Careful with those good deeds, or you might get punished

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John O'Connor
John O'Connor

In Joseph Heller's satirical novel “Catch-22,” paradoxes keep getting in the in the way.

It's a challenge many senior living operators can relate to, especially as they try to balance resident choice and safety. Put too much emphasis on choice, and you may be charged with negligence. Lean too far on the safety side, and you run the risk of being branded a nursing home. But that's just one example.

During an employment law session Monday at the LeadingAge conference in Indianapolis, attorney Daniel Burke repeatedly illustrated why labor relations offers a virtual Catch-22 cornucopia.

Consider the new joint employer standard. The term refers to situations where two businesses are so intertwined that both can be said to be legally responsible for worker protection-law violations. The standard traditionally applied when one business had “direct control” over the other company's employees. That was modified last year, when the National Labor Relations Board moved to expand the definition to include “indirect control.”

So if you hire contract help, do you have indirect control? It would seem that if you are correcting someone who is not doing a job correctly, you just might qualify. Of course, you could simply say nothing to the contracted workers and live with results that are substandard or potentially dangerous. How's that option going to play with the residents and their children?

Social media use can be another cauldron of trouble. It's imperative that you not only have policies in place, but that they are of recent vintage, Burke notes. Your employees are entitled to talk about their work on Facebook and other outlets, up to a point. But if that discussion runs the risk of revealing a resident's confidential health information, it's clearly violating HIPAA. When you as an operator face a borderline scenario, it can be a tough call. Do you come down hard, do nothing, or simply counsel an employee who likes to share her workday minutia with the rest of the free world?

And what if you have a pregnant employee who seems to be struggling with some of the heavy lifting that goes with her job? Do you tell her not to do that part of the job? Pass that act of kindness along the wrong way, and you just might be hearing from her attorney.

Then there's the new overtime rule that take effect in December. Have any employees making less than $47,476? (I know, rhetorical question.) You'd better pay time and a half for any weekly hours beyond 40. Oh, and you'll need to keep track of each hour. If your workplace is like mine, you'll also need to keep track of every hour for every employee, regardless. That won't keep you from getting more important things done, will it?

Heller's brilliant novel was about the lunacy of war. Too bad he wasn't a business writer.

John O'Connor is editorial director of McKnight's Senior Living. Email him at john.oconnor@mcknights.com.

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