spring 2012 mhhra president’s letter2 •newsletter of the michigan health care human resources...

MHHRA President’s LetterIn this issue:Fraud and RetaliationLawsuits by DisgruntledHealthcare Employeeson the Rise ...................2

NlRB Postpones EffectiveDate of Rights PostingRule..............................3

Department of LaborProposes Changes to theFair Labor Standards ActRegulations RegardingCompanionship andLive-In DomesticService Exemptions.......3

Supreme Court UpholdsMinisterial Exception toDiscrimination Claims...4

Workplace Violence:Refuse to Be a Statistic..5

Preparing for IndustryTransformation.............6

The NLRB’s ActingGeneral CounselIssues Social MediaGuidance......................7

SPRING 2012

My highest aim as a healthcare human resourcesleader is to inspire passion. I came to thisconclusion after years of designing strategiesto attract, retain and motivate human resources.My “final” model culminates with culturedriving passion, and passion driving culture...

Stories relate to culture. The kind of storiestold in your organization both define anddrive your culture. With this backdrop, let metell you a story I heard 20 years ago as I waswondering if healthcare human resources wasthe right fit for me.

My young family was visiting my parents incentral Illinois and attending our hometownchurch. I had not been to my hometownchurch for several years, so wasn’t familiarwith the preacher. He was a small unassumingman with a beautiful Kentucky drawl. Histopic had something to do with a calling, andto set up the message he told the followingstory …

The preacher had visited his doctor for aroutine check up. He and the doctor had beenlife long friends and the two began reminiscingabout how they ended up in their chosencareers. When the preacher had shared his story,he commented that his friend must havechosen to be a doctor for the money. Thedoctor did not affirm this idea, however.Instead, the doctor asked his friend to take awalk with him telling him there was somethinghe wanted him to see. After the exam wascompleted, the two friends took off walkingtoward the adjacent hospital and the doctorproceeded to tell his friend the followingstory…

A few years ago I had a young patient namedJohnny. Johnny had a rare condition whichwould cause him to go blind for extendedperiods of time. These were unpredictable andterrified this five year old boy. Surgery couldcorrect the condition but it was consideredhigh risk as there was a chance that it couldcause permanent blindness. The patientwould not really know until after the surgicalbandages were removed if the surgery hadbeen successful. After discussing the risks withthe parents it was decided to proceed with thesurgery.

The day of Johnny’s surgery arrived and as hewas prepped and being carted to the operatingroom. Before entering the operating room thenurse tried to take a teddy bear from himwhich he held tightly, but there was a problem;there was no way Johnny was not going to letgo of that teddy bear! The nurse explained to Johnny’s mother thatthe teddy bear could not be in the operatingroom during surgery for infection controlreasons. Johnny’s mother understood, butexplained to the nurse that when Johnny hadhis bouts of blindness, she or her husbandcould not always be there for him. All he hadduring those terrorizing moments was histeddy bear. The nurse understood, and agreedto let Johnny hold on to his teddy bear untilhe was asleep from the general anesthesia,when it was pried from him and stored neatly.

A couple days after the surgery, I went intoJohnny’s hospital room. The big day had comewhen the bandages were to be removed fromJohnny’s eyes — a huge milestone in his treat-ment. When I removed the bandages he wasable to see! The surgery had been a success —we were thrilled!

(continued on page 6)

2 • Newsletter of the Michigan Health Care Human Resources Association

Healthcare providers and companiesinvolved in the healthcare industry canexpect to see an increase in fraud andretaliation claims by employees in 2012.HR professionals are often on the front-line and by understanding employeerights to make and employer obligationsto investigate claims of fraud, HRprofessionals can help prevent theirorganizations from being victims ofthese expensive claims.

The IssueWith the increasing complexity of stateand federal regulations governing thehealthcare industry, together with arenewed emphasis on reporting allegedhealthcare fraud, plaintiffs’ lawyers areactively soliciting employees to bringfraud and retaliation lawsuits againstemployers in the healthcare industry. Injust the past few months, almost a dozensuch lawsuits have been filed in state andfederal courts across Michigan, many ofwhich relate to allegations of Medicarefraud.

Employee RightsDisgruntled employees usually bring theirclaims under the federal False ClaimsAct (“FCA”) or the state Whistleblowers’Protection Act (“WPA”). The FCAallows private individuals (includingemployees) with knowledge of fraudagainst the federal government to filelawsuits on the government’s behalf. Ifthe case is successful, the private plaintiffsare entitled to a percentage of the moneyrecovered by the government. The FCAalso protects employees who raise allega-tions of fraud from retaliation by theiremployers. The WPA, likewise, protectsemployees who report, or are about toreport, suspected violations of law to thegovernment. Any employee who believeshe/she has been treated adversely becauseof being a whistleblower can bring aclaim.

