The following post from our colleagues at the Jackson Lewis P.C. Workplace Privacy, Data Management & Security Report may be of particular interest to healthcare employers. Click here to be transferred directly to the link.

A hospital’s code of conduct forbidding comments that stray beyond “fair criticism” and behavior detrimental to “promoting teamwork” were unlawful, NLRB Administrative Law Judge (ALJ) Susan Flynn has ruled.  William Beaumont Hospital, Case No. 07-CA-093885 (January 30, 2014).

The hospital’s code of conduct stated, in part:

Conduct on the part of a Beaumont employee or physician that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated….Improper conduct or inappropriate behavior or defiance in the following example [sic], which includes but is not limited [sic] to the following:

…

[4] Verbal comments or physical gestures directed at others exceeds the bounds of fair criticism.

…

[6] Behavior…that is counter to promoting teamwork.

…

The ALJ noted the hospital’s code of conduct did not restrict employees’ rights to engage in protected concerted activity under the National Labor Relations Act (“Section 7” activity). She also pointed out that it was not promulgated in response to union activity or applied to restrict Section 7 activities.  Thus, the only issue was whether employees would reasonably construe the code of conduct to prohibit Section 7 activity.

In finding rules 4 and 6 unlawful, the ALJ held they may be reasonably interpreted as prohibiting lawful discussions or complaints that are protected by Section 7 of the NLRA.  Although the employer had legitimate concerns about appropriate staff behavior and a legitimate interest in promulgating work rules to maintain a safe atmosphere in the workplace, those portions of the code of conduct were overbroad and ambiguous, the ALJ ruled, even when read in context.

A white nurse failed to establish that her termination for circulating an e-mail critical of President Obama occurred because of her race, a federal appeals court has found, affirming summary judgment for the employer.  DeCarolis v. Presbyterian Medical Center of the Univ. of Pennsylvania Health System, d/b/a Penn Presbyterian Med. Ctr., No. 12-3647 (3d Cir. Jan. 27, 2014). 

Amy DeCarolis worked as a nurse at Presbyterian Medical Center.  While at work, she opened an e-mail from her father containing statements critical of President Obama.  The e-mail included a letter from a CFO of an unrelated entity who said he needed to lay off employees because “our taxes and government fees will increase [i]n a BIG way.”  The CFO’s letter continued:

So, this is what I did. I strolled thru [sic] our parking lot and found 8 Obama bumper stickers on our employees’ cars and have decided that these Folks will be the first to be laid off.  I can’t think of a more fair way to approach this problem.  These folks wanted change; I gave it to them.

Several of the plaintiff’s coworkers saw this e-mail, and one reported to the plaintiff’s supervisor that she had circulated a racially offensive e-mail.

Following an investigation, the employer terminated the plaintiff’s employment because her circulation of the e-mail was “inappropriate and unprofessional.” 

DeCarolis sued the employer, alleging she was terminated because of her race in violation of Title VII of the Civil Rights Act of 1964 and Pennsylvania law.  The District Court granted the medical center summary judgment on all claims and the U.S. Court of Appeals for the Third Circuit affirmed. 

The appeals court found that the plaintiff’s coworkers and the people responsible for the decision to terminate her employment were upset by the content of the e-mail she circulated and that this and the discord which ensued led to her termination.  However, the Court found no direct evidence to suggest the focus of their actions or comments were related to the plaintiff’s race as opposed to her conduct.  Similarly, the Court found the plaintiff failed to demonstrate the medical center’s legitimate nondiscriminatory reason for terminating her employment was a pretext for race discrimination.  Accordingly, the Court affirmed the judgment of the District Court dismissing the plaintiff’s claims.

While the employer prevailed in this case, the underlying situation demonstrates the importance of communicating to employees through policies and training about the appropriate use of e-mail.

A new law has taken effect in New York State prohibiting smoking within 15 feet of a hospital or residential health care facility entrance or exit.  The law specifically permits smoking by “a patient or a visitor or guest of a patient of a residential health care facility” in a specially designated area on the grounds of a facility.    However, there is no such exemption for employees of a hospital or residential health care facility.  Employers should ensure that their smoking policies account for this new law and employees are notified of any changes promptly.

