How recent human resource policy could affect your practice

March 10, 2013

Your practice is affected by the actions of the National Labor Relations Board (NLRB) even if you do not employ union workers. Be mindful of recent NLRB actions related to social media, supervisory roles, at-will employment, and confidentiality practices.

With so many healthcare-related regulations to keep track of, you may not be paying attention to the political turmoil surrounding three contested appointments to the National Labor Relations Board (NLRB) or the workplace rules that may be affected if the rules those appointees created are overturned. (See “About those appointments,” below, for background.) If your practice doesn’t employ union workers, you may think the actions of the NLRB don’t affect you. But they do.

In fact, the NLRB has influence over whether employers can dictate the social media practices of their employees, who can be defined as a supervisor in the workplace, and your ability to complain about work and use those complaints to effect change. Not paying attention to this influence could cost you in court.

Why now?

The NLRB is an independent federal agency designed to safeguard an employee’s rights to organize and to determine whether to have unions as their bargaining representative. The agency also works to prevent unfair labor practices for both union and non-union workplaces.

Historically, the NLRB did much more for unions than the private sector. But union membership is dropping-down almost 9% in the last 20 years-and labor law experts say the board is trying to extend its reach further into the private sector. (See “Union membership in healthcare,” below, for the status of unions in this field.)

“I think what’s happened is that the board...has become almost irrelevant,” says labor relations attorney Marc Bloch, JD, of Walter Haverfield in Cleveland, Ohio, citing declining union membership. “The board is searching for a reason to exist.…[It’s] trying to expand into the non-union field as much as it can to become more relevant.”

If you are wondering whether to educate yourself about the board’s recent human resources-related guidance, since it may be overturned, the answer is yes, Bloch says.

“I would follow the board and, in all likelihood, the Supreme Court or the court of appeals will uphold the president’s right to make these appointments. And if not, you’re ahead of the game,” he says. “But if it comes back they uphold them and you’ve made a mistake, it could be very costly.”

Social media use

Perhaps one of the most headline-grabbing topics that the NLRB addressed over the past year is that of “Facebook firings,” which arose in multiple cases. The NLRB has weighed in on an employer’s right to govern social media use and determined that employers can dictate how an employee portrays himself or herself online and what type of character he or she displays-but an employer absolutely cannot forbid employees from talking about their wages, benefits, or working conditions.

The safest social media policy should outline appropriate behavior and guidelines for using social media but should disclaim that anything dealing with unionizing or bargaining is permitted, says Lori Christenson, PHR, human resources coordinator for Clayton L. Scroggins Associates, a management consulting agency for physicians.

“I think that they need to also have a policy for who gets connected in social media,” she adds, raising the question of whether physicians should connect with subordinates or patients in social media. “Connect with friends, people who you might spend time with socially. It’s not really appropriate to [connect with employees], because you mix personal and professional too much.”

People in supervisory roles who are connected with subordinates on social media sites could too easily step into an area causing concern related to harassment or infringement of the subordinate’s rights, she cautions. And connecting with patients is never advised, Christenson says.

Although social media use has been likened to “watercooler talk,” Bloch disagrees with this assessment.

“You’re talking to a much larger group” on social media sites, he says. “You have to be very cautious, because the world has changed and the labor board is trying to catch up.”

Bloch says the board will be wrestling with social media questions for a long time, and people who expect a blanket statement that anything they say is protected are naïve.

“You can’t expect complete privacy,” Bloch says. “You can’t go around and just badmouth the boss continuously and say things that are not true.”

Labor relations attorney Kristin Erenburg, JD, of Walter Haverfield adds that although the NLRB’s social media reports are not decisions, just guidance, they provide helpful information about the social media policies approved by the board. The board, in its last report on the topic, even issued a sample social media policy.

“At the very least, go get it. That should be your starting point….It’s wrapped in a bow,” she advises practices. (Download the policy at www.MedicalEconomics.com/samplepolicy.)

The major factor employers need to worry about when crafting social media policies is to avoid trampling an employee’s “Section 7” rights, which refers to Section 7 of the National Labor Relations Act. Those rights allow employees to engage in protected and concerted activity when it comes to conditions of their employment. It means employees can’t be prohibited from talking about their wages, benefits, or making any statements for the purpose of improving their working conditions.

“You can’t silence that, even on Facebook,” Erenburg says. “If someone can talk about it on the floor of the shop, that same protection follows, even on Facebook.”

