Speech Rights of Health Workers Bolstered by Appeals Court Ruling

Hospitals and other businesses will need to rethink bans on talking to the media and other efforts to gag their employees.

The John Joseph Moakley U.S. Courthouse in Boston, home of the First Circuit Court of Appeals. (Photo by Beyond My Ken from Wikipedia Commons via Courthouse News)

BOSTON (CN) — Companies that have been trying to shut down employees’ public criticisms of their conduct, especially in the wake of the pandemic, will need to reconsider their policies in light of a First Circuit ruling.

The appeals court ruled Wednesday that a hospital worker shouldn’t have been fired for complaining to a newspaper about staffing practices. The case that has drawn national attention due to the large number of health care workers who have recently been terminated or disciplined for speaking out about inadequate protection during the pandemic. 

The ruling means that from now on it’s going to be “very difficult to legally restrict free speech,” said Arthur Caplan, director of medical ethics at New York University.

The case “sends a really strong message to employers everywhere that you can’t gag your employees from complaining about working conditions,” added Frank LoMonte, a media law professor at the University of Florida and director of the Brechner Center for Freedom of Information. “A lot of employers around the country are going to need to reexamine their rulebooks in light of this ruling.” 

Caplan predicts that there will soon be a rash of lawsuits by employees who spoke out and weren’t fired but were later not promoted or given other opportunities. A business might claim the worker wasn’t doing a good job but the employee can claim retaliation, he said.

The issue is especially significant right now in the health care field. Due to their struggles 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 LoMonte.

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.”  

But the issue isn’t limited to health care. “Even Amazon has gotten into trouble for trying to keep workers from talking about safety conditions,” LoMonte said. 

The First Circuit case involved 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, which were the subject of an ongoing labor dispute. 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 policy against speaking to media was 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, 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.”

Young claimed that she was engaged in “concerted activity” relating to job conditions and thus the hospital couldn’t retaliate against her under the National Labor Relations Act. A three-member NLRB panel consisting entirely of Trump appointees unanimously agreed with her, and the First Circuit unanimously upheld the ruling Wednesday.

Although Young didn’t coordinate her letter to the editor with any other employees, she was supporting their ongoing dispute over staffing, which made the action “concerted,” wrote U.S. District Judge William Smith, a George W. Bush appointee sitting by designation from the District of Rhode Island.

“Importantly, hospital employees had utilized the newspaper to amplify their message. So, by contributing her voice to the newspaper platform, Young was acting with her co-workers in a meaningful, albeit indirect, way,” Smith said.

Smith suggested that the result might have been different if the letter had been “abusive” or “inflammatory,” but the Boston-based appeals court found it wasn’t.

The upshot of the ruling is that a blanket don’t talk-to-the-media policy is illegal and “reaching out to the press is federally protected expression,” said LoMonte, who added that employers could still prohibit workers from discussing trade secrets and other protected information. 

A key question the court didn’t answer, according to Caplan, was whether the hospital could have fired Young if she wrote something false or defamatory.

In Young’s case, “the only clear falsity in the letter was Young’s statement that the union had followed proper grievance procedures — which it had not — prior to presenting its petition to management. However, Young made this error in reasonable reliance on the union steward’s statement” in the newspaper, so it wasn’t a deliberate lie, Smith noted.

Another issue is whether an employee can be disciplined for complaining about things that no other employee has ever griped about. “It’s unclear what the rule is here,” Caplan said.

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 Caplan 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.

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