A nursing home’s policy of accommodating only restrictions from work-related incidents could be pretext for pregnancy discrimination, a federal appeals court ruled, reversing summary judgment in favor of the nursing home.  Jennifer Latowski v. Northwoods Nursing Center, No. 12-2408 (6th Cir. Dec. 23, 2013).

After learning that a nursing assistant was pregnant, the nursing home requested that she provide a doctor’s note stating she had no employment restrictions.  The nursing home terminated her employment after her doctor faxed a note stating that her only restriction was no lifting over 50 pounds.  The basis for the termination was the nursing home’s policy to accommodate only those restrictions resulting from work-related incidents.

After her termination, the nursing assistant filed a charge with the EEOC and later brought suit in federal district court alleging violations of Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and related state claims.  The district court granted summary judgment in favor of the nursing home on all claims.

On appeal, the Sixth Circuit reversed the grant of summary judgment on the pregnancy discrimination claims.  In support of its decision, the Sixth Circuit found the nursing assistant established a prima facie case of pregnancy discrimination and noted that a reasonable jury “could easily conclude” the nursing home’s decision to “implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees’ ability to competently perform their jobs — is so lacking in merit as to be a pretext for discrimination.” 

In addition to the policy, the Sixth Circuit considered statements by nursing home administrators regarding their concerns that by continuing to work the nursing assistant would jeopardize her health and that of her child and that her “belly would be in the way.”  The Court found these comments raised the inference that the policy was merely pretext for discriminatory animus against pregnant women. 

While it remanded the pregnancy discrimination claims to the district court, the Sixth Circuit upheld the grant of summary judgment on the other claims.  It found no evidence that the employer regarded the nursing assistant as disabled and found that the FMLA claim was not ripe and could not be proven because the nursing assistant did not request FMLA leave before her termination. 

This case highlights the importance of having counsel review workplace policies regarding leaves of absence, accommodations, and light duty, as well as training managers on their obligations under the state and federal employment laws.

A nurse who posted an angry Facebook tirade could not prevail on claims that her employer, a hospital, fired her in breach of a collective bargaining agreement or violated her free speech rights under the California Constitution, a federal district court ruled.  Guevarra v. Seton Med. Ctr., No. 4:13-cv-02267 (N.D. Cal. Dec. 2, 2013).

A nurse at Seton Medical Center posted a rant on Facebook stating that she hated her supervisor and that she had to work on Mother’s Day despite a 17-percent pay reduction.  Several co-workers and a hospital manager, who were the nurse’s Facebook “friends,” read the post and one of them reported it to the hospital.  The hospital fired the nurse the next day.

After being denied unemployment benefits, the nurse filed a lawsuit in federal district court against her former employer for breach of contract and for violation of her free speech rights under the California Constitution.  The hospital moved to dismiss her claims and the district court granted the motion.

The breach of contract claim was dismissed for failure to exhaust contractual remedies under the collective bargaining agreement.  The court reasoned that the grievance procedure was mandatory. The agreement expressly provided: “The parties shall use the following procedure in an effort to resolve any grievances which may arise during the term of the Agreement.”  The court also rejected the plaintiff’s contention that she was excused from exhausting the grievance procedure due to certain flaws in her union’s representation because she failed to allege the union breached its duty of fair representation.

The court also dismissed the free speech claim under Article I, Section 2 of the California Constitution. That Section provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”  The plaintiff argued that the California Constitution is broader than the U.S. Constitution’s First Amendment and should be interpreted or extended to actions of private employers, like the employer.  The court rejected this argument, reasoning that the case authority she cited (e.g., Press v. Lucky Stores (1983) 24 Cal.3d 311, and Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910) were not similar to her case insofar as they involved speech occurring at privately owned shopping centers that were open to the public.  Nothing in those cases, the court explained, broadly discussed the application of the California Constitution to private actors.  Rather, they discussed “restrictions private property owners placed on people exercising speech rights on private property…that has been opened to the publish such that the property in essence becomes a public forum.”

The nurse did not allege and the court did not address whether she was terminated for engaging in protected concerted activity under the National Labor Relations Act.

Employers should think twice and consult with labor counsel before terminating an employee for posting information online to ensure they are in compliance with the law.

