are honesty, openness and respect for the chain of command. Employees who have nothing to hide, for example, will urge the interviewer to call their former employers. They're confident that the report will be good.

If there's an awkward pause, or if the candidate hems and haws, I often a sign that there's something he or she doesn't want your company to find out. In that case the answer usually goes something like this: Oh, I think they 'II give me a pretty good report...well, I really didn't get along too well with my immediate boss.

An applicant who gives an unequivocal no to the question about criticizing management usually isn't being honest. The kind of answer to look for: Not in every instance; But when management is doing something that I believe is dangerous or unfair, I feel that I should be allowed the opportunity of talking with management about the situation.

For better or worse, the grapevine is one of the most effective communications channels in any company. Here again, the applicant who claims not to pay any attention to rumors isn't being honest. Because many rumors involve guesswork about what management is up to, this question is a cross-check on the previous one about criticizing management, Best answer: Rumors can be upsetting, and if a rumor would impact my job, I'd like to feel that I could pursue it with management.

To probe further, ask: How would you discuss such a rumor with management? The best answer would be something indicating respect for authority and a desire to work through channels. If satisfaction isn't obtained at the first level in the chain of command, the employee would go to the next level. Time and time again, employees who give these answers are the least likely to cause trouble later.

AVOIDING LAWSUITS

The two things that most often trigger equal employment lawsuits are questions that aren't work related or that differ from candidate to candidate. Attitudinal questions that dovetail with the company's philosophy statement, however, are (or should be) clearly work related. And when every applicant is interviewed and evaluated according to the same standards, no one can claim discrimination. The key here is that the system establishes an even-handed measuring rod -- it doesn't mix apples and oranges.

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Labor-Management Cooperation Essential for American Business

American workers have always sought better wages and job security. Years ago they were just "employees at-will," subject to the whims of their employers. They toiled in difficult working conditions and feared the day when their employers might fire them.

Workers eventually turned to unions for job security and improved conditions. Bolstered by the National Labor Relations Act, which prevented discrimination against employees because of union activity, unions became the bargaining agents for millions of workers. By the end of World War II, it looked as if we would become a nation of unionized employees.

But the promises of unionism were never fulfilled. In the name of job security, unions compelled employers to accept inflexible, unproductive work rules. Unions spoke angrily and carried a big "strike" stick.

They drove employers to pay ever-higher wages and contributed to an adversarial management-labor relationship, but they did not assist in improving productivity.

Unions gradually became anachronistic institutions, preaching the same 1930s message while the nature of work and the work force changed. Unions came to be perceived as self-serving institutions tainted by criminal indictments and prosecutions.

Unions also became less relevant as an increasing number of state and federal laws were enacted to protect workers. Various laws now regulate minimum wages, overtime, pension plans, work-place safety, Social Security and the like. Many of those regulations contain provisions making it unlawful for employers to terminate employees who report violations.

While those laws made work safer and more secure, state court decisions have built a new bulwark around individual employees over the last 15 years. Those courts have further limited the "at-will" concept of employment by allowing terminated employees to file suits against their former employers for "wrongful discharge."

Some employees have succeeded in these lawsuits by alleging that employers violated public policy because they fired them for serving on a jury, taking time off to vote, or -- blowing the whistle on a health violation.

Many courts also have recognized implied contractual theories of wrongful discharge. In such cases employers were found to have made and subsequently broken binding, written or oral "promises" of employment.

Still, wrongful discharge actions, because they are undertaken by individuals, can give only the most limited job security to the masses of working people.

Indeed, neither union bullying, statutes nor state court actions will provide American workers the job security for which we all struggle. Such security will be achieved only after both employers and employees deal successfully with two of the most vital economic issues of our times: international competition and productivity.

We all know that international competition has put American industry on the spot. Our nation is swamped with imports in almost every field of production.

Japan is one of our fiercest competitors, producing top quality products, while paying its employees lower wages than comparable American workers receive. Yet labor relations in Japan are excellent compared with those in America. Japanese workers have a high degree of company loyalty, and Japanese management regards its obligations to them as a top priority.

It is the very need to compete with Japan and other productive, energetic nations that ultimately will force American industry to protect its employees and provide better job security.

