Category Archives: whistleblowing

“I’m Just Doin’ My Job”

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Minstrel

One of my all-time favorite movie lines was spoken by Paul Newman in Cool Hand Luke.  Luke, the non-conforming prisoner in a tough southern prison, refuses to accept the prison’s status quo.  His conduct is a cascade of rebelliousness, until finally the warden orders Luke to “the box.”  The box is a small tin-roofed building, the size of an outhouse, under the blazing sun in the middle of the hot, dry prison yard.  After Luke spends twenty-four punishing hours in the box, the guard releases him.  As he does he says, “Sorry Luke, I’m just doin’ my job.  Ya got to appreciate that.”  Luke replies,  “Nah, callin’ it your job don’t make it right, Boss.”   

Calling it our job doesn’t make things right.  Among the most pernicious problems in long-termcare homes is staffing shortages.  With a census of 25 to 35 residents or patients needing skilled nursing and/or dementia care, there might be only three to five aides scheduled to work a shift.  (Then there are the last-minute call-outs).  If the aide is lucky, very lucky, she may have only five or six persons to care for.  The more frequent reality is having seven to ten persons needing care.  Remember that cacophony of call bells that May wrote about?  Blame it on short-staffing.  And the resident pleading for you to take her to the toilet?  Oops, it’s already too late…  The resident teetering perilously as we rush to prevent a fall? … And the time you lifted a non-ambulatory person by yourself because there was no one around to help?  What about those wheelchair bound residents who haven’t been taken out to feel the fresh air in weeks?  The hits just keep on comin’.   And we keep right on keepin’ on, because it’s our job; right?   

No, it isn’t.  We simply can’t do our jobs as CNAs adequately when we’re so understaffed.  What most determines the quality of care is the staff-to-resident ratios (‘duh’).  I challenge anyone to find an aide who disagrees with this.   Yes, staff need to be trained in good care practices.  Yes, we need to have certain supplies available (soap, towels, functioning hospital beds, appealing food, etc.).  But the key to quality care, to person-centered care is PERSONS.  Staff.  

We continue to work in short-staffed conditions we know violate our residents’ right to good care.  (See medicare.gov for a description of rights of persons in nursing homes.)  If we ‘complain’ to management about short staffing (and that’s how it’s viewed, as a petty complaint), we’re told sweetly that the staffing levels meet the state requirements.  And that’s probably true, because industry lobbyists have made sure that state regulators don’t burden the long-term-care industry with costly staffing requirements.

We complain about these deplorable conditions all the time.  As CNAs we’re mandated reporters of abuse.  (I guess we’d better not think about that one too much!)  But we tolerate abuse that residents endure as a result of understaffing.  Abuse isn’t just about physical or sexual assault.  It’s also about neglect and emotional abuse.  If I neglect a call bell for so long that a resident is left to soil himself and remain in his soiled condition for hours, that is abuse.  If I say to a resident who asks to be taken to the toilet, “Janie, I just put a clean Depends on you; I can’t get you back into the Hoyer lift and take you to the toilet, you have a diaper on, you can use that,” that is abuse.  Abuse is ridiculing a resident who cries for her mother all afternoon; scolding a resident who spills her drink all over the floor; ignoring the call bell of a resident who constantly asks to be taken to the toilet minutes after the last toilet trip, because we know she ‘doesn’t really have to go.’  Well, she needs something and it’s our job as aides to find out what.  “But I don’t have time for all that.  I have seven other residents to get to.  I’m just doin’ my job.”  

So what can we do?  Unlike the workers of the 1920’s and ’30’s, we can’t go on strike to win better working conditions.  We’re caring for the sick and the frail, not assembling cars.  But if we can’t leave the floor for a sit-down strike, we can use our cell phones as weapons in the revolution for better care.  Call your county or state abuse hotline every time aides have more than six residents to care for on a shift.  (And don’t count the LPN or Medication Aide in your ratio if she isn’t providing care, even if management does.)  The state regulators aren’t always thrilled to receive reports of abuse because they are short-staffed too, and don’t have the means to investigate all complaints properly.  They don’t always to a good job, for the same reasons we don’t always: because they’re understaffed and a little intimidated by their bosses.  

