Representing Healthcare Professionals in Employment Issues

Healthcare employees are going through complicated times during the COVID-19 pandemic. As the coronavirus pandemic continues, there are a mounting number of cases of hospitals across the country taking or threatening disciplinary action against healthcare workers who raise concerns about unsafe patient care and conditions of the facility. Healthcare employees should not be afraid to raise their concerns because it may place their job in jeopardy. In truth, remaining silent is more likely to leave an employee without any protection or recourse if they are subjected to disciplinary action, demotion, or termination. Unfortunately, some workers could become the victims of retaliation if they do choose to stand up for themselves or others.

Healthcare employers may not terminate an employee because of race, gender, sexual orientation, age, disability or for making complaints.

We offer comprehensive representation in areas of healthcare employment like:

• Wrongful termination - Wrongful termination lawsuits may be filed in circumstances relating to violations of employment contracts, whistleblower cases, retaliation, avoid paying wages, commission, bonuses or benefits.
• Retaliation - Retaliation for reporting or complaining about any kind of unlawful discrimination or harassment, including sexual harassment, “whistle-blowing” on violations of the law, including workplace safety regulations or wage-and-hour violations.
• Discrimination - Due to race and color, nationality, sexual orientation, pregnancy status, marital status, gender identity, disability, religion or age.
• Harassment - This could be sexual, or simply being mistreated after whistleblowing. Major problems in hospitals can erupt if varying degrees of harassment are not mitigated quickly. Healthcare employers also may not fire you for reporting sexual harassment or for supporting another's allegation of sexual harassment in the workplace.
• Unpaid and overtime wages - Non-exempt employees working past 40 hours must be given 1.5 times their hourly rate, but often they are not. Commissions, bonuses and other compensatory promises fall under this category.
• Meal and rest breaks - Employees must receive a 30-minute unpaid meal break for every five hours they work. They can waive their right to take a meal break only if they work no more than six hours. A second break must be provided after 10 hours but can be waived if the first break was taken.
• Class actions – Due to missed/late meal and rest breaks, misclassification, off-the-clock work, reporting time pay, equipment/business expense reimbursement, pay stubs, class action waivers in arbitration agreements.

Nurses and any other Healthcare Employees that have Complained are Protected from Retaliation or Wrongful Termination.

California provides healthcare professionals with unique protections against retaliation due to complaining about patient care, conditions or other safety issues. 

No employer shall discriminate or retaliate, in any manner, against any employee, member of the medical staff, or any other healthcare worker of the health facility because that person has engaged in any protected activity, including complaining to the facility regarding the quality of care, services or conditions at the facility. Health & Safety Code § 1278.5(b)(1).

This law specifically protects individuals who complained about “issues relating to the care, services and conditions of a facility.” The health facility, or any entity that owns or operates the facility, cannot retaliate, or discriminate against you, if you report any suspected violation of patient care of the facility.

For example, it is illegal for an employer to retaliate against an employee for:

• Acting as a “whistleblower” with regard to corporate wrongdoing
• Complaining about wage and overtime practices
• Complaining about discrimination or harassment
• Complaining about accounting irregularities
• Healthcare workers complaining about patient care issues
• Taking necessary medical leave or participating in jury duty
• Filing a claim for workers’ compensation benefits
• Refusing to engage in illegal or unethical activities
• Advocating for medically appropriate healthcare
• Refusing to lie to a government agency
• Engaging in lawful conduct outside the workplace

California Legislature has declared it is the public policy of the State of California to encourage nurses, members of the medical staff, and other healthcare workers to report suspected unlawful conditions. This reporting not only helps to protect patients and assists accreditation and government entities but also protects the employment of those that fulfill this duty by making such reports.

Also, the failure of an employer to take all reasonable steps necessary to prevent discrimination and harassment is also against the law and is separately actionable under the California Fair Employment and Housing Act (the FEHA).

A healthcare worker may be able to claim wrongful termination if he/she can prove that the termination violated a promise by the employer, jeopardized a public policy or did not follow the good faith outlined in the employment contract. Nurses might have the right to recover monetary damages and sometimes even negotiation for a suitable severance package for compensation. Some wrongful termination claims incorporate statutory penalties. Some end in the employer's payment of damages or punitive damages for the nurse's lost wages.

As an example, in Ms. Toussaint case, a Haitian-American nurse, in which she faced unfair treatment after standing up for a black co-worker nurse who she believed was the victim of verbal abuse by a physician. After that, the hospital allegedly retaliated against Ms. Toussaint by investigating her for several instances of allegedly poor patient care. Ms. Toussaint further claimed she was subjected to discriminatory action by the hospital, according to the report. The woman had worked for the hospital for 15 years, and due to the mistreatment she began to face, she resigned from her position. Later, she filed a lawsuit for retaliation and discrimination against the hospital, and the jury in the case ruled in her favor in regard to the retaliation claims, awarding her $28 million.

There is a rebuttable presumption that you have been retaliated against if the health facility discriminates against you within 120 days of filing a complaint if you are an employee, member of the medical staff, or any health care worker at the facility; or within 180 days of filing a complaint if you are a patient, or have filed on behalf of a patient.

Any employee who is discriminated against under this section may be entitled to reinstatement, reimbursement for lost wages and work benefits, emotional distress damages, legal costs, or any other remedy warranted by the court.

Documentation of Complaints Can Be Crucial

Simply because this strong protection is in place does not mean retaliation and wrongful termination is absent from the healthcare industry. Because of that, properly documenting your own concerns is crucial and can make the case much easier. it is a piece of great evidence for the potential future proceedings. When mistreatment or unsafe conditions occur in the healthcare industry it can stoke passions and raise tempers. And while it may be tempting to write a multi-page emotional letter, this is often not the best approach. Reporting every detail of “what” an employer or supervisor did does not actually do much to help. A shorter correspondence that identifies the “why” of those “what” statements can be much more useful. Simply speaking up in any form (even verbally) is sufficient, there is not a specific complaint form required, and not every detail has to be included.

This does not mean that the process of speaking up is necessarily easy. Often employees try to avoid difficult situations by simply working hard and staying quiet. Unfortunately, this approach would leave them unprotected if they are subjected to disciplinary action, demotion, or termination.

Dismissal from a job may constitute wrongful termination if:

• The termination stemmed from discrimination – If you were fired based on your disability, age, race, ethnicity, religion, sex/gender, sexual orientation, medical condition or other protected category, this would violate your legal rights.
• The termination was a retaliatory act – If you were fired after reporting or complaining about wrongdoing or illegal conduct, or after standing up for your protected rights, this would also constitute wrongful termination.
• The termination violated an agreement between you and your employer – If you had a contract with your employer (written or oral) regarding the terms of your employment and your dismissal violates that agreement, you were likely wrongfully terminated.
• The termination otherwise violated your legal rights as a worker – If you were fired because you took time off work that you were legally entitled to take, such as for medical leave, family leave or military service, you would likely have a wrongful termination claim.

If you are experiencing any of these issues in your workplace or suspect you have been the victim of a wrongful termination, retaliation or unfair dismissal, your employer may be violating the law. Our firm would be glad to discuss your concerns and help you to determine a legal strategy best suited for your needs and situation with you.