The practice of nursing brings many professional challenges around direct patient care. But nurses also face ordinary and extraordinary employment challenges, like those other professionals and workers face. When those employment issues devolve into termination for misconduct, they can affect the nurse's license, threatening the nurse's ability to regain employment elsewhere. If you face state nursing board disciplinary charges relating to your employment termination for non-nursing causes, retain the Lento Law Firm's premier Professional License Defense Team for your skilled and strategic defense representation. Your license and career are at stake. Our highly qualified attorneys are available nationwide for your nursing license defense. Call 888.535.3686 or complete this contact form now for our premium defense representation. Your nursing career is worth protecting.
The Usual Nursing Discipline Case
The usual nursing discipline case involves a patient complaint or a complaint from a patient's family members over substandard nursing care. A patient may accuse a nurse of abuse, neglect, sexual contact, or harassment. A patient's family members may suspect that a nurse has dropped a patient, injured a patient by lifting the patient improperly, or administered the wrong medication. Nursing colleagues may observe a nurse using the wrong methods, making inaccurate chart entries, or failing to report serious changes in a patient's condition. Physicians and nursing supervisors may detect that a nurse has failed to clean, turn, feed, or hydrate a patient properly, resulting in patient injuries. These sorts of direct errors in nursing care make for common disciplinary complaints. Our subject, though, does not deal with errors in direct nursing care. Our subject instead involves misconduct unrelated to nursing care, leading to employment termination, resulting in disciplinary charges.
Employment Termination and Discipline
You are not by any means alone if that's your situation: facing disciplinary charges after your employer terminated your employment, alleging misconduct unrelated to nursing care. Your situation is a relatively common situation. You might think that state nursing board officials would have no interest in investigating employment termination unrelated to nursing care. After all, state nursing boards owe the statutory obligation to protect patients and the public against substandard and endangering nursing care. If the employment termination had nothing to do with poor patient care, then what would be the nursing board's disciplinary interest? Yet there it is: lots of nurses face disciplinary action for employment termination unrelated to nursing care.
Termination Causes Implicating Discipline
Plenty of employment termination causes can implicate state nursing board discipline. Workers of all kinds get fired for all kinds of things. But when nurses get fired for certain forms of misconduct, even misconduct outside of direct nursing care, state nursing board disciplinary officials may sit up and take notice, authorizing swift investigation and sure charges, followed by probable discipline. Consider the following examples of misconduct leading to employment termination, raising the possibility of state nursing board discipline. Also, consider the following discussion of how we may be able to defend each of those disciplinary charges.
Frequent Absences as Disciplinary Grounds
Frequent unexcused absences and chronic tardiness are the first non-nursing cause of employment termination that may lead to license discipline. Hospitals, medical practices, care facilities, and other employers of nurses tend to have critical needs for patient care. A hospital can't just give a day off now and then to all its nurses. Patients would suffer and might die. A nurse's frequent unexcused absences, particularly of the no-call/no-show variety, can create staffing struggles and staffing shortage crises for hospitals and other critical care facilities. Chronic tardiness without a call and excuse can do the same. State nursing practice acts and related laws routinely condemn patient neglect and abandonment. For example, Section 12-255-209 of the Colorado Nurses and Nurse Aides Practice Act expressly includes among its disciplinary grounds the neglect of a person under the professional's care. For another example, California's Board of Registered Nursing warns of circumstances when patient abandonment can lead to license discipline.
We may be able to defend disciplinary charges based on employment termination for frequent unexcused absences and chronic tardiness by showing that your absences and tardiness did not leave your employer short staffed. We may alternatively be able to show that you were not at the time of your absences and tardiness assigned to any specific patient's care and that any neglect, abandonment, or other lack of care was due to the absence or inattention of other assigned nurses. We may alternatively be able to show that you had a compelling cause and excuse for your absences, such as serious illness, injury, or other incapacitation, and that your work attendance would have been inappropriate under the circumstances. We may be able to rely on the Family and Medical Leave Act (FMLA) and other workplace protections and disability laws for your defense.
Insubordination as Disciplinary Grounds
Insubordination or disrespect toward managers, physicians, nurse supervisors, or other superiors is another non-nursing cause of employment termination that may lead to license discipline. Hospitals, care facilities, and other employers of nurses must keep reasonable order in their staff relationships. A nurse who disobeys, yells at, denigrates, or otherwise abuses and disrespects a supervisory relationship undermines morale and threatens the orderly and efficient operations. You can imagine that a nurse wouldn't last long when exhibiting those behaviors, especially insofar as such insubordination may indirectly affect the employer's ability to provide consistent and continuous patient nursing care. Accordingly, state nursing practice acts routinely condemn and authorize discipline for insubordinate and disrespectful acts. For example, the Illinois Board of Nursing has adopted its Administrative Section 1300.90, authorizing discipline for any unethical or unprofessional act that would include such insubordination.