Revolution isn’t about violence and nastiness. (Remember Gandhi and Mandela and Rosa Parks.)  It’s about patient persistence and never giving up as long as change is needed.  It means taking that first step.  Maybe our first step will be a phone call.  

Protected Concerted Activity

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Yang

I’ve come across a number of posts on the CNA Facebook pages that express frustration over LTC managers not responding to caregiver concerns regarding their working conditions. If you’ve already raised an issue as an individual through the normal lines of communication within your facility and feel like you’re not being heard, there is something else you can do. It’s an option that most caregivers – and perhaps many LTC managers – are not aware of.

It’s called “Protected Concerted Activity.” This is involves a Federal labor law that protects your right to act together with other employees to improve your pay and working conditions – with or without a union.  This means you can collaborate with your coworkers and voice your concerns as a group and your employer cannot punish you for acting as a group.

According to the National Labor Relations Board website: If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.”

The law does not cover all concerted activity. Again, from the NLRB website:

“Whether or not concerted activity is protected depends on the facts of the case. If you have questions, please contact an Information Officer at your nearest NLRB Regional Office, which you can find on this page or by calling 1-866-667-NLRB. The Information Officer will focus on three questions:

Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action?  Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.”

I am not qualified to give any kind of legal advice and this post is for informational purposes only. I would urge anyone considering concerted activity to do their homework first. Check out the NRLB website www.nlrb.gov  (click on the “Rights We Protect” tab) and also speak to a NRLB Information Officer (1-866-667-NLRB).

Since our work involves residents we have to be careful not to violate their rights while we assert ours. However, there are many instances when the two overlap. In particular, I’m thinking concerted activity may be useful for issues regarding things like access to proper equipment and the availability of adequate supplies.

If you’ve already raised an issue and you feel your concerns are not being properly addressed, you may want to consider exploring your right to protected concerted activity.  Sometimes it takes a group.

An Obligation to Testify

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Yang

A quick review of CNA related Facebook pages will show that no group of people get more upset over media reports of court cases involving caregiver abuse of nursing home residents than other caregivers. After expressing their shock and disgust, caregivers will often add that they have no problem reporting other staff members who mistreat residents.  There is nothing in these comments to suggest that both the strong emotion and the claim are anything but genuine.

Not all forms of abuse are equally severe.  When determining charges and sentencing, the legal system itself takes into consideration such things as the intent of the accused, the severity of a crime and – important for our purposes here – how the victim experienced it. Obviously, some acts are particularly heinous and deserve harsher sentences.

Caregivers are obligated both morally and legally not only to report incidents of abuse that they’ve witness, but to intervene on behalf of the victim.  Silence and inaction are forms of collusion and zero tolerance is the standard policy. Zero tolerance means that the relative severity of mistreatment cannot be used to relieve long-term care staff of the responsibility to intervene and report.

How a resident experiences our interactions with them is a primary consideration. As caregivers we may not intend to mistreat, but if we fail to give reasonable and adequate attention to how a resident perceives any given interaction, we could be guilty of a form neglect or abuse.  Perhaps not a severe or overt form, but under zero tolerance it is a violation and we are required to intervene and report.

The quality of life for residents in a long-term care setting depends on much more than how they experience their interactions with their direct caregivers. While the factors that determine their quality of life are diverse and complex, there is at least one universal standard that should be applied in all situations: how does the resident experience it?

No one is more aware of how residents experience life in a nursing home than their caregivers. Direct care workers accompany residents through that experience on a daily basis.  They see and feel the impact of when the system is working  – and when it fails. They are familiar with the flaws of long-term care in a way no one else can be: in intimate detail and within the context of the lives of the people in their care.  No quality assessment tool or inspection protocol can adequately replace that unique perspective.

