Top 10 Administrative Pitfalls in Dealing With Employees

Employment law protects employees-and poses risks for management

BY VICTORIA L. DONATI AND HOWARD L. BERNSTEIN

Rather than open the door for such costly litigation, take control of the hiring process. Review each form used in the hiring process (from applications to interview evaluations) to ensure that there are no unlawful questions. Train interviewers in the niceties and details of conducting meaningful and legal interviews. The best way to ensure that an interview question is proper is to confirm that it only seeks information relevant to the candidate’s job-related qualifications. Questions that stray from this basic mission are much more likely to be unlawful.

2 Dropping the ball on employee background checks. Nursing homes have long been scrutinized, both by public agencies and concerned families, to ensure that management knows who is working at the facility and that none of its employees has a sordid past. While many administrators are diligent about conducting pre-employment background checks, they often fail to take all the necessary steps to bring the background check into compliance with applicable law.

The law controls these background checks in two respects: First, the information obtained must be “legally useful.” In other words, it must be information that the law permits the home to rely upon in making an employment decision. Most states prohibit employers from relying upon an applicant’s arrest record, and some even limit the types of conviction information that can be used. Other laws prohibit employers from freely using information about bankruptcies, wage garnishments, or other legal liabilities. State by state, home by home, it is critical to know what is and is not a lawful basis for rejecting an applicant with a past.

Second, the information must have been lawfully obtained. If an outside agency conducts the background check, the Fair Credit Reporting Act (FCRA) requires the nursing home to provide, among other things, a specific written notice to the applicant advising that the background check is being conducted by the third party, that it will entail personal interviews (if applicable), and that it will be considered as part of the employment decision. The FCRA also requires that the applicant be given a copy of any report generated and of his/her rights under applicable law, as well as an opportunity to challenge or respond to the information gathered.

Many state laws echo and further expand these requirements. Therefore, administrators must review background check procedures periodically. Ensure that procedures and use of the information, by both the facility and any outside agency used, are up to date and lawful.

3 Failing to recognize requests for “protected” leave time. An employee’s request for time off may be protected by federal or state law. The employee does not have to identify or reference the law that protects the time off to gain the law’s protection. The question, then, is whether the administrator will recognize a request for protected time off. Say, for example, that an employee calls in sick on Wednesday, Friday, and Saturday, saying that she is not feeling well. Do you know that those three missed days may count as leave time protected by the federal Family and Medical Leave Act (FMLA), with its attendant job protections, even if the employee doesn’t ask for FMLA leave? Most administrators do not, and proceed to take (or allow a supervisor to take) adverse action against that employee without realizing that the adverse action may well serve as the basis for a wrongful or retaliatory discharge claim.

To avoid this potential liability, review and understand the terms and requirements of your facility’s FMLA and other leave policies. (If you have no such policies, ask whether they may be necessary and, if so, follow through with appropriate development and implementation.) Make certain that every supervisor in the facility also reviews and understands those policies and the types of requests that may trigger a protected leave.

4 Ignoring the harassment-claim antidote. Many nursing homes have felt the sting of harassment allegations-employees claiming that they were subjected to crude language, derogatory nicknames, or demeaning slurs. Many homes have even found themselves battling litigation based on such claims. Only a few, however, have taken the time and expended the resources necessary to truly prepare themselves for such battle and to avail themselves of the “out” that the law provides.

By federal law (which is mirrored by most state laws), nursing homes are accorded a solid defense to most harassment claims simply by adopting, distributing, and following an effective policy against harassment and by training employees and supervisors concerning the existence and application of such a policy. Admittedly, the policy itself must be tailored to the particular workplace, the training must occur at regular intervals, and the nursing home must be prepared to follow the policy, conduct the necessary investigations, and appropriately discipline any violators. These steps take time, but the dividends are certain and many. The result is a more comfortable and more professional work environment and an effective defense to most harassment claims.

5 Perpetuating unlawful or questionable wage-and-hour practices. One of the fastest-growing segments of employment litigation today is wage-and-hour litigation. Employees (and their lawyers) are becoming increasingly aware of their rights under applicable federal and state wage-and-hour laws, and are suing to ensure that they are properly paid. These suits are especially costly because many nursing homes are ill-equipped to disprove an employee’s claim and because the law requires the nursing home to foot the bill for the employee’s attorney in any successful action.

To avoid becoming the target of a successful wage-and-hour claim, you should review your facility’s pay practices, looking carefully at:

• Exempt classifications. Most employees in a nursing home setting, apart from administrators and certain department heads, are considered by law to be nonexempt and entitled to overtime compensation, even if the employee is paid a salary.
• Hours worked. Be sure employees are being paid for all hours worked, even before and after scheduled shifts, during scheduled breaks or meal periods, and while attending staff meetings or mandatory training sessions. Review on-call requirements, as well: If an on-call employee is so restricted in his/her activities that he/she cannot use the time effectively for his/her own purposes, the time must be compensated for.
• Overtime hours. Nonexempt employees must be paid overtime for all hours worked in excess of 40 hours in a workweek (or, if in California or other similar states, after 8 or 12 hours in a workday), even if the work is performed in more than one department or position. Nursing homes can get around this requirement by paying overtime for all hours worked in excess of 8 hours in a day or more than 80 hours in a 14-day period (i.e., over two workweeks) if an agreement specifying such payments is reached with employees before any overtime is worked.
• Overtime rate. Check your calculation of the overtime rate. It must be 1.5 times the employee’s “regular rate,” which must in turn include all compensation paid for time worked dur-ing or allocable to a particular workweek. This means shift differentials and performance, attendance, and other nondiscretionary bonuses. On-call fees and the like must be calculated as part of the employee’s regular rate. Note, however, that pay for time not worked (e.g., holiday pay, paid leave, etc.) need not be included in the calculation.
• Record keeping. Make sure that all employees accurately record their hours worked and that their paychecks match the hours recorded. Not only are such records required by law to be made and kept (two years for time records and three years for payroll records), but they also are the cornerstone to a successful defense of a wage-and-hour suit. (It is also prudent to require even exempt employees to record their hours.) Getting time and pay records and processes in order is not easy, but the task pays huge dividends when defending against wage-and-hour suits.