We may be able to defend disciplinary charges for insubordination leading to employment termination by showing that you were not, in fact, insubordinate. Insubordination can be a murky area where an offended supervisor may misconstrue your attempt to raise significant patient care issues as a refusal to obey or a show of disrespect. Your supervisor or employer may misconstrue your patient advocacy or whistleblowing as to other substandard care or hazardous conditions as insubordination. We may alternatively be able to show that your outburst was a one-time and uncharacteristic event due to unusual stressors, medication reactions, or other innocent influences that you have since corrected. Our defense case would be to show that your alleged insubordination had no bearing, directly or indirectly, on your continuing ability to provide fitting patient care.
Theft as Disciplinary Grounds
Theft of employer property of any kind, but particularly of prescription medication or other intoxicating substances, is another non-nursing cause of employment termination that may lead to license discipline. Hospitals, care facilities, medical practices, and other employers of nurses generally have abundant valuable drugs, medical supplies, medical equipment, and other items of value. They may keep drugs under lock and key, but nurses still have unusual access to drugs for patient medication under physician prescriptions. Nurse employers have good grounds to terminate the employment of a nurse with sticky fingers, especially over drug thefts where drug laws condemn such theft and closely regulate drug security. State nursing practice acts accordingly, routinely condemning and punishing drug and other theft violations. Section 12-255-120 of the Colorado Nurses and Nurse Aides Practice Act is an example, expressly authorizing discipline for a nurse who “has diverted a controlled substance.”
We may be able to defend disciplinary charges for employment termination based on theft by showing that you did not steal any employer, patient, or other item. We may be able to show that the theft allegations were mistaken, scapegoating by the one responsible for securing the drugs, patient property, or other missing item, scapegoating by the one who stole the item, or retaliation against you for other untoward reasons. We may alternatively be able to show that you removed the allegedly stolen to another safe location on good grounds and that the item remains in your employer's possession. We may alternatively be able to show that another responsible employer representative discarded the missing item or gifted the missing item to you with authority. Let us help you defend theft allegations. Your state nursing board is likely to take those allegations seriously, especially if they involve alleged drug conversions.
Timecard Fraud as Disciplinary Grounds
Employers of nurses can also be especially sensitive to false or inaccurate entries on timecards, work schedules, and other records of your work hours relating to your compensation. Employers often regard exaggerated timecard hours as outright theft, which, in effect, it is, although more so by fraudulent means. Termination for timecard fraud is another non-nursing cause of employment termination that may lead to license discipline. State nursing board officials may regard fraudulent timecard entries as evidence of a nurse's dishonesty, poor ethical character, and unfitness for nursing practice, all issues that could threaten patient safety around things like a nurse's medical recordkeeping. As shown above, state nursing practice acts routinely authorize discipline for dishonest and fraudulent practices. For example, Section 1300.90 of the Illinois Board of Nursing administrative rules authorizes discipline for “conduct likely to deceive, defraud, or harm” without the necessity of showing an actual injury.
We may be able to defend disciplinary charges for employment termination based on a timecard or other work schedule fraud by showing that your timecards and other schedule entries were accurate, using your personal calendar, personal attestation, and other witnesses and work or medical records. We may be able to show that the employer's claim was false and retaliatory for your whistleblowing or other protected activity. We may alternatively be able to show that you did not deliberately misrepresent your work hours, that you followed practices approved by your employer and used by others, and that your employer lost no compensation as a result of any inaccuracies in your records. Let us make your best case for defense.
Violence as Disciplinary Grounds
Employer termination for violence outside of nursing care or outside the workplace is another non-nursing cause of employment termination that may lead to license discipline. Employers can be rightly sensitive to workplace safety and civil liability when an employee deliberately punches, kicks, slaps, fights, or otherwise harms another on or off the work premises. They may be especially sensitive to allegations in a divorce, restraining order, or similar proceeding that you committed domestic violence. Employers of nurses may construe such behavior as presenting a risk of patient endangerment or endangerment of other workplace staff members. State nursing board officials may regard the violence or threats of violence in the same way.
