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Through educational programs and collegial exchanges, the mission of MHHRA is to develop leadership, increase competencies and foster excellence for Human Resources professionals and service producers in the healthcare industry.

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March MHHRA Newsletter

PRESIDENT'S MESSAGE:

March 2005

Dear MHHRA Members:

Local Activities
I am pleased to report on many local and national activities this month. Locally, our membership has increased by 42%, thanks to the efforts of our Membership Chair and Co chair, Ginny Rehberg and Julie Thistlewaite and our Association Manager, Denise McNulty. We also "debuted" our redesigned web site, under the direction of Steve Salvo, ensuring members receive timely information in an easy to use format. If you have misplaced your user id and password, please contact Denise at mhhra@mhhra.org.

You won't want to miss our March 31 program at Waltham Woods Conference Center when we host Kerri St. Jean - Comcast New England's VP of Organizational Effectiveness. Ms. St. Jean will speak about Comcast's organizational effectiveness and transformation journey.

The Chapter is pleased to announce its own Human Resources Scholarship Award. The purpose of this award is to promote and encourage a student or a current practitioner studying in an accredited program with concentration in human resources at the undergraduate or graduate level.

The scholarship award is $500 - for information on the scholarship and access to the application form, please visit http://www.mhhra.org/about/index.htmlApplications must be completed and returned to the MHHRA Office by April 2, 2005.

National Activities
Kathryn Fisk, ASHHRA President, invites all members of ASHHRA to participate in the ASHHRA Recognition and Awards Program. The following are a list of Awards and recognition forms can be accessed at www.ashhra.org. You are encouraged to complete the entry forms and return them by the May 2, 2005, deadline.

• Distinguished Service Award
• Paul Guy Mentorship Award
• Outstanding Chapter President Award
• Outstanding Chapter Contribution Award
• Communication Award

Please be sure to mark your calendar to attend the ASHHRA Conference at the Dolphin Hotel in Orlando, Florida from July 17 - July 20. The ASHHRA Region 1 Conference is scheduled at the Mystic Marriott in Groton, CT from October 23-25, 2005.

Gratitude
To accomplish so much, provide quality programs/events, and web site updates, we rely on many individuals who volunteer their time to MHHRA. I thank you for your contribution and sharing your many talents.

I am also grateful for our Business Partners continued support and generosity -- thank you, Bernard HODES Group, Boston Works and LaRhette Manin Benefits Service Group. Because of your contributions and valued time commitment, we can provide members with exciting programs and events.

With warm regards,

Margie Ransom
President

President Elect's Message

...A Call for Action
Diane Bono, UMass Memorial Healthcare

This year MHHRA has achieved new milestones thanks to feedback we have heard from you, our members.

Our website has been updated with a new look and easier navigation providing you with more relevant and timely information about what is happening across our Chapter and resources available to you.

Thanks to the Recruitment, Retention and Recognition Committee (R3) our membership is significantly up this year. And our Program evaluations tell us you are getting information that is valuable to you.

I invite you to participate in MHHRA's future by getting involved in committee work. We are already underway planning our committee structure for the 2005-2006 year beginning in July. It takes many talented people to coordinate our programs, keep our members up-to-date on legislative affairs and stay in touch with our membership. As the old saying goes; "many hands make light work". Please also check out our Committee structure at http://www.mhhra.org/about/committees.html and consider helping your colleagues and MHHRA continue to be leaders in the health care human resources community.

If you are interested in participating, leading a committee or just want to find out how to get more involved, please contact me at 508-334-5052 or bonod@ummhc.org. This is a great way to continue your own development and network with colleagues across our region.

PROGRAM CALENDAR:

March 31, 2005: MHHRA Breakfast Program
Come Join MHHRA and Kerri St. Jean, New England VP of Organizational Effectiveness, Comcast for A Journey to Organizational Effectiveness

Click here to register for this program and view upcoming programs

Thank you to our Newsletter Sponsors

This wonderful member benefit would not be possible without the help of our Business Partners:

Bernard HODES Group
A fully integrated recruitment communications and staffing solutions provider offering solutions that often combine multiple service offerings from the Company's core competency areas: Recruitment Marketing; Sourcing/Response Management; Hiring Process Re-engineering; and Staffing Technology. All solutions are developed and measured within the Company's 360-degree process methodology. The Company's Health Care Division is staffed by RNs with clinical, managerial and recruiting experience. In addition, Bernard Hodes Group has health care strategists in many of its offices nationwide. The Company is headquartered in New York, with over 80 offices and affiliates around the globe. Bernard Hodes Group serves thousands of clients in virtually every industry, helping them to attract and retain talented workers in every skills set. Please visit http://www.hodes.com.

