A recent decision of a three-member panel of the National Labor Relations Board (NLRB) is sure to start conversations regarding the parameters for remedial reinstatement of individuals with observed performance deficiencies.
The controversial issue is whether two nursing home employees should have been reinstated – as part of the resolution of a discrimination claim – in spite of a determination that alleged deficiencies in the job performance of the two “threatened the public interest in patient safety” at the nursing home facility at which they worked. 1621 Rte 22 West Operating Company, dba Somerset Valley Rehabilitation and Nursing Center and 1199 SEIU Unites Healthcare Workers East, NJ Region, Cases22-CA-029599, 029628, and 029868, June 11, 2015.
Here are the facts:
- In 2012, a Decision and Order was entered by the NLRB regarding four employees claiming to have been fired for their union connections, holding that the four were, in fact, unlawfully discharged.
- The Board rejected the employer’s claim that the employees had been discharged for performance deficiencies; it also rejected the employer’s claim that even if the firings were unlawful, the deficiencies alone precluded reinstatement.
- On appeal, a federal district court reinstated two of the four, but declined to order interim reinstatement of the other two because their alleged performance deficiencies, in the view of the court, adversely affected the safety of the patients in the nursing center at which the two were employed.
- A federal appeals court remanded the case for a de novo review of the decision after the Supreme Court’s decision in Noel Canning, a decision which led to the re-review of numerous NLRB decisions since 2014.
Where an employer claims that an unlawfully discharged employee is not entitled to reinstatement because of alleged misconduct that occurred before her firing, it is – under NLRB precedent – that employer’s burden to prove that the misconduct engaged in by the employee “would have disqualified any similarly situated employee from continued employment.” Inherent in that burden is the assumption that the employer was not aware of the alleged misconduct prior to the firing – otherwise, the employer cannot show that the misconduct was egregious enough to preclude reinstatement.
In this case, the employer/nursing home was unable to carry that burden with respect to the two employees seeking reinstatement.
The first of the two employees failed to assess a patient’s pain upon admission, which led to “very severe” harm to the patient. However, the incident occurred more than a year prior to the employee’s firing; and while the employer was fully aware of the issue, it allowed the employee to continue working for over a year. In addition, the employee frequently – even after the incident – had been designated as a “charge nurse” with special responsibilities reserved for high-performing nurses. Therefore, the employer could not rely on the pre-discharge incident to defeat the individual’s right to reemployment.
The second employee’s reinstatement was objected to because that individual had made several scheduling errors that cause potential staffing gaps. The district court pointed out the testimony of the employer’s expert witness, that scheduling problems are “the single most frequent cause of abuse and neglect” in care facilities. However, while the NLRB accepted, for purposes of its analysis, the accuracy of that statement, it found that the statement itself did not answer the question of whether the employer had established – as was its burden – that it would have disqualified any employee who made such errors. In addition, while the employee had made such errors prior to the union election, no disciplinary action was taken at that time. Instead, she was fired when she made scheduling errors after her protected union-related activity.
In spite of the alleged performance deficiencies, the NLRB ordered both employees to be reinstated to their prior positions (or substantially equivalent positions). It also ordered:
- Payment of full backpay to each employee;
- Full compensation to each for “adverse tax consequences,” if any, of receiving a lump-sum backpay award;
- Removal, from the personnel files of the affected employees, “any reference to the unlawful employment actions taken against the employees”;
- Posting, for 60 consecutive days, of a notice of employee rights under federal labor law.
It also ordered the employer to “cease and desist” from actions that could be deemed to interfere with, restrain, or coerce employees in the exercise of rights protected by the National Labor Relations Act.
When the layers of this case are peeled back, the message is a familiar one to employers: consistent disciplinary actions, fully and objectively documented, should be a constant goal. In this case, the fact that the two employees were disciplined for actions only after being involved in a union election, even though they had taken those same actions prior to the election, created the risk that led to this adverse decision.