A senior living facility lawfully terminated an LPN when, following knee replacement surgery and the expiration of her FMLA leave, she could no longer  perform the essential functions of her job, a federal district court has found.  Comfort Attiogbe-Tay v. SE Rolling Hills LLC, a foreign corporation d/b/a The Colony at Eden Prairie, No. 12-1109 (DSD/LIB) (D. Minn. Nov. 7, 2013).

The plaintiff cared for approximately 160 assisted living patients as the only LPN working the overnight shift.  She took a 12-week FMLA leave for elective knee replacement surgery.  At the end of the FMLA leave, she informed her employer that while she could return to work, she could not kneel, squat or lift more than 50 pounds for six weeks.  The employer terminated the plaintiff, but invited her to reapply for employment once her temporary restrictions were lifted. 

The plaintiff filed suit alleging the employer discriminated against her on the basis of her disability and failed to accommodate her in violation of the Americans with Disabilities Act and Minnesota law.  She also alleged the employer violated the FMLA by interfering with her rights under that statute and retaliating against her for taking FMLA leave.  The trial court granted the employer’s motion for summary judgment as to all counts.

Relying heavily on the employer’s job description, which the plaintiff signed when she began her employment, the court found that kneeling, squatting and lifting over 50 pounds were essential functions of the job.  The plaintiff argued she could have performed these functions if the employer had reasonably accommodated her by: (1) allowing her to call for assistance when a resident fell, (2) providing her with an aide, or (3) allowing her a six-week leave of absence until her restrictions expired. 

The court found that calling for assistance or providing an aide were not reasonable accommodations because employers are not required to transfer essential functions to another employee or hire additional employees to assist a disabled employee. 

The employer argued that an additional six-week leave of absence would cause it to suffer an undue hardship.  The court agreed, crediting the employer’s concerns that covering the plaintiff’s absence with temporary LPNs and other employees working overtime would result in an uneven level of care for the residents and fatigue to the other LPNs, as well as causing the employer to incur considerable expense.

The court dismissed the FMLA interference claim because the employer had allowed the plaintiff to take the full 12-week FMLA leave and it was not required to reinstate her because she could not perform the essential functions of the job.  The court also dismissed the FMLA retaliation claim because the plaintiff could not show the employer’s stated reason for terminating her employment was pretext for unlawful retaliation.

Employers should regularly review and audit their job descriptions with employment counsel to ensure the descriptions accurately reflect the essential functions of the positions.

A union’s labor agreement to arbitrate any unresolved disputes about its organizing of employees and bargaining with a hospital did not demonstrate that the Union waived its right to file unfair labor practice charges with the NLRB, a federal district court ruled.  Fallbrook Hosp. Corp. v. Cal. Nurses Ass’n, No. CV-01233-GPC-WMC (S.D. Cal. Sept 23, 2013).

The parties had entered into an agreement to set “rules of conduct” to be observed by both parties during an organizing drive at Fallbrook and to govern “the conduct of any collective bargaining negotiations which might ensue by the Parties arising out of such organizing activity.”  Shortly after entering the agreement, the Union began organizing and was certified by the NLRB as the exclusive bargaining agent of Fallbrook’s nurses.  During collective bargaining negotiations, the Union filed two unfair labor practice charges, alleging that Fallbrook failed to provide relevant information requested by the Union and failed to bargain in good faith.  In response, Fallbrook filed a lawsuit against the Union under Section 301 of the Labor Management Relations Act (LMRA), claiming that the Union’s filing of NLRB charges was a breach of the labor agreement – particularly the section requiring submission of all disputes “relating to compliance with or construction of the [a]greement – including disputes related to the conduct of any collective bargaining negotiations which might ensue between the Parties…to final and binding arbitration.”

Notwithstanding the broad language in the labor agreement, the court rejected Fallbrook’s contentions that arbitration was the exclusive method for resolving disputes about compliance with the agreement.  It explained that there is a statutory right to file unfair labor practice charges with the NLRB and that, under Supreme Court precedent, a provision in a collective bargaining agreement purporting to waive an employee’s statutory right has to be “clear and unmistakable.”  Concluding Fallbrook had not alleged any facts or circumstances that would permit finding such waiver, the court held Fallbrook failed to state a claim upon which relief could be granted.