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Chapter 15
Effective Human Resource Management
What You Will Learn
• Human resource management deals with the planning for human resource needs, recruitment, selection, compensation, development, evaluation, and handling of grievances and labor relations.
• Long-term care facilities face four main human resource challenges: employment laws and regulations, labor competition, how to address the needs of a predominantly female workforce, and workforce diversity.
• To determine adequate staffing levels in nursing, number of patients, patients’ clinical acuity, skill mix, and distribution of staff hours should be taken into account. Staff scheduling should take into consideration several factors.
• The long-term care industry faces staff shortages. Hence, creative approaches for recruitment are necessary. Certain categories of staff must be licensed. Certification status of nurse aides must be verified.
• Both absenteeism and turnover should be measured. A multipronged approach is necessary to confront absenteeism and turnover.
• Staff development should extend beyond providing training and knowledge in job skills. Performance appraisal should focus primarily on staff development. Management by objectives can be a useful tool provided it makes staff development a shared responsibility between supervisors and associates.
• Self-managed work teams can improve job performance, workers’ self-esteem, and job satisfaction. They also result in less burnout and turnover.
• Problems related to performance and work-related behaviors should be addressed through counseling and disciplining. Termination is used as a final step in a progressive disciplining approach.
• The National Labor Relations Board has established procedures for workers to unionize. Management should guard against certain well-defined unfair labor practices. Good-faith bargaining, contract administration, and dealing with strikes and picketing are aspects of managing unionized facilities.
• Employment laws give various types of rights to today’s workers. Violation of any of these laws amounts to discrimination.
Introduction
To function effectively, an organization must rely on three main resources: human, financial, and material. Human resource refers to the associates employed by the organization. It is the people in the organization who manage and use the other resources to serve the organization’s clients. Hence, a nursing facility’s staff is its most important asset. An organization with a superior workforce undeniably gains a competitive advantage in the marketplace.
A skilled, motivated, and committed workforce creates value for the organization. The main objective of leadership is to harness this value and deploy it to provide high-quality care to the patients and to realize cost efficiencies while doing so. Leadership and management are crucial for influencing and shaping human behaviors through training and development, fair compensation, grievance practices, performance appraisal, termination practices, and other employment policies.
Human Resource Management
Human resource management can be defined as the organizational function of planning for human resource needs, recruitment, selection, compensation, development, evaluation, and handling of grievances and labor relations (Boone & Kurtz, 1984). It is also known by other terms, such as “personnel management” or “employee relations.” Large nursing homes generally have a designated position, such as a human resource director, to handle human resource functions, or the responsibility is assigned to the assistant administrator. In most facilities, however, the nursing home administrator (NHA) assumes these responsibilities. In facilities affiliated with a hospital or a multifacility chain, the NHA receives some human resource support from the corporate office. Some human resource responsibilities may be delegated to the nursing department, especially the responsibility for hiring and training licensed nurses and certified nursing assistants (CNAs). Other department heads who supervise employees—such as the food service director, business office manager, and activity director—also have some degree of latitude in hiring, evaluating, training, and disciplining staff members. The administrator should make sure that these managers are adequately trained in human resource functions.
Goals, Main Functions, and Challenges
Human Resource Goals
The primary goal of human resource management is to maintain desired staffing levels by having a well-qualified and stable workforce. Other human resource functions dovetail into this overarching goal. Griffith (1995) proposed that success in attracting and retaining employees tends to be self-sustaining; organizations with a satisfied and well-qualified staff are able to attract capable and enthusiastic people.
Human Resource Functions
De Cenzo and Robbins (1996) classified human resource management into four main functions:
• Staffing: Recruitment of qualified associates, planning staffing levels in accordance with patient needs, and scheduling to maintain adequate staffing while taking into account associates’ needs for time off
• Training and development: Orientation of newly hired associates, ongoing coaching and mentoring by senior associates and supervisors, formal training to maintain and advance skill levels, and developing associates for career advancement
• Motivation: Addressing the issues of job performance, job satisfaction, and labor relations
• Maintenance function: Building employee commitment, reducing absenteeism and turnover, and retaining productive associates
Effectively managed nursing facilities aim at achieving a high level of motivation and satisfaction among their associates. Many associates in the nursing home come into frequent contact with patients, family members, and visitors, so associates have an unusual degree of influence over these stakeholders. “What they say and do for patients and visitors will have more influence on competitive standing than any media campaign the organization might contemplate” (Griffith, 1995, p. 662). No wonder staff satisfaction is an important predictor of customer satisfaction!
Human Resource Challenges
Managing human resources is a complex task. First, almost every aspect of human resource management is governed by complex labor laws, discussed later in this chapter. Nursing facilities must also comply with regulations mandating minimum levels of staffing and licensing, and, in some cases, certification for staff categories. Experts believe that staffing levels in some facilities are not sufficient to meet the minimum needs of residents for provision of quality of care, quality of life, and rehabilitation (Institute of Medicine, 2001).
A second challenge comes from labor competition. Nursing facilities employ predominantly unskilled or semiskilled workers. Most nursing home associates are CNAs, housekeepers, laundry workers, and dietary aides. To recruit these associates, long-term care facilities compete against fast-food restaurants, discount stores, hotels, motels, and hospitals. Local hospitals and other health care organizations also present substantial competition for skilled workers such as nurses, social workers, and therapists. Such skilled workers often prefer to work for hospitals and for other agencies in which pay, benefits, and opportunities for training and career growth are better than in nursing facilities.
A third challenge is gender based. Nursing home workers are predominantly female, which requires a particular sensitivity on the part of a facility’s administration to the needs of female associates because their needs are often intertwined with those of their families.
A fourth challenge is driven by diversity. In most regions of the country, the workforce is becoming more diverse because of an increasing proportion of minority workers. Diversity presents special challenges because various cultural characteristics—such as language, customs, and beliefs—affect how workers relate to patients, family members, fellow employees, and supervisors. Miscommunication and misunderstandings can have negative consequences for patients.
Human Resource Planning
Haphazard planning is one factor that exacerbates the problem of staff shortages. In the human resource context, the planning function can be defined as the process of systematically reviewing staffing requirements to ensure that the desired number of associates with the required skills is available when needed (Mondy & Noe, 1993).
Staffing Levels
Both state and federal regulations are vague about staffing levels. State regulations may specify minimum staff-to-patient ratios, but they do not suggest that the specified minimum levels would be sufficient to meet the needs of the patients. Federal regulations simply state that the facility must have sufficient nursing staff to provide necessary care on a 24-hour basis. Hence, NHAs, directors of nursing (DONs), and other department heads often have to struggle with planning strategies to ensure adequate staffing.
Conceptually, staffing levels should take into account four main factors:
• Volume: This refers to measures such as number of patients to care for, number of meals to prepare and serve, number of rooms to clean, and pounds of laundry to process.
• Weighting: This is a measure of the intensity of resource use. In nursing care, the weighting factor incorporates clinical acuity of patients. For example, patients could be classified into three broad categories to determine resource use: light care, intermediate care, and heavy care. In the dietary department, preparing each meal—breakfast, lunch, and dinner—requires different levels of staffing. Research suggests that there is a need to bridge the gap between nurse staffing and nursing care needs of residents (Zhang et al., 2013).
