Kare Jo Young wrote a letter to her local newspaper criticizing officials at the hospital where she worked as the activities coordinator, saying their actions resulted in staff shortages and other patient safety issues.
Hours after her letter was published in September 2017, officials at Maine Coast Memorial Hospital in Ellsworth, Maine fired her, citing a policy that no employee can give information to the media without direct participation from the media office.
But a federal appeals court recently said Young’s dismissal violated the law and ordered his reinstatement. The court ruling could mean hospitals and other employers will have to revise their policies prohibiting workers from speaking to media and posting on social media.
These media policies have been a bitter source of conflict in hospitals over the past year, as doctors, nurses and other healthcare workers across the country have been fired or sanctioned for speaking or posting in public. what they considered to be dangerously inadequate Covid-19 safety precautions. These fights also reflect a growing tension between healthcare workers, including doctors, and the increasingly large, for-profit companies that employ them.
On May 26, the 1st U.S. Court of Appeals unanimously upheld a National Labor Relations Board ruling last year that the hospital, now known as the Northern Light Maine Coast Hospital, violated federal labor law by firing Young for engaging in protected “concerted activity”. “The NLRB defines it as ensuring the right to act with co-workers to resolve work-related issues, such as issuing petitions for better hours or speaking out on safety issues. He also confirmed the finding. of the board that the hospital’s media policy prohibiting contact between employees and the media was illegal.
“This is great news because I know all hospitals prefer that we don’t talk with the media,” said Cokie Giles, president of the Maine State Nurses Association, a union. “We are careful what we say and how we say it because we don’t want to hurt ourselves. “
The 1st Circuit opinion is remarkable because it is one of the few such decisions on employee speech under national labor relations law ever made by a federal appeals court, and the first in nearly 20 years, said Frank LoMonte, a University of Florida law professor who heads the Brechner Center for Freedom of Information.
The decisions of the 1st Circuit and the NLRB should force hospitals to “pull out their manual and make sure it doesn’t prevent employees from speaking,” he said. “If you’re fired for breaking a ‘do not talk to media’ policy, you should be able to get your job back. “
The American Hospital Association and the Federation of American Hospitals declined to comment for this article.
While the 1st Circuit opinion is only binding in four northeastern states and Puerto Rico, the NLRB’s ruling is legally binding across the country. The case applies to both unionized and non-unionized employees, according to legal experts.
In March, the NLRB also ordered automaker Tesla to revise its policy prohibiting employees from speaking to the media without written permission.
Hospitals and healthcare organizations often have policies requiring employees to clear all public comments in the workplace with the organization’s media office. Many also have policies restricting what employees can say on Facebook and other social media.
Hospitals say requiring employees to go through their media offices prevents the release of inaccurate information that could damage public confidence. In Young’s case, the hospital argued that his letter contained false and derogatory statements. But the 1st Circuit panel agreed with the NLRB that his letter was “not abusive” and that his only false statement was not his fault.
Healthcare organizations have unchallenged legal authority to prohibit employees from disclosing confidential patient information or proprietary business information, according to legal experts.
But the 1st Circuit panel made it clear that an employer cannot prevent an employee from engaging in “concerted actions” – such as media awareness – “in favor of a group concern”. This is true even if the employee acted alone, as Young did when writing his letter. The key in her case was that she “acted in favor of what had already been established as a group concern,” the court said.
“I think employers with a blanket ban on speaking to the media need to review their policies,” said Eric Meyer, partner at FisherBroyles in Philadelphia, who often represents companies on labor law issues. “If you go to the media and say, ‘There are unsafe working conditions that impact me and my colleagues,’ that is a protected concerted activity. “
Chad Hansen, Young’s attorney in a separate federal lawsuit alleging disability discrimination against the hospital, said she has yet to be reinstated in her job. Young declined to comment.
The hospital’s parent company, Northern Light Health, has only said that its news media policy – which was changed after Young’s dismissal – meets NLRB and Circuit 1 requirements and will not be changed again. . The new policy created an exception allowing employees to speak to news media related to concerted activities protected by federal law.
The rights of expression under the national industrial relations law are particularly important for employees of private companies. Although the Constitution protects people who work for public hospitals and other government employers with its guarantee that governments cannot restrict speech, employees of private companies do not have the First Amendment right to speak publicly. workplace issues.
“I hope this case will keep the right of healthcare workers to talk about something dangerous alive,” said Ming Lin, an emergency room doctor who lost his job last year at PeaceHealth St. Joseph Medical Center. of Bellingham, Wash., after publicly criticizing the hospital’s preparedness for a pandemic.
Lin, who was employed by TeamHealth, which provides emergency physician services to the hospital, lost his PeaceHealth assignment in March 2020 shortly after he said on social media and in interviews with reporters that PeaceHealth was not taking urgent enough action to protect Covid staff members. He had worked at the hospital for 17 years.
In an April 2020 YouTube interview, PeaceHealth Director of Operations Richard DeCarlo said Lin was taken off the hospital’s emergency room schedule because he “continued to post false information, which made people afraid and afraid to come to the hospital “. DeCarlo also alleged that Lin, who was out of town for part of the time he was on duty, refused to communicate with his supervisors in Bellingham about the situation. PeaceHealth declined to comment for this article.
PeaceHealth’s social media policy at the time stated that the company did not prohibit employees from engaging in concerted federally protected activities and that they “are free to express their views.” TeamHealth’s Social Media Policy, dated July 15, 2020, states that the company reserves the right to take disciplinary action in response to behavior that adversely affects the company.
Lin, who now works for the Indian Health Service in South Dakota, sued PeaceHealth, TeamHealth and DeCarlo in a Washington state court, alleging unfair dismissal in violation of public order, breach of contract and defamation.
Jennifer Bryan, chairman of the board of directors of the Mississippi State Medical Association, who has publicly defended two Mississippi doctors fired for posting articles about the inadequacy of their hospitals’ Covid safety policies, said she was suffering from pressure from his hospital for speaking to the media without obtaining approval.
The medical association urged its members to speak to the media about the science of Covid, while employers insisted that doctors’ posts had to be approved by the media office. This reflected a conflict, she said, between medical professionals primarily concerned with public health and leaders of for-profit systems who sought to protect their brand image.
Bryan predicted that the court ruling and the NLRB ruling would be helpful. “Doctors need to be able to stand up and stand up for what they believe affects the safety and well-being of patients,” she said. “Otherwise, there are no checks and balances. “
Kaiser Health News (KHN) is a national newsroom that produces in-depth journalism on health issues. It is a program of KFF (Kaiser Family Foundation), an endowed nonprofit organization that provides information on health issues.