Healthcare Workplace Update - Labor and Employment Laws and Developments in Healthcare Industry

Despite the yet-unanswered question of the validity of NLRB rulings since President Obama’s “Recess Appointments” in January 2012, healthcare employers should be aware of several recent decisions that will affect the industry.

In Alan Ritchey, the Board held for the first time that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may no longer unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline. Employers may still impose discipline without first bargaining where an employee’s continued presence threatens safety, health, or security, for example in cases of patient abuse or disclosure of HIPAA-protected materials.

For more, see http://www.jacksonlewis.com/resources.php?NewsID=4320.

In Piedmont Gardens, the Board considered whether written statements by two charge nurses and a CNA who witnessed alleged misconduct by another CNA at a continuing-care facility were subject to disclosure to the union,. Long-standing precedent held that employee-witness statements were automatically exempt from disclosure to the union. In Piedmont, the Board announced it would now apply a balancing test and weigh the union’s need for the information against any legitimate and substantial confidentiality interest established by the employer, thereby eliminating any special protection for employee-witness statements. Ultimately, the Board found one charge nurse’s statement subject to disclosure because it was not provided under an assurance of confidentiality. Employers should be sure to provide assurances of confidentiality to witnesses prior to asking them to provide statements and document specific concerns about the employer’s inability to obtain witness statements in the future if disclosure takes place.

For more, see http://www.jacksonlewis.com/resources.php?NewsID=4347.

Employers should not expect the NLRB to slow down in light of the Recess Appointment question. Board Chairman Mark Pearce stated that the Board “respectfully” disagreed with the decision and that the agency will continue to issue decisions. We would expect to see more of the same from the NLRB.

The commonplace employer practice of asking employees to refrain from discussing internal investigations with co-workers has come under attack from the National Labor Relations Board.  In Banner Health Sys. d/b/a Banner Estrella Med., Ctr., 358 N.L.R.B. No. 93, 7/30/12, the National Labor Relations Board (“NLRB”) held in a 2 to 1 decision that employees’ rights under the National Labor Relations Act to engage in protected concerted activity outweighed an employer’s interest in safeguarding internal investigations.  According to the NLRB, suggestions from human resources personnel to employees to refrain from discussing internal complaints with co-workers thus constitute violations of Section 8(a)(1) of the Act.  The NLRB found fault with employers’ “blanket approach” in prohibiting discussion. This decision seems to leave open the possibility that an employer may instruct an employee to refrain from such discussion under specific circumstances, but the NLRB did not define those circumstances.  To avoid similar Board action, employers should consult with employment counsel about tailoring procedures for internal investigations and interviews.