Don't let patients steal your staff!
Don't let patients steal your staff!
Use contracts to bind employees
If your agency has ever lost an employee because the lure of working for a patient directly was too strong, consider having both employee and patient sign a contract to discourage these practices.
More agencies are placing faith in the law, making contracts part of the employment and authorization processes. This issue is serious enough that agencies are taking protective measures to dissuade both parties from entering into what could be a potential legal problem.
"Agencies should take a dual approach by making patients and employees sign contracts," says Elizabeth E. Hogue, Esq., an attorney in Burtonsville, MD. "This should be a standard policy of every private duty agency." Agencies should place the language restricting the hiring of an employee in the patient's admission agreement, she says, which should not be more than one paragraph long.
Patients should understand the implica- tions of that agreement. If there is a change of caregivers, the patient and family should be reminded of the contract. An employee agreement should be a short paragraph on a separate piece of paper, which the employee should sign upon employment. (See sample form, p. 57.) The form should be kept in the employee's personnel file.
Most of the cost associated with developing a contract of this nature is embedded in the legal fees charged by the attorney who draws up the contracts. The costs is relatively low, considering the loss to the agency if even one patient decided to jump ship.
Lure of the cash
Many employees leave agencies to work for patients directly as a means to make more money. But beware of the lure of cash, says Sonia Logsdon, RN, BSN, director of private sector for Commonwealth Health Care in Virginia Beach, VA.
"Patients and families often aren't aware of what is involved in hiring a nurse or aide," she says. "For starters, the patient becomes the employer and is responsible for submitting the employee's taxes, social security payments, and even unemployment taxes. Patients are often not ready to take on this additional responsibility or are not even aware of it." If the patient or family members do not comply, they place the worker at risk for tax evasion charges, at worst.
Hogue and Logsdon recommend that private duty agencies consider the following steps when developing a contract for patients and employees:
· Consult with legal counsel.
Before writing a contract, consult with the agency's attorney to craft a document that has the appropriate legal language and format. "Tight language and clarity are vital," says Hogue. "An agency must develop the appropriate language to create an enforceable contract. You can't go so far to develop standards that may be interpreted as unreasonable or that deprives an aide or nurse from making a living."
· Explain the nature of the contract to employees and patients from the start; reinforce it; and enforce it.
Hogue suggests that agencies make employees aware of the policy during orientation. It also should be part of the agency's retention program to highlight this issue with workers. Enforcement of the contract shows that agencies mean business. In one case, Hogue says she knows of an agency that sued its former employee for taking patients and won. "The contract may be the only deterrent needed, but suing people does happen," she says.
Logsdon notes that "many times, aides or nurses do not have the money to pay the agency from a settlement. In this case, there would be nothing to recover."
· Stipulate time frame for nonemployment in the contract.
The language of the agreement should state clearly that a patient or family member may not hire the staff of the agency for a specified length of time. "I think that six months is fair for both the agency and the employee," says Hogue. "After six months, patients may find another caregiver that they like equally." Employees also need a time frame. Logsdon makes her employees sign an agreement that states they will not contract with a Commonwealth patient for as long as one year.
· Check with state laws regarding payment for placement in the home.
Hogue has seen agencies that charge a patient or family a placement fee. When an employee is approached by a patient to work directly for him or her, the patient, bound by the agreement, may be responsible to pay the agency a fee. Logsdon does this in her own agency.
She tells Private Duty Homecare that depending on the circumstances and the individuals involved, she will request that at least 60 days equivalent pay be sent to the agency. As for receiving payment, Logsdon says she relies on people's integrity. "We have patients and employees who are honest," she says. "Patients may even call me on the phone to tell me they are hiring my employee. In this case, I remind them of the agreement and tell them they will have to pay for 60 days of service."
If an agency does expect placement fees, Hogue urges the agency to check with state laws that govern staffing and placement agencies to ensure compliance with any laws or regulations. Private duty agencies may not fall into this category, but they should at least check with their state before instituting this as policy.
If a patient or family does lure an employee away from the agency - and the agency discovers the employment - Hogue suggests the agency send letters to the patient and the worker stating that they are in violation of the agreements they signed. The letters should be sent through an attorney's office. "I see this as firing a warning shot," Hogue says. "This is sometimes enough to end the behavior; however, agencies have to be ready to follow through."
If all else fails, see them in court
Although filing a lawsuit is an extreme measure, there are many ways for an agency to enforce its policy, such as requiring a placement fee and using worst-case scenario examples to dissuade. (See related story, above.) But agencies must also review these instances on a case-by-case basis.
"In every situation, there is room for exceptions, but this should not be the rule," says Hogue. "Patients do get tied to their caregivers. This is human nature."
Whatever the situation, agencies should take a direct and firm approach, sources say. This will provide both employees and patients with a clear understanding of the agency's policy and foster communication. It will also leave the agency respected.
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