• Skill mix: Skill mix is the ratio of a particular skill type to the total staff in a unit or department. The ratio of registered nurses (RNs) to the total nursing staff on a nursing unit is an example of skill mix. The skill mix on a nursing care unit increases as the number of RNs and licensed practical nurses/licensed vocational nurses (LPNs/LVNs) increases in relation to the total nursing staff on that unit. Similarly, the ratio of cooks to the total dietary staff is an indicator of skill mix in the dietary department. Both the volume factor and the weighting factor should be used conjointly to determine the required total staff level and the skill mix.
• Distribution: In the nursing department, staff hours must be balanced among the day, evening, and night shifts. Generally, the day shift needs the heaviest staffing, and the night shift requires the least. But, different nursing units are likely to require different day-to-evening and day-to-night staffing ratios. Even within the same shift, certain time periods have heavier patient loads than others. For instance, the morning wake-up and grooming time, the lunch hour, and evening meal time generally require more staff assistance than at other times. The feasibility of adding staff hours to meet peak patient load demands should be assessed.
The biggest staffing challenge lies in the nursing department. The necessity for adequate staff hours for a given patient volume makes intuitive sense, however, skill mix is even more important. Research shows that simply adding more staff is not a sufficient means of improving quality of care; improving the skill mix is necessary (Castle & Engberg, 2008). Furthermore, for improving quality, staff turnover is even more important than staffing levels and skill mix (Trinkoff et al., 2013).
Matching staffing to patient needs should be accomplished using a systematic approach in which three separate components of nursing tasks—direct patient care, clinical support, and documentation—should be evaluated. Over time, increasing regulatory mandates have required licensed nurses to spend more and more time on documentation, which can take time away from patient care and support of CNAs.
Scheduling
Scheduling can be viewed as the final step in human resource planning. Associates in each staff category are assigned to fill the time slots on the various shifts for all 7 days of the week. Scheduling should take into account four main factors:
• All slots in the schedule must be filled, which depends on having a sufficient number of full-time and part-time associates on the payroll.
• Requests for personal time off for holidays and vacations must be scheduled.
• Allow for unscheduled time off, which, to some extent, is beyond management’s control. Even when all the slots in the schedule are filled, actual shortages in staffing occur because of absenteeism, which is a substantial problem in many nursing homes. Shortages in staffing also occur when people leave their positions without giving advance notice or when the facility is unable to fill vacant positions. Unplanned absenteeism and turnover call for scheduling additional staff beyond what a full schedule calls for. On occasion, this approach will result in overstaffing, but, more frequently, it will offset shortages arising from severe absenteeism or turnover. From an economic perspective, the additional net costs of overstaffing, if any, should be relatively small, because such scheduling would reduce overtime costs and the use of temporary staffing agencies. The payoffs of extra scheduling are high in terms of consistency, quality of patient care, and staff satisfaction. For example, use of agency staff compromises quality of care (Castle & Anderson, 2011).
• Necessary hours for training and orientation should be incorporated in the schedule.
Staff Recruitment and Compensation
Creative Recruiting
In many labor markets, the long-term care industry faces staff shortages because the demand for qualified staff members is greater than the supply. Some actions that may help nursing homes overcome such imbalances include creative recruiting, compensation incentives, and training programs (Caruth & Handlogten, 1997). Recruitment and retention often go hand in hand; both can be enhanced by having a well-designed student nurse training program, family friendly policies, and a learning environment that values and nurtures its staff (Chenoweth et al., 2010). Creativity also involves a more effective use of recruitment resources that already exist. For example, a facility’s current associates, local schools and colleges, churches, neighborhood newspapers, and the local employment agency can be effective resources for staff recruitment. Other creative approaches may include a job fair or open house at the facility, where current associates are available to explain various job opportunities.
Nursing assistant certification programs are organized by many facilities to attract candidates who otherwise would be unemployable for lack of marketable skills. Other avenues for training include tuition assistance and continuing education for promising associates and financial assistance and scholarships for students currently enrolled in nursing programs. Such direct investments in training, consistently undertaken, can help alleviate future staff shortages by providing a steady stream of qualified workers.
Compensation
Compensation should match market rates of pay. Paying a high premium over market rates can trigger a bidding war, which can raise hiring salaries to artificially high levels and can send ripple effects throughout the organization or through the local long-term care industry. Hence, during periods of critical shortages, many organizations use sign-on bonuses, because they can be discontinued at any time without creating negative economic effects for the rest of the organization. Other forms of nonmonetary rewards can appeal to many people. Four-day work weeks, flexible working hours, and on-site child care are attractive incentives for female workers (Caruth & Handlogten, 1997). Market rates of pay apply mainly to starting wages. Once employees are on the job, additional perks can be used to reward them for personal development, job performance, and supplementary responsibilities.
Staff Licensure, Certification, and Registration
Recruiting RNs, LPNs/LVNs, and CNAs requires compliance with regulatory mandates. RNs and LPNs must be licensed by the state in which they wish to practice. The nursing facility must verify current licensure status of all its RNs and LPNs and must maintain a copy of the license in each employee’s personnel record. Similar documentation must be maintained for all other licensed associates—such as therapists and therapy assistants—regardless of whether these workers are directly employed by the facility or are contracted through an agency.
CNAs must have current certification, which is earned through a state’s standardized nurse aide training and competency evaluation program as mandated by the Omnibus Budget Reconciliation Act of 1987 (OBRA-87). The objective of this mandate is to establish minimum qualifications for CNAs and to evaluate whether a person possesses basic competencies to work as a CNA in a long-term care facility. Even though CNAs are not required to have a state license, the effect of this legislation is the same as if there were such a requirement. CNA training programs are offered by nursing facilities, community colleges, and the American Red Cross. Certification is conferred by the state’s nurse aide registry after an applicant passes an examination. Noncertified nurse aides employed in permanent positions have a 4-month window during which they must receive the required training and receive certification. Laws in many states also require criminal background checks and drug testing when nursing personnel are hired.
A nurse aide registry is a registration system for CNAs that all 50 states and the District of Columbia maintain. The registries enable facilities to verify the certification status of a nurse aide. The registry also provides information on resident abuse, neglect, or misappropriation of personal property in which an aide may have been involved. Before employing a CNA, a facility is required to contact the registries in all states in which the individual is believed to have worked.
Managing Absenteeism and Turnover
Absenteeism and turnover are twin problems. Lower rates of absenteeism, for instance, are associated with higher seniority on the job (Cohen-Mansfield & Rosenthal, 1989). Both absenteeism and turnover are associated with quality issues. For example, high staff turnover is associated with patient maltreatment and mental and physical neglect (Ben Natan & Ariela, 2010). Similarly, high levels of absenteeism have a negative impact on quality of care (Castle & Ferguson-Rome, 2014). Turnover of both licensed nurses and CNAs is associated with higher survey deficiencies, indicating quality lapses (Lerner et al., 2014).
Effectively managed facilities measure absenteeism and turnover rates on a regular basis. These measures are useful in projecting future staffing needs. They help management gauge the outcomes of any new programs or policies and also provide an ongoing proxy for staff satisfaction. Adverse trends, for example, may indicate the presence of underlying human resource problems that need probing and investigation.