American industry will become a competitive leader in the international marketplace only when it builds cooperative partnerships of labor, supervisors and management. Employers who see the "writing on the wall" will realize that they have to treat their employees fairly and work with them to harness their energies to meet the competition.

American managers must re-examine their methods. Management must communicate effectively with employees, encourage suggestions and participation, adequately train supervisors in interpersonal relations and introduce problem-solving mechanisms in which employees have confidence. Under such circumstances, employers would find that their employees are eager to solve problems in the workplace.

The American-managed Nissan plant in Smyrna, Tenn., is an example of a company that has built a working partnership of labor and management. The company trains its workers to do a number of jobs, involves them in decisions and gives them responsibility for the quality of the product at every level. The Nissan employees have shown no interest in unionizing, and labor relations are harmonious.

This cooperative approach may have been born out of necessity, but it will be cooperation, rather than wrongful discharge actions, government regulations or union muscle, that will be the source of employee protections in the future.

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Labor Relations without Interference

Union membership has steadily declined since the mid-1950s. Since 1975 alone, membership has dropped by over four million to its current level of approximately 18 percent of the workforce. In response, union leaders have vowed to reverse the trend of the last three decades through aggressive recruitment and by investing huge sums in organizing efforts. Leaders are also using new methods to attract members, including "associate" memberships, low-interest credit cards and discounted legal service plans. In short, unions are utilizing the latest administrative, technological and psychological approaches to regain their stature in today's workforce.

Employers, particularly those in the growing service sector of our economy, must be prepared to meet the challenge of the aggressive and increasingly sophisticated organizing drives by unions. Management may most effectively meet this challenge by asking themselves why unions have been necessary and then structuring a work environment in which they are unnecessary.

A work environment in which unions are unnecessary is one which stresses employer-employee cooperation, open and effective communication, understanding of shared goals, joint problem solving based on mutual respect, positive leadership and direction. Such an environment will produce a cohesive, productive workforce which has no need for or interest in a union.

The cornerstone of this type of proactive work environment is a workforce which recognizes that the employee's individual interests are the same as those of the employer and that these interests are best achieved through mutual cooperation. An employer can build and maintain a cooperative workforce by using a system designed to hire those employees who will work most productively within that company.

The Work Philosophy: Commitment to Cooperation

The current workforce and work environment must be evaluated before it is possible to design an effective hiring system. This evaluation is best accomplished by interviews with selected members of management. These interviews accomplish two goals: they define the company's "work philosophy" and allow the company to formulate a description (or "wanted poster") of the employee who will work most productively within that company's work environment.

A company's "work philosophy" is a policy statement regarding its commitment to cooperative employee relations and the advantages of operating without interference from organized or outside representatives. All levels of management, particularly top management, must be fully committed to the principles outlined in the work philosophy if it is to provide a strong base for an effective hiring system. For that reason, the philosophy must be an amalgamation of top management's views, ascertained through their initial input, of the type of employee relations environment which is appropriate for that company.

Profiling the Ideal Employee

The initial information gathered from management can also be used to develop a profile or "wanted poster'' of the ideal employee. This profile defines specific behavioral attributes and values, but should not be an outline of personality characteristics. Instead, it must emphasize prospective employees' propensities for cooperation on the job and their past work experience.

One starting place for a profile is an evaluation of the company's existing workforce. Supervisors and managers should be asked to describe those employees who are "successful"' from both the company's and their own points of view and those who are "unsuccessful." Those interviewed should be cautioned to avoid describing employees' personality traits. What is more important is how employees view:

  • The work they do,
  • The people to whom they report,
  • The company's policies and procedures, and
  • The employees with whom they work

For example, the initial evaluation could determine the amount or independence which is suitable for an employee of the company. It could also determine whether the work requires employees to think for themselves and adapt their work habits to specific situations, or if it requires employees to conform to a standardized pattern of repetitive work.

As an alternative to interviewing supervisors and members of management, the preliminary information may be gathered through an opinion survey. An opinion survey allows supervisors to express their unbiased views regarding the existing workforce and has the added benefit of eliciting the supervisors' opinions and attitudes about their work environment in general.

