Can nurses be fired for complaining?

On May 23, 1994, the United States Supreme Court rendered a decision (5-4) with potential to affect all nurses working in long-term care facilities. The Court found that all nurses who direct lesser skilled employees in the performance of their duties may be considered to be supervisors, and are therefore not protected by Federal labor law.

The original case involved four LPNs who were fired from an Ohio nursing home after going to the company to raise concerns about their facility. The National Labor Relations Board (NLRB) called for their reinstatement, but the Sixth Circuit Court stated that the nurses were supervisors and were not protected by the National Labor Relations Act because they exercised independent judgment in directing the work of aides, and did so in the employer's interests. The Supreme Court upheld that judgment.

In the following article, American Nurses Association labor counsel Barbara J. Sapin and labor relations attorney Stephen Cabot, a senior partner in the Philadelphia firm of Harvey, Pennington, Herting & Renneisen, Ltd., express their opposing viewpoints on the ruling and its potential impact on the long-term care nursing profession. The questions were posed by Nursing Homes Managing Editor Laura Bruck.

How do you interpret the Supreme Court's decision?

Sapin: We do not believe that this decision is as broad as some have made it out to be. It does not hold that all nurses who direct the work of others are supervisors, but rather leaves it to the National Labor Relations Board (NLRB) the authority to make that determination on a case-by-case basis. What the decision does is to tell the NLRB that its "patient care" analysis is not appropriate. Under the National Labor Relations Act (NLRA), an employee must be acting "in the interests of the employer" in order to be classified as a supervisor. The NLRB, for the past 20 years, has determined that nurses who direct the work of others in furtherance of patient care are acting "in the interest of the patient" rather than "in the interest of the employer," and therefore are not supervisors.

Cabot: The National Labor Relations Board (NLRB) historically has maintained that nurses involved in patient care activities are not supervisors on grounds that a nurse's duties performed in connection with patient care are not acts performed in the interest of the employer. The Supreme Court basically reversed this erroneous reasoning with a decision that no longer allows the NLRB to use that rationale to disqualify nurses from supervisory status. With that verbiage eliminated, we can now get to the bottom line and examine the true function of nurses: are their supervisory responsibilities -- albeit inclusive of patient care -- more allied with the employer or the employees? That's always been the standard in every industry in the country, with the exception of health care.

What are the ramifications of the ruling with respect to the day-to-day activities of RNs and LPNs in the nursing home?

Sapin: The exact effect of this case on registered nurses remains to be seen. We are optimistic that there will be little change in the day-to-day activities of most nurses. We believe that, in general, direction of nurses' aides as part of a nurse's professional practice does not make that nurse a supervisor. However, employers may take advantage of this decision to argue that their nurses are supervisors and therefore not covered by the NLRA. If that happens, nurses who speak up about their working conditions -- which, for most nurses, means condition s that affect patient care -- could be fired.

Cabot: LPNs working in acute care hospital settings will probably still be considered employees rather than supervisors. In the nursing home, it's a different story. Nursing home RNs generally are, and almost always have been, supervisors under federal labor law, and LPNs have always been charge nurses. The Court's decision was simply an attempt to make reality become reality, and considering nursing home nurses as supervisors accomplishes just that.

The ANA has expressed concerns that nurses will no longer be protected in their jobs, and that this may affect their willingness or ability to report concerns related to patient care. Is this likely to be a significant issue in the nursing home?

Sapin: We think actions by employers could make this a real issue. The NLRA protects employees' right to speak out about their working conditions, but not everyone is aware of how they are protected until that protection is taken away. In the case of nurses, working conditions are intrinsically tied to patient care conditions. We're concerned that nurses who are not able to advocate for their own working conditions won't be able to advocate for their patients, either, without fear of losing their jobs. At a time when cost-cutting in hospitals and nursing homes may result in a sacrifice of the quality of patient care, the role of the nurse as patient advocate is more crucial than ever before. Any effort by employers to undercut this role by threatening RNs with discipline or termination for speaking out on behalf of their patients is dangerous and unacceptable.

Cabot: I think that's utter nonsense. We're talking about people who chose the nursing profession because they're concerned about patient care. There's a shortage of good nurses today. And anyone who knows anything about the health care industry knows that employers often bend over backwards to provide preferential treatment for nurses at every level. The real issue is a battle between labor and management, with labor obviously wanting to include charge nurses in their membership. That's what it's all about. It has nothing to do with protection, for example, under Federal labor law. If a nurse is fired for raising concerns about patient care, he or she has a lucrative case, with significant protections in the state courts under the public policy exceptions to the Employment at Will Doctrine. Nurses will still be protected; that protection will just come from a different source.

What kind of effect will the decision have on labor unions?

Sapin: We're hoping that employers will continue to bargain in good faith and not use this ruling to further frustrate organizing activities. But employers may use this to thwart nurses' ability to bargain collectively. And it's not just labor union members who might be affected, because the NLRA clearly protects any group of private sector employees who seek to better their working conditions. Our message to employers is that nurses remain clearly within the coverage of the NLRA. We will fully support our state nurses' associations in whatever actions they take to ensure nurses' rights under the NLRA.

Cabot: That will depend on the way in which it's interpreted. Under the way in which the decision was written, it shouldn't have an impact. It will, however, have an impact on the NLRB's interpretation of this decision. For example, labor unions that have attempted to organize LPNs will be affected because most of those LPNs will be ineligible for membership by virtue of their supervisory status. The same will be true in nonunion facilities.

As for nurses who are already union members, that's where the battle will be waged on a number of fronts, which may include refusals to bargain or filing of unit clarification petitions with the NLRB. The interesting side twist will be how the decision is applied; retroactively or prospectively. The Court didn't address that issue. My sense is that it ought to be applied retroactively. It's not a matter of being unable to undo something that occurred years ago. What we have is a group of people who are performing functions that the Court now calls "supervisory." Ultimately, many LPN union members may have to give up their union memberships. LPNs will have to decide whether this is a good or a bad thing.

In her dissent, Justice Ginsberg notes that "The Court's opinion has implications far beyond the nurses involved in the case. If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the Act will receive its protections." Do you agree with her opinion?

Sapin: I think Justice Ginsberg was saying that the decision will likely have implications for people in a range of work situations in addition to health care. I certainly agree. What we need is some sort of distinction between someone who is simply using their professional judgment and someone who is making a front-line management decision.

Cabot: I don't agree at all. Her statement reflects the minority of the court, and seems to represent a liberal view from a liberal justice. What the majority Court said was that the standards for judging supervisors -- which have been the standards since 1935 -- should be applied in the health care industry in the same way they're applied in every other industry in the country. That's all that happened.