Absenteeism
Some absenteeism occurs because of legitimate reasons such as sickness. Much of it, however, is associated with apathy, low morale, and a low sense of self-worth among the workers.
Measuring Absenteeism
Maintaining records on individual absenteeism is essential; so is keeping track of absenteeism rates for the purpose of staff planning and scheduling, as discussed earlier. Absenteeism rates are calculated as follows:
Managing Absenteeism
Absenteeism is managed by having written policies, which should include a distinction between what the facility considers an excused absence and an unexcused absence. Policies should also specify what level of absenteeism is considered excessive and the consequences associates will bear when their absenteeism is excessive. Absenteeism should be addressed both individually and for the organization as a whole. At an individual level, a counseling session should be held between the employee and the supervisor to seek out the underlying problems and determine how management may be able to assist the employee to overcome those problems. Additional key areas discussed in the next section can also help minimize absenteeism.
Turnover and Retention
Most nursing homes have a relatively small core of very stable and dedicated associates. But most facilities are also plagued by enormous rates of turnover, which generally exceed those in other industries. Despite efforts to understand why turnover is so common, and despite efforts to slow down the speed at which the exit door revolves, staff turnover remains one of the most daunting problems for the nursing home industry.
Turnover and retention are flip sides of the same coin—that is, increased staff retention translates into lower rates of turnover. Research has consistently demonstrated that job commitment and intent to stay are strong predictors of actual future turnover.
Measuring Turnover and Its Costs
Turnover in a facility can be calculated by using the following formula, which can be applied to a particular position, or to the entire organization:
*Any period can be used, but a year is the most common. However, keeping track of turnover for each month or for each quarter can help administrators better understand the trends.
Turnover is expensive. Costs directly associated with turnover include recruitment costs, training costs for the new worker, and additional staffing while the new employee is being trained. A rough estimate of these direct costs is two to three times the monthly salary of the departing employee (Sherman et al., 1998). Additional indirect costs include overtime paid to cover vacant positions, temporary staffing agency fees, management time used to find replacements, low productivity before employees quit, low morale among associates created by high turnover, and costs associated with deterioration of the quality of services.
Managing Turnover
No single approach exists for increasing staff retention, and piecemeal efforts to address the issue have produced little success. This section provides a comprehensive approach that requires coordinated support from governing boards, administrators, and key department heads to carry out a successful campaign against high staff turnover. All of the factors discussed in this section should be evaluated, and a multipronged approach is often necessary to reduce turnover.
Leadership Stability
Unfortunately, with few exceptions, turnover permeates the typical facility from top to bottom. At the industry level, turnover among NHAs has been estimated to be at least 40%, with the median length of employment at a facility just over 2 years (Singh & Schwab, 1998). A study of turnover suggested that there actually may be a bidding war among nursing facilities in an attempt to attract qualified NHAs, as indicated by the relatively large proportion of administrators voluntarily leaving their positions after relatively short tenures (the average tenure was 1.3 years) to pursue opportunities for promotions that offer more responsibility, better pay, and so forth (Singh & Schwab, 2000). This phenomenon implies that administrators who possess the qualifications organizations seek are in short supply. This type of instability at the top keeps the entire organization in a state of flux because leadership and strategic direction are interrupted, associates feel the stress of frequent change of leadership, and many other disruptions occur. Turnover of NHAs and DONs tends to precipitate turnover among caregivers (Castle, 2005). For example, the DON’s length of employment contributes to retention of RNs (Hunt et al., 2012). Similarly, in the nursing department, it has been demonstrated that turnover among RNs is linked to turnover among CNAs (Brannon et al., 2002). Hence, stability of key leadership positions should be pursued as a major goal. NHA turnover is a governance issue that the boards must address.
Selection, Orientation, and Mentoring
From the administrator’s standpoint, attention to recruitment practices may be the first step in reducing staff turnover. Many people who apply for jobs in nursing homes do indeed have a desire to help the elderly, but they soon become discouraged and disenchanted. As a result, much of the turnover in health care facilities occurs within the first 90 days of employment. Lescoe-Long (2000) cited two main reasons for this phenomenon:
1. The job turns out to be different from what the employee had expected it to be; perhaps the job was made to appear more glamorous than it truly is.
2. Employees feel abandoned after the first few days of employment, and they lack skills to cope with many of the demands of the new job.
The first of these two reasons points to the need for a more in-depth selection process, in which the facility should try to explore the potential employee’s expectations in relation to the realities of what the job entails. The second reason underscores the importance of developing coping skills. Technical training, such as a nurse aide certification program, focuses mainly on how to perform certain job-related functions correctly. Even though such training is essential, it does not prepare workers to handle nonroutine and stressful situations. For example, unexpected verbal or physical abuse from a patient or sudden criticism from a family member can leave the employee bewildered and overwhelmed. A new job that already places heavy emphasis on meeting quality expectations often becomes frustrating when the employee must face unexpected situations but does not know how to deal with those situations. It is also demoralizing for associates when they have to face consistent staffing shortages and pick up the slack. Such experiences leave the associates feeling disillusioned, powerless, and incompetent.
To overcome early burnout among new associates, a peer mentoring program can be instituted by identifying, training, and rewarding experienced CNAs who are committed to helping new caregivers “learn the ropes.” Besides helping retain new associates, such a program cultivates teamwork and enhances understanding of roles and expectations (Hoffman, 2001). Current research also shows that decentralized decision making and empowerment of work teams improve performance, promote job satisfaction, and may reduce absenteeism and turnover (Yeatts & Cready, 2007; Kim et al., 2014).
Peer mentoring is also labeled the “buddy system”; it makes peer resources available to help new associates fit in and to handle frustration during the most critical period of employment. The new associate generally starts in such a program by observing and following the “buddy,” an experienced CNA. The new associate then starts working independently while still in frequent contact with the buddy, and the new associate receives ongoing support from the buddy.
A buddy’s duties should be clearly outlined. These duties can include explaining how to use the organization’s systems, such as developmental resources and personnel resources. A variation of the buddy system can be used in the preselection process: a job candidate is given the opportunity to spend time informally with a current employee so that the candidate can find out firsthand what the job actually entails (“Buddy system can lower turnover, raise morale,” 2002).
Positive Supervision
Bishop et al. (2008) demonstrated that an important factor that promoted job commitment was the CNAs’ perception that their nurse supervisors were respectful and helpful and provided useful feedback. Other aspects of supportive supervision from RNs and LPNs—such as providing fair treatment, paying prompt attention to CNAs’ concerns, giving clear instructions, and disciplining nonperformers—are associated with increased job satisfaction and retention (Choi & Johantgen, 2012). This type of good basic supervision may even be more important than job enhancement such as worker empowerment.
Social Support
An atmosphere of social support and a sense of belonging are highly conducive to staff retention. The social approach to staff retention views a nursing facility as a community in itself. The organizational culture promotes the feeling of belonging to a family in which people care for each other. Even though the family touch is likely to diminish in inverse proportion to the facility’s size, the administration can place increased emphasis on a more flexible, people-centered, participatory, and nurturing atmosphere for both associates and residents.