At-will employment

Speaking of blanket statements not doing any good, labor relations experts say standard statements about “at-will” employment also have come under fire by the NLRB.

During the NLRB period under review, the board ruled that at-will employment statements create a conflict when it comes to an employee’s right to organize and collectively bargain.

Management is continuously facing the problem of whether to tell an employee that he is she is employed at-will or that the employee has the right to organize, Bloch says.

Traditional at-will statements say that management-usually a president or chief executive officer-can teriminate a worker’s employment for any reason, as long as its not related to a protected trait such as race, gender, age, or a disability. But that ability conflicts with the abilities of a union or bargaining unit.

As a result of the ruling, many employers are removing their at-will statements from employee handbooks altogether, Erenburg says. An employer could keep the statement, she says, but it would have to be modified. One suggestion is to add a sentence stating that the at-will statement in no way affects Section 7 or unionization rights. Preferably, if such a statement is added, employees should be asked to sign on record acknowledging that they read and understand the modification to the original at-will statement, Erenburg says.

Confidentiality

Another hot-button issue taken up by the NLRB over the past year was the issue of confidentiality in workplace investigations.

The NLRB ruled that it remains acceptable to tell an employee an investigation will remain confidential, but it can only do so on a case-by-case basis-not through a blanket statement. Such a statement would violate the employees’ right to talk about their terms and conditions of their employment and therefore would violate their Section 7 rights, the NLRB ruled.

Management-side attorneys were very surprised at this NLRB ruling, because most good investigation policies state that the employer will maintain confidentiality to the extend possible to maintain the integrity of the investigation. Confidentiality allows management to interview multiple people without giving them enough warning to compare or concoct stories, Erenburg says, and confidentiality also protects the identity of a whistleblower or someone who is being harassed.

“It’s uncomfortable to be the target of enforcement,” she says. “If you know your complaint will be confidential, you’re more likely to make a complaint.”

Erenburg continues: “It’s really dangerous, because it really changes the landscape on how investigations need to be done. Only on a case-by-case basis can you promise confidentiality…if the circumstances require it. You could offer [confidentiality] each time, but don’t put it in black-and-white.”

As a best practice, she recommends deciding whether confidentiality is warranted in each case, then documenting the reason for your records.

“It’s more work, but it’s better if you have to ever go back and defend yourself,” Erenburg says.

Supervisory roles

In healthcare, many supervisory roles might not necessarily be defined by the job title of supervisor. Supervisors make decisions that a company, or medical practice, can be liable for.

At the center of the question are two definitions of the term supervisor-one more conservative, holding that a supervisor has a direct effect on employment and can hire or fire, and another more liberal, holding that a supervisor can perform all of the aforementioned actions plus direct the daily work of employees.

“Right now, the appeals courts are all over the place,” Erenburg says. “Every jurisdiction needs to watch the outcome, because it will affect potential liability.”

If the Supreme Court adopts the broader definition, more conservative states such as Ohio, where she practices, would experience increased liability for employers, she says. Employers would be well-served to review who they have defined as supervisors and how they want to structure job duties and supervisory roles.

Even with restructured job descriptions, however, the court will look more heavily at what an employee does day-to-day and not just at what a job description says. If the broader definition of a supervisor is adopted and someone such as a charge nurse is directing daily work, then the NLRB may consider him or her to be a supervisor. In that case, vicarious liability can attach to an employer through a supervisor.

In healthcare, it’s difficult to have a “bright-line” rule such as the one unions are supporting, Bloch says.

“Is the LPN in a nursing home really a charge nurse? Is the RN a charge nurse? Is she a supervisor?” Bloch asks. “Most of your readership agrees [on the answer], but the labor board says no.”

Stay the course

In any of these circumstances, the overarching advice is to adhere to the latest NLRB rule or guidance as a best practice, labor relations experts say.

“Obviously, any employer at this point should assume that the old rule is still applicable, at least as their argument, and wait and see what happens,” Bloch says, referring to those rules passed since the three board members took their seats in January 2012 as the “old rules.” He says it could be 90 days to a year before the NLRB board member conflict sees any resolution, and the delay will definitely result in a hassle for employers-and possible greater cost for employers embroiled in litigation, particularly when it comes to accumulating back pay and potential liability awards that may increase as times passes.