The RisksThe stakes involved in these types oflawsuits are high. Depending on thenature of the alleged fraud, these claimsmight include criminal allegations inaddition to civil claims for damages.Potential damages to successful plaintiffscan range from several hundred thousanddollars to more than a million dollars.And, these cases often receive mediaattention, which can cripple a healthcareorganization’s reputation.

One recent example of such a case isstartling. In 2006 a Michigan residentsued a division of GE Healthcare underthe FCA alleging that it overbilled anddefrauded Medicare. The plaintiff allegedthat the company knowingly providedfalse or misleading information to thefederal Medicare program from 2000-2003 in connection with the distributionof a drug. In December 2011 the partiessettled the case for $30 million, of which$5.1 million will go to the plaintiff andthe remainder to the Centers forMedicare & Medicaid Services.

Proactive StepsHealthcare organizations should take thefollowing proactive steps to help managethe risk of potential fraud and retaliationlawsuits:1. Robust compliance programs and

procedures help companies to learnabout potential fraud and abuse andtake any necessary corrective measures

before the government becomesinvolved.

2. Healthcare organizations shoulddevelop and actively promote aninternal whistleblower program whichencourages employees to raise concernsinternally. The whistleblower programshould provide employees with severaldifferent avenues to raise concerns,including the ability to complainanonymously.

3. An effective anti-retaliation policy(in both word and deed) is a criticalcomponent to any compliance andwhistleblower program.

4. Healthcare organizations should takeemployees’ complaints seriously,document a thorough and timelyinvestigation of the complaints, andinform the whistleblower as to thestatus of any investigation.

HR professionals play a critical role,often being the eyes and ears of anorganization, and must understandwhen employee concerns, complaints,gripes, or suggestions may trigger theneed for the healthcare organizationto investigate the issues and to ensurethe employee raising the issue is notdischarged or otherwise treated adverselyfor having raised the issue(s).

About the Authors

David Buday is an employment and laborattorney at Miller Johnson and serves on thefirm’s Management Committee. He has beenin practice more than 20 years and his practiceincludes disabilities and accommodation,employment discrimination, union avoidance,union management relations, wage and hourlaw, and workplace harassment.

Tony Comden is an employment and laborattorney at Miller Johnson. He has been inpractice more than 15 years and his practiceincludes human resource matters such as wageand hour, discipline and discharge, employeehandbooks, non-compete agreements, andworkforce reductions, with a special focus onemployment-related health care matters.

Fraud and Retaliation Lawsuits by Disgruntled Healthcare Employeeson the RiseBy David M. Buday and Tony R. Comden, Miller Johnson Attorneys

Newsletter of the Michigan Health Care Human Resources Association • 3

NlRB Postpones Effective Date of Rights Posting RuleBy Karen B. Berkery

I am sure most of our readers know that the NLRB issued anew requirement regarding the posting of employee rightswhich requires a majority of private sector employers to postan 11 x 17 inch notice that advises employees of their rightsunder the NLRA. The Board imposed this requirement dueto its belief that many employees are unaware of their rightsunder the National Labor Relations Act.

Originally the posting was to take effect November 14, 2011,but it was then delayed and was to take effect January 31,2012. In the meantime, there are several lawsuits that havebeen filed challenging the new posting rule. Suits were filedby the National Association of Manufacturers, the NationalFederation of Independent Businesses and the U.S. Chamberof Commerce seeking to enjoin the rule, challenging the

Board’s rule as a gross overreach of authority, and claimingthat it violates employers’ First Amendment rights amongother challenges.

These lawsuits have been consolidated, and on December 19,2011, a hearing was held on a motion for summary judgment.During oral argument the Judge did question the NLRB’sauthority to treat the failure to post the new employee rightsnotice as an unfair labor practice charge. The Court statedthat it would issue a written order but stated that the January31, 2012 date was an arbitrary date and asked that the Boarddefer implementation of the rule until it is able to resolve allthe legal challenges.

At this juncture, the new date for posting is April 30, 2012,unless postponed once again.

Department of Labor Proposes Changes to the Fair Labor StandardsAct Regulations Regarding Companionship and Live-In DomesticService ExemptionsBy Kimberly K. Pendrick

The Michigan Minimum Wage Law of1964 was amended to specifically providethat the Michigan minimum wage andovertime requirements are applicable todomestic service workers that “providecompanionship services.” This is despitethe fact that the Fair Labor StandardsAct (FLSA) provides a minimum wageand overtime exemption for those workersproviding companionship services.

