NLRB Blisters Skilled Care Home Chain That Terminated Nursing Assistant Who Complained About Wages

Employers may wish that employees clamoring for higher pay would just go away. But acting on that wish may land the company in big trouble, as a Norcross, Georgia-based chain of skilled care homes learned last month.

PruittHealth denied the allegations during hearings. The company did not immediately respond to Law.com’s request for comment about the decision.

The case is a reminder to in-house counsel that §7 of the National Labor Relations Act protects the rights of most private-sector employees—even those not represented by a union—to discuss wages and benefits without retaliation.

Managers at some companies discourage employees from such discussions, deriding pay comparisons as “tacky” or distracting to the work environment. But they expose themselves to litigation risk if they take punitive action against such employees.

In this case, the NLRB ordered PruittHealth to reinstate certified nursing assistant Coretta Jones, provide her back pay and lost benefits, and reimburse her for job search expenses.

More broadly, the case may be notable for its potential to require similarly penalized employers in the future to conduct employee meetings to confess their violations of the NLRA.

Generally, such notifications to employees about labor law violations and employee rights are posted in a conspicuous location on-site, such as employee break rooms.

“The General Counsel argues that, in addition to the standard remedies, the Board should adopt, as a new standard remedy, the requirement that the remedial notice be read to employees during a mandatory meeting held on company time,” NLRB Administrative Law Judge Paul Bogas wrote.

However, Bogas said such an “extraordinary remedy” was a question for the board, “not me.”

Jones was a four-year employee of PruittHealth in New Bern, North Carolina. It’s one of 28 skilled care facilities operated by the company in the Southeast, each employing about 150 people.

The case arose after nursing assistants found a payroll document indicating that new hires earned up to $18 an hour.

That was in sharp contrast to the $13 to $14 an hour paid to longer-term workers, including a 19-year employee who earned just $12 an hour. The discovery was particularly infuriating to these longtime employees, as they’d soldiered on during the COVID pandemic.

Jones, who earned $14.25 an hour, was asked by colleagues to express her dissatisfaction with management over their pay because she “was someone who was not afraid to speak up,” according to the 19-page decision.

Local managers later met with Jones as the employees’ representative. A firm was tapped to conduct a wage analysis that showed about a dozen employees, including Jones, were being underpaid. PruittHealth recommended raises for later that year.

When those raises didn’t materialize, Jones buttonholed a PruittHealth corporate manager who was visiting the facility to ask about the status of the promised raises.

According the NLRB, later that day she received a phone call from a registered nurse tasked with disciplinary actions at the facility, telling Jones not to come in for her next shift due to an “investigation.”

A few days later, Jones received a call that she was terminated, with no explanation given.

But the company later entered into its personnel records that Jones was terminated for “unsatisfactory performance” and “verbal aggression,” the latter in regard to her discussion with the visiting corporate manager.

Bogas found that PruittHealth never interviewed Jones in regard to the supposed investigation, in violation of its own policy and practices governing alleged misconduct.

Nor, he found, had it previously counseled or disciplined Jones about the alleged problems, as company policy required.

“Always get the employee’s side of the case before making a decision to terminate an employee,” said Peter Ennis, an employment law attorney at Cozen O’Connor in Pittsburgh.

Ennis was not involved in the PruittHealth case but read Bogas’ decision.

“Even if the employer thinks it knows what happened, it is important to know what the employee’s version of the event is. The employer did not do that here and the ALJ held that against the company,” Ennis said.

One company manager testified that Jones was fired for job abandonment for not reporting to work despite being told not to return to work amid the investigation. Bogas didn’t buy that and noted a manager testified that a “no call/no show” does not constitute job abandonment according to the company’s policies.

He also found that PruittHealth’s policy in regard to termination is that it is to be used as the final stage of a progressive counseling process if improvement is not demonstrated.

Finally, Bogas said PruittHealth failed to show that Jones, during her meeting with the visiting corporate manager, made any abusive or hostile remarks and ended her remarks with, “Well, OK. Well, you have a great day.”

That determination was key because employers may—as in this case—argue that an employee forfeits §7 protection if he or she demonstrates misconduct that is “sufficiently egregious or opproborious,” Bogas noted.

“There is nothing about her behavior that even begins to approach ‘verbal aggression,'” he wrote. “In fact, Respondent did not present a shred of competent, non-hearsay evidence that Jones was guilty of ‘accosting’ (the corporate manager), yelling at him, using profanity with him, or even raising her voice—all of which Jones denied under oath.”

Bogas ruled that PruittHealth violated §8(a)(1) of the NLRA when it fired her, as her meeting with the corporate manager was protected concerted activity.

In a 2023 client advisory on the topic, Ennis noted that the Biden administration, in Lion Elastomers, reinstated a previous test set out in Atlantic Steel that bolstered protection for employees engaged in protected activity unless the employee’s misconduct is extreme.

Among steps employers can take to overcome this higher bar is to review and update written policies. “It’s going to be easier to establish an employee’s conduct was egregious if it violates a written policy,” he wrote.

This can be especially helpful in a union environment, “where the union has agreed on what constitutes grounds for discipline/discharge,” he added.

“Make sure you follow any applicable policy,” Ennis told Law.com.

Here, the employer’s policy said it would conduct an investigation, which it did not.

In addition, when confronted with a “he said/she said” situation, “it is important to get written statements from all witnesses soon after the event while memories are fresh,” Ennis added.