This is a perspective that informs the worker of how things such as inadequate staffing levels, an unstable work force and insufficient or inappropriate regulation negatively affect residents. Because of the way residents experience that impact, it is nothing less than a systemic form of abuse and neglect.

While systemic forms of mistreatment are not intentional or overt, under zero tolerance do we not as witnesses have a moral obligation to report them like any other form of abuse?

If so, the question then becomes how do we respond to this obligation? How and to whom do we report?

The Calling

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Alice

We have moments of clarity in our lives that awaken us to our deepest underlying purpose; that whisper truths about ourselves, sometimes scary, sometimes beautiful that will place us on a path of usefulness if we are willing to embrace them. String a series of these moments together and we discover our true callings.

I have always felt that I was searching…seeking some undefined truth or meaning about life. About myself. Like having all the pieces to a jigsaw puzzle but not knowing how to put it together. I felt an unease over this uncertainty, an anxiety. Adrift.

I suppose that for some, having a genuine vocation is something with which they are born. They just KNOW what they want to do with their life. That is not my story.

Nearly seven years ago, I entered the wacky world of long term care, not because I had a calling but because I needed a job. My life had taken a dark detour in previous years and I was just beginning my recovery; just beginning to learn how to stand on my feet.

The facility needed a housekeeper and though I was so insecure that I doubted even my mopping capabilities, I took the job. As they say, it was the first step in the rest of my life. I had a knack with the residents, I think mainly because I SAW them.

The facility had a combination of elderly people and others who were living with a variety of mental, emotional and physical illnesses. Looking back on it, I think I instantly connected with them because I was facing and overcoming my own demons at the time and I was not so far removed from my own struggles. I identified with them on an emotional level. I was promoted to personal care assistant on the Alzheimer’s unit.

I loved my job. LOVED it. I learned everything I could from the seasoned CNA’s. My partner on the floor became my close friend and for a while, everything was great, both in work and out.

But then they relocated the resident care coordinator and the facility went downhill. Fast. They hot water wasn’t working and the handicap accessible toilets were broken. For months. They were short on staff, short on supplies and short on answers. They posted a sign that said we were not allowed to document on our residents in any way. Something had to be done.

When no one, from administration up to DHHS, would listen to our concerns, two of us brought it to the news. I gave them fair warning and lost my job in the maelstrom. I live in a “right to work” state.

In case you were wondering, whistleblowing is not the exciting event that movies make it out to be, where, after you take a few blows, people rally around you and your cause and you get the satisfaction of seeing immediate change. Damn you, Erin Brockovitch! …It was actually pretty terrifying. They dug around and uncovered more than I expected. I was without work, obsessed with reading the comments that alternately vilified me for being a “disgruntled” employee and championed me for stepping up. I kept thinking, “I just wanted them to have hot water.”…I was scared, broke, clueless of what to do next.

It took two years before all of their facilities closed. It took the deaths of five residents in another of their facilities from a hepatitis outbreak due to sharing lancets. It took too long.

I think it was naïveté more than courage that drove me to take action in the first place. I genuinely believed that people didn’t KNOW. It never crossed my mind that they didn’t care. Or maybe it’s the ostrich head in the sand mentality. If an issue isn’t directly affecting us, we don’t see it. To be fair, until I began working in this field, the state of the long term care systems didn’t cross my mind either.

I learned a ton from the experience. I started over again in housekeeping, first in houses and then, when new owners took over that same facility, I went back there. I worked hard, studied, challenged the state test and passed, and was officially a CNA.

Change happens slowly. Both individually and on a societal level. I’ve learned it’s a marathon, not a sprint. Writing for this blog combines two of my passions. Collaborating with Yang and May has deeply enriched my life. While I still have a nature that seeks purpose and meaning, I no longer feel adrift. I feel inspired.

I don’t believe it’s a coincidence that I landed in this field. Call it fate, or synchronicity, the lessons I have learned, both personally and professionally, from this career I could not have learned any other way. Some people pick a calling. In true “Alice” fashion, I tripped over my own feet and fell face first into mine.