Handbook’s prohibition on “negative comments” about team members found to have violated the NLRA.

Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.” 

Recently, a three-member panel of the National Labor Relations Board (NLRB) determined that those provisions were unlawful, because the language could be construed as keeping employees from exercising their rights under Section 7 of the National Labor Relations Act (NLRA). Hills and Dales General Hospital, 360 N.L.R.B. No. 70 (April 1, 2014).

Section 7 protects the right of employees to engage in “concerted activities” with each other for collective bargaining purposes or in efforts to improve working conditions and terms of employment.

NLRA precedent holds that if a work rule does not explicitly restrict Section 7 activity – which work rules rarely do – it still could be found unlawful if employees reasonably would construe the rule to prohibit concerted activity. The current NLRB has set the bar for that level of activity much lower than in the past, which has led to a recent increase in decisions in which employers have been asked to modify or rescind policies found to have violated Section 7.

In this case, the Board determined that the policy provisions at issue could reasonably be viewed by employees as proscribing them from engaging in activity or making public statements not perceived as “positive” toward the hospital on work-related matters. This could, according to the Board, “discourage employees from engaging in protected public protests of unfair labor practices, or from making statements to third parties protecting their terms and conditions of employment” – activities protected by Section 7.

As a penalty for this, the hospital was ordered to rescind or reword the policies.  In addition, however, the hospital was required to post a “Notice to Employees” which included language informing employees of their right to “Form, join, or assist a union” and to choose representatives to bargain with the hospital. 

Of particular interest is the fact that this Notice to Employees is essentially the same language required by a proposed rule that was struck down by two separate federal appellate circuits last year. That rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. However, under the proposed rule, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer.  

Both unionized and non-unionized employers should stay abreast of the NLRB decisions on the issue of work policy language, and should review and update employee handbooks and manuals to assure that the language used in those policies is specific and focused, and cannot be interpreted as discouraging employees from public discussion of unfair labor practices.

Employee’s speculation related to basis of his firing is insufficient to support a claim of retaliation.

To prevail on a claim of retaliation under federal law, an employee must prove he or she engaged in a “protected activity” under an anti-discrimination statute, and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action.

The 4th U.S. Circuit Court of Appeals has held that a deaf employee whose intimidating, disrespectful, and personally offensive behavior with co-workers and contractors was documented as the basis of his firing could not show that those reasons were pretextual, or that the true reason for the adverse employment action was the fact that he had complained about the quality of his interpreters. Pearlman v. Pritzker, 4th Cir., No. 13-1563, April 3, 2014 (unpub’d).

Michael Pearlman sued the Secretary of the U.S. Department of Commerce, a department which oversees the National Oceanic and Atmospheric Administration (NOAA). Pearlman, a deaf person, was hired as a program analyst at NOAA in June 2010.

During his tenure there, Pearlman’s request for the services of an interpreter was granted as a reasonable accommodation. However, Pearlman found twelve of the fourteen interpreters – all of whom had been provided by an outside contractor – as substandard, placing them on his personal “do not call” or “black-list.”

In 2010, coworkers complained about Pearlman’s workplace behavior. According to reports provided by the NOAA to the Deputy Director of Workforce Management for NOAA, Pearlman was reported to be “abrupt and demanding,” and was reported to have engaged in interactions with co-workers that were “intimidating, disrespectful, or personally offensive.”

In December 2010, Pearlman was warned about his conduct, and agreed to take action to improve his relationship with coworkers. His behavior failed to improve, and included an incident in which he took a hostile tone in an e-mail to the president of the company providing the interpreters. Pearlman was fired in May 2011, shortly after that incident.

Pearlman sued under the Rehabilitation Act, a law analyzed under the standards of the Americans with Disabilities Act (ADA). He alleged that rather than firing him for his conduct, the NOAA fired him for complaining about the caliber of the interpreters provided for his deafness.

The lower court concluded that Pearlman had made out a prima facie case of retaliation by showing that he took a protected action, suffered an adverse employment action, and that the time period between his complaints and his firing was sufficient to create a causal nexus between the two.

However, the lower court also found that there was a legitimate, nondiscriminatory, and nonpretextual reason for Pearlman’s termination: his “disruptive, rude, sarcastic” behavior. The Fourth Circuit agreed, finding that “Pearlman has produced no evidence other than his own speculative assertions to raise an inference suggesting the falsity of the proffered nondiscriminatory bases for his termination. Speculation is not enough [to avoid summary judgment].”

