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New - and future - employee protections.

in labor law, the main emphasis used to be on the relationship between the employer and, not employees directly, but the unions representing them. However, unions have declined in importance in the industrial world--AFL-CIO unions have about the same-sized membership they had in 1975, even though the workforce has doubled in size. Also, even though a recent U.S. Supreme Court decision appears to have paved the way for unionization in health care facilities, many nursing facilities remain union-free. Nevertheless -- especially if they wish to remain union-free--there new provisions in labor law that administrators and owners should become familiar with. Two of the most important are the growth of exceptions to the employment-at-will doctrine and developments in civil rights litigation.


Traditionally, employees without specific contracts, either individual ones or through a union, could be fired at the will of the employer. However, as unions declined as a protective influence for employees, courts have become more sympathetic to "discharged at-will" employees' claims that they were treated unfairly and that some exception to the employment-at-will status should be found.

And indeed, exceptions to the doctrine have been found in cases, for example, in which employees received implied promises of job security, because they were told that they would be discharged only for cause, or because statements in employee handbooks appeared to indicate as much. An area of particular concern to nursing homes is a discharge in violation of public policy. Nursing home employees who blow the whistle on the home for possible patient abuse or other violations of the home's duties to the patients or the government may be protected. This has been found in a number of recent cases.

Nursing Home Exceptions

The difference between a holdinhg that a discharge of an at-will employee is lawful or not has been based not only on state law, but on the severity of the offense in question. If, for instance, the discharged employee alleges that the home committed some egregious violation of safety standards, the court is likely to come down on the side of the employee. On the other hand, if the employee is complaining about something minor, the court may allow him or her to be discharged.

The Michigan Court of Appeals held that an employee could bring suit for termination based on his or her reporting abuses on patients. Michigan has a Whistleblowers Act, i.e., one that protects employees who complain to state agencies. An Oregon court also disallowed the termination of a nurse who allegedly was discharged for threatening to report patient abuse--in this case, the patient being the nurse's aunt and the "abuse" being the administrator's allegedly having yelled at the aunt. Though this does not seem to be a horrendous example of abuse, the court held that an employer may not fire an employee for fulfilling a societal obligation. An employee's complaint, the court noted, only has to be in good faith to be protected. The employee does not actually have to prove that there was indeed abuse. The court wrote, "On balance, we believe that the social harm from reporting in good faith a complaint that may turn out, after investigation, to be unfounded is potentially far less than the harm of not reporting a well-founded complaint for fear of the consequences."

A case of a discharged nurse who reported patient mistreatment came to a different result in Ohio -- her discharge was upheld -- because of a particular requirement in state law. The nurse had reported alleged patient mistreatment to the Ohio Commission on Aging. Even though state law specified that a home could not retaliate against an employee for coming forward, the statute had to be enforced by the commission, the court noted. If the commission had brought suit, the employee would have been protected. But since it did not, the court found, the nurse could not sue to protect her job.

In a Washington case, the court rejected an employee's claim because her complaint, in essence, was not important enough. The nurse had alleged that the home from which she was fired had unsafe conditions, i.e., that once the facility's doors did not lock properly, and that she had once found pieces of glass or plastic in a patient's ointment. These incidents, the Washington Court of Appeals held, were not enough to support her claim of wrongful discharge.

Civil Rights Act

As administrators well know, minorities, women and the disabled are protected by various civil rights laws and may challenge adverse employment actions, like terminations or denials of promotion, under these statutes. However, Congress has adopted a new Civil Rights act that may dramatically improve the prospects of minorities and women in litigating against employers. Nursing homes should be aware of the changes.

The new civil rights bill was originally designed to overturn five 1989 U.S. Supreme Court decisions, three of which are of particular importance to nursing homes. The one that achieved the greatest prominence is Wards Cove Packing Co. v. Antonio. The decision required employees to prove that a particular employment practice, such as requiring a certain level of education, is unnecessary. The new bill would require employers, if challenged, to prove such requirements necessary. (In an interesting twist, the Bush Administration is reportedly pleased with this change in that employers may not have to use quotas because they would be unable to justify them.)

The bill also overrules the finding of Price Waterhouse v. Hopkins that intentiaonal discrimination is justifiable if there is also a non-discriminatory reason for an employment decision. Now, intentional discrimination is unlawful in every case.

Regarding the third court decision, the bill overrules Patterson v. McClean Credit Union. The legislation provides that the 1966 Civil Rights Act, which provides for damages for victims of race discrimination, is not restricted only to hiring or decisions involving certain kinds of promotions.

The Civil Rights Act also allows employees to recover fees they may have been required to pay for expert witnesses. Finally, it allows women, religious minorities, and the disabled to win monetary damages in cases of intentional discrimination, a situation that could prove to be very costly to employers.

Eventual adoption of these provisions would clearly require intensified anti-discrimination vigilance on the part of employers.


Employers used to hink that if they could keep unions out they could do as they wished with their workers. With the development of exceptions to the employment-at-will doctrine and revisions in anti-discrimination law, employers may wish they only had unions to contend with.



Employee Relations Law in the Health Care Industry, Pennsylvania Institute, Philadelphia, PA, 1987.


Andress v. Augusta Nursing Facilities, Inc., 156 Ga. App. 775, 275 S.E.2d 368 (1980)

Hibbert v. Centennial Villas, Inc., 56 Wash. App. 889, 786 P.2d 309 (1990)

McQuarry v. Bel Air Convalescent Home, Inc., 69 Or.App. 107, 684 P.2d 21 (1984)

Patterson v.McLean Credit Union, 491 U.S. 164 (1989)

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989)

Watassak v. Michigan Department of Mental Health, 143 Mich. App. 556, 372 N.W.2d 617 (1985)

Welch v. Brown's Nursing Home, 20 Ohio App.3d 15, 20 Ohio BR 16, 484 N.W.2d 178 (Hamilton Co. 1984)

Newspaper Articles

Dewar, Helen, "Senate Approves Civil Rights Bill, Will Comply Itself," Washington Post, 10/31/91, p. A1.

Swoboda, Frank. "AFL-CIO Membership Is Shifting," Washington Post, 10/31/91, p. A17.

Kenneth May is an attorney-editor and has written about law for 15 years. He is author of the treatise, "Health Law in Massachusetts," and is a member of the National Health Lawyers Association.
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Title Annotation:regulations on unionization in health care facilities
Author:May, Kenneth
Publication:Nursing Homes
Date:Jan 1, 1992
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