Karen Jo Young wrote a letter to her local newspaper criticizing senior executives at the hospital where she worked as an activity coordinator, arguing that their actions led to staff shortages and other patient safety issues.
Hours after her letter was published in September 2017, officials at the Maine Coast Memorial Hospital in Ellsworth, Maine, dismissed her, citing a policy that no employee should provide information to the news media without the direct involvement of the media bureau.
But a federal appeals court recently said Young’s dismissal was against the law and ordered her reinstatement. The court’s ruling could mean hospitals and other employers need to revise their policies prohibiting workers from speaking to the news media and posting on social media.
This media policy has been a bitter source of conflict in hospitals over the past year as doctors, nurses and other health care workers across the country have been fired or disciplined for publicly speaking or posting about what they viewed as dangerously inadequate Covid-19 Safety precautions. These struggles also reflect the growing tensions between healthcare workers, including doctors, and the ever larger, for-profit companies that employ them.
On May 26, the U.S. Court of Appeals unanimously upheld a ruling by the National Labor Relations Board last year that the hospital now known as the Northern Light Maine Coast Hospital had breached federal labor law by defending Young for protection “Concerted Activities” was fired. ”The NLRB defines it as ensuring the right to work with employees to address work-related issues such as: B. Spread petitions for better working hours or raise security issues. It also confirmed the board’s finding that the hospital’s media policy, which prohibited contact between staff and the media, was illegal.
“This is great news because I know all hospitals prefer not to speak to the media,” said Cokie Giles, president of the Maine State Nurses Association. “We are careful with what we say and how we say it because we don’t want to push the hammer on us.”
The 1st Circuit statement is noteworthy because it is one of the few such decisions on employee speech under the National Labor Relations Act ever made by a federal appeals court, and the first in nearly 20 years, said Frank LoMonte, law professor of the University of Florida directs the Computer Center for Freedom of Information.
District 1 and NLRB rulings should force hospitals to “pull out their manual and make sure it doesn’t stop staff from speaking,” he said. “If you get fired for violating the ‘off media’ guidelines, you should be able to get your job back.”
The American Hospital Association and the Federation of American Hospitals declined to comment on this article.
While the District 1’s opinion is only binding in four northeastern states plus Puerto Rico, the NLRB’s decision has the force of law nationwide. The case applies to both unionized and non-unionized workers, legal experts say.
In March, the NLRB similarly ordered automaker Tesla to revise its policy prohibiting employees from speaking to the media without written permission.
Hospitals and health organizations often have policies that require employees to clarify any public comments about the workplace with the organization’s media outlet. Many also have guidelines that restrict what employees can say on Facebook and other social media.
Hospitals say asking staff to go through their media office prevents the spread of inaccurate information that could damage public confidence. In Young’s case, the hospital argued that her letter contained false and derogatory statements. But the 1st District Board agreed with the NLRB that their letter was “not abusive” and that the only false statement was not their fault.
According to legal experts, health organizations have undisputed legal authority to prohibit employees from disclosing confidential patient information or proprietary business information.
The 1st district panel made it clear, however, that an employer cannot forbid an employee to take “concerted actions” – such as contacting the news media – “to promote a corporate concern”. This applies even if the employee has acted herself, as Young did in her letter. The key in her case was that she “acted in support of what was already an established corporate concern,” the court said.
“I think employers with a blanket ban on speaking to the media need to rethink their policies,” said Eric Meyer, a partner at FisherBroyles in Philadelphia, who often represents companies on labor law matters. “If you go to the media and say, ‘There are unsafe working conditions that affect me and my colleagues,’ it is a sheltered concerted activity.”
Chad Hansen, Young’s attorney on a separate federal lawsuit for alleged disability discrimination against the hospital, said she has not yet been returned to her job. Young wouldn’t comment.
The hospital’s parent company, Northern Light Health, just said its news media policy – which was changed after Young’s release – meets NLRB and District 1 requirements and will not be changed any further. The new policy created an exception that allows employees to speak to the news media in connection with concerted activities that are protected by federal law.
The right to speak under the National Labor Relations Act is particularly important for employees in private companies. Although the constitution protects people who work for public hospitals and other government employers with a guarantee that governments cannot restrict expression, workers in private companies have no right to speak up publicly on workplace issues.
“I hope this case upholds health workers’ right to speak up about anything dangerous,” said Ming Lin, an ambulance doctor who lost his job at PeaceHealth St. Joseph Medical Center in Bellingham, Washington, after he lost his job last year public criticism of the hospital’s pandemic preparedness.
Lin, who worked at TeamHealth, which provides hospital emergency medical services, lost his job with PeaceHealth in March 2020 shortly after he said on social media and in interviews with news reporters that PeaceHealth was not taking urgent enough action to advance its staff Covid. He had worked in the hospital for 17 years.
In an April 2020 YouTube interview, Richard DeCarlo, chief operating officer of PeaceHealth, said Lin was removed from the hospital’s emergency room schedule because he “continued to post misinformation that made people scared and afraid to go to the hospital get”. DeCarlo also alleged that Lin, who was out of town for part of the time in his post, refused to communicate with his superiors in Bellingham about the situation. PeaceHealth declined to comment on this article.
PeaceHealth’s then social media policy stated that the company did not prohibit its employees from engaging in government-protected concerted activities and that they were “free to express their views.” TeamHealth’s July 15, 2020 social media policy 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, has sued PeaceHealth, TeamHealth and DeCarlo in a Washington state court for alleging wrongful dismissal for public policy violation, breach of contract and defamation.
Jennifer Bryan, chairman of the board of the Mississippi State Medical Association, which publicly defended two Mississippi doctors who were fired for the inadequacy of their hospitals’ Covid safety policies, said she was pressured by her hospital to speak to the media without consent .
The Medical Association urged its members to speak to the media about the science of Covid, while employers insisted that doctors’ messages must be approved by the media outlet. This reflected a conflict, she said, between medical professionals who primarily dealt with public health and for-profit system executives trying to protect their corporate image.
Bryan predicted the court ruling and NLRB ruling will be helpful. “Doctors need to be able to stand up and speak up for what they think affects patient safety and wellbeing,” she said. “Otherwise there are no checks and balances.”
Kaiser Health News (KHN) is a national newsroom that produces in-depth journalism on health topics. It is a program of the KFF (Kaiser Family Foundation), a non-profit foundation that provides information on health issues.