Buttons Worn by Union Employees, Quirky Question # 44
I am a nursing supervisor working in a 250-bed acute care hospital. We have been engaged in protracted contract negotiations with the union representing our registered nurses for several months. Negotiations have bogged down over the nurses’ demand that their contract be amended to delete any provision for mandatory overtime to be assigned to nurses under any circumstances. For the past couple of weeks, a number of our nurses have come to work wearing buttons reading, “Refuse to Lose – No Forced Overtime.”
I am concerned that our patients or their family members will conclude from this that they may not be receiving an appropriate level of care. I have recommended to the Hospital Director that we publish a rule prohibiting nurses from wearing this button in any areas of the hospital where they may encounter patients or patient’s family members. However, our Human Resource Director has expressed reservations about this, suggesting that this might be unlawful. I can’t believe that we must permit this in a hospital setting. Who is right?
Bob’s Analysis:
As counterintuitive as this may seem, your Human Resource Director is appropriately concerned. In Washington State Nurses Ass’n v. NLRB, 526 F.3d 577 (9th Cir. 2008), the U.S. Court of Appeals for the 9th Circuit recently reversed a decision of the National Labor Relations Board (the Board) which had concluded that a hospital lawfully could prohibit nurses from wearing similar buttons. The Court of Appeals held instead that the hospital’s rule violated the rights of the nurses under the National Labor Relations Act (NLRA) because the hospital failed to establish that there were “special circumstances” permitting the hospital to ban such buttons under its rule.
The NLRA provides employees of covered employers certain rights, including the Section 7 right “to self-organization, to form, join or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” Section 8 of the NLRA provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed . . . .” Over the years, the Board, the federal agency charged with administering the NLRA, has developed an intricate set of rules about union-related communications in the workplace, attempting to balance the statutory rights of employees under the NLRA with employers’ rights to maintain control of their premises and to operate their businesses.
The rules adopted by the Board and the courts over the years for application in hospital workplaces have traditionally distinguished between patient care areas within an acute care hospital and all other areas. In those non-patient care areas, attempts to ban the wearing or display of union insignia are presumptively invalid, but the presumption may be overcome by demonstrating that the ban is necessary to avoid disruption of health care operations or the disturbance of patients – i.e., “special circumstances.” Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). Traditionally, the employer proposing such a ban in areas outside direct patient care areas has the burden to prove that such special circumstances are present.
In the Washington State Nurses case, the hospital contended that buttons worn by nurses reading, “RNs Demand Safe Staffing” involved a clear suggestion that the hospital’s staffing levels were unsafe and that such a message was “inherently disturbing” to patients, thus establishing, without more, the requisite special circumstances. The record in the case contained no evidence of any actual disturbance of patients, nor of complaints by patients or members of their families, and no evidence that either patients or family members had even raised questions concerning the buttons. The hospital did offer proof that various nurse managers had expressed their own concerns about the potential effect of the union button on patients and their families.
In the Washington State Nurses case, an administrative law judge had issued a decision that the hospital’s action unlawfully interfered with employee rights under the NLRA and therefore violated Section 8. However, in reviewing the judge’s decision, the Board itself ruled 2-1 that the hospital’s ban of the “Safe Staffing” button was justified, finding that the message on the button at issue would “inherently disturb” hospital patients, thus satisfying the requirement of “special circumstances” to justify the enforcement of a ban outside of direct patient care areas.
The Board’s decision was appealed by the union to the U.S. Court of Appeals. In reviewing decisions of the Board, the Courts of Appeals are obliged by Sections 10(e) and (f) of the NLRA to affirm the Board’s findings of fact if they are “supported by substantial evidence on the record considered as a whole.” In reviewing the Board’s determination that the hospital had established “special circumstances” justifying its rule banning these buttons throughout the premises (even in non-patient care areas), the Court of Appeals concluded that there was no substantial evidence in the record to support the Board’s finding that these buttons had a disruptive effect on the hospital’s health care operations or its patients. Rather, the Court characterized the Board’s finding as inherently speculative, citing the absence of any record evidence of patient complaints, expressions of concern or even questions concerning the button. The Court also noted that this was true even though nurses had worn the very button at issue for several months before it was banned and had displayed a different – but arguably even more controversial – button prior to that for a number of months. Accordingly, after examining the record as a whole, the Court of Appeals concluded that the Board’s finding that the hospital had met its burden to establish “special circumstances” was not supported by substantial evidence, requiring its reversal.
