The
new officer have been selected and we are off to a great start..
Past President-Rozanne
Martin
Enumclaw Community Hospital
1450 Battersby Ave
Enumclaw, WA� 98022
360-802-3287
President-Connie
DiGregorio
North Snohomish County Health System
330 S Stillaguamish Ave
Arlington, WA� 98223
360-435-2133
President Elect-Bernadette
Berney
Pullman Memorial Hospital
1125 NE Washington Ave
Pullman, WA�
99163
509-336-0297
Vice President-Lisa McDaniel
Whidbey
General Hospital
PO
Box 400
Coupeville,
WA� 98239
360-678-7656
Ext. 3248
Treasurer-Dick Riggs
Sacred Heart Medical Center
101 W 8th Ave, PO Box 2555
Spokane, WA�
99220-2555
509-474-3197
Secretary Carla Wheeler
Kennewick General Hospital
900 S Auburn
Kennewick, WA� 99336
509-586-5848
Debra Naubert
Since our WSHHRA meeting last month some things have
continued to evolve with the WSHA Healthcare Workforce Shortage Taskforce.� I talked to Troy Hutson, staff at WSHA, in
the last couple of days to advise him of our support in developing the
matrices/measurements to more accurately assess the healthcare worker shortages
in this state.� Since the taskforce last
met he has been talking to some other groups that have been working on this
issue but more in specialized areas i.e. lab, rural health, etc.�� He was able to identify a group with the U
of W that has received federal grant money to look at this issue for the rural
health providers and Troy was successful, within the scope of their project, in
talking them into including in their survey all of the hospitals.� They are in the development stages and will
be coming to present to the WSHA taskforce at our upcoming meeting on December
21st.� As a consequence of being able to
dovetail our effort with theirs, the hope is to shorten the time frame for
getting the survey done and to have resources that are focused on this task,
but in a cost effective way.�
The data identifying the scope
of the problem in this state has become increasing important.� Since the Briefings Book came out on the
workforce shortage issue, Troy has received a lot of calls from those attached
to the states legislative process that feel this information is critical in
addressing this issue on a statewide basis.��
Consequently, the feeling is
that we need this information available to us by sometime in January, in order
to use it in the upcoming legislative session.�
What the U of W group would like our assistance with (both the WSHA
taskforce and our WSHHRA regional group) is two things:
1.�� Although a significant focus will be on the nursing shortage
(there will be probably more questions assessing the scope of the RN problem),
they also want to focus on 6 - 8 other key provider shortages.� They would like us to propose, based on our
current awareness and what we see in our facilities, what additional healthcare
professions should be reflected in
the survey.
2.�� Your view on who would the survey best be
sent to, to ensure a prompt and accurate response to the information?� Would that be HR or VP of Patient Care
Services (or equivalent).� In reality,
the information will probably require a collaborative response, but who would
it best be directed to in order to optimize the fact that it will get returned?
And finally the most important issue: What questions do we want the survey to
answer?
If the surveys are targeted to
the HR executives there may be an additional role for us.� When the survey is ready to go, we may well
be asked to play a role with our association members in our respective regions
to advise them of the coming survey and the importance of responding to
it.� Jeff, Patty and I will probably
have more details on this following the December 21st meeting.
Feel free to solicit information from your regional
areas, to the extent that you have the opportunity, surrounding the issue on
what other key job classifications to add.�
If you could provide me your feedback by the end of next week or early
the week following (given the holiday) that would be great.� That way I can get the information to Troy
in advance of our meeting on the 21st and will hopefully help expedite the
process survey development process.� In
the meantime if you have questions or if I have been unclear about what they
are looking for, let me know.
Phone:�
253-848-6661 ext 1710
Fax:�
253-770-5143
Where Do Public Safety Jobs Begin in the
Health Care Institution?
Bob Sebris & Julie Kebler, Attorneys
SEBRIS BUSTO, P.S.
For
all of us, the health care workplace is viewed as a setting where the highest
attention to quality patient care is vital.�
Further, because of the routine presence of medications and drugs, it is
also a setting where substance abuse or drug misconduct opportunity is high.� Because of these and other considerations,
many healthcare employers in Washington have implemented mandatory drug testing
programs � both pre-employment screening and post-hire testing (reasonable
suspicion, post-accident, etc.).� Now,
for public sector health care employers,
however, our Washington State Court of Appeals has just issued a decision that
serves as a major roadblock to these quality/safety and drug security concerns
that were protected by drug testing.
In
October, our Court of Appeals struck down the �overly broad� scope of a pre-employment drug testing program for
city employees.� Robinson v. City of Seattle.�
The City of Seattle has announced that it will not appeal this
case to our State Supreme Court. Consequently, pre-employment drug testing has
been restricted, and this new limitation applies to public sector healthcare
employers (e.g., public hospital
districts).� Fortunately, it does not
reach the private sector healthcare business.