The philosophy of social support can be reinforced by policies and practices that promote the workers’ ability to meet their own family obligations. Examples include flexible scheduling, and employee benefits such as child care and health care coverage.
Working Conditions
Work environments must be made safer and both worker and resident friendly by adopting the concepts of enriched environments and culture change. Evidence also suggests that nursing homes that improve their quality may have a positive impact on job satisfaction of associates and thereby reduce their turnover rates (Castle, Degenholtz, H., & Rosen, J., 2006). Compliance with the Occupational Safety and Health Administration (OSHA) standards is a regulatory requirement. Nursing homes must go beyond these regulations and invest in labor-saving and safety technology. A change in management philosophy and practices is also necessary to empower direct caregivers who get to know the residents and their routines better than anyone else. Cross-training and adoption of the self-managed work team approach (discussed later) can also bring about a better worker environment and build their self-esteem.
Training
Research shows that the federal guideline requiring 75 hours of nurse aide training is not sufficient to prepare CNAs to deliver adequate levels of care. Studies have also found that inadequate training is one contributing factor that leads to high turnover of CNAs. Subsequent research based on nurse aide training programs in 10 states has suggested that the length of training should be at least 100 to 120 hours, of which 50 to 60 hours should be devoted to clinical training (Hernández-Medina et al., 2006). In the Green House model, for example, CNAs receive 120 hours of additional training after they become certified.
Career Paths and Opportunities
Opportunities for advancement promote job commitment (Bishop et al., 2008). Similarly, personal opportunity to be involved in work-related issues and prospects of professional growth are significantly related to both overall job satisfaction and turnover among CNAs (Parsons et al., 2003). Managers should make an effort to learn about each individual’s needs and goals. On the basis of the findings, career paths can be created for growth-oriented individuals. Some employees may be recognized for their skills in training others and groomed for becoming peer mentors. Others may be able to provide insights into process improvement, such as safety enhancement, disaster planning, or quality improvement. In nursing facilities, which typically have few opportunities for career growth, employee contribution to self-development and achievement must also be rewarded. Hoffman (2001) observed that increased compensation by itself would not slow turnover but that increased compensation tied to professional development can be very effective in promoting self-worth and thus slowing turnover.
Administrative Support
Other ways to reduce turnover include supporting the staff with adequate resources. Chronic staff shortages and unreasonably heavy workloads promote the feeling that management does not care, as does a deficient staff skill mix when it does not take into account the heavier staffing weights called for by higher levels of clinical acuity. Despite what administrators might say about quality standards, associates are quick to perceive inconsistencies when resources are inadequate. Employees do not feel that they ought to be the ones to pay the price for inadequate resources in the form of frustration and higher stress. In multifacility chains, NHAs often assign blame to the corporate office and try to portray the governing body as the villain in the eyes of the staff. In most instances, however, governing bodies remain unconvinced with a mere request for additional resources; they want data and analysis to justify the need for additional resources. The point here is that the ultimate responsibility for resource allocation remains largely with the NHA, but the governing board also must develop a more realistic understanding of the challenges of patient care.
Pay and Benefits
In research findings, frontline workers such as CNAs almost always state that their ability to care for residents is what is most important to them and that it keeps them coming back day after day. However, this does not imply that pay and benefits are not important (Bishop et al., 2008). In fact, compensation may be a factor CNAs are least satisfied with when compared with other factors such as job content, training, and coworkers (Castle, 2007).
Staff Development
Staff development typically means training associates to enhance their knowledge and expertise. Enhanced knowledge and expertise of a workforce play a critical role in building internal organizational strengths that a facility needs in a competitive environment. However, staff development must go beyond improving basic skills. The overarching goal of staff development should be to make associates productive citizens of the organization and of society. Approaching staff development from this broad perspective can pay rich dividends in better quality, improved morale, higher commitment, and greater retention.
Training should also help assimilate the workers into the organization’s culture through a clear understanding of the organization’s vision, mission, and values. New associates in particular should receive appropriate training in the facility’s rules, policies, and procedures. Training should also include other key areas such as resident relations, family relations, teamwork, stress management, conflict resolution, work safety, and quality management. Finally, training should help people become responsible citizens of society. This last element may not appear at first to be work related, but it is. Associates who act responsibly in their social and home lives are also likely to be responsible and committed at work. Administrators know all too well that associates’ personal problems frequently become work problems. Nursing home associates predominantly come from low socioeconomic backgrounds. Many have low self-esteem and lack the skills they need to address social and personal conflicts. For many associates, balancing their home lives with the demands of the job is a daily struggle. Money management, family budgeting, problem solving, child care, nutrition, and wellness are only a few areas in which most associates can benefit from training.
Performance Appraisal
Instead of being a judgmental and punitive tool, the performance appraisal process should focus primarily on staff development. Achieving this objective requires the participation of both the associate and the supervisor who does the evaluation. If both associates and supervisors understand the facility’s philosophy of staff development and its relationship to performance evaluation, the process will not be as difficult for both parties as it often turns out to be.
Performance appraisal is a part of management by objectives (MBO). Simply put, MBO is based on a joint agreement between supervisors and associates on what specific and measurable objectives will be accomplished over a given time. At the end of that time period, the supervisors evaluate individual associates according to whether they have accomplished these objectives (Bounds & Woods, 1998).
Most people would readily agree that MBO makes intuitive sense. What is often lacking is the awareness of the linkage between performance and staff development. Because staff development is primarily a management responsibility, performance becomes a shared responsibility of supervisors and their associates. Both must be jointly held accountable for improving performance.
For the MBO approach to work, several prerequisites are necessary:
• All associates in the organization must understand clearly what is expected from them individually, commensurate with their qualifications and level of expertise. It requires abandoning the “one-size-fits-all” approach.
• Objectives must be set, such as how many patients the associate is responsible for and what outcomes of care should be expected. The objectives ought to incorporate an assessment of technical skills and the associate’s ability to adapt to the facility’s policies, procedures, values, schedules, and routines.
• Individual associate’s training needs should be based on skill assessment. This measure would result in training programs that match individual needs.
• Personal development and performance of associates are periodically assessed as a joint undertaking by associates and supervisors, including peer mentors.
• Rewards are linked to participation in training, evidence of personal development, and objective measures of performance.
• Rewards for peer mentors and supervisors are based on their achievements in staff development.
One problem with MBO is its potential for misuse by management when management focuses on punishing individual employees instead of using MBO for development purposes. According to W. Edwards Deming (1900–1993), the esteemed marketing guru, MBO and individual work quotas promote shortcuts in quality because individuals work to meet quotas rather than engage in continuous quality improvement. In the self-managed team approach, discussed in the next section, accountability for task accomplishment and quality rests on teams rather than on individuals. According to Deming’s philosophy, performance evaluation and rewards would be implemented at the group rather than at the individual level.