In your question, there is no indication that the button worn by your nurses has prompted any expressions of concern or other indications of disturbance of patients or their family members to date. In the absence of any evidence that the button is actually having such an effect, it will be difficult to establish the special circumstances required to ban the wearing of such buttons throughout the hospital. Note that different considerations may apply in the event you wish to ban the wearing of these buttons only in direct patient care areas.
Observations About Workplace Violence, Quirky Question # 43
Quirky Question # 43:
We are a governmental agency. There recently was a highly publicized situation in which an employee at a company across town shot and killed his two supervisors and wounded several other employees before taking his own life. Yesterday, one of our more problematic employees, known to have a strained relationship with his boss, was overheard remarking with regard to the workplace violence story, “Those bastards got what they deserved.” We want to fire this guy before he acts on these kinds of thoughts here at our agency. Are there any risks?
Roy’s Analysis:
Like prior Blog questions, this inquiry illustrates the difficult balancing of two important, and sometimes conflicting, societal interests. On one hand, you have employers’ critical interests in maintaining a violence-free workplace. On the other, for public employers, there is a legitimate First Amendment right. The challenge confronted by governmental employers (and, ultimately, the courts) is how to ensure a safe workplace without chilling individuals’ free speech rights.
In a case from just over one year ago, the Second Circuit Court of Appeals determined that the public employer’s interest in maintaining a violence-free workplace was paramount. In Blackman vs. New York City Authority, (Civ. File No. 06-4714, June 21, 2007), the Court upheld the employer’s right to terminate an employee who stated that two supervisors who were killed in a workplace shooting “deserved what they got.” Assuming that the fired employee had engaged in protected speech (itself a close question), the court found that the employer’s need to protect its workers “plainly outweighed” the employee’s right to make the offending remark.
In the New York case, there was some history involving the same employee (Blackman) that presumably made the decision somewhat easier. On a prior occasion, Blackman had had a heated altercation with his supervisor, which ended when Blackman stated, “I am not leaving; I have a Transit Authority pass, a Union Card, and a .38 . . ..” Blackman was involved in the disciplinary process relating to these initial comments when the additional inflammatory remarks were made. Exacerbating the situation, the two supervisory employees who had been murdered, and about whom Blackman made his “deserved what they got” comment, worked for Blackman’s employer, the NY Transit Authority. Further, Blackman’s comment expressed the view that the two supervisory employees deserved to be shot because of their role in terminating the employment of the ex-employee who had murdered them. With these facts as the backdrop, the Court observed, “Even assuming that Blackman’s [deserved what they got comment] may have addressed matters of public concern, the opinions expressed by Blackman, when viewed in light of his earlier threat against [his supervisor], reveal him to be a person of violent disposition, who was potentially deeply disruptive of the workplace.” With this history, the court found the government’s interests in discharging Blackman to be “especially weighty.”
The facts presented in this Blog question are a bit closer than the Second Circuit case from which the question was drawn. In a context where the employee had not demonstrated any prior violent propensity (no previous threatening conduct or comments) and where the shooting to which the employee referred did not occur at his own place of employment, a public employer may have had a somewhat more difficult task persuading a court that the employee truly represented a risk of workplace violence warranting his dismissal.