BostonWorks
A division of the Boston Globe, BostonWorks is the largest and most popular recruitment tool dedicated to the Boston market. BostonWorks has more jobs, more resumes and reaches more active and passive job seekers than any other recruitment site in the market. BostonWorks and BostonWorks.com leverage the power of The Boston Globe and Boston.com to reach an audience of more than 2.4 million each week.

In addition to the BostonWorks section in The Boston Sunday Globe and the online recruitment site BostonWorks.com, the division offers industry-specific magazines such as "On Call" for nurses and allied health professionals and JobSource, a weekly career publication with distribution of over 100,000. BostonWorks also produces a number of career fairs held in Greater Boston throughout the year. Please visit http://www.bostonworks.com.

LaRhette Manin Benefit Service Group
At LaRhette Manin BSG, products, consulting and service converge to provide a single-point resource for the human resources and financial executive. We can approach your strategic requirements from any angle, and provide your organization with the following array of services bundled in a comprehensive package: Design initiatives, Investment and insurance carrier selection and management, Employee communications and training, Enrollment and on-going educational services, On-going plan administration and Comprehensive employee services.

Our capabilities are built on an infrastructure of NASD-registered account executives, licensed insurance representatives and certified benefits counselors who have been trained in all aspects of compensation reward systems that offer employees choices and options - which we believe to be the cornerstone of future benefits strategy. Please visit http://www.lmbsg.com.

Nursing Spectrum
Nursing Spectrum is an RN-led communications company that celebrates nurses and the profession of nursing. Supporting, recognizing and educating registered nurses is at the heart of all we do. We believe that no one cares about nurses like nurses do, so our products and services are created "for RNs, by RNs."

Nursing Spectrum and NurseWeek magazines and their accompanying websites are where RNs go first for employment opportunities. Nursing Spectrum's jobs database is the most complete source of current RN employment listings in existence. Nurses are also attracted to Nursing Spectrum because our products celebrate nurses and nursing as an exciting, fulfilling career choice. Nursing Spectrum's "voice" is upbeat and pro-nurse, and the tone is one of validation, encouragement, and support. Please visit http://www.nursingspectrum.com.

INDUSTRY NEWS

Solicitation, Distribution and Access Rules in the Health Care Industry - The Proverbial Wrench in the Works of Labor Law
By: Thomas Royall Smith and Matthew D. Freeman, Jackson Lewis LLP

Labor law is like a complex piece of machinery made up of the gears and sprockets of statutory, administrative and court-made rules and laws. The National Labor Relations Act, as amended, governs all employer-employee relationships, whether employees are organized or not. Because they typically hire an extremely diverse group of specialized employees and because they "produce" a unique and important product - patient care - health care employers are the proverbial "wrench" thrown into the works of labor law. As a result, the National Labor Relations Board (the "Labor Board") frequently has to modify the rules it has developed in interpreting the National Labor Relations Act when the rules are applied to health care facilities such as hospitals.

The Labor Board rules regarding solicitation of union support and distribution of union materials by pro-union employees in the workplace are a good example of this. The general rule is that an employer can restrict solicitation activity based on whether it occurs during working time and distribution activity based on whether it occurs during working time or in working areas, as long as the restrictions apply to all such activity and not just when it is related to union organizing.

The rules become even more complicated, however, when applied to the health care industry. Because their "product" is patient care, hospitals can additionally restrict both solicitation and distribution activity from occurring in "patient care areas" such as operating rooms, patient rooms and nurses stations. What about other areas such as hallways or stairwells that may occasionally be used for patient rehabilitation? The Labor Board will look at all the circumstances in determining whether restrictions in such areas are lawful, including whether alternative areas exist in the facility for employees to engage in union activity.