Self-Managed Work Teams
In self-managed work teams (SMWTs) —also called self-directed work teams—a group of associates, the “team,” are together responsible for performing a range of tasks that include scheduling, planning, and monitoring the team’s performance. The use of SMWTs in traditional nursing homes is rare. However, in the emerging models of care that reflect culture change, such teams play a pivotal role. The Green House model, for example, relies on cross-trained, self-managed work teams that are responsible for providing all basic and routine services to all elders. The teams are also responsible for certain support services, such as housekeeping, in each Green House. In this model, the typical supervisor–subordinate relationships are minimized.
All members of SMWTs are CNAs. These CNAs routinely work together to perform all daily tasks, and they routinely depend on each other to get the tasks accomplished and to make management decisions related to their work (Yeatts & Seward, 2000). As shifts change, the teams engage in information sharing and coordination for continuity of care. Team members also decide who would serve which residents and what specific services should be provided to each resident (Yeatts & Seward, 2000). Teams generally hold a scheduled “sit-down” meeting once per week for approximately 30 minutes, and impromptu “stand-up” meetings as needed. The latter are used to address any immediate concerns. The weekly scheduled meetings typically follow a set agenda and mainly include discussion of work procedures and review of patients’ condition and needs. Issues to be addressed may be brought up by the team members themselves or by the nurses. The teams provide weekly written notes that include their suggestions and concerns to nursing management. In turn, members of nursing management review the notes and provide written feedback (Yeatts & Ray, 2004).
The effectiveness of SMWTs depends on how well the program is implemented. Yeatts and Hyten (1998) recommend paying attention to several general rules that are important for SMWTs to function effectively:
• Establishing a team charter. The purpose of the team charter is to clarify the team’s overall purpose and to establish some ground rules for making decisions. The rules are established with substantial input from team members as well as management.
• Goals and priorities. These are established by team members with support from management. The goals should be clear, challenging, and measurable.
• Work responsibilities and training. SMWTs are able to match the team members’ talents and preferences to the tasks to be performed. This type of matching results in a more specific allocation of responsibilities for individual team members and allows for accountability. The matching process also helps identify the specific areas in which further training is necessary. For example, the entire team may need training in decision making, or a particular team member may need training in carrying out routine maintenance rehabilitation therapies.
• Team leader. The teams determine who will be the team leader. Team leaders rotate within each group as other team members are given the opportunity to take on the role of a team leader. Some teams may require all members to rotate; others include only those who are interested in the position.
• Work procedures and problems. Team members identify the most appropriate procedures and find effective solutions to work-related problems. When goals are based on measurable criteria, performance can be effectively monitored. By monitoring their own performance, SMWTs tend to take ownership of any performance problems and take action to improve performance.
Because SMWTs are given the authority to make all or most decisions related to their work, the process results in an enriched work environment and staff empowerment (Yeatts & Hyten, 1998, p. 17). The quality of services is positively affected when team members are able to discuss resident desires and needs among themselves (Yeatts & Seward, 2000). Communication links between employees and supervisors are kept open. When midlevel managers, such as unit charge nurses, are receptive to advice and input from CNAs and involve them in care planning and group problem solving, turnover rates are reduced (Banaszak-Holl & Himes, 1996). In more recent research, worker empowerment has been found to increase job performance factors such as effective work procedures, patient care processes, and support for other team members. Among CNAs, SMWTs also produce higher levels of self-esteem, less burnout, and greater satisfaction with their jobs and schedules. These CNAs also indicate fewer intentions to leave their jobs (Cready et al., 2008).
Counseling, Disciplining, and Terminating
The three steps discussed in this section are progressive and sequential and are undertaken when problems surface in conjunction with associate performance and work-related behaviors. Subsequent steps in the disciplinary process become unnecessary when performance or behaviors improve. But the probability of salvaging an associate becomes increasingly small as the process continues ( Figure 15–1 ).
Counseling
Counseling, which encompasses elements of coaching, entails an informal discussion between the associate and the supervisor when an associate needs to make improvement. Almost all associates at one point or another require some type of counseling. Counseling is a mild form of attention-getter that is devoid of threats to an individual’s sense of job security. Expressions such as, “I have been through this myself,” or “It is not uncommon for new associates to face this,” or “It generally takes some time to get this right, but let’s keep working at it,” or “It can be serious, so let’s focus on this some more” are commonly used by trained supervisors to address issues realistically and constructively and yet address those issues in a context that puts the associate at ease. Counseling is closely related to coaching, but it focuses on exceptions, that is, on behaviors that fall outside the bounds of acceptable job performance. Even though some “hand-holding” may be involved, the goal of counseling is to help associates “take responsibility for and manage their own decision-making” (Bolton, 1997, p. 212). However, at this stage, the manager must identify the need for further development and training and find ways to provide those for the associate. Achieving these goals in a nonthreatening way requires tact and skill on the part of the manager.
Figure 15–1 Progressive Corrective Steps and the Probability of Salvage
Disciplining
A facility’s staff development efforts can be regarded as successful when most associates employ self-discipline by adhering to rules and standards of acceptable behavior. But a few associates will not take on the responsibility of self-discipline. Such associates will require some form of extrinsic disciplinary action (De Cenzo & Robbins, 1996).
Disciplining involves a more formal approach to work-related problems than counseling. Management’s right to discipline others first assumes that the managers themselves have exercised self-discipline and have set the right example for their staff. Starting with the administrator, the department heads and nursing supervisors should set an example before they can expect the associates to engage in positive behaviors. Otherwise, disciplining becomes hypocritical, and associates can see through any double standards.
Common disciplinary problems identified by managers can be classified into four categories (Sherman et al., 1998): (1) attendance and tardiness problems, (2) dishonesty, (3) substandard work performance, and (4) behavioral problems such as violation of rules. Failure to take disciplinary action only compounds a problem that eventually has to be dealt with. By then, inaction will have already done some damage to group morale. Inaction also implies that behaviors and work performance have been acceptable.
Fairness should be the primary guiding principle in any type of disciplinary action. Fairness requires that managers take into consideration some key factors to guide their decisions (De Cenzo & Robbins, 1996):
• Seriousness of the problem. For example, dishonesty is more serious than occasional tardiness.
• Duration and frequency. For example, repeat offenses are more serious than a first occurrence. Discipline should take into account the associate’s past work record.
• Extenuating circumstances. For example, automobile breakdown on the way to work may be a legitimate excuse for tardiness or absence.
• Orientation, training, and counseling. For example, the extent to which an associate may have received assistance in adapting to the organization should be reviewed before that associate is disciplined. Disciplining should also be used as an opportunity to assess the need for additional training.
• Associate’s viewpoint. Before any action is taken, the associate must be given the opportunity to explain his or her position. The associate may not have been aware of the existence of a particular rule. In some situations, an investigation may be necessary to determine whether the associate was at fault. For example, an associate may have failed to give a scheduled shower to a patient because of the family’s request to wait another day so the patient could have a shower just before her birthday celebration.
• Privacy. All discussions and actions pertaining to disciplining should be carried out in private. In effective management practices, humiliating someone in front of other people is never acceptable.
Once disciplinary action has been deemed necessary, the approach to disciplining should be positive. A positive approach requires emphasis on the corrective, rather than punitive, nature of disciplinary action. This emphasis does not mean, however, that punishment can never be a part of disciplinary action. It means that punishment may be employed with the objective of correcting behavior; otherwise, it may lead to adversarial relationships between associates and their supervisors. Sherman et al. (1998) suggested that in positive disciplining , the total responsibility for correcting a problem is placed on the associate. Although the supervisor and the associate engage in joint discussion and problem solving, nothing is imposed by management; all solutions and affirmations are jointly reached.