In this case, it was the employer’s written record that painted a picture of events that could not be contradicted by Pearlman’s speculations. Objective documentation, supported by witness testimony or other evidence can help to provide the basis for dismissal of an employee’s claims of retaliation, when those claims are based on speculation and unsupported evidence.

Interactive process is crucial element of analysis in disability discrimination cases.

Most employers recognize the fact that in addition to federal anti-discrimination laws, state and local laws – which often are more expansive – must be taken into account when making disciplinary and termination decisions related to protected individuals.

In a case decided under New York state laws, that state’s highest court reversed summary judgment for an employer who, it said, had failed to engage in an individualized interactive process with a medically impaired employee, even though the employer’s actions may have been sufficient under federal law. Jacobsen v. N.Y.C. Health & Hospitals Corp., N.Y., 2014 BL 83161 March 27, 2014.

William Jacobsen began working with the New York City Health and Hospitals Corporation (HHC) in 1979 as an assistant health facilities planner. In that job, he visited construction sites, met with project directors, inspected buildings, and supervised construction projects. Throughout the years of Jacobsen’s employment with HHC, Jacobsen’s responsibilities continued to include visits to construction sites once or twice a week. In August of 2005, Jacobsen was reassigned to HHC’s Queens Hospital Center (QHC), where he oversaw projects that included extensive renovations and asbestos abatement, and visited construction sites more frequently.

In September 2005, Jacobsen was diagnosed with pneumoconiosis, a lung disease caused by repeated prolonged inhalation of asbestos and other dust particles. In October of that year, Jacobsen took a 3-month medial leave of absence to undergo an open lung biopsy.

In December 2005, Jacobsen was released to return to work with the restriction that he could not return to construction sites or “be further exposed to any type of environmental dust.” In response, HHC simply asked for an “exact date” on which Jacobsen would be “medically cleared to fully perform the essential functions of his duties” which, according to HHC, included 75% of his time on construction projects in the field, and 25% of his time in the office.

In January 2006, Jacobsen’s union requested that, as a reasonable accommodation, Jacobsen be assigned to return to office work. In March 2006, Jacobsen’s doctor informed HHC that Jacobsen was ready to return to work, and could attend meetings in the field. However, the doctor warned that any further exposure to environmental dust must be avoided.

Jacobsen returned to his QHC assignment and, until May 2006, performed regular site visits. However, throughout this period, Jacobsen had difficulty breathing and requested a respirator “fit tested by an industrial hygienist” and “specifically designed to filter the particulates [that were present in] asbestos abatement project.” Instead, HHC provided a standard “dust mask” that could be found in any hardware store. Because the mask’s poor fit interfered with communication, Jacobsen did not wear it on a consistent basis.

In May 2006, Jacobsen again requested a transfer back to the central office, saying that he could perform all of the duties that he had held prior to his transfer to QHC. In reply, HHC refused to remove him from the QHC responsibilities, stating that it was “imperative” that Jacobsen cover that project.

On or about June 5, 2006 Jacobsen filed a disability discrimination complaint. Two days later, HHC placed Jacobsen on 6-month unpaid medical leave, offering to return him to work if his condition improved. Jacobsen’s employment was terminated in March 2007, when he was unable to return to his full responsibilities at the QHC position.

Jacobsen filed a complaint in state court in New York in March 2008, alleging disability discrimination under the New York State Human Rights Law (State HRL) and the New York City Human Rights Law (City HRL).

The state Supreme Court granted HHC’s motion for summary judgment and dismissed the complaint, reasoning that no accommodation was available for Jacobsen because he could not spend time at construction sites and, therefore, could not return to his old duties. The Appellate Division affirmed the Supreme Court’s order, finding that HHC had engaged in a “good faith interactive process,” pointing out that Jacobsen had failed to consistently where the dust mask provided to him and, therefore, could not complain about its inadequacy as an accommodation.

On review, the Court of Appeals of the state of New York – that state’s highest appellate level court – reinstated Jacobsen’s State HRL and City HRL claims for trial.

In its analysis, the Court pointed out the difference between the provisions of the Americans with disabilities Act (ADA) and the state laws. Under both the State HRL and the City HRL, however, an employee’s request for an accommodation is relevant. The Court of Appeals concluded that an employer’s decision to engage in or forego an interactive process is just one factor – albeit a critical one – to be considered in deciding whether a reasonable accommodation is available.

