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Q & A Legal Issues with Elizabeth Rudolph Part 2

Q & A Legal Issues with Elizabeth Rudolph Part 2

Elizabeth G. Rudolph, JD, MSN, RN

NOTE: The information in this column is not to be construed as legal advice. Please see an attorney if you need legal assistance. This is for informational purposes only.

Q: My friend has a written contract with her nursing PRN company for employment, but my hospital does not have written contracts for their nursing employees. Can we both be considered employees?

A: Most nurses who work for a hospital, clinic, nursing home, home health agency, physician’s office or other medically related corporation, hold status as an employee of that corporation unless there is a contract or mutual understanding to the contrary. Being an “employee” can mean different things in different situations.

An “at will” employee can be hired and fired, or join and quit employment simply by giving notice.

A “contract” employee has a legally binding agreement, a contract, that specifies the terms and conditions of employment for both the employer and the employee. Any employment contract should state the length of time the contract is valid, so each party knows how long their commitment is to last.

While these two types of employment seem to be self explanatory, they become complicated in times of conflict between the employer and the nurse employee.

Q: So does this mean my friend has a better deal? Should I demand that my hospital change its policy and give all nursing employees written contracts?

A: As with many questions about the law, it depends. At will employees seem to have little job security, since the employer may terminate them at any time. However, many times the company’s written employment policies and procedures only allow for termination under certain circumstances. Once such circumstance is termination after two warnings regarding poor job performance. These policies should be explained in your employee manual or the company policies and procedures manual.

Additionally, the job market, especially when nursing shortages are present, economically restrains the corporation from terminating nurses at will. The difficulties of hiring and retaining nurses, especially during a nursing shortage, force employers to keep their currently employed nurses or cut patient services.

Further, most state and federal laws prohibit employers from discriminating against even at will employees on the basis of race, religion, national origin, sex, etc.

Finally, collective bargaining agreements between employers and labor unions restrict the company’s power to hire and fire, depending on the terms of the labor agreement. Therefore, although you may be an at will employee, your employer may not be able to release you at their whim. When in doubt or forced into an negative situation with your employer, seek legal advice before tempers flare.

On the other hand, contract employees seem to have job security for the length of their contract. However, if the employee breaches the terms of the contract, the employer has the option to terminate that employee. For example, employers generally expect nurses to abide by a list of employment rules, regulations, policies, and procedures. These rules, regulations, policies, and procedures may even be included in the contract. A contract employee nurse who disregards these may be in breach of the contract. When a nurse breaches the employment contract, particularly a severe breach, the contract may become void, which excuses the employer from their contract obligations. Again, when in doubt or forced into an negative situation with your employer, seek legal advice immediately.

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