Once a sampling of "wanted posters" has been gathered from management and supervisory personnel, their descriptions can be distilled into a list of desirable and undesirable characteristics. These characteristics form the backbone of an effective hiring system and should define both positive and negative attributes. In other words, it is important to know the characteristics an interviewer should look for in a prospective employee and those an interviewer should seek to avoid. A profile of this nature provides a company with an objective method of determining whether an applicant will strive to achieve the company's goals and objectives.

Pinpointing Cooperative Employees

Once positive and negative characteristics are defined, a set of interview questions must be designed to measure candidates against the profile attributes. These questions should be phrased to encourage the applicant to respond with more than a "'yes" or "no" answer. In addition, a manual is needed for interviewers which shows how the positive or negative attributes appear in typical and exemplary answers.

Carefully designed questions and suggested answers provide an interviewer with a consistent, objective system for evaluating prospective employees. The hiring system is even more objective when it is based on a tally sheet which summarizes and evaluates an applicant's responses to the interview questions. An effective tally sheet would indicate how many points were assigned to each attribute on each question. The total number of points the applicant receives will determine whether to consider the person for employment.

Aside from assessing an applicant's suitability for a company's work environment, a hiring system of (his nature can also protect an employer from charges of discriminatory refusal to hire. A systematic interview and scoring process can assure that no unlawful questions are asked. In addition, if challenged, the company can produce a standard set of interview questions and the applicant's tally sheet to rebut any allegation that the company's employment decisions are based on discriminatory motives.

Auditing the Work Environment

A company cannot develop and maintain an ideal work force by using the hiring system alone. A system of labor relations audits is also necessary to assess the effectiveness of the hiring process and to monitor the company's employee relations climate. Labor relation audits can fulfill a number of functions, including:

  • Minimizing labor relation "risks" by minimizing exposure to discrimination charges and wrongful discharge lawsuits;
  • Aligning employees' expectations with the company's organizational philosophy and competitive reality;
  • Promoting and maintaining employee morals, effectiveness, satisfaction and loyalty to the company; and
  • Monitoring personnel procedures and policies including the competitiveness of the compensation package.

A System of Labor Relation Audits

Regular audits completed by management, supervisors and employees help to monitor a company's environment and labor relations. Various types of audits which can be utilized to accomplish these goals include:

  • Employee Audit, which monitors each employee's satisfaction and loyalty to the company;
  • Vulnerability Audit, which assesses a particular group's receptivity to a union organizing attempt;
  • Daily Human Resource Audit, which is completed by human resource managers and reviews absenteeism and disciplinary actions which might indicate dissatisfaction and vulnerability to union organization;
  • Weekly Human Resource Audit, which reviews turnover rates, tardiness, layoffs, disciplinary action, voluntary terminations, injury rates, employee communications and other factors which may highlight potential personnel problems; and
  • Monthly or Quarterly Human Resources Audit, which includes an analysis of wage and benefit comparisons, union organizing activity in the company's geographic area, a review of hiring procedures, methods of announcing and filing job openings, training, awards, communication programs and other indicators of employee satisfaction.

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A Pro-active Employee Relations Program

Long-term care is a labor-intensive industry. The National Nursing Home Survey (DHHS 1977) noted that 59.7% of a facility's operating costs are labor costs. Of that total, 32.6% represents nursing payroll. Labor is by far the largest cost in operating long-term care facilities.

Long-term health care administrators face a crucial challenge in creating a work environment where employees recognize that their individual interests and those of their employer are the same and can best be achieved through mutual cooperation. No combination of management styles, philosophies, or progressive labor relations programs will be effective if employees lack this perception. If employees believe their interests differ from those of their employer, they may turn to a third party to fulfill their needs.

Employers have sound business reasons for embarking upon a planned union-free strategy. A union-free strategy means a well-planned, positive approach to the employer-employee relationship. Union-free should not be considered a negative term or an antiunion approach. It is far more than simply not having a union. It means taking the initiative in implementing an active pro-employee program. It means acting, rather than reacting to employee dissatisfaction. It means establishing a positive approach toward labor relations. This approach fosters employee support through fair policies that encourage mutual employer-employee cooperation and establishes management's credibility through effective communication. It stresses shared goals, joint problem solving, positive leadership and direction, participative management, and a perception of mutual respect. These positive values advance the interests of both the health care employer and the employee. Employees who do not want union representation are the by-product of this approach.

