"Busted" by Buttons — When Union Propaganda May Be Permitted in Patient Care Areas

09 June 2014 Labor & Employment Law Perspectives Blog

Nurses and other health care workers are usually allowed to wear pro union buttons, stickers and other insignia at work absent special circumstances. However, one area of health care facilities, such as hospitals, where health care workers are typically not allowed to wear such propaganda is in “patient care areas” because of concerns over disrupting patient care. In fact, the U.S. Supreme Court has recognized that patients and their families are entitled to a “restful, uncluttered, relaxing, and helpful atmosphere” in patient care areas that is free from such insignia.

In a recent decision, an employer that provides health care informed employees they could not wear stickers with the word “Busted” on them in patient care areas. The stickers were created by a union after an National Labor Relations Board administrative law judge issued an unfair labor practice complaint against the employer.

In this pro-union decision, two NLRB Members ruled that the employer improperly banned the stickers, with one Board Member disagreeing. The majority ruled that because the employer had applied a “selective ban” on only certain union insignia in patient care areas, the ban was not entitled to a presumption that it was valid. The majority also ruled the employer had not presented enough evidence to prove that patient care was disrupted, since no information about actual patient experiences with the facilities or their staff was presented. The majority noted that the employer had not spoken to any patients, family members or caregivers about the stickers or how they felt about them.

Because of this recent ruling, health care providers that have policies or practices prohibiting employees from wearing certain union insignia in patient care areas should review them to ensure that such bans are not selectively enforced. According to the current majority Board view, employers must ban the use of all insignia in immediate patient care areas in order for bans on union insignia in those areas to be presumptively valid. The current majority view means that employers must prohibit the wearing of all buttons or stickers, even those promoting a “relaxing and helpful atmosphere.” Therefore, employers likely need to prohibit even things like “smiley face” buttons in patient care areas if they wish to enforce these union insignia bans.

In addition, if an employer wishes to ban such buttons or stickers, it should be prepared to present specific evidence that they actually upset patients or their families. The current majority Board view seems to require very specific evidence. If an employer finds itself in a situation in which employees are wearing buttons, stickers, or the like in patient care areas, the employer unfortunately now needs to either wait for a patient or family member to complain or even go so far as to ask whether they were upset.

The waters about solicitation in health care settings have been muddied, and care needs to be taken or employers may be “busted” by a button.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Insights