Health Law Update

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On November 19, 2013, the National Labor Relations Board (NLRB) announced that its general counsel has authorized the issuance of multiple complaints against Wal-Mart Stores, Inc. (Wal-Mart) over a variety of statements made and acts taken by Wal-Mart on or around November 22, 2012, the infamous "Black Friday" when Wal-Mart employees participated in various job actions around the country.

If complaints are issued, they will include allegations that Wal-Mart stores in 14 states retaliated against employees who participated in or supported the job actions. Most troubling are the allegations that statements made during a national news program constituted unlawful threats. During a televised interview on November 20, 2012, a Wal-Mart spokesperson said that "there would be consequences" if employees did not work their regularly scheduled shifts on Black Friday.

Generally speaking, while strikes, such as the employee walk-out on Black Friday, are considered protected activity, economic strikers are not entitled to be paid while they are not working. Moreover, having employees walk out on Black Friday could very well adversely affect Wal-Mart's bottom line; surely, this was an intended consequence of the job action.

So, the general counsel's decision, coupled with the manner in which the NLRB has publicized the cases, makes clear that, once again, there is no more business as usual. Employers need to tread very cautiously when they seek to defend themselves in the court of public opinion or with customers or clients concerned about possible labor strife. This is true whether or not the employees are represented by a union. Indeed, Wal-Mart employees are not represented by a union, and the job actions were not part of an organizing drive.

Healthcare providers, in particular, are vulnerable when labor disputes are aired publicly. If nurses or other healthcare workers threaten to walk off the job even for a day, the need to reassure patients and their families, members of the public, EMS providers and local governments can be very real. Patient safety must never be compromised, and so it is important to carefully vet (in advance) any statements that may be disseminated to members of the public. If healthcare staff (e.g., CNE, unit directors, nurse managers) know what they can and cannot say, they will be able to focus their attention on patient care and avoid the intended "consequences" of the employee job action.

NLRB’s Heavy Hand Against Wal-Mart Has Implications for Healthcare Providers