Federal and State Labor Laws in the US Healthcare - Term Paper Example

Labor relations, Federal and Labor Laws in the US healthcare Introduction The US labor law is a legal body that regulates the duties, rights and relationship between employers, employees, and labor unions in America. The Department of Labor or DOL, supervises and implements nearly “180 federal laws and the mandates and the regulations that implement them cover many workplace activities for about 10 million employers and 125 million workers” (United States Department of Labor, 2014). While there are two sets of laws that govern the American labor scenario, the Federal laws and the State laws, the former gets precedence in case of conflicts, while state laws tend to more stringent. Federal laws include the Occupational Safety and Health Act, the Civil Rights Act of 1964, the National Labor Relations Act and Fair Labor Standards Act, which regulate the workers duties and rights to form unions in the private sector, and takes precedence over all local and state laws in this regard. Employees working directly under the federal government enjoy certain limited rights, unlike the employees under the state governments, where the state workers’ rights are based on state laws. Protection is accorded to the employees by both the State and Federal laws, from any forms of discrimination, based on, age, gender, race, nationality or religion, at the workplace. Federal law expropriates almost all state statutes that tend to restrain any discrimination by the employers preventing workers from receiving various benefits, such as, pension, or barring any action against them for asserting the aforementioned rights. In all countries, the healthcare sector generates large-scale employment. The US healthcare sector encompasses 5,000 hospitals, generating employment to nearly 14 million workers (Brito, Galin, and Novick, 2000). During the 1970s-1990s there were many unprecedented reforms within the healthcare sector, globally. While the sector is largely labor dependent (labor related expenses account for 50-70% of recurring budget in this sector), prior to the reforms there was little attention on human resources and their management (Petrie, 2011). In 1974, the Public Law 93-360 came into force in the US, which added health care reforms to the National Labor Relations Act or NLRA. These reforms provided coverage to the workers of healthcare facilities (non-profit ones) as per the Labor Management Relations. Before the health care reforms were implemented, the US healthcare sector was governed primarily by the State laws. This led to issues in complaisance, as multi-state workers faced significant legal inconsistencies, making work across states an expensive and often a difficult task (Feheley, 1975). Furthermore, the protection as accorded to the employees by state laws varied across the country, depending on legal provisions of the state where they were working. Besides these issues, frequent union activities led to a great deal of disturbances in the healthcare services, while the salaries of nonprofit hospital employees were significantly less than the other workers in the US health care sector (Feheley, 1975). Owing to these challenges, the US Congress took into account the need for bringing in legislative reforms for providing a homogenous and stable labor policy all across the country, applicable for the health care sector. During the proposal round the Congress highlighted the importance of strong and all-inclusive federal laws. Since the enforcement of the new reforms, the courts have always focused on the need to have a stable legal environment, insisting on the enforcement of new federal laws by that the National Labor Relations Board and if necessary to even overlook and supersede the State laws (Memorial Hospital of Roxborough, Petitioner, vs. National Labor Relations Board, Respondent, 1976). In this context the essay will study and review in details the labor relations and the Federal and State Labor Laws in the US healthcare. Discussion Federal labor laws The National Labor Relations Act of 1935 (also the Wagner Act) is the basic statute of labor laws in the US that safeguards employee rights within the private sector. It includes organizing labor unions, practicing collective bargaining in order to procure improved working conditions at work, and take steps for collective action such as labor strikes as required. The act encompasses the National Labor Relations Board that conducts elections, providing scope for collective bargaining between the employers and labor unions. However, the Act excludes domestic workers, agricultural workers, independently working contractors and supervisors, and local, state or federal employees. The enactment of NLRA galvanized the trade union into various activities, and soon campaigns started in the electrical, steel, automobile, and manufacturing industries and by 1945, 35% of the workers had joined the trade unions. In order to stop the surge in trade unions the industrialists, strongly opposed the spread of organized labor and looked at weakening the NLRA, which they achieved in 1947 with the enactment of Taft-Hartly Act that allowed for the prosecution and enjoinment of unions for various activities, such as, boycotts and picketing. The last significant modification to the NLRA was made in 1959, wherein further restrictions were brought in to reign in the trade unions with the passing of the Landrum-Griffin Act. The main emphasis of the traditional union laws, also known as labor laws, is on the employees and their collective rights. This is different from employment law that emphasizes issues related to the individual worker rights. The NLRA that provides for labor laws is organized under 29 U.S.C. codes: 151-169, and aims at serving the American interest, in terms of maintaining conducive labor relations within the national economy. Since widespread labor strikes tend to create an uneasy and volatile working atmosphere it has a negative impact on the entire nation. Therefore, a comprehensive and clearly defined policy on labor management promotes economic production and in turn benefits the country.  