Jacobsen’s request to be transferred to the central office, a position that he had held successfully for decades, created a triable issue of fact, as there was no evidence of HHC’s investigation into whether that transfer was possible, or whether it would create an undue hardship for HHC; second, Jacobsen raised a material factual issue for trial as to whether HHC’s failure to provide a “fit tested” respirator was a failure of the interactive process.

While the Court was careful not to intimate that Jacobsen had a winning case for trial, the lengthy, detailed, and well thought-out opinion makes clear the fact that both the State and City statutes require a somewhat more detailed approach to analysis of the case than the “Old” Americans with Disabilities Act (ADA). However, in light of the fact that the amended ADA – under which more recent cases are being analyzed – focuses less on the statutory definition of “disability” and more on whether an accommodation is possible, employers in both state and federal court cases would be wise to document any interactive efforts at accommodation, and should include in that documentation an employee’s proposed accommodation (whether or not implemented) along with any discussions on and analysis of that proposal.

Depressed employee’s vacation leave request did not qualify for FMLA protection.

The vacation request of an employee suffering from depression and anxiety did not qualify as a request for leave under the Family and Medical Leave Act (FMLA), said the 11th U.S. Circuit Court of Appeals. While the request might prove medically beneficial, it did not qualify for FMLA protection, as it did not include any period of actual incapacity. Hurley v. Kent of Naples, Inc., 11th Cir., No. 13-10298, March 20, 2014.

Patrick Hurley, the CEO of a security company subsidiary, sent an e-mail to Gil Neuman, the CEO of the parent company, setting forth an eleven week “Vacation Schedule” for the following two years. In response, Neuman responded that “Your request has been denied,” and asked to meet with Hurley. Hurley claimed that his “medical/health professionals” had advised him that availing himself of vacation time was a “necessity” going forward, although he did not mention that he was suffering from depression and anxiety. During a discussion of the issues on the following day between Hurley and Neuman, Hurley was terminated for “insubordinate behavior and poor performance.”

A week later, and with knowledge of Hurley’s termination, Hurley’s doctor filled out an FMLA form, noting that Hurley suffered from depression, although the doctor could not determine the frequency or duration of any incapacity. Hurley then filed a lawsuit, alleging that he had been fired for exercising his right to FMLA leave. The lawsuit did not include any specific allegation that Hurley was unable to work or was incapacitated. The employer contended that Hurley’s vacation request did not qualify for FMLA protection, and that he was not terminated because of the request.

Both parties filed motions asking for summary judgment, and both motions were denied by the lower court. The case then proceeded to trial, where Hurley testified that he had requested leave for medical reasons, but acknowledged that his wife had chosen the vacation/leave days without any input from a healthcare professional.

The jury’s verdict was inconsistent: it found that Hurley’s leave request did not cause the termination, but awarded Hurley $200,000 in damages for that termination. Hurley also was awarded $200,000 in liquidated damages, $354,000 in front pay, and $244,000 in attorneys’ fees, along with court costs. The trial court then denied the employer’s motion for a new trial.

The employer appealed, asserting again that Hurley did not qualify for FMLA leave, and arguing that the jury verdict was inconsistent with the damage award. In response, Hurley contended that he could bring a claim under the FMLA without actually qualifying for leave because he provided sufficient notice and only had to “potentially qualify” for FMLA leave.

The Eleventh Circuit disagreed with Hurley, and held that an employee must actually (and not potentially) qualify for FMLA leave in order to assert an interference or retaliation claim; it also determined that the district court erred by denying the employer’s motion for judgment as a matter of law on Hurley’s claims because the vacation request did not qualify for leave under the FMLA.

It was not disputed that Hurley suffered from a chronic serious health condition within the meaning of the FMLA. However, he failed to establish the required period of incapacity to trigger the protections of the Act. The FMLA does not extend its protections to a leave that is medically beneficial simply because the employee has a chronic health condition. Because Hurley admitted that his leave was not for a period of incapacity, he failed to meet the burden of proving that his vacation/leave request qualified for protection under the FMLA and, therefore, was not entitled to damages under that statute.

The decision would likely have been different had Hurley provided, with his vacation request, some evidence or information that he would be treated for his depression and anxiety during that absence. Without that specific connection between the leave and either treatment or period of illness, Hurley was unable to prove that his request for leave was related to his serious health condition.