The Department of Labor (DOL) hasproposed to make significant changes tothe FLSA that affect the current federalexemption. The DOL has noted that“[d]ue to significant changes in the homehealth care industry over the last 35years, workers who today provide in-homecare to individuals are performing dutiesand working in circumstances that werenot envisioned when the companionshipservices regulations were promulgated…The [DOL] has re-examined the regula-tions and determined that the regulations,as currently written, have expanded thescope of the exemption beyond thoseemployees whom Congress intended toexempt…”

must follow whichever rule providesworkers with the greatest benefit.

The regulations also redefine compan-ionship services. Instead of being definedas providing “fellowship, care and pro-tection for a person who because ofadvanced age or mental or physicalinfirmity cannot care for his or her ownneeds,” it now only applies to theprovision of “fellowship and protection.”Previously, the regulations allowed acompanion to perform incidental generalhousehold work for up to 20% of theirtime, but excluded meal preparation,bed making, washing clothes and similarservices. The new regulations provide a20% limitation, but this includes dressing,grooming, toileting, driving to appoint-ments, feeding, laundry and bathing.

It is clear upon review of the proposedchanges that the DOL opines that theFLSA and overtime exemption shouldbe narrowly applied to families whodirectly employ someone to, in essence,babysit the elderly or infirm.

The biggest change to the current regu-lations is the loss of the exemption foragencies who employee companions,including live-ins. In Long Island Care atHome, Ltd. v. Coke, 551 U.S. 158(2007), the Supreme Court found thatdomestic workers employed by third-party providers could qualify for theexemption. However, the proposedregulation provides that employeesproviding companionship services andlive-in domestic service workers “employedby an employer or agency other than theindividual or member of family orhousehold using the services are entitledto minimum wage and overtime pay.”

The only domestic service workers inMichigan who are exempt from minimumwage and overtime are live-ins. However,if the FLSA eliminates the live-in ex-emption for employees employed by athird-party agency, Michigan employerswho are also subject to FLSA (which ismost) will lose this last remaining ex-emption because whenever a state’s laborlaws conflict with the FLSA, employers

On January 11, 2012, the U.S. SupremeCourt upheld the existence of a ministerialexception, rooted in the EstablishmentClause, that forbids civil courts fromreviewing claims of employment dis-crimination made by a minister againsthis or her church. The case involvedHosanna-Tabor Evangelical LutheranChurch and School located in Redford,Michigan.

The church operated a school offering aChristian-centered education to studentsand classified its teachers into twocategories: “called” and “lay.” To beeligible to become a commissioned min-ister or a “called” teacher, the chargingparty, Cheryl Perich, had to completeeight college level courses in subjectsincluding biblical interpretation, churchdoctrine, and the ministry of theLutheran teacher. She had to obtain theendorsement of her local Synod districtby submitting a petition that containedher academic transcripts, letters ofrecommendation, personal statement,and written answers to various ministryrelated questions. She then had to passan oral examination by a faculty com-mittee at a Lutheran college. It took hersix years to fulfill these requirements.Then she had to be elected by hercongregation which recognized God’scall to her to teach and she was thencommissioned as a minister.

Perich developed narcolepsy and wentout a disability leave. When she wantedto return to work, the principal hadalready contracted with a lay teacher tofill her position. The principal expressedconcern that she was not ready to returnto the classroom. The congregationoffered to pay a portion of Perich’shealth insurance premiums in exchangefor her resignation as a “called” teacher.She refused to resign and she was subse-quently terminated for insubordinationand disruptive behavior because shethreatened to sue.

Perich filed a charge with the EEOCclaiming she had been terminated inviolation of the Americans withDisabilities Act. The EEOC subsequentlybrought suit alleging that Perich hadbeen fired in retaliation for threateningto file an ADA lawsuit. Hosanna-Taborfiled a motion to dismiss the lawsuit onthe basis of the ministerial exceptionwhich had been recognized by variouscourts of appeals and which bars suitsinvolving employment relationshipsbetween a religious institution and oneof its ministers. Judge Patrick Duggan ofthe Eastern District of Michigan agreedand granted summary judgment in theschool’s favor.

