Kaiser Health News Harris Meyer Karen Jo Young wrote a letter to her local newspaper criticizing executives at the hospital where she worked as an activities coordinator, arguing that their actions led to staffing shortages and other patient safety problems. Hours after her letter was published in September 2017, officials at Maine Coast Memorial Hospital…
Kaiser Health News
Karen Jo Young wrote a letter to her local newspaper criticizing executives at the hospital where she worked as an activities coordinator, arguing that their actions led to staffing shortages and other patient safety problems.
Hours after her letter was published in September 2017, officials at Maine Coast Memorial Hospital in Ellsworth, Maine, fired her, citing a policy that no employee may give information to the news media without the direct involvement of the media office.
But a federal appellate court recently said Young’s firing violated the law and ordered that she be reinstated. The court’s decision could mean that hospitals and other employers will need to revise their policies barring workers from talking to the news media and posting on social media.
Those media policies have been a bitter source of conflict at hospitals over the past year, as physicians, nurses and other health care workers around the country have been fired or disciplined for publicly speaking or posting about what they saw as dangerously inadequate covid-19 safety precautions. These fights also reflect growing tension between health care workers, including physicians, and the increasingly large, profit-oriented companies that employ them.
On May 26, the 1st U.S. Circuit Court of Appeals unanimously upheld a National Labor Relations Board decision issued last year that the hospital, now known as Northern Light Maine Coast Hospital, violated federal labor law by firing Young for engaging in protected “concerted activity.” The NLRB defines it as guaranteeing the right to act with co-workers to address work-related issues, such as circulating petitions for better hours or speaking up about safety issues. It also affirmed the board’s finding that the hospital’s media policy barring contact between employees and the media was illegal.
“It’s great news because I know all hospitals prefer we don’t speak with the media,” said Cokie Giles, president of the Maine State Nurses Association, a union. “We are careful about what we say and how we say it because we don’t want to bring the hammer down on us.”
The 1st Circuit opinion is noteworthy because it’s one of only a few such employee speech rulings under the National Labor Relations Act ever issued by a federal appellate court, and the first in nearly 20 years, said Frank LoMonte, a University of Florida law professor who heads the Brechner Center for Freedom of Information.
The 1st Circuit and NLRB rulings should force hospitals to “pull out their handbook and make sure it doesn’t gag employees from speaking,” he said. “If you are fired for violating a ‘don’t talk to the media’ policy, you should be able to get your job back.”
The American Hospital Association and the Federation of American Hospitals declined to comment for this article.
While the 1st Circuit’s opinion is binding only in four Northeastern states plus Puerto Rico, the NLRB decision carries the force of law nationwide. The case applies to both unionized and non-unionized employees, legal experts say.
In March, the NLRB similarly ordered automaker Tesla to revise its policy barring employees from speaking with the media without written permission.
Hospitals and health care organizations often have policies requiring employees to clear any public comments about the workplace with the organization’s media office. Many also have policies restricting what employees can say on Facebook and other social media.
Hospitals say requiring employees to go through their media office prevents the spread of inaccurate information that could damage the public’s confidence. In Young’s case, the hospital argued that her letter contained false and disparaging statements. But the 1st Circuit panel agreed with the NLRB that her letter was “not abusive” and that its only false statement was not her fault.
Health care organizations have undisputed legal authority to prohibit employees from disclosing confidential patient information or proprietary business information, legal experts say.
But the 1st Circuit panel made clear that an employer cannot bar an employee from engaging in “concerted actions” — such as outreach to the news media — “in furtherance of a group concern.” That’s true even if the employee acted on her own, as Young did in writing her letter. The key in her case was that she “acted in support of what had already been established as a group concern,” the court said.
“I think employers with a blanket ban on talking to the media need to relook at their policies,” said Eric Meyer, a partner at FisherBroyles in Philadelphia who often represents companies on employment law matters. “If you go to the media and say, ‘There are unsafe working conditions impacting me and my colleagues,’ that’s protected concerted activity.”
Chad Hansen, Young’s attorney in a separate federal lawsuit alleging discrimination based on a disability against the hospital, said she has not yet been reinstated to her job. Young would not comment.
The hospital’s parent company, Northern Light Health, said only that its news media policy — which was amended after Young’s firing — meets the NLRB and 1st Circuit requirements and will not be further changed. The new policy created an exception allowing employees to speak to the news media related to concerted activities protected by federal law.