Secretary of Labor has been directed to update overtime regulations.

On March 13, 2014, President Obama signed a presidential memorandum which instructs the Secretary of Labor to update regulations regarding overtime protections. According to White House officials, and supported by a fact sheet issued on that same date, the President’s memorandum will change the overtime laws so that a number of new workers would be entitled to overtime compensation.

Specifically, the change would amend employers’ wage and hour obligations as spelled out in the Fair Labor Standards Act (FLSA) to make overtime compensation available to a wider group of employees currently considered to be “exempt” from the FLSA’s overtime requirements.

The new rule is expected to extend the availability of overtime compensation for hours worked over 40 in a workweek to, for instance, managers working at fast-food restaurants, loan officers, computer technicians, and other workers who currently are classified as “executive” or “professional” under the FLSA’s definitions. The change, if implemented, could affect millions of workers.

Just last month, President Obama took action to raise the minimum wage for certain federal contractors to $10.10 per hour. The federal minimum wage currently is $7.25 per hour, but a number of recent proposals for an increase have been made. Many states already have increased minimum wages, with Washington at the highest rate, at $9.32 per hour.

According to Alfred B. Robinson, Jr., a shareholder in the Washington, D.C. office of Ogletree Deakins, “We know that the administration is focusing on the salary basis test for the new regulations. Currently the minimum salary requirement [for exempt employees] is $455 per week . . . . The administration’s position is that inflation has eroded this salary requirement. It has stated, for example, that approximately 3.1 million people would be entitled to overtime if the threshold had kept up with inflation. We anticipate that indexing the salary basis amount to the consumer price index or some comparable index is something that the administration will consider closely.”

Robinson, who previously served as the acting Administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor, continued, “The administration further has said that if the 1974 salary basis had been indexed, it would approach approximately $1,000 per week in today’s dollar.

The regulation changes proposed by President Obama now will have to go through the notice and comment period required under the Administrative Procedures Act, which may be lengthy.

This Update was written by Dara DeHaven and Margaret Santen Hanrahan, both shareholders in Ogletree Deakins’ Atlanta office, and members of the firm’s Wage & Hour Practice Group.

EEOC reacts to rise in number of religious discrimination charges filed.

Recently, the Equal Employment Opportunity Commission (EEOC) underscored its attention to religious discrimination claims by posting on its website two “technical assistance publications” on the subject. The first is a fact sheet that provides basic information about religious discrimination and includes information related to an employer’s obligation to accommodate workers’ religious observances in the workplace. The second is a “Q&A” page in which the EEOC provides scenarios to illustrate employers’ obligations, and the rights of employees and applicants under Title VII and relevant case law.

According to the EEOC, religious discrimination involves treating an individual – whether an employee or an applicant – unfavorably because of his or her religious beliefs. The law also protects individuals who have sincerely held religious, ethical or moral beliefs.

Religious discrimination also can involve “associational” discrimination, where someone is treated differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

The law forbids religious discrimination in any aspect of employment, including hiring, termination, wages, benefits, promotions, training, and any other term or condition of employment. It also is illegal to harass any employee because of his or her beliefs.

The recent EEOC postings further clarify the Commission’s view on the rights and obligations related to Title VII’s protection of individuals from religious discrimination. The fact sheet includes several statements of which employers should be aware.

First, it makes the general statement that in most instances, “employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.” This statement should interest employers who have dress or grooming codes that may conflict with the wearing of religious garments or articles.

The second statement of note, included in bold type in the posting, says: “Customer preference is not a defense to a claim of discrimination.” An individual cannot be excluded from an employment position because of the reaction – or anticipated reaction – of customers or co-workers, nor can such employee be “segregated,” by assigning the employee to a non-customer contact position, because of actual or anticipated customer preference.

The EEOC’s Q&A page provides information in question and answer format, but with the addition of 20 various factual scenarios that spell out situations that the EEOC views as violations of Title VII. Because of the broad scope of these scenarios, employers will be able to use the page as a reference when faced with a situation involving potential religious discrimination.

The Q&A page also provides links to other resouces related to religious discrimination, and cites to numerous court opinions on the issues raised in the publication.

Staffing company is not liable for employee’s act of poisoning a coworker.