6 Failing to administer a union contract aggressively. When staff members are covered by a union contract, administrators should negotiate the contract so that the facility can operate in the most efficient, most flexible manner to provide quality resident care. Once the contract is negotiated, it should be applied aggressively to protect the management rights retained in the negotiations. Supervisors must become and remain familiar with the contract’s terms and, through training, learn how to deal with union stewards and representatives. Obvious contract violations should be remedied promptly, but where no violation has occurred, grievances should not be settled or compromised simply to “keep the peace.” A fair but principled approach to contract administration will result in fewer grievances and saved dollars.

7 Disregarding the seriousness of potential union organizing. If your facility is union-free, the potential for a union-organizing drive is always present. Nursing homes are particularly vulnerable to these drives, especially during periods of reduced revenues and erratic government-funded reimbursements.

The best protection against a successful unionization attempt is to make the union unnecessary. Although employees frequently feel the need for a union to represent them because of uncompetitive wages and benefits, most organizing drives occur in facilities where employee dissatisfaction results from lack of communication, feelings of insecurity, perceptions of unfair or discriminatory application of rules or policies, or ignored complaints or grievances. Paying close attention to the staff’s social needs is just as important as addressing their economic needs.

8 Letting performance evaluations fail all concerned. Many employers-probably most employers-view performance evaluations as a once-a-year ordeal, as a pile of paperwork and a steady stream of endless meetings and difficult discussions addressing performance issues. Yet, properly used, an effective evaluation process can be a valuable tool for good communication, positive reinforcement of good performance, and positive behavior modification. Performance evaluations should be a helpful tool for both employer and employee. They can be used to commend and inspire good employees and to firmly guide poor employees toward either better performance or a rock-solid termination.

How is this accomplished? (1) By putting careful thought into each evaluation, (2) by ensuring that the evaluation advances the facility’s dual goals of rewarding positive performance and identifying substandard performance, and (3) by coupling each evaluation with a specific plan for supportive and/or corrective action. Even more specifically:

• Focus on each employee-what he/she brings to the organization, what he/she does well, and what he/she needs to do better.
• Look at the review period as a whole. Don’t focus on just the last two weeks or on one major event or error.
• Be consistent. Judge all employees with the same yardstick.
• Be honest. Don’t use euphemisms or otherwise mask performance problems.
• Be specific, using facts, not conclusions.
• Identify what the employee must do to succeed, then set a time frame for doing so and state what will happen if the employee falls short.
• Match the written evaluation to your thoughts and verbal comments (both inside and outside the evaluation).
• Solicit input and response from the employee as to the contents of the evaluation and any topics covered.

And don’t forget to get supervisors on board. Meet with them just before the next round of employee evaluations to introduce these points, to discuss how best to use the process, and to brainstorm over particular employee evaluations. The result will be not only useful evaluations, in terms of defending against employment claims, but also a happier and more stable group of employees.

9 Disciplining without documentation. The most difficult action to defend-in both legal and practical terms-is the complaint of an employee who was disciplined without having the appropriate backup documentation. Employees look for fair and uniform treatment. A supervisor who disciplines without recording the reason and other details (such as who witnessed the action, when and how many times it occurred, other prior discipline, etc.) often is unable to recall these crucial details. This can make it extremely difficult to impose uniform and fair discipline for the next employee or the next offense.

Legally speaking, although there is no requirement that disciplinary action be documented, such documentation often is critical to proving that the discipline was imposed for legitimate reasons. This documentation is especially important because most employees have up to 300 days to complain about any discriminatory or other unlawful action they claim to have suffered. Not surprisingly, the absence of documentation often leads to sketchy reconstructions and “what ifs,” which are far less believable than simple-but timely-recorded data.

Supervisors should therefore be required to document each disciplinary action taken. Administrators should emphasize the importance of this and should refuse to impose discipline without first requiring proper documentation.

10 Disregarding policy when making employment decisions. How many times do you act based on what seems fair or right under the circumstances or based on what your gut instinct tells you, as opposed to what a policy might say? Too often we find ourselves defending claims that could have been prevented merely by paying attention to the policies and practices that govern a particular situation. Before making any employment-related decisions, stop to check whether the facility has a policy that addresses the situation and dictates a certain response. Or, if there is no policy, is there a way in which similar situations have been routinely handled in the past? In any event, make sure that the action you are about to take either accords with policy or practice, or that any deviation from it is justified.

Conclusion
Reading a single article like this one plainly cannot absolve you of all your employment woes. But by guarding yourself against falling into these 10 common pitfalls, you can save yourself headaches and, very probably, a great deal of time and money. NH