Strong State Constitution
Privacy Protections.� The Court stated that our State
Constitutions� privacy protections (Article I, Section 7) are stronger than
Federal Constitution privacy protections (Fourth Amendment �search and seizure�
safeguards).�� It ruled that submitting
urine samples is a serious intrusion into personal privacy.� Our Washington Constitution �jealously
guards� individual privacy, and only governmental actions that are narrowly tailored to meet compelling governmental interest will be
upheld. The Court applied this philosophy to drug testing, and noted that
pre-employment drug testing of applicants who will carry firearms or whose
duties may otherwise jeopardize public safety is justified.� So, where did the City�s program fail?
Bad Facts Make Bad Law.� In Robinson, the City
of Seattle developed its pre-employment testing program for all applicants in
five (5) job categories:� (1)� public safety; (2) handling dangerous
substances; (3) hazardous physical activities; (4) routine operation of motor
vehicles, heavy equipment or power tools; and (5) routine performance of other
safety-sensitive activities. On the surface this program seems like it might be
structured fairly.� However, in practice
it did not distinguish employees in these departments who simply
provided administrative or other support services (e.g., clerical help, librarians, accountants, and the like) from
those employees who directly affected public safety.� The Court found that the City�s pre-hire testing program was
overly broad, as it did not involve individualized suspicion of wrongdoing, and
that general, exploratory searches are never authorized. It also ruled that an
applicant could not be forced to waive the privacy protection in order to be
considered for a public employment position
Public Safety v. Cost Concerns
v. What??? The
City also argued that efficiency concerns, increased productivity, reduced
leave usage, and lower workers compensation cost interests were sufficient
reasons to justify the program. To the Court, cost or efficiency, while
�unimpeachable goals�, did not meet the standard of a compelling reason under the Washington State Constitution.� The Court noted that the public safety
should not be �placed in jeopardy for even one day�, but that testing serving
basic business interests does not rise to that level.� It held that a program had to be �narrowly drawn� to achieve its
compelling interest. However, the Court left the ultimate question open:� Beyond certain obvious police and
firefighter positions, what precise positions can be characterized as affecting
public safety?� The Court did comment
that preservation of life, protection of innocent third parties, prevention of
suicide and protection of the ethical integrity of the medical profession could provide a constitutionally
sufficient compelling interest. However the Court did not identify any
particular job with these types of interests and again emphasized that any
testing program must be �narrowly drawn�.�
Where does this case leave us:
�
Public
Employers Only.� The case
only applies to public employers.� A
private sector health care employer is not restricted by this case.
�
DOT
Testing Requirements.� Drug
testing requirements from the U.S. Department of Transportation for employees
holding commercial driving licenses (CDL�s) were commented upon briefly in the
facts and not ruled upon.� Numerous
cases around the country support the constitutionality of DOT drug testing
requirements, and arguably federal preemption applies.
�
Post-Hire
Reasonable Suspicion Testing.� This case is about blanket pre-employment drug testing.� Post-hire drug testing in a public
employment setting, where it is based on �reasonable suspicion� circumstances
is different.� However, random or
periodic testing in public sector programs for current employees are suspect.
�
Union
Bargaining.� Public and
private sector employers have a duty to bargain about post-hire drug testing
program with unions, but not pre-employment testing.� Even so, unions and public employers cannot negotiate language
that would override the Court�s boundaries.
� What Jobs are Restricted?� Here is where careful analysis and review
will be challenging.� First, is there a
compelling interest in health care for pre-hire drug testing that goes beyond
public safety jobs, and which can be narrowly drawn?� Second, if only public safety interests
apply, what jobs can be reached?� As an
easy example, a basic secretary would not seem to fit in the test group.� However, it would seem that an emergency
room nurse or a paramedic would.� A
security guard probably would, but a billing assistant would not.� A pharmacist likely would, but a nurse
assistant may or may not.� Any drug
testing program in the public sector will need to be scrutinized carefully and
possibly restructured.� Now is a
good time to reassess the scope and reach of your drug testing programs.
SEBRIS BUSTO,
P.S. is a Washington Law firm
representing health care employers in labor and employment law matters, and a
member of WSHHRA.� Emphasizing problem
resolution and prevention, some of its practice areas include:� labor law and collective bargaining, wage
and hour, FMLA, discrimination, and discharge litigation.� This is a courtesy article to help provide
practical considerations under labor and employment law and is not legal
advice.� For any questions or comments,
Bob Sebris can be reached at (425)450-0300 (or email: [email protected]).
Agency Employees-Whose
Employees Are They?