The increased use of staffing agencies to place employees into the workforce has led to a growing number of court decisions regarding the responsibility of such agencies for the actions of the individuals placed.

Recently, a California Court of Appeals granted summary judgment in favor of a staffing agency sued by an individual whose drinking water was poisoned by an employee placed by the agency into a medical practice. Montague v. AMN Healthcare, Inc., Cal. Ct. of Appeal, 4th Dist., No. D063385, February 21, 2014.

AMN Healthcare, Inc. (“Nursefinders”) is a staffing company that prescreens and places nurses and medical personnel with hospitals and other facilities. Nursefinders hired an employee (“Drummond”) to work as a medical assistant, and then assigned that individual to work at a customer’s medical facility.
While there, and after two minor disagreements with a coworker (“Montague”), Drummond admittedly put carbolic acid into Montague’s water bottle. Montague then sued Nursefinders, alleging that Nursefinders was vicariously liable for the poisoning, and further alleging that Nursefinders had failed to train Drummond properly on workplace disputes. The lower court granted a motion for summary judgment in favor of Nursefinders, and Montague appealed that decision.

The appellate court upheld the lower court’s decision in favor of the staffing company, finding that Drummond acted outside the course and scope of her employment with Nursefinders.

Under the doctrine of respondeat superior, an employer is vicariously liable for the actions of its employees if those actions are committed within the scope of the employment. To succeed on a claim of respondeat superior, Montague had to show that Drummond’s action had a “causal nexus” to Drummond’s work responsibilities. Questions typically asked by a court when making this determination are whether the actual occurrence was a generally foreseeable consequence of the job, and whether an employee’s conduct is so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.

The dispute between Drummond and Montague was based upon their mutual employment with the medical facility, and not on Drummond’s employment with Nursefinders. Although Montague attempted to establish respondeat superior liability for Nursefinders based on the fact that she and Drummond worked together, the court found that attempt to be unsuccessful, finding the fact that “the employment brought tortfeasor and victim together in time and place is not enough" to establish liability.

Montague also alleged that Nursefinders should have trained Drummond regarding the proper handling of work-related disputes and that its failure to do so caused the harm suffered by Montague. However, Nursefinders provided testimony and evidence that Drummond participated in initial orientation, which included instruction on the medical facilities policies on "Violence in the Workplace" and "Management of Threats and Aggressive Behavior."

Although Montague argued that Drummond’s actions were evidence that the training was insufficient and therefore negligent, the court disagreed, and found that Montague was unable to support her negligence claim against Nursefinders.

This case was decided under California state law, but employers – including staffing companies – in other locations should be cognizant of its holdings. First, a written job description that outlines the duties of each employee can assist in determining whether an action is a generally foreseeable consequence of the individual’s job-related responsibilities. In addition, documentation of training in general human resources policies and, in the case of a staffing agency, the policies of the company into which a staffing person will be placed, can assist in avoiding unintended liability for actions not reasonably related to job responsibilities.

Physician not required to exhaust hospital’s administrative review process before suing hospital under state’s whistleblower statute.

California’s Supreme Court has ruled that a physician who reported concerns related to patient treatment and subsequently was fired did not have to first seek and obtain a mandamus judgment setting aside the hospital’s decision before suing the hospital in state court. Fahlen v. Sutter Central Valley Hospitals, Supreme Court of California, No. S205568, February 20, 2014.

Typically, a physician may not bring a legal action directed against a hospital’s internal decision to terminate staff privileges unless he or she exhausts all internal hospital procedures in place for review of that decision. In addition, under California state law, if the ultimate internal decision is unfavorable, the physician must prevail in a mandamus proceeding to have the termination decision set aside before filing a separate lawsuit against the hospital.

In 2004, physician Mark T. Fahlen, a kidney specialist with Gould Medical Group (Gould) in Modesto, California at the time, was granted staff privileges by a hospital owned by Sutter Central Valley Hospital (Sutter). During the course of his practice, Fahlen argued on a number of occasions with hospital nurses who, he alleged, failed to follow patient treatment instructions. Several times, he reported to nursing supervisors, and in writing to the hospital’s administrators, that the nurses had been insubordinate and had provided substandard care.

In 2008, the hospital’s chief operating officer contacted Gould’s medical director about Fahlen’s “disruptive interactions” with hospital staff, admittedly hoping Fahlen would be fired by Gould. Gould did, in fact, terminate Fahlen’s employment on May 14, 2008. As a result, Fahlen’s medical malpractice insurance was cancelled, which precluded him from treating patients at the hospital.

