BOSTON (CN) — A hospital worker who was fired for complaining to a newspaper about staffing practices got a sympathetic ear at the First Circuit Wednesday, in a case that has drawn national attention due to the large number of health care workers who have recently been terminated for speaking out about inadequate protection during the pandemic.
The National Labor Relations Board said that firing the worker was an unfair labor practice, and U.S. Circuit Judge David Barron said at oral argument this morning that “there’s every reason to think” that was a reasonable conclusion.
“It seems to me that’s something that deserves a lot of deference from this court, no?” asked U.S. District Judge William Smith, a George W. Bush appointee to the District of Rhode Island, sitting on the federal appeals court by designation.
As hospitals across the U.S. struggle to cope with the pandemic, “health care institutions are getting more aggressive about trying to gag their employees from speaking to the news media,” said Frank LoMonte, a media law professor at the University of Florida and director of the Brechner Center for Freedom of Information.
Ruth Schubert, a spokeswoman for the Washington State Nurses Association, said “hospitals are muzzling nurses and other health-care workers in an attempt to preserve their image.”
Schubert called the practice “outrageous” because health care workers “must have the ability to tell the public what is really going on inside the facilities where they are caring for Covid-19 patients.”
And the issue isn’t limited to hospitals, nursing homes and similar facilities. “Even Amazon has gotten into trouble for trying to keep workers from talking about safety conditions,” LoMonte said.
The First Circuit case involves Karen-Jo Young, a part-time, nonunion activities coordinator at a hospital in Ellsworth, Maine, who wrote a letter to the editor of a local newspaper complaining about staffing shortages. She was fired for violating a rule against communicating with the media.
The hospital claimed that Young had never spoken with any nurses or other employees about staffing, and that the letter was “filled with uninformed and unfair insults and invalid information.” The hospital president called it “a punch in the gut.”
According to the hospital, the don’t-talk-to-the-media policy is intended to avoid HIPAA-related privacy problems and to shield workers from being pressured by reporters to divulge details about car accidents and celebrity patients.
But Blake Horwitz, a Chicago civil rights and employment attorney whose firm is currently representing at least four fired health care workers, said such justifications are a pretext.
“Hospitals have a culture of control,” Horwitz said. “They don’t want to look bad. They may couch it in terms of some other double-speak but at the end of the day that’s what it is.”
There’s no First Amendment claim in Young’s case because the hospital is private. If Young were a public employee, “the case would be a slam dunk,” said LoMonte.
Instead, Young claims that she was engaged in “concerted activity” relating to job conditions, and thus the hospital can’t retaliate against her under the National Labor Relations Act. A three-member NLRB consisting entirely of Trump appointees unanimously agreed with her.
The hospital’s lawyer, Joshua Randlett of Rudman Winchell in Bangor, Maine, told the court that the letter wasn’t concerted activity “under any reasonable interpretation of that word” because Young wrote it on her own time at home, and there was no direct evidence that she had discussed staffing levels with any other employees.
At best, Randlett said, Young night have overheard other employees discussing the issue.
“You paint her as a secret eavesdropper,” responded U.S. Circuit Court Judge William Kayatta, an Obama appointee. But “isn’t the board entitled to infer that” she was involved in conversations, Kayatta asked.
Barron, also an Obama appointee, commented that “you could say the letter was an outgrowth of her knowledge and her experience at the hospital.”
Randlett argued that, under prior board decisions, activity isn’t “concerted” unless it was taken with others, on the authority of others, or in preparation for group action, none of which was the case here.
But Barron said this didn’t matter as long as the board’s new interpretation didn’t violate the act. “So what if the board changed its mind?” he asked.
NLRB attorney Eric Weitz argued that under prior Board rulings, “an individual employee acting alone can engage in concerted activity” if she raises important safety concerns affecting others.
Weitz also argued that, even if Young “were a passive listener, that’s as a legal matter irrelevant. Even if she merely eavesdropped, she was aware that other employees at the hospital shared her concerns.”
Barron wanted to know if the hospital could defend itself by saying that it fired Young not for raising safety concerns but for publicly criticizing it, which isn’t a protected activity.
“If I take my lunch hour and then spend another hour on protected activity, and I’m fired not for the protected activity but for taking another hour, is that OK?” he asked.
Weitz responded that “the only reason for the firing was Young’s decision to send the letter, and the employer hasn’t identified any unprotected activity in the letter.”
In general, said LoMonte, “the bar for concerted activity is fairly low,” and “the circuits are deferential to the NLRB, so it carries the day.”
“I’ve never seen a case where a reviewing court has broken with the NLRB” where an employee spoke to the press about safety,” he added.
Horwitz noted that health care workers often have civil tort remedies, such as for retaliatory discharge, in addition to labor-law remedies, because patient and worker safety are matters of public policy. He said a lot of police officers also get fired for raising public safety issues and the same is true for them.
But Arthur Caplan, director of medical ethics at NYU, said going to the press is seldom a good way to address safety concerns because doing so makes the hospital defensive. He said workers often get much better results by going through channels or writing to the board of trustees.
“Some people are talking to the media just to enjoy the PR rather than being effective,” he complained.
Caplan also said that many hospitals are upset not because of public criticism but because “workers are tweeting from their living room and they often don’t have the full picture or they’re just wrong” about the facts.