Cliff
Elliott, Attorney
Davis Wright Tremaine LLP
On August 25, 2026 the
National Labor Relations Board (�the Board�), by its decision in M. B. Sturgis, Inc. reversed ten years
of precedent by holding that temporary (agency) employees can be a part of a
union-represented bargaining unit, if (1) the nature of the relationship
between the agency and the employer is that of a �joint employer� under the
National Labor Relations Act (�the Act�) and (2) the temporary employees share
a �community of interest� with the employers� regular employees.� The Board made it clear a month later in a second
case that �can� means if the union wants
them to be.�� In this second case
all of the elements were present to include the temporary employees except one:
the union seeking an election did not want them included and took the position
�we believe [the Employer] is an employer with whom we can bargain
collectively, and that�s it.�
The prior law placed the
control in the two employers, by requiring in addition to the two factors
above, that both joint employers had to consent.�� In M.B. Sturgis, the
Board withdrew the consent requirement.� Essentially what the Board has done in M.B. Sturgis is take the control away
from the two joint employers and give it to the union.
There are three ways agency
employees can be put at issue:�
The first is in the initial
filing of a representation petition seeking an NLRB election, in which the
union seeks to include the temporary employees.
The second is in a union
filing with the Board to clarify its existing bargaining unit to include the
temporary employees, a so-called unit clarification petition.
The third way is through the
union claiming that the agency�s employees are already covered under its
contract and that in not applying the contract with all of its wages, premiums,
benefits, etc, the �user employer� has made a unilateral change in the
conditions of employment, which is an unfair labor practice.
ANALYSIS
The law as we find it today
includes a two-pronged test:
1.
Is
there a joint employer relationship between, in the Board�s terms, the
supplying employer and user employer?
2.
Do
the temporary employees share a �community of interest� with the user
employer�s regular employees?
Of course, under current
case law you do not ever reach these issues if the union does not want the
temporary employees included.
JOINT EMPLOYER
The base line test for
determining whether a joint employer relationship exists is the extent the user
employer has retained and exercises control over the referred employees.� If the supplier employer retains full control
over these employees, then there is no joint employer status with the
user.� If, on the other hand, the user
has that control, then there is a joint employer status.� Most cases will fall somewhere in between.
The situations where the
supplying employer retains full control are those where the operation of the
department are contracted out and the supplier provides on site management of
its employees.� For example, it is not
uncommon for a hospital to outsource all housekeeping to Service Master, with
Service Master providing both employees and on-site management.
The situation, which is more
common, is where the hospital calls an agency for extra workers, who, once on
site, are controlled exclusively by the hospital, e.g. agency nurses in most
cases. The fact that the agency controls the wages, benefits, if any, completes
the I-9s, verifies licenses and makes the initial assignment etc., does not
overcome the joint employer status when the hospital, or user employer,
controls the employee once on site.
In M.B. Sturgis, the Board listed the elements of control, which led
to the conclusion that there was a joint employer relationship between supplier
and user employer.� The user employer�s
supervisors:
�
assign,
direct and oversee the daily work of the supplied employees;
�
have
the authority to discipline supplied employees as they see fit; and
�
are
responsible for monitoring the time spent by supplied employees on different
assignments.
Additionally, �the contract
between [supplier and user] grants [user] broad authority over the . . .
supplied employees [in providing that they] will be subject to direction of
[user] as to the assignment of work, including shift hours and overtime, and to
the direction of [user�s] managers, supervisors and foreman.�
The Board, therefore,
concluded that the user �meaningfully affect[ed] and codetermine[d] essential
terms and conditions of employment, including the supervision, assignment,
direction and discipline of the . . . supplied employees.�
COMMUNITY OF INTEREST
Community of interest is an
elusive concept that means about what the Board wants it to.� Broadly defined it means that working
conditions, skills, work environment and work are related such that the
employees are somewhat likely to share interests in a way that makes a common
contact practical.�� In M.B. Sturgis, the Board uses the term
�mutuality of interests in wages, hours and working conditions.�� Since this is an area where the Board has
broad discretion, it will be hard to overcome a finding of community of
interest where the temporary employees are doing the same basic work as regular
employees in the unit and have generally common supervision with some of the
other employees in the unit and some contact with those employees.
AVOIDANCE
The impact of these cases
could be significant.� For example, in
union elections it is generally believed that temporary employees are more
likely to vote for the union than not.� Often
they are paid less and have few, if any, benefits.� Believing that if the union wins and they are included, then they
will get the benefit of the regular wages and fringes, they vote YES.� Many times, especially in the less skilled
positions, the employee wants regular employment and may perceive the union as
the route to it.�
If a union is successful in
clarifying a unit to include the temporary agency�s employees, it could have a
significant impact on the employer�s labor cost for that group.� While it is not always true, generally, perhaps
outside of registered nurses and some other areas of severe labor shortage, the
temporary employee (contingent work force) is less costly.� Depending on the union contract, there may
be an increase in fringe benefit costs.�
If this issue is raised through an ULP proceeding, the cost could be
retroactive.� If a 12-week traveler is
suddenly covered by the contract, what are the ramifications?� Seniority? Fringes? Rate of pay? Premiums?