The Sixth Circuit later vacated that rulingand an appeal was then taken to the U.S.Supreme Court. The Sixth Circuit hadheld that Perich did not qualify as aminister under the exception because shealso performed secular duties and thefact that some lay teachers at the schoolperformed the same religious duties asPerich. The Supreme Court held that theministerial exception is not limited tothe head of a religious congregation.The Court held, looking at the facts ofthis case, that Perich was held out as aminister, had to become educated as aminister, had to pass examinations andbe commissioned upon election by the

congregation. Once it was concludedthat she fell within the ministerialexception, the Court acknowledged theministerial exception and found thatrequiring a church to accept or retain anunwanted minister, or punishing achurch for failing to do so, intrudesupon more than a mere employmentdecision. It held that it will interferewith the internal governance of thechurch and deprive the church of controlover the selection of those who willpersonify its beliefs. The Court held thatby imposing an unwanted minister, theState would be infringing on the FreeExercise Clause, which protects areligious group’s right to shape its ownfaith and mission through its appoint-ments and it would also violate theEstablishment Clause which prohibitsgovernment involvement in suchecclesiastical decisions. The Courtconcluded that the interest of societyin the enforcement of employmentdiscrimination statutes is undoubtedlyimportant but so too is the interest ofreligious groups in choosing who willpreach their beliefs, teach their faith andcarry out their mission.

This is certainly an important decisionas it is the first time the U.S. SupremeCourt has recognized the ministerialexception in discrimination lawsuits.


Supreme Court Upholds Ministerial Exception to Discrimination ClaimsBy Karen B. Berkery


Workplace Violence: Refuse to Be a StatisticBy Joe Rosner

It’s every healthcare executive’s worstnightmare, the unexpected phone callannouncing that an employee has beenhurt on the job. Healthcare accounts foronly 18% of the workforce, but 48% ofworkplace violence happens to peopleworking in health care occupations.In fact, the government reports over9000 healthcare workers per DAY arevictims of workplace violence. Workplaceviolence is the leading cause of death forsupervisors and managers.

The Joint Commission’s Environmentof Care standards require health carefacilities to address and maintain a writtenplan describing how an institutionprovides for the security of patients, staffand visitors. There is no specific federalregulation requiring employers to keepemployees safe from violence. But OSHAcan and does impose penalties basedon the “General Duty Clause “ whichrequires a worksite free from recognizedhazards that cause or are likely to causedeath or serious physical harm, includingviolence. The impact of WPV includeslawsuits (Settlements average $300K,jury awards $3 Million.), higher employeeturnover, and increased insurancepremiums. Even more alarming is theimpact workplace violence has on qualityof care. Clinicians stressed by fear ofviolence do not interact with patients aseffectively or spend as much time perpatient. One study found that a nursewho merely witnesses violence on thejob is three and a half times more like toreport needlestick incident.

A written policy, supported by caring,involved management can preventviolence. Violence does not offer advancewarning the way weather threats do.Putting in plans, policies, and proceduresto prevent violence and reduce harm if ithappens makes business sense. But morethan that, making sure your team goeshome safe everyday is one of leadership’smost important obligations.

Workplace violence plans that consist ofzero tolerance statements and little elseare likely to fail. Important elements ofan effective workplace violence programinclude:• Management & Employee Involvement• Worksite Analysis• Hazard Prevention & Control• Safety Training• Recordkeeping & Evaluation

OSHA guidelines mandate training onthe concept of “Universal Precautionsfor Violence”, i.e., that violence shouldbe expected, but can be avoided ormitigated through preparation. Employeesshould receive regular training on: • Early recognition of escalating behavior

or warning signs. • Ways to prevent volatile situations. • Responding to violent situations.

Training programs should involve allemployees, including supervisors andmanagers. Failure to include appropriatesafety training in your workforce violenceplans and policies may actually increasethe risks they were intended to address.

When facing an unexpected emergency,especially a violent confrontation, mostpeople will either freeze, do nothing, ormake bad decisions and take the wrongactions. “Freezing” is caused by panic, a

condition manifested by an inability toremember what to do. Or “freezing “may be a result of choking, an inabilityto select from a number of possibleactions. A few people are fortunate tohave a natural ability to remain level-headed and make good decisions undersudden, high stress situations. Butvirtually everyone will make better, fasterdecisions as a result of forethought andtraining. Ask Captain Sully Sullenberger,the pilot who made a water landing in ajetliner on the Hudson with zero loss oflife. It was his training and forethought,not his gut instincts or natural abilitythat saved the day.

Opportunity, Ability, and Intent areall required conditions for violence tohappen. Effective workplace violencepersonal safety training should includestrategies, tactics, and techniques toeliminate the danger of violence bycontrolling one or more of the conditionsnamed above. Methods such as defusingskills, verbal control tactics, use ofbarriers to shelter in place, distress signals,(including coded distress signals) andsimple, reliable self defense, all can beeffective and should be taught by aqualified instructor.