Health care administrators have often not adopted a pro-active strategy, but merely waited until they faced full-blown union organizing efforts and then mounted an acrimonious, defensive campaign in response. Such an approach is purely negative and focuses solely on the "dangers" of unionism. In some cases, this type of campaign may be sufficient to keep a facility nonunion, but in others it will be too little, too late. If the facility merely reacts to union organizing efforts and does not implement a pro-active strategy, the core problems and perceptions that allowed the union inroads in the first place will remain, even if the facility wins the first round. Engaging in union prevention through a defensive posture constitutes too narrow a perspective. This lactic just delays but does not solve the problem. Union organizing efforts will surely be repealed, and the facility will again experience the turmoil of an organizing campaign. An integrated union-free strategy is a far more preferable and lasting approach. Positive, pro-employee measures result in a cohesive work force that has no need for or interest in a union.

Pro-employee labor relations programs also reduce the likelihood that employees will initiate employment-related litigation because they understand the work philosophy of the facility and know where they stand in relation to the work rules, supervision, and disciplinary system. Additionally, should an employee initiate litigation, a facility that has a pro-employee program greatly enhances its chances of successfully defending against a lawsuit or administrative action because it has implemented mechanisms for identifying troubled employees and has instituted fair disciplinary systems that thoroughly document all actions taken against employees.

Health care administrators can lay the cornerstone of this pro-active approach to the employee relations environment by the following strategy.

Facility Work Philosophy -- Communicate a statement of the health care facility work philosophy, emphasizing organizational goals, objectives, and a commitment to positive employee relations. This sets the tone and direction for positive changes. For example, if a facility's primary commitment is to create a family environment while providing high-quality patient care in an extremely competitive industry, this commitment needs to be clearly stated in the facility's employee work philosophy.

Employee Opinion Survey -- Conduct a confidential employee opinion survey to ascertain employee attitudes toward job duties working conditions, the skills of supervisors and managers, communications, pay, benefits, opportunities for advancement, personnel policies and procedures, and job security. The survey serves a dual purpose. First, it provides employees with a direct and anonymous channel of communication to top management. They know that they can communicate frankly with management without fear of reprisal. Second, it furnishes management with an accurate, continuing profile of employee attitudes on which to base policy decisions. For example, items dealing with communications might include "my supervisor asks for my opinion," or "management keeps us well informed about matters that affect us." Employees would then decide the degree to which they agree or disagree with the statement. Items asking for employees' written opinion or comments might include "the thing 1 like most about working here is ... " or "some things our management should know are..." Feedback sessions regarding the results are necessary and encourage direct and positive dialogue with employees on critical issues. Once management has gained insight into issues that employees consider important, it can then respond and thus demonstrate that it is truly listening.

Employee Profile -- Develop a profile of the type of worker the facility should actively seek for employment. An employee profile greatly increases the likelihood that a facility will hire applicants who will be useful, efficient workers and reduces the chances of hiring persons who will be disaffected and troublesome. The development of an employee profile begins with a thorough analysis of the employer's current work force. The work force analysis must determine the precise skills required at the facility and examine the attitudes employees must possess to foster a positive work environment. In addition, it will be necessary to analyze the labor market to measure the availability of desirable employees.

Once the profile has been developed, management will be in a position to prepare an employee selection system. The selection system will ensure that the facility hires only applicants who have the right combination skills and attitudes for the particular work, environment. As part of the selection system, management should develop questions and model answers to help employment interviewers determine whether an applicant possesses the desired profile characteristics.

Because they require supervisors to respond to a series of questions about employees, audits compel supervisors lo become more aware of the employees who they supervise and to take an interest in them. Additionally, audits ask supervisors to give what they believe is the employees' view of working conditions in the facility. It is important to remember that supervisors themselves are sometimes only recently removed from being hourly employees and are likely to have a good perspective on the hourly work force. Personnel audits serve as a barometer for determining how well the employees are adapting to the pro-employee method of operation. The audit might include the following questions:

  • Does the employee lack motivation?
  • Does the employee frequently complain about the job, salary, or supervisors' treatment?
  • Is the employee openly disrespectful of authority?
  • How often and how recently has disciplinary action been taken against the employee?
  • Does the employee perform work duties inefficiently?

