Seyfarth synopsis: Given the recent activity of the National Labor Relations Board (NLRB) in challenging work rules and policies of union and non-union employers alike, those in the senior care industry should take note of a recent decision involving overly broad work rules.
A 2-1 NLRB panel recently declared several work rules of a Michigan hospital to be unlawful because employees might reasonably construe the rules to prohibit expressions of concerns over working conditions. The case arose in the context of determining whether the hospital acted lawfully in firing two nurses for bullying behavior following an internal investigation into a patient care issue that included the death of a newborn. Although the Board upheld the terminations as lawful, it found certain work rules unlawful, including a rule prohibiting conduct that "impedes harmonious interactions and relationships," as well as a rule prohibiting "negative or disparaging comments" about the professional capabilities of an employee or physician to employees, physicians, patients, or visitors.
In view of the considerable confusion engendered by NLRB decisions on the validity of work rules and the burden such decisions have placed on employers in healthcare, Member Miscimarra issued a scathing partial dissent calling for the Board to adopt a new approach for determining whether employer work rules and policies violate the NLRA. As illustrated in the full discussion of the case posted here on the Employer Labor Relations Blog, employers in the healthcare industry, including senior care facilities and long-term care providers, should regularly review their work rules, policies, and handbooks to make sure they are sufficiently tailored to withstand the Board's scrutiny.
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