We may be able to defend disciplinary charges for employment termination over violence or threats of violence by showing that the allegations are false. We may be able to call witnesses and produce documentation on your behalf that you were not involved, were misidentified, or face retaliatory and manipulative allegations. We may alternatively be able to show that your actions were in self-defense or with the consent and participation of the other. We may also be able to show that any violence that occurred outside the workplace was under extraordinary circumstances and was not likely to repeat or occur in the workplace, showing your fitness for continued nurse licensure and practice.
Social Media as Disciplinary Grounds
Employment termination for abusive uses of social media is another non-nursing cause of employment termination that may lead to license discipline. Employers can be sensitive to nurse social media posts that show all-night drinking binges or other wild partying and suggest the use of illicit drugs or unsafe display of firearms. Employers can also be sensitive to nurse social media posts that denigrate the employer, disclose employer proprietary information, or reveal patient information. State nursing board officials can likewise find concern in such disclosures, as they may indicate the nurse's poor character and fitness for patient care and safety, intemperance, and lack of respect for safety laws. State nursing practice acts routinely include habitual intemperance and unfitness as disciplinary grounds, as is the case in Section 4723.28 of the Ohio Nurse Practice Act.
We may be able to defend disciplinary charges based on employment termination for alarming social media posts by showing that the posts were not yours or that your posts did not display intemperate behavior. We may be able to show that any criticism you made of your employer had the protection of federal and state labor laws in the nature of organizing activity. We may also be able to show that you did not disclose any employer trade secrets or patient information. We may also be able to show that your social media posts were private and that your employer, its representatives, or other complainants violated electronic device privacy protections when reaching and disclosing your posts. Let us help you defend social media disciplinary charges.
Nursing Board Authority to Discipline Misconduct
The above discussion suggests specific disciplinary authority of various state nursing boards. Do not doubt your state nursing board's general authority to discipline you on statutory and regulatory grounds. State nursing practice acts routinely authorize boards to sanction nurse licenses in various ways on a long list of specific grounds supplemented with a catch-all general-grounds provision. The above examples are thus not comprehensive. If you suffer employment termination on other grounds, those other grounds may fall under other specific provisions of your state's nursing practice act or under the act's general catch-all provision. The example last cited above, Section 4723.28 of the Ohio Nurse Practice Act, includes no fewer than thirty-seven different disciplinary grounds covering the full waterfront. Let us help you evaluate whether your disciplinary charges for employment termination misconduct fall under your state nursing practice act's specific or general disciplinary grounds.
How Nursing Board Officials Discover Misconduct
You may wonder how your state nursing board disciplinary officials discovered or may discover your employment termination and the misconduct on which the employer allegedly based it. Who reports your alleged misconduct, when it gets reported, and how it gets reported can all affect your disciplinary outcome. Disciplinary officials first concern themselves with patient safety, thus first crediting patient complaints and complaints by their family members. However, patients may know nothing of nursing standards and practices. Disciplinary officials are thus likely to listen even more closely to your employer's report of your suspected or alleged misconduct. Healthcare facilities and their managers may owe statutory or regulatory duties to report misconduct by their retained professionals. You may also learn that one of your professional colleagues, including another nurse or a doctor or aide, reported your suspected misconduct. Healthcare professionals often have the duty to report the endangering substantial misconduct of another healthcare professional. Your state nursing board may well soon find out about your alleged misconduct if it has not done so already. Retain us immediately upon notice of a state board disciplinary investigation or even before such notice so that we can help you assess and prepare.
Self-Reporting Employment Termination Misconduct
If no one reports your employment termination and the related alleged misconduct, then you may not hear from disciplinary officials. You don't generally have a duty to self-report potential disciplinary grounds, although you must answer information requests on your license renewal form accurately, or you may suffer credential fraud discipline. You must also generally answer any request for information that an investigator makes of you in an official investigation. Your state nursing practice act likely imposes a duty to cooperate with disciplinary officials. Consult us if you have questions about your duty to disclose misconduct directly to disciplinary officials or on a renewal form or other request for information.
Nursing Board Investigation of Misconduct
Your state nursing board will likely assign an investigator to your disciplinary case if receiving a credible report of your misconduct resulting in employment termination, indicating a potential violation of one of the disciplinary grounds in your state nursing practice act. The investigator will likely contact your employer to seek documentation and information. The investigator may interview or otherwise gain a statement from your employer's representatives and other witnesses to the grounds for your employment termination. Once the investigator has completed a preliminary investigation, the investigator may contact you, notifying you of the investigation and requesting your documentation and interview. As mentioned briefly above, you will likely have your state nursing practice act's duty to cooperate with the investigation. You will not have a privilege against self-incrimination in this administrative license proceeding, although you may need to assert such a privilege if you face the potential for criminal charges relating to your misconduct.