As a matter of general practice, disciplining should be progressive. Progressive action may be bypassed only for the most serious offenses. Progressive discipline evolves through four main stages:
• Verbal warning. Even though the warning itself is verbal, it is documented in the associate’s personnel record.
• Written warning. The written warning should document the problem, what the associate needs to do to demonstrate that the problem has been corrected, and further disciplinary action that will ensue if the problem remains uncorrected within a specified period. All warnings should be discussed with the associate, and the associate should be asked to sign the disciplinary document and given a copy.
• Final written warning or suspension without pay. At this point, it should be documented that if the problem remains uncorrected for a specified length of time, dismissal will follow.
• Dismissal. Termination from employment becomes necessary when agreed-upon results are not demonstrated.
To keep the system fair and balanced, facility administrators should consider instituting an appeals system to resolve any disagreements between associates and supervisors over disciplinary matters. An appeals system that is likely to be most trusted by associates consists of a committee composed of an equal number of worker representatives and management staff. A small committee of no more than four to six members is recommended. The committee renders decisions, either upholding or rescinding a particular disciplinary action, based on reviewing facility policies, examining the evidence, and separately hearing the supervisor and the associate (McCabe, 1988).
Terminating
Terminating employment is the final step in progressive discipline when all efforts and opportunities fail to bring about the desired behavior. If progressive discipline is followed, there should be adequate documentation in the associate’s personnel record on which the decision to terminate would be based. At times, however, termination becomes necessary for a serious one-time offense such as theft, patient abuse, deliberate destruction of facility property, or using alcohol or illegal drugs on the premises.
Regardless of how serious the offense, terminating an associate on the spot, or proclaiming, “You are fired,” is never a good idea. Such an action often raises questions about objectivity and perceived fairness. The associate may disagree with an allegation, and yet management may not want the associate to continue on the job while serious questions remain unanswered, as would be the case when management believes that the associate did abuse a patient. The answer to such a dilemma is found in placing the associate on suspension pending further investigation. The associate is told that he or she is being taken off the schedule and will be notified of a decision as soon as an investigation has been completed. If the associate is called back to work, reinstatement is with full back pay. Once an investigation has been completed and a decision has been made to terminate the associate, a letter notifying the associate of the decision is sent by certified mail. In all disciplinary actions, including termination, the associate should be treated with courtesy.
Labor Relations and Unionization
The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act, gave workers the right to organize and join unions without fear of retribution from their employers. The law specifically defined certain conduct as unfair labor practices. The NLRA also required employers to bargain in good faith with a union representing the workers. The National Labor Relations Board (NLRB) was established under the NLRA. Headquartered in Washington, DC, the NLRB has 26 regional offices. The NLRB has the authority to conduct union recognition elections and to investigate complaints of unfair labor practices. Since 1974, employees of nonprofit health care institutions, who were previously prevented from joining unions, have been extended the same rights as employees in other private businesses.
Collective Representation
Unionization is a collective choice of an organization’s employees, who have the collective right to join a union, and they also have the collective right not to join a union. If a union is voted in, however, it then has the exclusive right to represent all the employees in a given bargaining unit, which covers categories of employees a union can legitimately represent.
Employees seek union representation mainly because of their ongoing dissatisfaction with employment conditions and their belief that a union would be effective in alleviating at least some of those negative conditions. The main working conditions employees seek to improve include wages, benefits, and perceived unfair treatment from management. In the final analysis, employees who seek to form a union feel powerless to change things that are important to them. They hope to achieve those results through collective representation. Hence, preventive action through effective leadership and sound human resource practices are the administrator’s best defenses against unionization.
Union Organizing Campaign
Once employees decide to unionize and contact between a small group of employees and union leaders is established, an organizing campaign begins: union leaders hold employee meetings away from the nursing home premises, and informal leaders among the employees try to persuade their coworkers to sign authorization cards. Signing an authorization card is deemed to indicate the employee’s willingness to join the union. In reality, however, peer pressure often plays a role. Some employees sign the card just to get a coworker “off their backs.” For the NLRB to hold an election, at least 30% of the employees in the proposed bargaining unit must sign the authorization cards. As a matter of practice, however, unions seek a much higher number because, to win, the union must get more than 50% of the votes in a secret-ballot election.
Before an election, the NLRB determines the makeup of the bargaining unit , which is a distinct group of employees who have common employment interests and who may reasonably be grouped together for the purpose of collective bargaining. For example, all nonsupervisory personnel—CNAs, cooks, dietary helpers and aides, activity assistants, housekeepers, etc.—are generally part of the same bargaining unit. Licensed nurses and other personnel may be exempt only if they routinely exercise some supervisory authority, such as giving work assignments, evaluating performance, and disciplining, etc.
During the campaign, union organizers can meet with employees to promote unionization. Similarly, management has the right to hold meetings with employees and inform them why they should not join the union. Management’s information must be factual. For example, management can inform workers how much the union dues cost; it can share information on the union’s past practices, such as strikes, etc. Management representatives also have the right to express their opinions but should not engage in deliberate misrepresentation. The facility’s administration, for instance, can make appeals in an effort to convince the associates that joining the union would not be in their best interest. Typical appeals include the following (Bounds & Woods, 1998):
• The union can make promises, but it cannot guarantee that it would succeed in delivering on those promises.
• Wages are already good and equal to or better than what the union could negotiate. If the union is voted in, wages and benefits will become negotiable. They may go down, stay the same, or increase.
• Union dues and other costs, such as loss of wages during a strike, outweigh the benefits of belonging to a union.
• The union is an outsider, not really attuned to associates’ best interests.
• Associates may have to strike even when they do not want to.
In making such appeals, managers must be careful that they do not engage in any unfair labor practices . These are actions declared as illegal under the National Labor Relations Act. Engaging in unfair labor practices during a unionization campaign carries grave risks for management. The union can petition the NLRB to set aside the election and enforce recognition of the union. Unfair labor practices are categorized into four areas:
1. Promise. The union can make promises, but management cannot. For example, management cannot promise employees pay increases, better benefits, or other types of rewards if the employees would not join the union. The administrator should, however, continue to follow any preestablished wage increase programs.
2. Threaten. Management cannot make any type of threats. For example, it is illegal to state that the facility will close down if the union is voted in or that health insurance benefits will have to be curtailed. Intimidating employees with discipline or discharge is also an unfair labor practice. However, supervisors have the right to take any reasonable action to prevent employee solicitation at work stations and during work time. Employees, on the other hand, are free to engage in union solicitation in a break room during break or lunch time.
3. Interrogate. Supervisors cannot ask employees about how they intend to vote, about their past union affiliation, or about what may have been discussed at the union meetings. On the other hand, if an employee volunteers information to a supervisor, listening is not illegal. It is only illegal for a supervisor to ask.