In close cases, employers are in the unenviable position of trying to evaluate risks of workplace violence, assessing whether an idle or heated observation by an employee realistically reflects the employee’s propensity to act violently in the workplace. Of course, if the employer treats the comments dismissively, concluding that they truly were just idle observations or comments made in anger on which the employee will never act, and subsequent developments later prove the employer wrong, it is very easy to second-guess the employer’s judgment. In this context, there always is a risk of litigation from the decedent’s estate on the theory that the employer negligently supervised or negligently retained the employee who made the threat and later acted on it. Conversely, however, if the employer takes the precautionary step of discharging the employee who made the comment, despite the absence of any history of threatening comments or violent conduct, the employer risks litigation from the discharged employee who will contend that his termination constituted a disproportionate response and that the public employer was attempting to chill his freedom of expression.
The bottom line, however, is that workplace violence is an all-too-common component of the 21st century workplace. Incidents of workplace violence are reported far too frequently, such as the June 25, 2008, shooting at a Henderson, Kentucky plastics plant that left five workers dead. The Department of Labor has estimated that approximately ten percent of workplace deaths are attributable to workplace violence.
Given these grim statistics, every employer needs to give thought to how it will handle situations involving the risk of workplace violence. The good news is that courts have recognized that this is a serious problem and, for the most part, validate employers’ steps to minimize the risk of harm to employees, including the discharge of employees perceived to present a risk of harm to their co-workers and managers. This is true even when the discharge may result in some infringement of a public employee’s right to express him/herself in the workplace.
Quirky Question # 42, Investigation Inquiries
This week I’ve decided to take a slightly different approach to my Quirky Question Blog. I recently presented a Continuing Legal Education seminar on Workplace Investigations, at the end of which I received a number of thoughtful questions from the audience. Although these questions are not particularly quirky, I thought they were worth addressing. The following questions will be addressed next Monday.
1) Is there a time frame you recommend for employers to commence an investigation into workplace misconduct? Is there a time period by which the investigation should be completed?
2) If a lawsuit is filed on the morning the investigation is commenced, must that fact be disclosed to the interviewees? Would this assessment change if the interviewee is named as a defendant?
3) How do you prevent an interviewee from sharing with other employees the discussion that takes place in an investigative interview? Would you recommend disciplining a witness who does not maintain the confidentiality of the interview discussion? Should that person be terminated?
4) What if an employee surreptitiously records an interview session? What can be done to retrieve the tape recording? What consequences can be imposed for this conduct? If the tape is recovered, can it be destroyed?
5) How can you evaluate witness credibility if the interviews are being conducted telephonically?
6) What right does the employee accused of wrongful conduct have to obtain the investigative report? How about the witnesses who are interviewed? How about the person making the accusations?
Tune in next week for a discussion of these inquiries.
1) Is there a time frame you recommend for employers to commence an investigation into workplace misconduct? Is there a time period by which the investigation should be completed?
In a typical investigation into allegations of workplace discrimination and/or sexual or other types of harassment, the company needs to move aggressively, though perhaps not quite as aggressively as it would in the contexts described above. Even this observation, however, is contextual. For example, if the sexual harassment investigation involves allegations of inappropriate jokes in the workplace, those allegations would warrant one type of response. If, alternatively, the sexual harassment allegations related to sexual assault, the investigation must be initiated immediately. In general, courts have made clear that they expect companies to respond to allegations of harassment and/or discrimination promptly (i.e., within days, not weeks or months). The longer a company allows serious allegations to remain unexplored, the less receptive the courts will be to the company’s defense and the easier it will be for the plaintiff to argue (perhaps justifiably) that the company was indifferent to the serious problems brought to its attention. As these examples illustrate, one size does not fit all. Tailor the nature of the investigation to the types of allegations made. The timing, scope and the speed of the completion of the investigation will likewise depend on the claims made and the facts uncovered during the investigation itself.
2) If a lawsuit is filed on the morning the investigation is commenced, must that fact be disclosed to the interviewees? Would this assessment change if the interviewee is named as a defendant?