When Fahlen asked the hospital about the status of his privileges, he was told that he should resign and leave town, or the hospital would begin an investigation into his behavior that could result in a report to California’s Medical Board. When Fahlen failed to resign, the hospital convened an investigative committee. That committee presented a report to the medical executive committee (MEC) which, in turn, reviewed the issue and recommended against the renewal of Fahlen’s hospital privileges. Fahlen was notified of the decision and of his right to contest it.

In response to Fahlen’s request for further hearing, the MEC sent a letter to Fahlen with a statement of charges, including 17 incidents of “disruptive behavior” between 2004 and 2008, and one incident of “abusive and contentious” behavior in 2008 with the investigating committee. The letter also informed Fahlen that a judicial review committee (JRC) would conduct a review hearing under the hospital’s bylaws.

After a 13-session hearing between October 2009 and May 2010, the JRC reversed the MEC’s decision, finding that the evidence failed to show that Fahlen was professionally incompetent or that he had endangered patient care by his behavior. In addition, the JRC found that while several of Fahlen’s interactions with nurses had been inappropriate, the hospital should have intervened sooner. According to the JRC, the hospital also should have considered “intermediate steps” short of loss of privileges.
The JRC’s decision was conveyed to the hospital’s board of trustees (Board), the final decision-maker regarding staff privileges. The Board reversed the JRC.

Fahlen did not seek judicial review of the Board’s decision by petition for writ of mandamus to set aside the decision, as required by California law. Instead, he filed a lawsuit against Sutter and a number of individual decision-makers, alleging that the hospital’s action to terminate his privileges action had been taken in retaliation for his complaints about “substandard, insubordinate and unprofessional nursing care he had observed . . . [which had] endangered patient care and patient safety.” Fahlen sought reinstatement to the hospital’s medical staff, along with monetary compensation.

The defendants attempted to have the case dismissed based upon Fahlen’s failure to exhaust the internal procedure and the mandamus action, in accordance with California law. But the trial court determined that the case should go forward, finding that Fahlen’s suit was based upon “disciplinary activity,” and not on any activity on the part of the hospital that was protected by state law.

On appeal, an intermediate appellate court dismissed certain of the counts brought by Fahlen, but allowed the case to go forward to the state’s Supreme Court on the question of “whether, before a physician may commence a civil suit alleging that the hospital’s quasi-judicial decision to terminate the physician’s staff privileges was wrongfully retaliatory, the physician must first prevail in an administrative mandamus proceeding to set the decision aside.”

The Court determined that a successful mandamus attack on the hospital’s decision regarding Fahlen’s privileges is not a necessary condition to the filing of a civil suit under California’s whistleblower statute.
This decision is of concern to hospitals and healthcare system that rely on the state court protections accorded to internal procedures regarding peer review and credentialing decisions. What the decision means, in short, is that a physician viewed as disruptive by a hospital can circumvent certain steps of the legally mandated review process by claiming that the process itself was initiated in retaliation for actions or reports that fall within the parameters of those protected by the state’s whistleblower statute.

While this decision currently is limited to California-based entities, it is part of a continuing trend that has loosened the state court protection for hospital peer review and credentialing processes. Healthcare employers should insure that such processes are implemented for actions or behaviors related to patient care, and that any concerns or reports made by an individual under review should be investigated and acted upon aside and apart from the peer review process against that individual.

EEOC challenges employer’s 12-month maximum medical leave policy.

The U.S. District Court for the Northern District of Illinois denied a motion filed by United Parcel Service, Inc. (UPS) to dismiss a claim by the Equal Employment Opportunity Commission (EEOC) on behalf of a class of individuals challenging the company’s leave policy. The challenged policy requires that employees “be administratively separated” from employment after 12 months of medical leave. EEOC v. United Parcel Service, Inc., N.D. Ill., No. 09C5291, February 11, 2014.

The American with Disabilities Act (ADA) prohibits an employer from “using qualification standards, employment tests or other selection criteria” that screen out disabled individuals, or a class of individuals with disabilities, unless the standard, test, or selection criteria is “job-related for the position in question and consistent with business necessity.”

Under the applicable regulations, “qualification standards” include the “personal attributes, including the skill, experience, education, physical, medical, safety and other requirements” established by an employer as requirements that must be met in order to be eligible for a particular position.