4. Spy. It is illegal for management to spy on union meetings or other activities related to the unionization campaign.
Collective Bargaining
Once a union has been certified to represent employees, labor laws mandate that both the union and management negotiate in good faith, a process called collective bargaining . Bargaining in good faith means that both parties must engage in a genuine process to reach an agreement, even though there is no guarantee that an agreement will be reached. When an agreement is reached, it must be ratified by a majority vote of the employees in the bargaining unit, and the union has to sway the employees into accepting the terms of the contract. The contract specifies the terms and conditions of employment for the workers affected by it. Some typical areas covered under a contract include duration of the contract, description of the bargaining unit, wages, benefits, work rules, rights of management, jurisdiction of various jobs, and grievance procedures. Typically, a contract is negotiated for a 3-year term. Every contract must be renegotiated at the end of the period it covers.
Union Contract Administration
Once a union contract has been ratified, the administrator is responsible for ensuring that all supervisors understand its terms. It is important to emphasize the management’s rights, which typically include the right to allocate and use resources in a way management sees fit; to give work assignments; to hire, discipline, and terminate employees; and to formulate policies and procedures.
Grievance resolution is an important element of any collective bargaining agreement. “A grievance is a formal expression of employee dissatisfaction about some job situation” (Bounds & Woods, 1998, p. 413). The union may also protest the way that management has interpreted and enforced certain provisions of the contract. Bringing a complaint to an employee’s immediate supervisor is the first step in any grievance procedure. Many grievances can be effectively handled at this level, provided the supervisors are trained in handling grievances.
If the complaint is not resolved, the employee takes the complaint to the union steward. A union steward is a unionized employee who works at the facility and officially represents the union to his or her fellow unionized employees at the workplace. Stewards can employ a lot of discretion in handling grievances and can often be more effective than the employee in getting problems resolved by being more objective. If a grievance is not resolved at this level, a union official meets with the administrator in an effort to reach a compromise. If the issue cannot be resolved in this way, it is submitted to arbitration, a costly process that both parties try to avoid. Arbitration is a process in which a neutral third party—generally, but not necessarily, a retired judge or attorney who is recognized by a court jurisdiction or is associated with an arbitration service—hears both sides and renders a decision that is binding on both parties (Bounds & Woods, 1998).
Strikes and Picketing
Work stoppage as a concerted effort by unionized employees is called a strike . The law requires unions to give a 10-day notice to a nursing facility before calling on the employees to go on a strike. The purpose of this requirement is to allow health care facilities to make plans for continuity of patient care. Striking employees often patrol the perimeter of the facility displaying placards that call attention to the labor dispute they have with management. This concerted action is called picketing .
An economic strike is the most common type of strike. It occurs when the union and management fail to reach an agreement; that is, an impasse occurs in the negotiations. Management has the right to hire replacement workers during an economic strike. Striking employees can be replaced either temporarily or permanently. Reinstatement for an employee may occur when a striker makes an offer to return to work with no conditions attached. Reinstatement is not automatic after the strike is over, but preference is given to those who wish to return to work as job vacancies occur.
As a general rule, striking and picketing are not to interfere with the management’s right to provide patient care. For instance, picketers may not prevent nonstriking workers and supervisors from entering the facility or obstruct trucks delivering essential supplies and food to the facility. Legal remedies are available for dealing with violent strikes and picketing.
Employment Laws
The purpose of employment laws is to protect the rights of individuals in an employment relationship, which mainly includes hiring, wages, benefits, promotion, and discharge. Hence, many of the legal requirements discussed here are loosely referred to as antidiscrimination laws. These laws are based on the theory that employment practices should be governed by criteria that are job related; management’s employment decisions should not be based on personal characteristics that have little to do with an individual’s ability to do the job. Employment discrimination is generally defined as discriminatory action in failing or refusing to hire; in discharging or otherwise discriminating against an individual with respect to terms, conditions, or privileges of employment; or in limiting, segregating, or classifying employees in a way that deprives an individual of employment opportunity, training, advancement, or status.
Employment-at-Will
Employment laws provide for exceptions to a longstanding legal doctrine called employment-at-will. Historically, the employment-at-will doctrine has asserted that employment is at the will of both the employer and the employee and that either party may terminate the employment relationship at any time for any reason or for no reason, except when the termination violates a contract or a law. In recent years, however, there has been a growing trend toward a restricted application of this rule (Pozgar, 1992). Terminating an employee without cause is also limited by various antidiscrimination laws. Although states vary substantially in applying the at-will rule, additional considerations such as an implied covenant of good faith and fair treatment are increasingly entering into court decisions pertaining to the employment-at-will doctrine (Pozgar, 1992).
Equal Employment Opportunity
Title VII of the Civil Rights Act of 1964 prohibits discrimination on account of race, color, religion, sex, or national origin in any term, condition, or privilege of employment. The Civil Rights Act of 1991 provided for increased financial damages against organizations found guilty of discriminatory practices. The Equal Employment Opportunity Commission (EEOC) has the authority to enforce the various antidiscrimination laws discussed in this section and to conduct investigations when complaints of discrimination are brought before this agency.
Pregnancy Discrimination
The Pregnancy Discrimination Act of 1978 came about as an amendment to Title VII of the Civil Rights Act of 1964. The law describes pregnancy as a disability and requires management to regard an employee’s pregnancy as any other medical condition. Accordingly, it makes it illegal to deny sick leave or family medical leave for a pregnancy-related condition. The law also prohibits discrimination against pregnant women in hiring, promotion, or termination, provided that they are able to perform the job.
Age Discrimination
The Age Discrimination in Employment Act (ADEA) was passed in 1967. This act prohibits discrimination in any aspect of employment against persons 40 years and older. The law does not afford protection to people below the age of 40.
Equal Pay
The Equal Pay Act of 1963 addresses the issue of wage disparities based on gender. Simply stated, the law requires that men and women be given equal pay when both perform equal work in the same establishment. Wages between men and women in the same jobs may differ on the basis of factors such as qualifications, seniority, and job performance, but not on the basis of gender alone. Generally, male and female CNAs or licensed nurses perform similar work and should be paid according to the same wage scale.
Protecting the Disabled
The Americans with Disabilities Act (ADA) of 1990 protects disabled workers against discrimination. The law defines a disabled employee as one who has a physical or mental impairment that substantially limits one or more major life activities, who has a record of such impairment, or who is regarded as having such impairment. A variety of conditions can be classified as disabilities, including hearing loss, emotional illness, heart disease, cancer, and acquired immune deficiency syndrome (AIDS). The ADA Amendments Act of 2008 requires a broad interpretation of the term disability to include impairments that substantially limit a major life activity.
The ADA requires employers to make reasonable accommodation for disabled persons unless such accommodation presents undue hardship. Reasonable accommodation includes altering facilities and the work environment, job restructuring so that the disabled employee is able to perform the essential functions of the job and altering or eliminating nonessential aspects of a job. In some situations, it does not matter whether or not the facility’s job description calls a function an essential function of the job duties. For example, the job description may state that lifting patients is an essential requirement of an RN’s job duties. Under the ADA, however, lifting patients will not be considered an essential function if RNs spend just a few minutes per day repositioning or lifting patients.