Worrying is not an effective way tokeep people safe. That requires a com-prehensive workplace violence preventionprogram and commitment from theCEO on down. There is no way ofknowing how many tragedies areprevented by having an effective programin place or how many nightmare phonecalls won’t have to be answered.

About the Author

Joe Rosner is an author, speaker and trainerbased near Chicago. After the attacks of 9/11he began using his military, law enforcementand martial arts expertise to teach people to besafer and live with less worry related stress.More information at www.BestDefenseUSA.net.

Key provisions of the Patient Protectionand Affordable Care Act (PPACA) arebeginning to take effect, and the impactof this landmark legislation on healthcare provider organizations will besignificant and long lasting. As theseorganizations consider how to maintainand improve their fiscal health andcompetitive position — within theparameters of the PPACA — they willneed to take a hard look at the historicalrelationship between hospitals andphysicians. To succeed in the newenvironment — one focused ondelivering a full continuum of care —they’ll need to integrate care deliverypractices in a way that reduces costs andimproves outcomes. Accountabilitywill increasingly fall on providers anddelivery systems, so actively engagingphysicians in the transformation processwill be crucial to sustained success.

Specific strategies for achieving thesegoals include:• Restructuring clinical operations to

better manage risks and costs• Building an aligned delivery system

with shared accountability betweenhospitals and physicians

• Restructuring physician contractsfrom cost-based to value-based

• Engaging physicians to influencepractice behavior

Implementing these strategies starts witha redefinition of the hospital/physicianrelationship — from a contracted servicesmodel that rewards fragmentation androle specialization, to a value-basedmodel with shared accountability.Standing in the way are cultural challenges,changing roles and responsibilities and,of course, compensation issues.

Hospitals need a clear strategy and asystematic approach to physician realign-ment and compensation that directlysupports broader organizational strategy,encompasses measurable performancegoals, draws on reliable outcome data andaligns incentives with required changesin behavior. Payment arrangements thathave no correlation to productivity andquality aren’t sustainable in this newframework, but it’s also important toensure incentives balance rewards forproductivity with quality and outcomes.Indeed, as payment reform takes shape,innovation and balance will be the keydrivers for developing effective physiciancompensation plans.

Embedding quality measures into physi-cian incentive arrangements is particularly

important in light of PPACA provisionsthat hold hospitals and physiciansaccountable for quality. While penaltiesfor poor quality are already in place —e.g., reduced or no payment for unneces-sary readmissions and hospital acquiredconditions — a balanced approach toimproving quality should also includepatient-centric performance measuressuch as access to care and satisfaction.This means building a culture and a setof core values that connect an individualphysician’s view of quality (“what I dowith the patient in front of me”) with aformal, organizational definition ofquality (“how we build care managementprocesses for entire populations ofpatients”). Transparency, better informa-tion and best practices are the keys tothis new model of care.

For More InformationFor more information please contact AliceKing at (214) 530-4217 [email protected], or visittowerswatson.com.

Reprinted with permission from Strategy atWork© Towers Watson 2012.


Preparing for Industry TransformationThe Changing Hospital/Physician Relationship

A few days later I discharged Johnnyfrom the hospital. As I was walking intomy office that evening, I noticed some-thing setting on my desk. I turned thelights on and walked over to investigate.It was a paper bag with an envelopeaddressed to me clipped to it. I openedthe envelope and unfolded the notewhich read: “Thank you for providingour boy the miracle of sight. While welack the resources to pay, Johnny wantedyou to have this.” Quickly, I opened thebag and pulled out the contents — itwas Johnny’s teddy bear! Pinned to the

PRESIDENT’S LETTER(continued from page 1)

directly to me. I knew from that momentI had “bumped into” the right career. Ithink that the majority of our people inhealthcare feel that same passion, that it isnot a career, it is a calling.

As healthcare HR practitioners, I thinkwe often short-change ourselves bymissing out on inspiring the passion ourfolks have to offer. These stories andmultitudes like them exist in our health-care organizations. They are just waitingto be told. Bring them alive. Tell them.Share them. It is a powerful way to driveculture and inspire passion.

Dane TurnerPresident, MHHRA

teddy bear was another note which read:“Thanks to you, I won’t need this anymore,” signed Johnny.

By this time the two friends had reachedtheir destination in the main corridor ofthe hospital. The doctor showed hispreacher friend a shrine-like case with alight shining brightly on it. In the casewas a pedestal upon which Johnny’s oldteddy bear was proudly displayed. Beneathit was a plaque which read:

“Greatest fee received for professionalservices rendered.”