Since 2002, UPS has maintained a 12-month-and-out leave policy. Individuals who have been on medical leave for 12 months are separated from employment, unless they can return to work at that time without restrictions.

The EEOC alleges that such a leave policy operates as a “qualification standard” under the ADA, since it prevents an individualized assessment as to whether an impaired individual can return to work with a reasonable accommodation. According to the EEOC, such standard could operate to exclude disabled individuals from work.

UPS claims, however, that the ability to regularly attend work and not miss multiple months on the job is an “essential job function” and is not a qualified standard that would screen out disabled individuals. Under the ADA, an “essential function” is defined as the “fundamental job duties” of the employment position held or desired by an individual.

The Seventh U.S. Circuit Court of Appeals previously has held that regular attendance can be an essential job function. However, in response to the UPS motion to dismiss, the EEOC argued that the policy was illegal because of its “100% healed” requirement, and not because of any attendance issue.

The court agreed and denied the motion to dismiss, allowing the issues to go forward for a decision by a jury. The message to employers is clear: the focus on returning an individual to work after a medical leave should be on the interactive process and whether a reasonable accommodation may assist in returning that person to his or her job. Focusing instead on a particular time limitation for absence may create unintended liability under the ADA’s “qualification standard” language.

NLRB finds policy against certain “verbal comments or physical gestures” may restrict concerted activity.

The National Labor Relations Board (NLRB) has ordered a non-unionized hospital to rescind Code of Conduct provisions prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork,” finding those prohibitions to be unfair labor practices. William Beaumont Hospital and Jeri Antilla, NLRB Case No. 07-CA-093885, January 30, 2014.

Since at least 2009, William Beaumont Hospital in Royal Oak, Michigan, has maintained a Code of Conduct for its Surgical Services and Perianesthesia that lists examples of prohibited “improper conduct or inappropriate behavior” that would lead to “remedial or corrective action.” In addition to “Willful and intentional threats, intimidation, harassment, humiliation . . . [and] profane and abusive language,” that list originally included a prohibition on “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.” It also prohibited “Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.”

In November 2012, two employees of the hospital – Jeri Antilla, a Registered nurse, and DeAnna Brandt, a certified surgical technician, were fired for exhibiting “intimidating and bullying behavior” after an investigation elicited statements from several staff nurses at the hospital that the two were sarcastic and condescending towards the newer nurses.

Antilla and Brandt ultimately filed Unfair Labor Practices charges against the hospital. The discipline or discharge of an employee violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if the discipline or discharge was based upon protected concerted activity.

 At the trial on the original charges brought by Antilla and Brandt, the NLRB’s General Counsel verbally amended the complaint to allege that the hospital’s Code of Conduct was overly broad and could discourage Section 7 activities under the NLRA (including engaging in concerted activities for mutual protection or aid). This amendment was especially interesting, because neither Antilla nor Brandt had been disciplined for specific violation of the Code of Conduct.

The Administrative Law Judge (ALJ) determined, after analyzing the Code of Conduct language, that while much of the Code addressed specific business concerns, two of the work rules – those prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork” – were overbroad and ambiguous, and violated Section 8(a)(1) of the NLRA because they could “reasonably be interpreted as prohibiting lawful discussions or complaints that are protected by Section 7 of the Act.” The ALJ also found the hospital to have violated Section 8 by issuing a directive to an employee not to discuss with her coworkers an investigation into a sentinel hospital event involving a patient.

 While the Administrative Law Judge found that Antilla and Brandt engaged in discussions and activities that could be viewed as “protected” under the NLRA, the ALJ also found that the two women “would have been terminated absent their protected activity” since an investigation found that they also engaged in activities viewed by others as bullying, mocking, and intimidating behavior, which is not protected under the NLRA. The ALJ recommended dismissal of the charges related to both Antilla and Brandt.

The ALJ’s decision sends a mixed message to employers. While the NLRB has been paying increased attention to policy and handbook provisions related to personal interaction among employees, that attention has not consistently led to the conclusion that disciplinary action for bullying or intimidating behavior is precluded by the NLRA. One way to avoid the rock-and-a-hard-place situation is to review handbooks and other employee policies to assure that existing language is not likely to prohibit protected conversations or other “concerted activity” among employees regarding working conditions.