Generally, the employee has to request the accommodation unless the disability is obvious. An oral request is considered sufficient. The employer can ask for supporting medical information related to the disability.
Alcohol or Drug Abuse
The ADA protects current and past alcoholics. For example, the ADA requires an employer to accommodate a qualified applicant or employee with past or present substantial limitations relating to alcoholism if this person can competently perform his job and can comply with uniformly applied workplace rules that prohibit employees from drinking alcohol at work or being under the influence of alcohol at work. Accommodation, for example, would require the employer to grant time off to seek treatment for the alcoholism. As a safeguard, workplace rules must clearly define essential job functions; attendance and punctuality are viewed as essential job functions. Hence, an alcoholic must comply with the facility’s absenteeism and tardiness policy that applies to all employees. The employer can discipline an alcoholic for poor work performance or infringement of other work rules just the same as any other employee can be disciplined.
The law protects past drug abusers, but not those who currently use illegal drugs. Someone who currently engages in the illegal use of drugs is not considered disabled. Accordingly, he may be denied employment, disciplined, or fired on the basis of the current illegal use of drugs. The ADA protects those who have been successfully rehabilitated, or those currently participating in a rehabilitation program and are not using illegal drugs.
Alcohol and Drug Testing and Medical Exams
Employers in the private sector, that is, nongovernment sector, have the freedom to screen employees for drug use. However, state laws often differ. For example, some states require employers to have a written drug testing policy. Many states allow drug testing only for certain occupations or under certain circumstances. Hence, nursing facilities should have a written policy that complies with the state law. Under the ADA, which is a federal law, an alcohol test cannot be given to job applicants before they are hired. Subsequently, an alcohol test may be given only if the employer has a reasonable belief based on objective evidence that an employee has been drinking on the job or is under the influence of alcohol. Even without such evidence, an employer may require random alcohol testing of an employee who has undergone alcohol rehabilitation and is employed in a position that may pose safety risks. Such a policy would apply to most nursing home employees.
Medical exams may screen out potential workers with disabilities. Hence, a medical exam should be required only after a job offer has been made. Testing current employees for tuberculosis in accordance with guidelines from the Centers for Disease Control and Prevention does not violate the ADA.
Family and Medical Leave
The Family and Medical Leave Act (FMLA) of 1993 allows employees 12 weeks of unpaid leave in a 12-month period for qualified reasons. Qualified reasons include birth of a child, care of a child up to 12 months of age, adoption or foster care for a child, care of a spouse or care of a parent with a serious health condition, or the employee’s own serious health condition that prevents the employee from performing the essential functions of the job. To be eligible, the employee must have completed at least 1 year of employment and worked for the employer for at least 1,250 hours. The law requires that after this unpaid leave, the employee be allowed to return to his or her original position or an equivalent position with the same terms of pay, benefits, and working conditions that the employee had before taking FMLA leave.
Harassment
In a general sense, harassment at work occurs in the context of what is termed a hostile environment in which behaviors of managers or coworkers create severe stress that interferes with an individual’s ability to perform his or her job. The Civil Rights Act of 1991 amended Title VII of the Civil Rights Act of 1964 (Title VII) to specifically include unlawful harassment on the basis of gender, religion, national origin, race, and disability (Sherman et al., 1998). Even though sexual harassment has received a lot of attention, harassment may also take other forms based on the categories protected under Title VII. In determining harassment, it may sometimes be difficult to decide what may or may not be hostile or offensive. Employee complaints may be one clue to whether something is offensive. Note that harassment may not necessarily come from supervisors. An employee may be harassed by coworkers, visitors, salespeople, or clients. Questions that are likely to arise in any litigation over harassment may include whether management knew about the problem (or should have known about it) and if anything was done to stop it.
Terminology for Review
arbitration
authorization card
bargaining unit
collective bargaining
economic strike
employment-at-will
employment discrimination
grievance
hostile environment
human resource management
impasse
management by objectives
nurse aide registry
picketing
positive disciplining
reasonable accommodation
self-managed work teams
skill mix
strike
unfair labor practices
union steward
For Further Thought
Many experts believe that implementing SMWTs in nursing homes is not easy. What do you think may be some necessary elements for implementing SMWTs? What main problems might a nursing home administrator encounter when implementing SMWTs?
Case
Staff Cutbacks
Contributed by Cindy K. Manjounes, MHA, EdD, Lindenwood University.
Hometown Gardens was built in the 1950s as a traditional 100-bed skilled nursing facility. The facility used to be owned and managed by a husband/wife team, but 10 years ago the couple gifted it to their two sons. Located in a small town of 50,000, bordering a large metropolitan area, the nursing home used to remain full because of its excellent reputation in the community. Even at a ratio of 60% Medicaid to 40% private pay occupancy, the business had been very profitable. In more recent years, however, the census had taken a downturn.
Two years ago, the brothers decided to make some strategic moves: (1) make the facility 100% private pay because of the growing regulatory burden and cuts in Medicaid reimbursement, (2) modify the facility’s mission to serve a growing number of clients in need of assisted living, and (3) adopt some of the concepts of culture change in the facility’s physical aspects as well as delivery of services. After evaluating the demand for long-term care, the owners borrowed funds to undertake some major structural modifications and improvements, which are scheduled to be fully operational in about 3 months.
One of the wings originally had 40 double-occupancy beds that were converted to 15 single-occupancy SNF beds. In the future, these beds could be easily converted to assisted living, if needed. The remaining double-occupancy rooms on this wing were converted into a spacious lounge/activity room and a household-style kitchen and dining room. The other 60-bed unit was converted to 14 studio apartments and 8 one-bedroom apartments for assisted living. Plans for this section include household-style kitchen/dining and lounge/activity areas along with a small library.
The facility gradually reduced its staffing from 80 full-time equivalent (FTE) to 50 FTE, not counting administrative and clerical personnel. Johanna, the facility’s executive director, did some staffing calculations and estimated that the facility should operate with 35 FTEs to cover nursing, housekeeping/laundry, dietary, maintenance, and activity/social services when the entire facility is operating at 100% census. At present, the SNF section is full, with remodeling fully completed. The assisted living section has 12 residents (55% occupancy). Johanna thinks that it could take up to 1 year to fill the apartments after the renovations have been completed.
With just 3 months left to complete the renovations, Johanna, has felt some urgency to start laying off some people. Rumors of staff cutbacks are already flying. On Monday morning, Johanna sees an anonymous note, taped to her office door, which says, “In this bad economy any cutbacks will give us no choice but to unionize.”
Questions
1. What factors should Johanna keep in mind when making decisions to eliminate positions? How should she go about making the cuts?
2. Should the threat of unionization deter the executive director from making staffing cuts? Why or why not?
3. Would you address the rumors and the note you received about unionization? If so how?
4. Millie is a 52-year-old CNA who has worked at the facility for the past 25 years. Johanna knows that Millie will not hesitate to update her on union activity. Should Johanna use Millie as a confidante? Explain.
FOR FURTHER LEARNING
The Equal Employment Opportunity Commission (EEOC)
Questions and Answers About Health Care Workers and the Americans with Disabilities Act
http://www.eeoc.gov/facts/health_care_workers.html
The National Labor Relations Board (NLRB)
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