“I would abide by what has already been decided,” Erenburg agrees. If you try to claim in court that you made workplace policies against the regulations of the day because you thought they were going to be thrown out, it could come back to bite you. It’s best to stick to the current rule, no matter if it is going to be the rule forever, she says. In that case, an employer could always argue in court that it based its actions of the rule at the time of the conflict and should not be penalized if the rule was changed later.

“If you’re going to be completely safe, you have to follow what the board dictates,” Bloch says. “I think the best practices are, nothing has changed. Most managers are still being cautious.”

It’s much easier to make a few phone calls and consult an expert in labor relations before changing workplace policies than to make changes that can cost you later, Bloch cautions.

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About those appointments

President Barack Obama’s administration has instituted several measures viewed as pro-union, and his opponents are keeping a watchful eye. That’s why three National Labor Relations Board (NLRB) appointments made during what may or may not have been an official Senate recess in early 2012-and therefore without Senate confirmation-are being contested.

“With Obama in place and the new appointments to the NLRB, we’re going to see-and I think the goal is going to be to increase union activity-a lot more protection about what unionizing activity looks like and making sure employers don’t infringe on rights to unionize,” says Lori Christenson, PHR, human resources coordinator for Clayton L. Scroggins Associates, a management consulting agency for physicians.

Recess appointments are not an unusual presidential liberty; Bill Clinton made 139 as president, George W. Bush made 171, and Obama has made 32 so far, according to the Congressional Research Service. The question in this case, however, was whether the Senate was technically in recess when Obama made the appointments to the NLRB.

Obama’s appointment of three members to the NLRB in January 2012 has been met with opposition, and a federal appeals court ruled in January 2013 that the president’s appointments were, in fact, unconstitutional. The Obama administration has publicly disagreed with the court’s ruling yet in mid-February 2013 resubmitted the three NLRB members’ nominations for the board posts.

“What this means is that, until they are confirmed and they go through the whole [nomination] process, everything is still going to remain in flux,” says labor relations attorney Kristin Erenburg, JD, of Walter Haverfield in Cleveland, Ohio. “There is a question about whether the decisions issued over the last year will be vacated, so there will just be a lot of uncertainty until there is a concrete resolution, which isn’t going to happen anytime soon.”

“The chances are, they are going to be upheld,” Marc Bloch, JD, of Walter Haverfield says of the NLRB regulations that were made while the three contest appointees were on board. The D.C. circuit court-the second- most powerful court in the country-already has determined that the board appointments were made improperly, he adds. The question now is whether the final decision will go to the Supreme Court right away, or whether an appeals process will play out in the lower court.

Erenburg says the nominations and the court battle over the rules created while the contest nominees were in place will run parallel to one another-with the powers that be considering the nominees while at the same time debating rules they have already made without either decision affecting the other.

“This may be all for nothing except for going through the exercise of going through it,” Erenburg says. “Politics has always played a role in NLRB appointments, and oftentimes when the board changes, the board reverses itself.”

So even when the issue is worked out, everything could change in another 4 years, she says. “This is just another wrinkle in that same ongoing phenomenon.”

Bloch says the appointment process always has been politicized. But if a president can’t get a majority vote, he or she can’t get their appointments made. In this case, Bloch says Republicans are “essentially trying to emasculate the board and Democrats are trying to get it to have meaning for their constituencies.”

For now, Christenson says the safest approach for business to take is to adhere to the current policies, even if they aren’t “set in stone.”

Union membership in healthcare

Only about 12.5% of healthcare practitioners are union members, with another 14% represented by unions, according to the Bureau of Labor Statistics (BLS).

About 8.3% of workers in healthcare support occupations are union members, and 9.6% are represented by unions.

For all private-sector healthcare and social assistance workers, 7% belong to unions, compared with 35.9% of public sector healthcare and social assistance workers. About 8% of private-sector healthcare workers are represented by unions, compared with almost 40% of public sector healthcare workers, according to the BLS.

As hospitals look to trim costs, however, some areas in the healthcare industry are starting to see more unionization as workers strive to maintain working conditions in the face of cutbacks, according to reports from organizations such as the American Medical Association. As for what unionization could do for healthcare workers, the BLS says union workers take home almost 28% more money per week than non-union workers. In healthcare, specifically, healthcare workers covered by collective bargaining agreements negotiated by unions only make about 14.3% more, according to the BLS.