MMHA 6300 Week 8 Workforce Liability Memo Example

Memorandum

To: Chief Nursing Officer; Director of Human Resources, Westbrook Regional Hospital

From: Employee Relations Analyst (MMHA student)

Date: Month Day, Year

Re: Disciplining the 5 West nurses for their posts would likely increase our legal exposure, not reduce it

Background

Over three weeks, several registered nurses on 5 West, Westbrook Regional's fictional 22-bed inpatient psychiatric unit, posted about conditions on the unit. Some posts went to a closed online group of about 40 current and former 5 West staff; two were public. In paraphrase, the posts said that three staff members had been assaulted by patients in a month, that the unit often ran one nurse short on evenings, that a panic button in the seclusion corridor had not worked for weeks, and that complaints to management had gone nowhere. One public post named the hospital and urged readers to contact the board. No post named or described a patient.

Unit leadership has proposed written warnings for four nurses under the hospital's social media policy, which forbids employees to post anything that could harm the hospital's reputation. This memo reviews that proposal under federal labor law, workplace safety law and the hospital's own ethical commitments.

Labor Law: Are the Posts Protected?

The National Labor Relations Act, in its Section 7, shields employees who band together to improve their working conditions, and that protection covers the 5 West nurses even though none of them is in a union (29 U.S.C. § 157). Section 8 then forbids the hospital to punish, threaten or otherwise discourage staff for using that protection (29 U.S.C. § 158). The National Labor Relations Board has long treated employees' online discussions of working conditions among themselves, and appeals to the public about those conditions, as forms of this concerted activity.

The 5 West posts fit that description closely. They were written by several nurses, addressed largely to coworkers, and concerned staffing levels and assaults, which are working conditions in the most direct sense. The public post appealed to the community about the same conditions. Protection can be lost if a post is maliciously false, reveals confidential patient information or is so disloyal that it attacks the hospital's services without connecting the criticism to a labor dispute. None of those appears here; the factual claims about the panic button and the evening staffing can be checked against hospital records, and preliminary review suggests they are accurate.

The policy itself is a second problem. A rule banning any post that could harm the hospital's reputation is broad enough that a reasonable employee would read it to forbid complaining publicly about staffing or safety. The Board has repeatedly found rules of this kind unlawful when they would chill protected activity and the employer could protect its legitimate interests, such as patient privacy, with a narrower rule. Disciplining nurses under it would put both the discipline and the rule before the Board if any nurse filed a charge.

One caution applies. Supervisors are not protected by the act. If any of the four nurses is a charge nurse who assigns and directs other staff using independent judgment, her status should be reviewed before anyone relies on this analysis for her.

Workplace Safety: Was the Hazard Recognized?

Under the Occupational Safety and Health Act's general duty clause, Westbrook must protect its staff from serious hazards it knows about, or should know about, even where no specific standard covers them (29 U.S.C. § 654). Federal regulators have relied on this clause in health care settings where workplace violence was a known, serious and preventable hazard. Health care workers, especially in psychiatric and emergency settings, face assault rates far above those in most occupations, and much of the violence comes from patients (Phillips, 2016).

OSHA's guidelines for health care and social service employers describe what a violence prevention program contains: management commitment and employee participation, a worksite analysis, hazard prevention and control measures such as working alarm systems and adequate staffing, safety training, and recordkeeping with program evaluation (Occupational Safety and Health Administration, 2016). Hospitals accredited by the Joint Commission are also expected to maintain a workplace violence prevention program (Joint Commission, 2024).

Measured against those expectations, the posts describe a recognized hazard with gaps in control: assaults reported to management, a broken alarm in the area of greatest risk and evening staffing below plan. Disciplining nurses for describing those gaps would not close them. It would, however, create a record that management knew of the hazard and responded by punishing the people who reported it. Retaliating against an employee for raising safety complaints is separately prohibited under the act's whistleblower provision.

Ethics: What Leadership Owes Staff

The ACHE Code of Ethics asks healthcare executives to create a working environment that supports the safety of staff, to provide a process by which employees can raise concerns without fear of retribution, and to communicate honestly with staff (American College of Healthcare Executives, 2022). The posts are evidence that 5 West nurses did not believe that process worked. Whether or not that belief is fair, leadership's first obligation is to find out why staff felt they had to go public to be heard, not to punish the fact that they did.

How Discipline Could Compound Exposure

If the warnings issue, the most likely next events are an unfair labor practice charge, a whistleblower complaint to OSHA and wider public attention to the original posts. In each forum, the hospital would be explaining a broken panic button and short evening staffing while defending a decision to discipline the people who reported them. Recruitment and retention on a unit that already struggles to staff evenings would also suffer. The hospital's legitimate interests, patient privacy above all, are better protected by a narrow policy than by this discipline.

Recommendations

1. Withdraw the proposed warnings.

2. Repair the seclusion corridor panic button within 48 hours and test every alarm on the unit.

3. Hold a listening meeting with 5 West staff, led by the CNO, and report back in writing within 30 days on evening staffing and assault response.

4. Have counsel revise the social media policy so that it protects patient information and confidential business data without restricting discussion of wages, staffing or safety.

5. Review the workplace violence prevention program against OSHA's guidelines, starting with a worksite analysis of 5 West.

References

American College of Healthcare Executives. (2022). ACHE code of ethics. American College of Healthcare Executives.

Duties of employers and employees, 29 U.S.C. § 654 (2023).

Joint Commission. (2024). Comprehensive accreditation manual for hospitals. Joint Commission Resources.

Occupational Safety and Health Administration. (2016). Guidelines for preventing workplace violence for healthcare and social service workers (OSHA 3148-06R). U.S. Department of Labor.

Phillips, J. P. (2016). Workplace violence against health care workers in the United States. New England Journal of Medicine, 374(17), 1661-1669. https://doi.org/10.1056/NEJMra1501998

Rights of employees, 29 U.S.C. § 157 (2023).

Unfair labor practices, 29 U.S.C. § 158 (2023).