Speech rights under the National Labor Relations Act are particularly important for employees of private companies. Although the Constitution protects people who work for public hospitals and other government employers with its guarantee of unrestricted speech, employees at private companies do not have a First Amendment right to speak publicly about workplace issues.
“I hope this case keeps alive the right of health care workers to speak out about something that’s dangerous,” said Dr. Ming Lin, an emergency physician who lost his job last year at PeaceHealth St. Joseph Medical Center in Bellingham, Washington, after publicly criticizing the hospital’s pandemic preparedness.
Lin, who was employed by TeamHealth, which provides emergency physician services at the hospital, lost his assignment at PeaceHealth in March 2020 soon after saying on social media and in interviews with news reporters that PeaceHealth was not taking urgent enough steps to protect staff members from covid. He had worked at the hospital for 17 years.
In an April 2020 YouTube interview, PeaceHealth’s chief operating officer, Richard DeCarlo, said Lin was removed from the hospital’s ER schedule because he “continued to post misinformation, which was resulting in people being afraid and being scared to come to the hospital.” DeCarlo also alleged that Lin, who was out of town for part of the time he was posting, refused to communicate with his supervisors in Bellingham about the situation. PeaceHealth declined to comment for this article.
PeaceHealth’s social media policy at that time stated that the company does not prohibit employees from engaging in federally protected concerted activity and that they “are free to communicate their opinions.” TeamHealth’s social media policy, dated July 15, 2020, states the company reserves the right to take disciplinary action in response to behavior that adversely affects the company.
Lin, who’s now working for the Indian Health Service in South Dakota, has sued PeaceHealth, TeamHealth and DeCarlo in state court in Washington claiming wrongful termination in violation of public policy, breach of contract and defamation.
Dr. Jennifer Bryan, board chair of the Mississippi State Medical Association, who publicly defended two Mississippi physicians fired for posting about the inadequacy of their hospitals’ covid safety policies, said she faced pressure from her hospital for speaking to the news media without approval.
The medical association pushed its members to talk to the media about the science of covid, while employers insisted doctors’ messages had to be approved by the media office. That reflected a conflict, she said, between medical professionals primarily concerned about public health and executives of for-profit systems who were seeking to shield their corporate image.
Bryan predicted the court ruling and NLRB decision will be helpful. “Physicians have to be able to stand up and speak out for what they believe affects the safety and well-being of patients,” she said. “Otherwise, there are no checks and balances.”
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A looming critical crisis in the personal care workforce requires governments and stakeholders to radically rethink the role of caregivers, according to Building the Caregiving Workforce Our Aging World Needs, a new report from the Global Coalition on Aging (GCOA).
“This report is intended as a wake-up call for the urgent actions that must be taken to address the global crisis of care, which is already gripping nations around the world,” said Home Instead CEO Jeff Huber, a co-sponsor of the report.
Immediate action is required to meet the expanding caregiving needs of the “silver tsunami,” a population adding 10,000 new senior citizens every day, assert the report’s authors. Approximately 70 percent of the elderly will have considerable need for long-term care.
These massive needs, combined with the overwhelming desire the elderly have to maintain their independence and age in their own homes and communities, will require a large and relatively stable personal care workforce long in to the future. While technology can take on many of the tasks of caring for the elderly, “it will never entirely replace the role played by professional caregivers in ensuring the mental, emotional and physical health of the world’s aging population,” reads the report.
Specifically, the report recommends:
- Change the perception of the caregiving profession – champion campaigns to change perception of caregiving, from a low-skilled job of last resort to a valued, professional career of the future.
- Bolster training and education standards – care providers and governments work to establish quality standards.
- Support and reward professional caregivers commensurate with the demands of the job and the value they provide – employers across public, private and nonprofit sectors must pay more attention to the emotional and financial needs of professional caregivers – especially if they are to attract young, purpose-driven talent.
- Fully integrate the home care workforce into the health and social-care ecosystem – the professional status of home care workers must keep pace with the demand for and value of this type of care.
“These recommendations are designed to act as a catalyst for action and collaboration from a multisector, multidisciplinary group of stakeholders,” said Melissa Gong Mitchell, Executive Director of GCOA. “As aging affects each and every one of us – our parents and grandparents today and ourselves and our children in the future – innovation and action must start now if we are to build a robust, thriving workforce of professional caregivers. Each recommendation in our report builds on the others, and no single area can be ignored if we truly want to address this care crisis.”