As the second observation above reflects, my attitude would change if the company were interviewing the defendant. In this instance, I believe that the fact of the lawsuit and the employee’s identification in the lawsuit as a defendant should be disclosed to him or her. (For the purposes of the question, I will assume that the lawsuit was filed by a third-party, not the company itself. If the company is the plaintiff, a broader set of ethical rules would come into play.) I am not aware of any legal requirement to disclose the litigation to an interviewee, even one named as a defendant, but I consider that approach fairer and more prudent. The accused may wish to obtain counsel, the accused may wish to consider more carefully what information he or she discloses voluntarily, and/or the accused may wish to thoughtfully consider all options, including resignation, before participating in an investigation. All of these potential desires are legitimate and should be respected. Moreover, if the company were to push ahead with its investigation, without disclosing the fact that the lawsuit had been filed that day, the employee’s lawyer later may be able to exploit that fact. In my experience, jurors like to see not just a compelling substantive justification for a company’s action, but procedural fairness as well. Interviewing someone who has been named as a defendant in a lawsuit, without disclosing that fact, does not have the appearance of procedural due process.
Finally, there may be compelling reasons not to proceed with the investigation and the interview of the accused once the lawsuit has commenced. For example, assume that the named defendant is a member of management who has been accused of sexual harassment. Assume further, that you interview him without revealing the filing of the lawsuit and that he largely admits wrongful conduct. Although these admissions may provide the company a basis to discharge him (especially if the allegations are sufficiently serious or he is a repeat offender), you also confront the risk that his status as a member of management will result in his actions being imputed to the company, with attendant corporate liability. If your investigative report later must be disclosed during discovery, the company may have provided an assist to the plaintiff. In short, once litigation has begun, I believe that a company should consider carefully just how it wishes to proceed with an investigation into the alleged wrongdoing. This assessment should include an evaluation of whether an independent investigation is even warranted or whether the “investigation” simply should be performed in the context of the lawsuit itself.
3) How do you prevent an interviewee from sharing with other employees the discussion that takes place in an investigative interview? Would you recommend disciplining a witness who does not maintain the confidentiality of the interview discussion? Should that person be terminated?
In my view, it would be appropriate to discipline someone who disregarded that directive. The level of the discipline, and the difficult question of whether the employee should be terminated for revealing the contents of the interview, again (like Question # 1 above) is highly dependent on the nature of the investigation. For example, if the company is investigating insider trading and the interviewee tips off the employee accused of this illegal conduct, the interviewee should be terminated. If, however, the alleged offense is far less severe, discharge may be a completely disproportional response to the revelation (intentional or inadvertent) of some aspect of the investigative interview.
Before terminating an individual who has participated in an investigation, you also should consult with in-house or outside counsel. The key issue you will want to consider in this context is whether the termination could be characterized as retaliatory. This issue currently is before the U.S. Supreme Court and will be the subject of a future Blog.
4) What if an employee surreptitiously records an interview session? What can be done to retrieve the tape recording? What consequences can be imposed for this conduct? If the tape is recovered, can it be destroyed?
5) How can you evaluate witness credibility if the interviews are being conducted telephonically?
As recognized by your question, it is difficult to assess witness credibility in a telephonic interview. Therefore, I recommend that, for interviews where you have a reasonable basis to believe that witness credibility will be an important factor in your assessment, you not conduct the interviews over the telephone. If you have to conduct telephonic interviews, you will have to base your credibility assessments on issues such as consistency with other testimonial and documentary evidence.
6) What right does the employee accused of wrongful conduct have to obtain the investigative report? How about the witnesses who are interviewed? How about the person making the accusations?
The employee accused of wrongful conduct has no right to obtain or even review the investigative report. The same holds true for the witnesses you interview. A similar observation applies to the person who made the accusations. You do not have to provide the investigative report to any of these individuals. I strongly recommend that you not do so.
