Redefining just cause in the health care setting

Issue June 2011 June 2011 By Edward J. Goddard

The "just cause" standard has long been a staple of labor relations in all industries, including health care. Normally, most arbitrators will find just cause if the preponderance of the evidence proves the employer's allegation.1 Even where just cause has been established, however, arbitrators will normally engage in a secondary inquiry concerning the appropriateness of the employer's discipline.2

Because it is so well-established, the concept of just cause has traditionally received little analysis by labor law practitioners over and above analyzing whether the standard has been met based on the facts of particular situation.

I myself have practiced labor law for more than 20 years and, at first, also gave very little thought to the just cause standard. From the perspective of outside counsel early in my career, the just cause standard stood on equal footing with a No Strike No Lockout clause - both were standard clauses that differed little among union contracts.

My thoughts on the just cause standard began to take shape after several years working in-house in the health care industry, especially dealing with resident care issues in nursing homes. Over time, I realized that the unique nature of health care does not lend itself well to the application of the traditional just cause standard in resident care cases, mostly because it is arduous to present evidence in these cases to establish a "preponderance of the evidence."

The difficulty in proving just cause in resident care cases is easily understood. Initially, most resident care cases deal with a resident making a complaint against an employee for inappropriate care - more often than not without any other witnesses.

Furthermore, from a health care service provider perspective, most employers will not subject the complaining resident to attend an arbitration to provide evidence. We simply use any statement the resident may have given during the investigation and leave the weight of the statement up to the arbitrator. Only in truly exceptional circumstances would we ask a cognitive resident to attend an arbitration relating to alleged poor treatment.

Finally, and particularly in the long-term care setting, in some instances the resident is not fully cognitive, setting forth another evidentiary obstacle to proving just cause.

In an effort to further protect our residents and patients and to also level the playing field in resident care cases, my employer decided to take an industry leading approach by using the bargaining table to attack this problem of proof in just cause cases. We determined that protecting our residents was every bit the priority of pressing for a fair economic agreement.

Fortunately, through the years we have been successful in negotiating several language provisions in most of our union contracts that have assisted us in protecting our residents by essentially lowering the just cause standard in resident-care cases and offering other evidentiary assistance as well. These language changes won at the bargaining table have aided my employer's overall efforts to improve our resident care, making our labor relations approach consistent with the company's overall approach.

First, we addressed the biggest issue head on by proposing to redefine just cause in resident care cases.

Traditionally, most contracts state very simply that the employer must have just cause to discipline an employee. In attempting to lower this standard, we instead proposed (in one form or another) some version of the following language:

In resident care cases, the employer meets its "just cause" obligation if it has a reasonable belief that the acts or omissions called for actually occurred. If the arbitrator determines that this "just cause" standard was met, the arbitrator may not change the discipline imposed by the employer.

Interestingly, when our unions understood that we were serious about making the revised just cause standard equal to our economic priorities, the unions almost universally agreed to incorporate the revised just cause standard into our union contracts. The language is now standard in almost all of our contracts and, we are told, other health care providers are attempting to follow suit. Our unions and our employees should be applauded for their cooperation in this critical area.

The impact of the change in the just cause standard cannot be underestimated. We have been able to settle many more resident care cases on significantly better terms than we would have been able to do absent the revised just cause.

Furthermore, in the isolated instance where we have arbitrated a case under the revised just cause language, the arbitrator heeded this precedent-setting standard and found that, under the language agreed upon by the parties, the employer met its just cause obligation and, additionally, that the arbitrator had no contractual authority to change the discipline imposed.3

Following these successes, my employer has continued to use its union contracts to add additional resident protections through collective bargaining. For example, we have also added language guaranteeing that the arbitrator may not find an adverse inference from the failure of a resident or family member to testify at an arbitration.

As a corollary, we have also added language mandating that all resident and family member statements must be admitted into evidence despite their hearsay nature; most of those contracts allow the arbitrator to determine what weight the statements will be given in rendering a decision.

Additionally, we have also added language strengthening our ability to deal with employees whom we may have decided not to terminate but who are later found by a licensing agency to have abused or neglected a resident. To this end, we have language in many of our contracts that provides that any employee found by a state licensing authority to have committed resident abuse or neglect may not continue to work in our nursing home, even if they have already received a lesser discipline as a result of the incident.

This seems common sense, I know, but there have been arbitration decisions upheld by the courts that awarded reinstatement to employees found by the state licensing agencies to have committed resident abuse or neglect. Under our language, this situation cannot occur because our language would allow us to discharge the offending employee even if he or she had already received a lesser discipline. In this sense, the language allows us a necessary second bite at the discipline apple in these important resident-care cases by avoiding the double jeopardy argument.

In the end, the lesson learned is that labor relations practitioners can and should use their union contracts to add additional resident and patient care protections and not to simply accept that the traditional just cause standard merely because that has been the accepted standard for many years. We have used collective bargaining to emphasize the importance of resident and patient care to our employees and subsequently used contract administration to reinforce this same point.

1Sweet Sue Kitchens, 120 LA 54 (Greenberg, 2004).

2See e.g., Norshipco, 105 LA 1995 (Hockenberry, 1995)(arbitrator found just cause to discipline for horseplay but not just cause to sustain employer's decision to terminate).

3See, Winship Green, AAA 11 300 02729 06 (Harrington, 2007) (arbitrator found just cause expressly relying on unique just cause language in the parties' contract).