Another example of this "wrench" effect occurs when applying the Labor Board rule regarding the ability of employers to restrict off-duty employee access to their facilities. During union organizing drives, employees who are union supporters will often linger after work or come in on days off to engage in union activity. The general rule is that employers can restrict off-duty employee access as long as they limit the restriction to the interior of the facility, disseminate the restriction to all employees and apply the restriction to off-duty employees seeking access for any purpose, not just for those engaging in union activity.

For health care employers the Labor Board's position on employee after-hours access raises serious questions. What if an employee has a close relative who is a seriously ill patient? What if the employee is a patient? The Labor Board has not answered these questions, but even though this would be a violation of the letter of the rule, it would seem that the nature of patient care would justify yet another exception in these cases, similar to the exception the Labor Board has developed in connection with solicitation and distribution.

These are just a couple of examples of the exceptions which apply to hospitals and other health care employers. Hospitals should seek legal counsel to review their policies and rules regarding solicitation and distribution activity as well as off-duty employee access. Included in any such review should be rules regarding the use of bulletin boards and e-mail and the wearing of pins or buttons, all of which are considered forms of solicitation by the Labor Board. If health care employers have lawful rules in place to begin with, then they are in a stronger position to defend a claim that they are interfering with employees' rights under the National Labor Relations Act.

Are Independent Contractors a Thing of the Past in Massachusetts?
by Katherine A. Hesse, Esq. and Michael R. Bertoncini, Esq.
Muphy, Hesse, Toomy & Lehane, LLP

Could you effectively operate your business if you had to stop using independent contractors? What about if you had to treat your independent contractors as employees and offer them the same benefits as your regular staff? A new Massachusetts law may require you to answer these questions.

On July 19, 2004, a new Massachusetts law took effect that both clarifies which workers may be classified as independent contractors and expands the presumption of employment status to other wage and hour, taxation and workers' compensation statutes. Employers that violate this law are subject to civil penalties, criminal conviction and debarment from work on public projects.

The Massachusetts Attorney General is responsible for enforcing the independent contractor statute and has published an advisory setting forth his interpretation of the new law. This article provides an overview of this new law and the Attorney General's advisory.

The Attorney General has stated that the new Massachusetts Independent Contractor Law "excludes far more workers from independent contractor status than are disqualified under the traditional state and federal law tests, including the 20 Factors Test set forth in the Internal Revenue Service ("IRS") Revenue Ruling 87-41, the Fair Labor Standards Act ("FLSA") and the Massachusetts common law." Under this new law, workers are presumed to be employees unless a company can establish that each of the following three factors is present:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and

(2) the service is performed outside the usual course of the business of the employer; and,

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

The Attorney General's Office has characterized this three-factor test as a "rigid" test that is "unlike the well-established IRS, FLSA, National Labor Relations Act ("NLRA") and state law tests, which have flexible criteria that must be balanced according to the circumstances of the work arrangement." Thus, to be classified as an independent contractor in Massachusetts, a worker must satisfy the three-factor test and any other tests that may apply.

The second prong of the three-factor test is likely to disqualify many white collar workers from independent contractor status. That second prong requires a worker to perform service or work that is outside the scope of the company's business in order to be classified as an independent contractor. Thus, the Attorney General states in his advisory that a worker who performs "the same type of work that is part of the normal service" delivered by the company cannot be an independent contractor.

This second prong in the three-factor test represents a subtle, but important, amendment to the prior statute. Under the former statute, a worker could work within the usual course of the company's business and still be treated as an independent contractor so long as s/he worked outside the place of the company's business. Unlike the former independent contactor law, it now appears both from a literal reading of the statutory language and the Attorney General's advisory that a company may not hire a worker to perform service that it delivers as part of its business and classify that worker as an independent contractor. Such an interpretation could require a change in many common independent contractor arrangements such as those often utilized between mental health providers and the social workers and psychologists providing treatment; certified public accounting firms and accountants hired temporarily by such firms to work only during tax season; construction companies and plumbers, carpenters and other tradesmen; athletic clubs and personal trainers; insurance agencies and insurance agents; as well as arrangements common in many other industries.

One important consideration in resolving questions about the classification of workers as independent contractors or employees will be determining whether the Attorney General's advisory is a reasonable interpretation of the statutory language. This is especially true in light of the fact that the new law was passed as part of a reform of public construction law. While neither the statute nor the Attorney General's advisory indicate that the new three-factor test applies only to public construction, one could argue that this was the intent of the legislation.