Wow. I couldn’t believe the story thatlittle preacher with the Kentucky drawlhad just told. It was like he had told it

The NLRB’s Acting General Counsel Issues Social Media Guidance By Tracy A. Leahy

On August 18, 2011 and January 24,2012, the National Labor RelationsBoard’s (NLRB) Acting General Counsel,Lafe E. Solomon, issued two reportsanalyzing recent social media cases. Thereports, a must read for Human Resourcesprofessionals, reflect the Acting GC’sinterest in social media and his desire tokeep the labor-management communityfully aware of recent developments.

The cases discussed in the reports fallinto two categories: (1) those involvingemployee discipline for social mediapostings, and (2) those challengingemployer policies prohibiting socialmedia postings. The reports discuss 28cases, 5 involving hospitals/clinical testinglaboratories, 4 involving social services/ambulance companies and 19 casesinvolving other employers. Of the 20discipline cases discussed in the reports,ten were found to violate the employee’srights under the National Labor RelationsAct (NLRA). Of the 12 policies that wereaddressed, 10 were found to unlawfullyrestrict an employee’s rights under theNLRA.

My Workforce Is Not Unionized,Why Should I Care What TheNLRB Has To Say?Whether your workforce is representedby a union or not, most private employersare covered by the National LaborRelations Act (NLRA). Indeed, unlessyou are a federal or state employer,Federal Reserve Bank, an employersubject to the Railway Labor Act, amunicipality or religious school, you arelikely a covered employer and youremployees have rights protected by theNLRA.

Understanding An Employee’sRights Under The NLRAThe NLRA forbids employers frominterfering with an employee’s right toform or join a union or working togetherto improve the terms and conditions ofemployment. Section 7 of the NLRA

grants employees the right to “engage inconcerted activities for the purpose. . . ofmutual aid or protection. . . .”

Thus, an analysis of an employee’s rightsunder the NLRA, has two components:1) the conduct must be concerted; and2) the conduct must be protected.

Concerted activity occurs when theemployee:1) acts with or on the authority of other

employees,2) seeks to initiate or to induce or to

prepare for group action, or3) brings truly group complaints to

management’s attention.

An employee’s activities are not concertedwhen the employee acts solely by or onbehalf of himself regardless of the benefitto other employees.

Protected activity occurs when theemployee engages in any act that isintended to improve the employee’swages, working conditions or otherterms or conditions of employment.

Section 8 of the NLRA forbids anemployer from implementing any workrule that would “reasonably tend to chillemployees in the exercise of their Section7 rights.” Lafayette Park Hotel, 326NLRB 824 (1998).

While a discussion of all 28 of the casesaddressed in Acting GC’s reports is

beyond the scope of this article, a fewexamples illustrate how these legalstandards have been applied in the socialmedia context.

Discipline For Social Media Post-ings Found To Violate The NLRAIn one case, a hospital disciplined anddischarged a nurse because of messageshe posted online. In several postings overthe course of a seven month period, thenurse publicly criticized the hospital’s“management style” and “abuse” ofemployees following an incident inwhich a recently discharged hospitalemployee killed his supervisor andcritically wounded another employee.The nurse’s numerous postings, includedthe following:1) an online letter to a local newspaper

stating that the hospital’s corporateabuse was documented and continuingand that this “national corporateparadigm” had led to the destructionof life at the hospital;

2) a letter to the editor posted on thelocal newspaper’s website in which theemployee discussed the employer’s“management style” and commentedthat the style was “far worse” thanbulling, that employees who stoodup to management were isolated andattacked and that personal information



was used to destroy employees;3) a Facebook posting stating that under

the leadership of the hospital’s CEO,there had been multiple unfair laborpractices filed, forced policy changes,a murder/suicide, unfair firings,harassment, and workplace bullying.

The Acting GC concluded that all of thenurse’s online postings were protectedbecause they concerned discussionabout unfair labor practices or workingconditions. The Acting GC also foundthat the comments constituted concertedactivity for mutual aid and protectionunder the NLRA because the statementswere the logical outgrowth of otheremployee’s collective concerns or weremade with or on the authority of otheremployees. The nurse’s online postingswere widely approved by his fellowemployees including the followingcomments on the nurse’s Facebook page:“Thank you for having faith in me andhelping my voice be heard,” “Keepfighting the good fight,” “Great letter,”“Thanks for helping us stay informed,”“Like the comment,” and “Thank youfor speaking for us who do not dare.”