[I hope you find the analysis above to be of use. If you are interested in obtaining more information on workplace investigations, I recently wrote an article on this topic for Business Law Today (April 2008). To obtain a copy of that article, you can simply access our firm’s website, www.Dorsey.com, and click on Dorsey Publications. Under that tab, you will see a listing for “Attorney Articles.” Scroll down to the article on Workplace Investigations and you will be able to download the article. Alternatively, just send me an email requesting the article and I will forward it to you. Regards, Roy]
Unethical Conduct By Employee, Quirky Question # 41
Even though this situation does not present any cutting-edge legal issues, it does illustrate the typical potential concerns worth exploring before making any termination decision.
1. Investigation. The first step in this situation, like others, is simply to confirm that the alleged behavior did in fact occur. Here, the report of the motel manager certainly appears credible, since she has no apparent motive to fabricate these allegations. Even so, it is essential to confront the employee with the allegations and give him an opportunity to deny or explain them. This is the kind of “due process” that most judges and juries will expect to have occurred before an employee is terminated, out of a basic and simple sense of fairness. If the employee concedes these incidents occurred as alleged, that will eliminate ambiguity regarding the underlying facts. If the employee flatly denies the allegations, you should consider casting a broader net to look for other witnesses to these events who might be able to confirm or deny the allegations. Of course, if other witnesses corroborate the allegations notwithstanding the employee’s denials, you will have further evidence of the employee’s lack of honesty.
2. Contract issues. The next step is to evaluate whether this employee has any kind of written employment agreement. Some employees do have such agreements, and they often prevent an employer from terminating an employee unless there is “cause” – or unless the employer is willing to provide the severance pay required by the agreement. If, however, there is no employment agreement, the salesperson is an “at will” employee, meaning that you are at liberty to terminate his employment for any reason not prohibited under the law. (If the employee had an employment agreement that required “cause” for termination, you would have to determine whether the “cause” threshold had been met in this case, or whether you needed to consider another alternative short of discharge.)
3. Comparable situations. Perhaps the most frequent legal challenges to employment-related decisions arise from the state and federal laws that prohibit discrimination on the basis of race, age, gender, disability, or other protected classifications. Before making a termination decision, you should explore whether any other employees of the company have ever been caught engaging in similarly dishonest behavior. If you find that there have been comparable situations involving employee dishonesty (even if they did not involve a similar fact pattern, which presumably has never previously arisen), you would want to ensure that this employee was being treated no more harshly than any other employee of a different race, gender, age or the like who had engaged in similar misconduct.
Assuming this review leads to the conclusion that a termination of employment is both appropriate and legally defensible, there are at least two other issues you may wish to consider. Other important subjects of discussion include the following.
4. Communications. It is often necessary to communicate something about an employment termination both inside and outside the company. In most situations, however, “less is more.” Disparaging statements that are made about a former employee, either inside or outside the company, can lead to potential defamation claims. For that reason, you may elect not to communicate inside the company about the reasons for this employee’s termination. Similarly, you may decide that you do not wish to have further communications with the motel manager regarding this subject, other than thanking her for bringing the issue to your attention, informing her that the company has responded appropriately, and requesting her to let you know if any further problems occurred.
5. Additional investigation and training. You also may wish to review all of this salesperson’s customer accounts to confirm that there have not been other improprieties. Finally, you may want to take this opportunity to review and revise the company’s Employee Handbook or Code of Conduct, and/or use this as an opportunity to conduct employee training meetings on the issue of business ethics.
Working Another Job While Taking “Leave,” Quirky Question # 40
Quirky Question # 40:
We have an employee who is claiming she has a serious health condition as a result of work-related stress and has given us a note from a nurse practitioner saying she should be off work for a month. We don’t believe she has a serious medical condition, in part because we’ve heard that she is working part-time in a similar job. She has refused to return to work. Can we simply terminate her employment?
[Quirky Question # 40 is another one of our California Questions. As such, I have requested one of my California colleagues to provide the analysis. The analysis below was written by Karen Wentzel of our Palo Alto office. As I've described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen's biography can be found at www.dorsey.com. Her email address is: wentzel.karen@dorsey.com. If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.]