Businesses should review their use of independent contractors because the Attorney General's office has stated that it views the misclassification of employees as independent contractors as a serious violation of Massachusetts law and that "where appropriate, the Attorney General will enforce aggressively the provisions of the Independent Contractor Law." In addition to potentially aggressive enforcement of this new law by the Attorney General's office, businesses should be aware that workers may file suit individually and as a class alleging they were misclassified as independent contractors. Workers who prevail on such claims can recover treble damages and their attorneys' fees. The damages sought likely would include back pay, back overtime pay and back vacation pay.

This new law also may have some effect on issues typically governed by federal law. However, several strong arguments could be made that this change to Massachusetts state law does not affect federal laws governing various workplace benefits, such as health and welfare plans and retirement plans. While these changes are still too new for us to predict the outcome of litigation that may arise under the Massachusetts Independent Contractor Law, some of the many issues workers may raise in connection with a change in their status from independent contractor to employee include retirement plan eligibility, health insurance eligibility and coverage under collective bargaining agreements.

Employers will need to determine whether their current independent contractors meet the three-factor test. In addition, employers should reexamine their benefit plans and employee handbooks to ensure that they are drafted in a manner to provide protection against arguments that independent contractors newly classified as employees are entitled to certain benefits and payments as a result of the new law.

MHHRA Financial Report 2003-2004

Assets as of 6/30/04
$ 4,139.70 Fleet Checking
$ 5,231.82 Fleet Savings
$37,851.21 Fidelity Cash Reserves/Asset Manager Value
$47,222.73 Total Current Assets

Analysis 2003-2004
In terms of revenue, MHHRA met or exceeded all line items with the exception of the program sponsorships and savings interest. It should also be noted that the chapter was the recipient for the ASHHRA Region I Award in addition to the ASHHRA Chapter Recognition Award for Excellence.

In terms of expenses, after sponsorship income was applied, the February social incurred expenses not forecasted in the budget but necessary for a successful event. A savings was experienced by offering the MHHRA member directory in soft copy instead of a printed version. That savings was re-applied for the web site upgrade to be announced in the first quarter of 2005. It should also be noted that a recipient for the joint MHHRA/MHA Scholarship donation was identified and the MHHRA Chapter paid its portion of the contribution in this current fiscal year (2004-2005).

MHHRA Annual Social - Another Hit!!

Despite the weather, on February 10, 2005 MHHRA members enjoyed the opportunity to come together at Spinnakers, the revolving rooftop function room, at the Hyatt Regency in Cambridge. The convenient location provided members a spectacular view of the Charles River and Boston Skyline.

While enjoying a relaxed buffet dinner complete with pasta and dessert stations - compliments of our Business Partners: Bernard HODES Group, BostonWorks and LaRhette Manin Benefits Service Group - members had the opportunity to reconnect and network with colleagues, to meet new HR professionals and business partners.

As members dined, the world famous Harvard Din and Tonics performed hits of today and yesterday, affording MHHRA members the opportunity to harmonize along with them. Thank you to Nursing Spectrum for providing the music for this event!

Although sharing information with "your network" may be as simple as making a call or sending an email, a hands-on experience is still invaluable.

The networking support, cooperation, and goodwill of your professional peers can help you achieve goals and work through issues. HR professionals understand leveraging these relationships and why it is so important. While technology offers us all kinds of new ways to communicate, there is still value in knowing people and connecting with them.

Each year the MHHRA Annual Social provides MHHRA members an opportunity to develop working relationships on a personal and business level.

New Members

MHHRA would like to welcome the following new and returning members to our Chapter as of February 25, 2005!

Steven Camuso, Managing Partner, Unemployment Services Corp
Sandra Charton, Labor Relations Counsel, Boston Medical Center
Nicole Hughes, Student Member, Suffolk University
Dianne Furlong, HR Consultant, Beth Israel Deaconess Hospital - Needham

If you are a new member and were not available to attend the New Member Orientation held on March 2, 2005 - the Chapter's next New Member Orientation will be held on March 31 following our breakfast program.

JOIN ASHHRA TODAY!!

MHHRA is a chapter of the American Society for Healthcare Human Resource Administration of the American Hospital Association (ASHHRA). To Join ASHHRA, please visit www.ashhra.org today!