Industrial conflicts are not conducive to the national economy, and it is for this reason that the NLRA aims at restricting industrial conflicts among labor unions, workers and business houses that could otherwise hamper economic growth of the United States.  Within the NLRA, the major chapters are seven, eight, and nine. The chapter 7 delineates ‘protected activity’ and proclaims “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment” (National Relations Labor Board, Chapter 7, 2014). This chapter applies to a variety of collective activities of the trade unions and provides protection to labor strikes, organizing, protecting workers with grievances, picketing, and on-site protests. Chapter 8 delineates unfair labor practices or ULPs that have the potential to go against national interests. Under the ULPs, five employer conduct types are considered illegal: 1. “Employer interference, restraint, or coercion directed against union or collective activity [Section 8(a)(1)] 2. Employer domination of unions [Section 8(a)(2)] 3. Employer discrimination against employees who take part in union or collective activities [Section 8(a)(3)] 4. Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB [Section 8(a)(4)] 5. Employer refusal to bargain in good faith with union representatives [Section 8(a)(5)]” (Health and Safety and the National Labor Relations Act, nd., 2). Under this chapter, any kinds of warnings or threats are considered as interference, hence violation of Section 8(a) (1).  Demotions, transfers, discharges and suspensions violate Section 8(a) (3) while unilateral changes, lack of information, and denying the right to grievance meetings violate Section 8(a) (5). Section 8 also allows for equal representation from the bargaining unit. Section 9 provides that certified unions can represent members from the bargaining unit and prohibits the worker grievance adjustments without a representative from the union while framing procedures for voting on union representatives. While the NLRA frames general obligation and rights, the NLRB maintains act enforcement in specific situations (ibid). The Fair Labor Standards Act or FLSA regularizes salaries and overtime wages, which have an impact on almost all forms of employment (both private and public jobs). The act “establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered non-exempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek” (US Department of Labor, 2014). In case of non-agricultural activities, it limits working hours for children below 16 years of age and rules out employment for children below 18 years of age in jobs that are deemed dangerous. In agricultural jobs, children below 16 years of age cannot be employed during their school time (ibid). The Wage and Hour Division that enforces FLSA, also supervises the enactment of labor laws as provided in the Immigration and Nationality Act that apply to foreigners allowed to work in America under non-immigrant visas, such as H-1B, H-1B1, H-1C, and H2A. The civil rights act of 1964 prohibits state governments, local authorities, and private employers from discriminating while employing on basis of religion, color, race, sex, or nationality. The Occupational Safety and Health (OSH) Act make provisions for health and safety conditions in private jobs, while also covering public sector jobs. Employers under the OSH Act must follow with the rules and standards advocated by the OSHA and they are duty bound to provide their workers with a safe working environment free from any kind of hazards, and the provisions are enforced through regular investigations and inspections. Under the Rehabilitation act of 1973 there are provisions to protect the rights of handicapped employees working in both private and public sectors. The Family and Medical Leave Act (FMLA) makes it necessary for employers having more than 50 workers to provide 12 weeks of job-protected and unpaid leave for the childbirth, adoption, serious sickness of the employee or a close family member. State labor laws The state operated health care facilities are excluded from National Relations Labor Board coverage in the US. Under the State Labor-Management Relations Act, there are variations from state to state. The Union Security Contracts and Right to Work Laws provide for: Closed shop contract: here the employees are required to be a member of a specific union (a job precondition) and to remain attached to the union as long as they work. Union shop contract: here the employer can hire a worker not affiliated to any unions; however, the employee must later join a union in order to continue working. Some state laws however do not allow such contracts. Right-to-work laws: the right of workers must be maintained, irrespective of whether they are associated with any labor union or not. According to the wage and hour laws, under the child acts there must be maintained working papers, while minors cannot be employed for night duty, or for operating dangerous machines. Under the Workers compensation program, an employee can receive salary benefits owing to injury at workplace, such as: Stress at work physical injuries occurring at the workplace influenza vaccine exposed to dangerous substances at the workplace According to the accorded labor rights, workers can organize and bargain collectively (the US