Failure to properly address the critical needs of the caregiver workforce will reduce care options for the disabled and elderly, according to the authors, as well as cause deteriorating health outcomes and higher health care costs.
The report’s authors write that while “older people and their families recognize the value professional caregivers provide, caregiving is still too often considered low-status work,” write the report’s authors. “A variety of factors contribute to this lack of respect for caregiving, each of which makes it difficult to recruit and retain skilled professionals around the world. It is time for universally accepted ideas about the caregiving workforce to correspond with the shifts in supply and demand — and the increasing need of this work within society.”
Annual turnover among home care workers in the United States is between 40 percent and 60 percent, according to the report.
“By ensuring our caregiving workforce around the world is recognized and appropriately rewarded for the value they provide to our aging society, we can also ensure that quality care can be achievable for all,” said Francesca Colombo, Head of the Health Division at the Organization for Economic Co-operation and Development (OECD). “Further, as we make the caregiving profession more attractive, we will subsequently uplift families, health systems and economies by alleviating family caregiving burden, mitigating healthcare costs and fueling a job creation engine. In their new report, the Global Coalition on Aging and Home Instead have called out the conversation we need to be having about the future of care and the future of work, and we at the OECD look forward to working toward solutions, together.”
A looming critical crisis in the personal care workforce requires governments and stakeholders to radically rethink the role of caregivers, according to Building the Caregiving Workforce Our Aging World Needs, a new report from the Global Coalition on Aging (GCOA). “This report is intended as a wake-up call for the urgent actions that must be taken to…
The House of Representatives has approved legislation requiring certain employers, including in the health care sector, to take action to prevent workplace violence. H.R. 1195, the Workplace Violence Prevention for Health Care and Social Service Workers Act, sponsored by Rep. Joe Courtney (D-CT), now heads to the Senate. NAHC reported on this legislation in the previous…
The U.S. Department of Labor announced the withdrawal – effective May 6 – of the “Independent Contractor Rule,” to protect workers’ rights to the minimum wage and overtime compensation protections of the Fair Labor Standards Act (FLSA). The Department is withdrawing the rule for several reasons, including: The independent contractor rule was in tension with the FLSA’s text and…
The U.S. Department of Labor announced the withdrawal – effective May 6 – of the “Independent Contractor Rule,” to protect workers’ rights to the minimum wage and overtime compensation protections of the Fair Labor Standards Act (FLSA).
The Department is withdrawing the rule for several reasons, including:
- The independent contractor rule was in tension with the FLSA’s text and purpose, as well as relevant judicial precedent.
- The rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.
- The rule would have narrowed the facts and considerations comprising the analysis whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections.
Withdrawing the independent contractor rule will help preserve essential workers’ rights. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.
In addition to preserving access to the FLSA’s wage and hour protections, the department anticipates that withdrawing the independent contractor rule will also avoid other disruptive economic effects that would have been harmful to workers had the rule gone into effect.
Office Staff Benefits – While business owners are rightly wary of paying too much, paying office staff a little more is typically an investment that pays itself back through returns across multiple channels: better client experiences, faster agency growth, smoother operations, lower caregiver turnover, and better sleep for you. Extra cash can be hard to come by in a home care agency, especially in the age of COVID, but the bottom line is clear: paying your staff enough to retain them is worth the investment.
Our partner Littler Mendelson Law firm reached out to NAHC and other members of a standing home care coalition to let us know of a new issue that has been raised in the state of Maryland by some of their clients. NAHC is actively working in conjunction with the Maryland National Capital Home Care Association (MNCHA) on this issue.
Since the emergence of COVID-19 last year, a handful of states have moved to impose requirements on employers of essential workers outside of and often exceeding their normal business practices. We understand that the states of California and Virginia have already done so via a regulatory process. Maryland legislators are now considering similar proposals through legislation (HB 581 and SB 486).
Maryland bills HB 581 and its companion SB 486 would impose new requirements on Maryland employers during established emergency periods and employ “essential workers.” While geared to protect employees, this legislation may cause undue hardship and added costs to employers.
NAHC will continue to work in partnership with MNCHA on this issue and keep you informed of any new developments.
Office Staff Turnover – Any business owner recognizes that with their leadership team fully engaged and each individually doing their best to help the team move in the right direction, every part of the business is going to go more smoothly. Clients will receive better care, caregivers will enjoy their jobs more, the owner’s life will be easier, and the business will grow more quickly.
Related Resource – How to Help Your Home Care Office Staff All Row in the Same Direction