The Acting GC rejected the hospital’sassertion that the postings were sodefamatory or disparaging as to lose theprotection of the NLRA. The nurse’sstatements alleging that the Employerabused, bullied, threatened and attackedemployees were the “kind of opinion orfigurative expression that the Boardand courts have found to be ‘rhetoricalhyperbole’ protected by the Act.” Thecomments were not defamatory eithersince the hospital failed to demonstratethat the statements were knowing falseor maliciously untrue.

Employee’s Discipline For SocialMedia Posting Did Not ViolateThe NLRA – The Employee’sPostings Were Not Protected orConcertedIn another case, the employer, a children’shospital, disciplined a respiratory therapist

for Facebook postings she made aboutan irritating coworker. The respiratorytherapist used her cell phone to post amessage on Facebook indicating that itwas driving her nuts that her coworkerwas sucking his teeth. Two of herFacebook friends who were not employeesof the hospital, responded with support-ing comments prompting the respiratorytherapist to respond that she was aboutto beat her coworker with a ventilator.The coworker became aware of therespiratory therapist’s Facebook postingsand complained to management. Thehospital investigated and suspended thetherapist for her negative and threateningFacebook comments about her coworker.

The Acting GC found that the therapist’sFacebook postings were not protectedbecause they did not concern the termsand conditions of her employment withthe hospital. Rather, she was merelycomplaining about the sounds hercoworker was making and she had notsuggested that the hospital do anythingabout it. In addition, the therapist’s post-ings were not concerted because none ofher coworkers responded nor was sheseeking to induce or prepare for groupaction and her activity was not an out-growth of her coworkers’ collectiveconcerns. Rather, the postings weremerely a personal complaint aboutsomething that had happened on hershift.

Discipline Cases – Take AwaySupervisors should be trained as to anemployee’s Section 7 rights. HumanResources personnel should carefullyreview and approve any discipline thatarises out of social media postings toensure that the activity was not protectedor concerted in violation of an employee’sSection 7 rights.

Overbroad Policies Found toViolate the NLRAIn ten of the cases addressed in thereports, an employer’s policy as found in

a social media policy, work rule, standardsof conduct, non-solicitation or informa-tion technology policy, was found toviolate the NLRA. The following areexamples of policies found to be unlawfulin the Acting GC’s reports:• Policies prohibiting the use of the

company’s name or service were foundto be unlawfully overbroad.

• Policies prohibiting prior approvalbefore using the company’s name orservice mark were found to be unlaw-fully overbroad.

• Policies prohibiting employees fromusing the company’s name, address,logo, photos or other information onan employee’s personal profile werenot narrowly drawn to address thecompany’s legitimate interest inpreventing disclosure of certainprotected company information tooutside parties.

• Employer’s rule that prohibits employeecommunications to the media orrequires prior authorization for suchcommunications was unlawfullyoverbroad.

• Policy prohibiting employees fromusing social media that may violate,compromise, or disregard the rightsand reasonable expectations as toprivacy or confidentiality of anyperson or entity, was overly broad as itprovided no definition or guidance asto what the employer considered to beprivate or confidential.

• Policy prohibiting any communicationor post that constitutes embarrassment,harassment or defamation of theemployer or any employee, or staffmember was overly broad andcontained undefined terms.

• Policy prohibiting statements that lacktruthfulness or that might damage thereputation or goodwill of the employer,its staff or employees was overly broadand contained undefined terms.

• Rule that bans solicitation in non-workareas during non-work time is an“unreasonable impediment toself-organization. . . in the absence of


THE NLRB’s ACTING GENERAL COUNSEL ISSUES SOCIAL MEDIA GUIDANCE(continued from page 7)


evidence that special circumstancesmake the rule necessary in order tomaintain production or discipline.”

A “Savings Clause” Was FoundInsufficientIn a case addressing a store’s social mediapolicy, the Acting GC found the policywas unlawful. The policy instructedemployees to avoid disclosing terms andconditions of their employment onsocial media unless they did so in an“appropriate” manner. The Acting GCfound that the policy implicitly prohibitedanti-employer discussions of employmentterms and conditions and employeescould therefore reasonably interpret it asforbidding conduct protected by Section7 of the Act. The policy also included asavings clause which stated that the policywould not be interpreted or appliedin a way that would interfere with the

employee’s rights under the Act. Thepolicy contained a detailed list of thoserights. The Acting GC rejected thisargument finding that “an employeecould not reasonably be expected toknow that this language encompassesdiscussions the Employer deems‘inappropriate.’”