Supreme court has directed the formation of eight bargaining units), advice and disseminate information on union bodies, strike and picket. The employer or management on the other hand must be given prior strike notice, can take in replacement employees, limit the activities of trade unions, impede union activities during office hours and stop supervisors from taking part in union activities. The DHHS EEO restrains discrimination on basis of race, age, religion, color, sex, or nationality. Affirmative action program encompasses collection and review of data on the sex and race of all job applicants for allowing the non-discrimination clause and the data is used to show compliance with the legal provisions, as a failure to meet the provisions could lead to denial of government funds. Health care bodies should have such affirmative programs in place for recording compliance with the law. Within the US healthcare sector the patient’s rights always get precedence over management or labor rights, wherein the patients have the right to privacy and their general well-being. Under the Healthcare Law, the employment-at-will doctrine states that employment is dependent on the will of the worker or the employer, while employment can be terminated at any stage or without any reason, unless there is a contract that specifies the job terms, conditions and duration. Traditionally, terminating employees without any reason or for any reason is accepted in the US. However currently the employment-at-will has restricted application, where termination at will is partly prohibited under consideration of the public policy and the covenant of fair dealing and good faith. The employment-at-will is currently facing challenges owing to face-off between legislative rulings and judicial decisions. Besides this, some states are more employer focused (such as, New York) while in other states the focus is more on employee rights (such as, California). The public policy also provides protection to employee termination, where employees cannot be terminated under the employment-at-will, as against certain clauses in the public policy (legislative enactments). Conclusion While the US has a large number of legal provisions that take care of both the employee and employer rights within a working environment, in order to provide seamless healthcare services it is essential to develop an effective employee-management relationship program, which would help to create a strife-free working environment, wherein both the management rights and worker rights are retained. The health care sector in the US is currently undergoing a phase of rapid transformations, where it faces many challenges, in terms of providing quality healthcare while concurrently practicing cost-control due to rising expenses. Owing to these challenges, recently there has been a rising interest amongst the scholars to study the functioning and labor -management relationships within this sector. In the last decade, researches on the labor-management relationship within the US health care sector has highlighted the various innovative methods adopted, such as, new models of representing the labor, or new work structures, for providing optimum patient care. Despite these researches, it is necessary to conduct further researches that are more empirical, in order to analyze the impact of these innovations on the stakeholders. As for example, it has been contended that the use of information technology will completely change the face of health care delivery in the US. However, empirical data and employment-relations theory state that improvement in healthcare delivery is based on a careful re-organizing of the systems that function around the modern technologies. Besides these, one must also take into consideration the link that exists between the institutional and market forces within the health care sector. Owing to globalization and lack of domestically trained nurses and physicians in the US, the system has become more dependent on immigrant labor, resulting in a change of workplace environment and a shift in labor-management relationship. References Brito, P., Galin, P., and Novick, M. (2000). Labour Relations, Employment Conditions and Participation in the Health Sector. Workshop on Global Health Workforce Strategy Annecy, France, 9-12 December 2000, WHO. Accessed 6th May 2014, http://www.who.int/hrh/documents/en/Labour_relations.pdf Health and Safety and the National Labor Relations Act, (nd.). Factsheet Of The “Protecting Workers Who Exercise Rights” Project Of The National Cosh Network. Accessed 7th May 2014, http://www.njwec.org/PDF/PWWER%20Fact%20Sheets/HealthSafety_NLRB.pdf National Relations Labor Board. (2014). National Labor Relations Act, Chapter 7: 29 U.S. Code § 157 - Right of employees as to organization, collective bargaining, etc. Accessed 7th May 2014, http://www.nlrb.gov/resources/national-labor-relations-act Feheley, L. (1975). “Amendments to the National Labor Relations Act: Health Care Institutions.” 36 OHIO ST. L.J.: 235 -298. Memorial Hospital of Roxborough, Petitioner, vs. National Labor Relations Board, Respondent, 45 F.2d 351 93 L.R.R.M. (BNA) 2571, 79 Lab. Cas. P 11, 692 [1976] Petrie, B. (2011). Special Topics in Healthcare Labor and Employment Law. Graydon Head & Ritchey LLP 2011. Accessed 5th May 2014, http://www.healthlawyers.org/Events/Programs/Materials/Documents/AM11/petrie.pdf United States Department of Labor. (2014). Summary of the Major Laws of the Department of Labor. Accessed 5th May 2014, http://www.dol.gov/opa/aboutdol/lawsprog.htm US Department of Labor. (2014). Wage and Hour Division (WHD): Compliance Assistance -Wages and the Fair Labor Standards Act (FLSA). Accessed 5th May 2014, http://www.dol.gov/whd/flsa/ Read More