Forced Overtime Creates Wrongful Termination Claim for Pa. Healthcare Worker

The presumption of employment at will is “extremely strong” in Pennsylvania, and courts are reluctant to recognize exceptions where an employee may claim “wrongful termination.”  But the Pennsylvania Superior Court opened the door a crack this month by holding that a health care worker who was terminated for opposing mandatory overtime had a claim for wrongful termination, even though future claimants might not.

The Pennsylvania Statute on the Prohibition of Excessive Overtime in Health Care (aka “Act 102”) took effect in 2009 and provides that certain health care facilities cannot require certain employees to work in excess of an agreed, predetermined and regularly scheduled daily work shift.  Act 102 covers hourly and non-supervisory employees who provide direct patient care or clinical care.  The law also prohibits retaliation against an employee who objects to or opposes unlawful overtime.

In Roman v. McGuire Memorial, decided November 9, the Superior Court affirmed a trial court’s decision that Brandy Roman, a “direct care worker” at a residential care home for the mentally retarded, could make out a claim of wrongful termination in violation of public policy. She refused mandatory overtime on four days in 2011, and was fired as a result.  The court noted that Act 102 provides a clear statement of public policy, prohibiting covered employers from retaliating against employees for opposing mandatory overtime.  The employer, McGuire Memorial, argued that since Act 102 included provisions to create regulations to cover claims under the law, Ms. Roman and others like her could not bring a common law claim for wrongful termination.  But the court rejected that argument, noting that until the Department of Labor implemented final regulations on July 9, 2014, aggrieved workers like Ms. Roman had no way to vindicate their rights (other than through a wrongful termination suit).  Since Ms. Roman filed her suit prior to the effective date of the regulations, she had a viable wrongful termination claim, the court held.

So where do future claims under Act 102 stand, now that the final regulations have been implemented?  The new regulations do not state that they provide an “exclusive” remedy for violations, but state court precedents suggest that, if grievants have an avenue of relief under the statute, then wrongful termination claims might no longer be viable.

Regardless of whether Roman v. McGuire Memorial turns out to be a significant exception to the employment at-will doctrine, covered health care employers in Pennsylvania should take heed that (1) they cannot mandate overtime for healthcare employees and (2) they cannot retaliate against those who refuse to accept overtime assignments. Like most laws, Act 102 has numerous exceptions and limiting definitions, and employers therefore should review its requirements carefully to ensure that their overtime policies and practices do not violate the law.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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