Policy Cases Take AwayBroadly worded policies that couldreasonably be read to restrict anemployee’s Section 7 rights, will befound to be unlawful. Drafting policiesthat comply with the Acting GC’sfindings will be a challenge. HumanResources professionals should reviewtheir existing policies and work rules forcompliance with the Acting GC’s reports.When revising existing policies, thefollowing should be considered: • Revise policies to reflect legitimate

business concerns.

• Include definitions of broad or vagueterms.

• Give specific examples of prohibitedconduct.

• Give a business rationale for any con-duct that is prohibited.

• Consider utilizing a savings clause.

About the Author

Tracy A. Leahy is a member of Clark Hill’sLabor and Employment Practice Group. If youhave any questions about the Acting GC’sreport or social media issues, contact Tracy at(313) 985-8533 or [email protected].

Human Resources personnel should carefully review and approve any discipline

that arises out of social media postings to ensure that the activity was not protected

or concerted in violation of an employee’s Section 7 rights.


(continued from page 8)

2012

April 26 and 27 l East Lansing Marriott at University Place l East Lansing, Michigan

Keynote Speakers: Mike Schlappi and Liz JazwiecEmployment Law Updates | Human Resources Update by JCAHO

Unemployment Compensation Update | Hospital Wellness ProgramsAnd More . . .

Michigan Health CareHuman Resources

Conference

REGISTRATION2012 MICHIGAN HEALTH CARE

HUMAN RESOURCES CONFERENCEApril 26-27, 2012 • East Lansing Marriott at University Place • East Lansing, MI

Name (as you wish it to appear on name badge): __________________________________

___________________________________________________________

Title: _______________________________________________________

Hospital/Organization:___________________________________________

___________________________________________________________

Address: _____________________________________________________

City/State/ZIP:________________________________________________

___________________________________________________________

Phone: ______________________________________________________

Fax: ________________________________________________________

Email: ______________________________________________________

� Special Dietary Needs: _________________________________________(please specify)

� I will be attending the Thursday Evening Reception

� Current Members of Michigan Healthcare Human Resources Association and/or clients of MHA Unemployment Compensation Program ___ $200 for Thursday and Friday ___ $175 Thursday only ___ $125 Friday only� Nonmembers ___ $255 for Thursday and Friday ___ $230 Thursday only ___ $180 Friday only

A 5 percent group discount is available forgroups of three or more from the samehealth care employer.TO RECEIVE THE GROUPDISCOUNT, ATTENDEES MUSTREGISTER AND PAY AT THE SAMETIME, AS A GROUP.

BREAKOUT SESSIONS

Register for this program via the MHAwebsite at: http://education.mha.org/ewebClick on each of the following:

• Event Registration• 2012 Michigan Health Care Human

Resources ConferenceContinue to follow the instructions.

• The group discount code foronline registrations is HR-2012

For the group discount, apply a 5 percentdeduction from registration fees.Make checks payable to MHASC and mailwith registration form to:

MHA Service CorporationAttn: Wendy Knight6215 W. St. Joseph HighwayLansing, MI 48917

REGISTRATIONS RECEIVEDON OR BEFORE APRIL 11, 2012

GROUP DISCOUNT

REGISTER ONLINE

REGISTER BY MAIL

Please indicate your choices for the concurrent sessions by checking ONE session fromEACH of the following time slots:

THURSDAY, APRIL 26, 20121:15 - 2:30 p.m.

� Investigations in the Health Care Setting — What Every HR ProfessionalShould Know

� Joint Commission Requirements for Human Resource Directors2:45 - 4 p.m.

� 2012: How Unions and the NLRB Have Positioned Labor for a Resurgence� Memorial’s Planetree Journey — Our Hospital’s Path to Becoming Recognized

as a National Model for Excellence in Personalized Health Care

FRIDAY, APRIL 27, 20128 - 9:15 a.m.

� Creating a Healthy Workplace Culture from the Top Down and the Bottom Up� A New Era of Talent Management in the Health Care Industry

Charge my: � VISA � MasterCard � American Express

Account Number: _____________________________________________

Cardholder (please print): ________________________________________

Cardholder Signature:___________________________________________

Exp. Date:____________________________________ CVV___________

� Current Members of Michigan Healthcare Human Resources Association and/or clients of MHA Unemployment Compensation Program ___ $250 for Thursday and Friday ___ $225 Thursday only ___ $175 Friday only� Nonmembers ___ $305 for Thursday and Friday ___ $280 Thursday only ___ $230 Friday only

REGISTRATIONS RECEIVEDAFTER APRIL 11, 2012

QUESTIONS? Contact Wendy Knight at (517) 886-8416.

spring 2012 mhhra president’s letter2 •newsletter of the michigan health care human resources...

Documents