Karen’s Analysis:
This scenario arises out of a recent California Supreme Court decision, Lonicki v. Sutter Health Central, 124 Cal. App.4th 1139 (2008). Employers may be surprised to learn that working at one job while on medical leave and receiving benefits from another may be acceptable in some circumstances. What those circumstances are, however, may not be known until a jury decides.
Under the California Family Rights Act (CFRA), the California equivalent of the federal Family and Medical Leave Act (FMLA), an employer with 50 or more employees may be required to provide eligible employees with up to 12 weeks of unpaid “family care and medical leave” on the birth or adoption of a child, serious illness of a family member, or when an employee’s own serious health condition “makes the employee unable to perform the functions of the position of that employee.” A serious health condition may include depression and work-related stress where the employee is under continuing treatment by a health care provider.
In Lonicki the California Supreme Court ruled that an employee’s ability to work a second job while on medical leave from another can be evidence that he or she is not suffering from a serious health condition, but it is not conclusive.
Plaintiff Antonina Lonicki was a certified technician at Defendant Sutter’s hospital sterile processing department in Roseville. After the hospital became a level II trauma center in 1997, Plaintiff’s workload increased significantly, and shortly thereafter, a new supervisor allegedly increased her stress and caused her to consult a doctor. In January 1999, Plaintiff began working weekends at another hospital, in addition to her job at Sutter.
On July 26, 1999, the new supervisor changed Plaintiff’s shift and denied her request for vacation. Plaintiff went home in tears and told her supervisor she was too upset to return to work. The supervisor requested that Plaintiff obtain medical authorization for her absence. Plaintiff received a note for a one-month leave of absence for “medical reasons” from a nurse practitioner and was referred to a therapist for work-related stress.
Approximately one week later, Sutter sought a second opinion of Plaintiff’s medical condition through its own doctor. After speaking to Plaintiff for a only a few minutes, the doctor concluded that she was able to return to work with no restrictions. A Sutter director telephoned Plaintiff and told her to return to work or face dismissal. Plaintiff informed Sutter that, on the advice of her doctors, she could return no sooner than the end of her one-month leave. Plaintiff did not return to work at Sutter and continued her weekly visits with a psychologist until the end of August. During those visits Plaintiff was diagnosed with “major depression” related to work, and received a doctor’s note recommending an additional month of “sick leave.” When Plaintiff delivered the note to Sutter, she learned that she had been discharged for failing to return to work during her original leave of absence. Plaintiff had continued working part-time at the other hospital during this period.
The trial court granted summary judgment to Sutter on Plaintiff’s CFRA claim, finding that she was capable of performing her job at Sutter because she continued to work a substantially similar part-time job at the second hospital while on leave from Sutter. In 2004, the California Court of Appeal affirmed the lower court’s decision, finding that the question was whether Plaintiff could perform her job functions generally, not whether she could perform the specific job at Sutter.
In a 4-3 ruling, the California Supreme Court reversed, holding that an employee’s ability to work a second job while on medical leave from another might constitute evidence that he or she is not suffering from a serious health condition, but it is not conclusive. “When a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer,” Justice Kennard wrote for the majority. Reversing the Appellate Court, the majority held that the test under the CFRA is whether an employee is unable to perform her job for the specific employer, not her ability to perform her essential job functions “generally.”
The three justices who dissented asserted that the legislation did not contemplate that an employee would take medical leave from one job in order to work at a second job while still receiving benefits from the first job.
The bottom line: Even if an employee is on medical leave due to inability to perform the essential functions of his or her job, yet continues performance at a similar second job, this is not conclusive evidence that he or she does not suffer from a serious health condition and is capable of performing the duties specific to his or her job under the first employer. Terminating the employee without more information may lead to costly and time-consuming disputes involving factual questions that may ultimately have be decided by a jury.
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