ANOTHER DENT IN EMPLOYMENT-AT-WILL IN PENNSYLVANIA?
Historically, Pennsylvania has been a strict employment-at-will state. Very few employee attempts to create a cause of action have been found to implicate a public policy of the Commonwealth and, thus, give rise to a private right of suit. Recently, a former employee was permitted to use the Pennsylvania Prohibition of Excessive Overtime in Health Care Act as a vehicle for such a claim.
This Act prohibits healthcare facilities in Pennsylvania from requiring hourly, non-supervisory employees who provide direct patient or clinical care from being required to work in excess of an agreed to, pre-determined, and regular scheduled daily work shift unless there is an unforeseen emergency. Such a condition occurs when an unexpected absence is discovered before or at the commencement of a scheduled shift that couldn’t be planned for and would significantly affect patients’ safety. These vacancies do not include absences arising from chronic short-staffing. In such a situation, employees may be mandated to work overtime if the overtime is required as a last resort; the employer exhausted reasonable efforts to obtain other staff (volunteers, per diem, or temporary agency staff); and it gives the employee up to one hour to arrange for care of family members. The Act further prohibits disciplinary action against an employee who properly refuses to accept mandated overtime.
In 2011, an employee of McMuire Memorial was terminated for her repeated failure to work mandated overtime. She brought suit in Common Pleas Court contending that her termination violated the public policy of Pennsylvania as reflected in the Prohibition of Excessive Overtime Act. The trial court found that this Act conferred a right to sue on the employee. McMuire Memorial’s appeal to the Pennsylvania Superior Court gave it the opportunity to address this question of first impression. In doing so, the Superior Court noted the strength of Pennsylvania’s presumption of employment-at-will and that exceptions to it should be found in only the narrowest of circumstances. With this in mind, the Court held this Act to present such a circumstance.
The Court so held because it found the Act prohibits both the general mandating of overtime and retaliation against an employee for asserting rights under the Act. The Act further did not provide any administrative or statutory remedy for alleged violations nor did it explicitly provide that resort to the Pennsylvania Department of Labor was the exclusive remedy for alleged violations. In fact, the Department of Labor did not adopt implementing regulations until July 2014 – five years after the effective date of the Act and four years after the employee’s termination. The Superior Court, thus, found that the Act conferred upon employees a private right of action for wrongful discharge and upheld the trial court’s decision finding a violation of the Act.
It is unclear whether this decision will be the final word on the effect of Pennsylvania’s Prohibition of Excessive Overtime in Healthcare Act. In July 2014, the Pennsylvania Department of Labor implemented regulations which specifically provide for administrative remedies and hearings for alleged violations of the Act. These regulations permit an aggrieved employee (1) to file a complaint with the Department of Labor, (2) to intervene in any administrative hearing, and (3) for a hearing officer to provide the employee with make-whole relief by ordering the healthcare facility or employer to take any action deemed necessary to correct a violation, including payment of restitution to the employee, changes in policy to ensure future compliance, and directives to remedy unlawful, adverse employment decisions. Additionally, the regulations provide that any party, including an intervener, aggrieved by an adjudication of the Secretary of Labor may take an appeal to Commonwealth Court.
It remains to be seen whether these regulations will be found to have cured the deficiencies relied upon by the Superior Court to create an exception to Pennsylvania’s employment-at-will doctrine for alleged violations of the Prohibition of Excessive Overtime and Healthcare Act. The regulations clearly create an administrative remedy for an aggrieved employee; provide the employee with an avenue to obtain complete, make-whole relief in an administrative hearing; and review of the outcome of such a proceeding by the Commonwealth Court. Thus, the next employee bringing a wrongful discharge case pursuant to this Act will be confronted with these regulations and the argument that, as with the Pennsylvania Human Relations Act, an administrative procedure is available and, therefore, there is no common law wrongful discharge claim. Only subsequent litigation will tell whether McMuire Memorial is a chip or a dent in Pennsylvania’s employment-at-will doctrine.