By Ericka Waidley, MSN, RN
September 9, 1999

Q: My hospital requires all employees to sign a release stating that they will submit all complaints to “arbitration procedures for final and binding resolution and will not initiate a lawsuit or an administrative proceeding, thereby waiving any right [they] might have to a jury trial.” Employees must sign the release or resign their positions. Is this legal?

A: Arbitration agreements have been in effect since 1991, when the U.S. Supreme Court made a decision in Gilmer vs. Interstate Johnson Lane Corp. that paved the way for companies to arbitrate conflicts rather than take them to court. Since that time, lower courts have also supported arbitration agreements as long as they are fair. The general feeling seems to be that “arbitration agreements remain useful for disputes that don’t involve discrimination”(California Employee Advisor, October 1998). These types of discrimination include wrongful termination, defamation, and breach of contract.

In most hospitals, there is a well-defined human resources policy and procedure spelling out the steps for resolving conflicts. Mandatory arbitration is usually the last resort in this process. Middle managers and even executive leaders are expected to try to work out issues or conflicts with employees before calling for arbitration. These internal steps are often in conjunction with input or involvement from human resources personnel.

During my experience as an executive nurse leader, I have been involved in several arbitration proceedings. In my opinion, they were handled fairly and expediently for both sides. One of the major advantages of the arbitration process is that cases are handled much more quickly and efficiently than our court system could ever manage. An outside arbitration company is often used to help settle these disputes. The American Arbitration Association, a nonprofit organization founded in 1926, handles arbitration for over 500 companies, and its “employment due process” protocol has established the standards for fair arbitration programs.

However, the exact legalities of these mandatory arbitration agreements are still being tested in our court system. Last year, the U.S. Supreme Court refused to review a federal appellate court ruling regarding arbitration disputes involving federal or state discrimination and harassment claims. A California court of appeals rejected this approach. Until these issues are resolved, there may be a double standard (and some confusion!) for mandatory arbitration agreements.

Q: As a registry nurse, I had been working eight months at a hospital within a large organization. After one questionable incident with a regular staff nurse, I was expelled from the hospital and all of the other hospitals in that chain. I explained my side of the story and awaited a resolution to no avail. I was never given the opportunity to vindicate myself with this hospital and moved on to a different job within my registry. Is there any way to improve the status of registry nurses to protect them from this type of scenario?

A: Although it is often difficult, and may even seem unfair, putting registry nurses on the do-not-return (DNR) list is the only way hospitals can protect their liability if these nurses make mistakes. As you know, the hospital is ultimately responsible for all care that is delivered to its patients. Since registry nurses do not have the same level of orientation, competency validation, and performance evaluation as hospital-based nurses, this can create a difficult situation.

However, I question the practice of putting a nurse on DNR status at “all of the other hospitals in [a] chain.” In discussing this with Lee Hadfield, president of Elite Nursing Services Inc. in Santa Ana, he felt that “this is not a common practice.” He and I agree that the severity of the mistake or incident, and how it affected the patient outcome, should determine the extent of the DNR. If a DNR is being requested for a minor incident or personality conflict, the registry and hospital administrative staff could investigate further and try to work out a better solution, such as the registry nurse being assigned to a different shift or unit. If the facts reveal that the registry nurse needs further skills to be effective on a certain unit, the registry should recommend education or inservices prior to re-evaluating the DNR.

In any case, if you feel that your DNR status is unfair, I encourage you to discuss this with your registry supervisor. He or she might be able to recommend skill-building opportunities for you to pursue or, if appropriate, discuss your case further with the supervisor at the hospital where the incident occurred.