Your Initial Interview over Employment Misconduct
If the state nursing board's investigator contacts you for documentation, explanation, and interview, immediately retain us to help you gather, organize, and supply the documentation and prepare for the interview. We will help you ensure that your answers and submissions are complete, comprehensive, consistent, truthful, non-misleading, and accurate. Inconsistencies in your responses could lead to other disciplinary charges alleging your interference with the investigation and could undermine your credibility as to what you know and can testify happened. Our attorneys can help you respond to the request for an interview, arranging a time, place, and date when you will be prepared to make your best showing. We may be able to use the interview to communicate grounds to the investigator for the early voluntary dismissal of the investigation. Your interview may thus be your first and even your best chance of heading off formal disciplinary charges.
Nursing Board Sanctions for Employment Misconduct
Your state nursing practice act will authorize your state nursing board to impose a range of penalties if the board finds that you violated one of the many potential grounds for discipline. State nursing practice acts routinely grant state nursing boards the broadest discretion to impose anything from a minor sanction like a reprimand or censure all the way up to license probation, restriction, suspension, or revocation. The acts also frequently authorize intermediate remedial measures like assessment, counseling, education, training, peer review, and peer mentoring. Section 12-255-209 of Colorado's Nurses and Nurse Aides Practice Act is an example of authorizing the above sanctions. Section 1300.90 of the Illinois Board of Nursing's administrative rules is another example. In this instance, it expressly authorizes the Board of Nursing to “take other disciplinary or non-disciplinary action” of the Board's own discernment and choosing. Your state nursing board will likely have the same broad latitude.
Mitigating Sanctions for Employment Misconduct
Your state nursing board's broad discretion to choose your sanction, fitting it to your peculiar circumstances, or to forgo sanctions in favor of remedial measures gives our attorneys the opportunity to present your case in mitigation of sanctions. Often, license defense is not so much a matter of disputing the accuracy of the disciplinary charges but instead making a strong case that the charges, assumed to be true, do not warrant any sanction or a severe sanction. We may, for instance, be able to show that you have already addressed, thoroughly and effectively, whatever misconduct the charges allege so that you no longer present any patient risk or disruption threat if you ever did. Your manner of addressing the state board's potential concerns in advance may include your medical or mental examination, medication, counseling, or other treatment, your remedial education or training, or your removal from an extraordinary situation that induced your prior issues so that those issues have no chance to repeat. We can help you discern what to do and how to do it so that when the time comes, we have a compelling case for you to avoid sanctions.
Board Procedures Over Employment Misconduct
State nursing boards generally maintain relatively elaborate protective procedures for nurses whom they charge with discipline for employment misconduct or on other grounds. State nursing practice acts often require the state board to provide fair notice of the charges and an opportunity for a fair hearing before an impartial administrative law judge, board panel, or official. Your state nursing practice act may also provide for your appeal of any adverse decision, either to the full state nursing board, another administrative official, or a local civil court. The Connecticut Nurse Practice Act is an example. Its Section 20-99 requires the Connecticut Board of Examiners for Nursing to conduct a hearing on disciplinary charges and offer an appeal pursuant to other statutory administrative procedures. Your state nursing board will have similar procedures. You have a right to constitutional due process, protecting your property and liberty interest in your nursing license and employment. Your state nursing board's proceeding must respect those due process rights. If it does not, we may be able to pursue an independent civil action in federal or state court to reverse the disciplinary results and gain you appropriate procedural protections.
The Attorney's Role in Nursing Board Procedures
The above protective procedures are not self-executing. You must instead affirmatively invoke them, or you may suffer default, enabling your state nursing board to sanction your license without hearing. Our attorneys have the skill and experience to identify the appropriate procedures and take timely, strategic, and effective action on your behalf. We can get a more detailed specification of your disciplinary charges if the charges are vague. We can help you answer the charges, raising your defenses. We may be able to invoke early informal resolution conferences at which to present your exonerating and mitigating evidence to advocate and negotiate for the board's voluntary dismissal of charges without sanction.
The Attorney's Role at the Formal Hearing
If your matter proceeds to a formal hearing, we can ensure that the hearing is at a time and on a date when you are available and prepared with your best defense case. We can appear at the hearing to present your testimony, other witnesses, and other evidence while cross-examining adverse witnesses and challenging other incriminating evidence. We can also research, prepare, and submit the hearing brief and make the corresponding legal arguments at the hearing for the dismissal of your charges without sanction. When the administrative law judge, state nursing board panel or committee, or other decision maker issues the hearing ruling, we can help you understand and interpret that ruling while ensuring that the state nursing board implements it properly to clear your disciplinary record, providing that you have prevailed at the hearing.