Education allowances? ETC.
Avoidance is not, however,
going to be an easy matter.� Hospitals
are accustomed to using agency personnel in much the same way that the hospital
uses its own employees and this will make the hospital a joint employer and
there will be a community of interest and, therefore, they will be included in
the unit, if the union wants them.� In
the past, unions have not been too interested in trying to claim these
employees, but the Board may have just changed that.� This may be particularly true under agreements requiring payment
of union dues after 30 calendar days of employment.
There are some things
hospitals can do that may lead to avoidance:
1.
Review
your agency agreements.� Some fit the
mold for �joint employer� because the hospital, by contract, has all the rights
over the agency employee as it would over its own.�
2.
While
it will be of no avail for the agency�s contract to recite that the agency
personnel will not be considered an employee of the hospital, it may be of some assistance to provide for
a meaningful penalty, if the hospital hires the temporary employee without the
consent of the agency.
3.
Does
the hospital really need to retain the right to discharge the contract
employee?� Or, �When the Facility
believes it is necessary to discipline or discharge an employee, the Facility
will communicate the facts to the Agency for a determination of what, if any,
discipline is necessary and shall not act independently.� In extreme cases, the Facility may suspend
the Contract Employee with pay pending a determination by the Agency.�� Think practical!� Will there be any practical difference?
4.
If
practical, especially where there are a number of temporary employees from a
particular agency, have regular on site supervisory visits by an agency
manager.
5.
Make
as many little differences as possible. For example, use only agency ID badges
and not hospital badges.�� Do not give
hospital personnel policies to temporary employees and have a separate set of
policies applicable to temporary employees which are approved by the
contracting agency.�
6.
Look
at your labor contracts and determine which provisions are not being applied to
the temporary employees and which they would be eligible for if the temporary
employee were an employee under the contract.�
Is overtime the same? Shift differentials?� Weekend differentials?� In
an ULP case, it will not be a defense to say that the contracting agency was
paying the wages, benefits and differentials.
7.
Negotiate
contract revisions with an eye toward these problems.� The scope of the bargaining unit, i.e. expanding the list of
excluded jobs to include �temporary and agency personnel� or �joint employer
personnel� is fine if the union agrees, but it is not a mandatory subject of
bargaining.� Eligibility for contract
benefits is, however, a mandatory subject.
8.
If
it is practical, limit how long a particular temporary employee can work for
the hospital�the longer and more regular the employee works for the user
employer, the more likely that a retroactive application of the contract will
prove costly.� At the same time, do not
call for agency personnel by name.� Let
the agency make the assignment.
9.
Again,
to the extent practical, use as many agencies as you can for the same employee
positions.� Most of the cases involved a
single supplier.
10.
Encourage
the supplier employer to have its employees work for several different user
employers.� There is a suggestion in M.B. Sturgis that the fact �all of the
work [of the jointly employed employees] is being performed for the user
employer� was a significant factor in the decision.�
CONCLUSION
This change in the law is
not good for employers.� In addition to
the issues raised by this memorandum, there are a multitude of very complex
bargaining issues.� The Board dismissed
these problems with a stroke of the pen��. . . we believe employers and union
will be able to formulate workable solutions to logistical issues that may
arise.�
The responsibility of employers under these
decisions is to assess their situation and make reasonable downside
projections.� Then, make decisions on
what works for each and act accordingly.�
At least, this will minimize the surprises, and may make the outcome
favorable to the employer�s position.
Copyright � 2000 Davis Wright Tremaine
All Rights Reserved
Davis
Wright Tremaine is a national law firm providing a full range of employment
related services, including traditional labor union matters, employment
litigation and personnel matters.� If
you would like to reprint this article, please contact Clif Elliott at (206)
628- 7647 or [email protected], or the Chair of the
firm�s Employment Law Department, Mary Drobka (206) 628-7645 or [email protected]
Looking Toward
2001
Just a reminder that the 2001 Membership Forms will go out early next month (January 2001).� New to next year's dues structure will be an additional fee for any late dues.� Any dues form received after 60 days from the date of the membership notice will be assessed a late fee of an additional $15 for the first member and $10 for any additional member.� Hopefully everyone will get their membership forms and dues payments in on time to avoid this additional fee.�
SEBRIS BUSTO, P.S.