    Involvement Systems -- Institute systems that encourage employee involvement in the decision-making process. Employees will understand and are more likely to support decisions in which they play a role. Employees who see themselves as a genuine part of the health care facility, rather than just cogs in a wheel, will be more productive, efficient, caring, and loyal. Informal involvement systems might include meetings with small groups of workers to listen to employees' needs and perceptions. Formal involvement systems include the use of such techniques as quality circles or employee membership on committees dealing with work rules, safety, discipline, and so forth. The important point is that management must listen to what is on the minds of employees and let employees know that management cares about them and their jobs.

    Summary

    Long-term health care administrators face a crucial employee challenge. That challenge is to create a work environment in which employees and employers recognize that their interests are the same and that their goals can best be achieved through mutual cooperation. By implementing an integrated union-free strategy, the prudent health care employer can meet that challenge.

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  • Mental Disability

    The question that causes the greatest concern is whether, under the Americans with Disabilities Act, employers risk liability for firing employees who function poorly or engage in disturbing, disruptive, possibly even threatening, behavior in the workplace. Adding to the anxiety is uncertainly over what kinds of cognitive or psychiatric conditions are covered by the disability discrimination law.

    Who Is Mentally Disabled?

    The ADA itself does not define mental disability. Enforcing regulations issued by the EEOC describe mental impairments as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and learning disabilities. However, such conditions must be severe enough to substantially impair one or more of an individual's "major life activities" to constitute a disability.

    Cognitive impairments having a physiological basis tend to be the most readily identified and quantified mental disabilities. These would include conditions such as neurological damage, autism, dementia, retardation, and learning disabilities.

    Mental illness and other emotional disorders, however, have been dealt with inconsistently by the courts. The majority require employees demonstrate that their conditions truly incapacitate functioning. Moreover, the impairment must be long term. The best approach to take, accordingly, is to assume that any worker who might reasonably be viewed as mentally disabled is covered.

    Can Employees Fire Mentally Disabled Workers Who Are Disruptive, Violate Work Rules, or Fail to Meet Work Standards?

    One thing is absolutely dear under the ADA: A worker who is mentally disabled cannot be fired because of prejudice or stereotype-based assumptions about how he may function or what he might do. For instance, a company may not discharge someone with autism because fellow workers (or even customers) are made uncomfortable by his inappropriate gesticulation or comments. Nor can a worker with an illness like paranoid-schizophrenia be fired because the employer surmises that any such individual poses a threat to company safety.

    Nevertheless, an employer will usually be able to mount a solid defense to an ADA claim where an employee has engaged in consequential infractions of important rules (as opposed to simply breaking protocol) or seriously disrupts the workplace.

    On the other hand, the issue of how to treat employees who simply cannot meet work standards is far trickier. If the employee is utterly unable to perform the essential functions of his job or poses a hazard to other workers or third parties, he will be deemed not qualified. Thus a federal court recently dismissed the case of a hospital technician whose mental condition rendered him unable to properly monitor vital medical equipment.

    Yet most cases do not involve extreme or dangerous dereliction of duty. If the employee is simply performing below par because of a known disability, the employer will more than likely have a legal obligation to accommodate him.

    How Must the Employer Accommodate the Mentally Disabled?

    The ADA mandates accommodation of disabled employees, even unqualified ones, if accommodation would enable them to perform the essential functions of their jobs. The problem is that accommodation for people with mental disabilities 'is usually hard to conceptualize. Unlike accommodations for physical impairments -- which may simply require a mechanical solution like making a work station wheelchair accessible -- accommodations that might compensate for the limitations of cognitively and psychologically impaired persons require a greater degree of imagination and employer flexibility.

    Employees having difficulty coping with the stress of certain job assignments might be accommodated through job restructuring, partial at-home work time, reassignment, reorganization of work space, or allowance of periodic work breaks. One interesting form of accommodation was noted in a First Circuit.

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    If I'm anti-union, then so be it​

    As union support continues to escalate among long-term care industry workers, managers are constantly looking for ways to halt organizing efforts. Eager to offer assistance is Stephen J. Cabot, an attorney and Chairman of The Cabot Institute for Labor Relations, Inc. Cabot, author of the book "Everybody Wins!" a labor relations manual for managers, is listed in the Who's Who directories for American Business and International Business. He recently shared some of his union-avoidance ideas with McKnight's Long-Term Care News.