The Attorney's Role in Appeal
If you have already suffered an adverse decision at the formal hearing, we can invoke and pursue your appeal rights. Beware that appeals generally have short and strict time limits. We can ensure that you take a timely appeal in the proper form before the proper court or other tribunal. We can also obtain and analyze the hearing transcript for the errors that will sustain your appeal and may result in the reversal of any sanctions or other adverse findings. We can also appear at any appeal hearing to advocate reversal orally. If you have already lost your appeal, we can evaluate your proceeding for due process violations or other errors that may warrant civil court litigation to reverse adverse findings. Do not give up until you have retained us to exhaust all avenues and obtain your best possible disciplinary outcome.
Your Stakes in a License Proceeding
When deciding how to approach your defense and what resources to expend in its pursuit, do not underestimate all that you have at stake in the proceeding. You already understand from the above discussion that your state nursing board has the authority to permanently revoke your nursing license. Revocation of your license in your current state may lead to suspension or revocation of your licenses in other states. Your state nursing board will likely enter your disciplinary results in the national Nursys database for easy reference by disciplinary officials in other states. You may also lose your opportunity to obtain a reciprocal license or any license at all in other states. You could lose your whole nursing career if you lose your current disciplinary proceeding.
Losing your nursing career could obviously cause you a substantial loss of income and critical benefits such as health insurance and retirement contributions. Those losses could affect your ability to pay your mortgage and other loan obligations, putting your housing, transportation, and credit at risk. Those losses could, in turn, affect your family and other relationships, even harming your community's reputation and relationships. Your mental, emotional, and physical health and the health of your close family members could also be at risk. We understand what you have at stake. That's why we diligently devote our full knowledge, skills, and experience to your defense.
Communicating with Your Employer
This discussion has addressed state nursing board disciplinary charges due to your employment termination for misconduct. Given that subject, your employment relationship and employer's attitude and action are a key factor in your disciplinary outcome. One of the strategic services that our attorneys may thus be able to provide is to communicate diplomatically with your (now former) employer regarding your former employment, the alleged grounds for termination, your employment rights to severance or other accrued vacation or personal days, any contractual or statutory right to employment reinstatement, the present disciplinary proceeding, and any other matter that may affect your disciplinary proceeding and nursing license and future. You may well have any of the above good reasons or other reasons to continue to communicate with your (now former) employer. We can help you do so in ways that do not add to your disciplinary risks.
Your Employer's Adversarial Relationship
Our corollary objective in communicating with your employer is to reduce the adversarial relationship with your employer that, unfortunately, initiated the disciplinary proceeding. Because your employment termination was the trigger for your disciplinary proceeding, you may benefit from reducing any remaining hard feelings with your employer. Your employer may well have been the one who complained of your misconduct to the state nursing board, placing your license under investigation. Your employer may effectively be your prosecutor, even though the state board official responsible for the proceeding is technically the one with authority to pursue disciplinary charges. If your employer relents in the allegations, the state board official pursuing the disciplinary proceeding may also relent. We want to do what we lawfully and respectfully can, not to aggravate but to mollify, support, and gently correct your employer as to any inaccuracies in your employer's allegations.
Your Employer's Termination Proceedings
We may further be able, through our diplomatic and helpful communications, to enlist your employer's support within and outside of the disciplinary proceeding. One tactic we may be able to deploy is to provide your employer with documentation of your defense to the misconduct allegations. Your employer may have gotten only half of the story before it terminated your employment. Your employer may not have the same due process obligations that the state nursing board has to respect your right to a fair hearing. Your employer may have fired you before offering you any hearing. If we can diplomatically correct that oversight, your employer may reconsider its disciplinary allegations. It may correct its representations to the state nursing board. It may even reconsider your employment termination.
Invoking Your Employer's Procedures
We may also be able to invoke your employer's personnel procedures or employee grievance procedures to get you a hearing on your employment reinstatement. We may further be able to present to your employer's human resource office, risk manager, or general counsel evidence that your termination was discriminatory or retaliatory and violated your civil rights relating to your race, sex, religion, age, disability, or other protected characteristic. These actions may further repair your relationship with your employer, leading either to employment reinstatement or to a correction of your personnel file, a positive reference from a friendly supervisor, and a recommendation letter that you can use to gain other nursing employment. If we are able to preserve your nursing license in good standing in the state nursing board disciplinary proceeding, then your objective becomes your prompt nursing re-employment. These steps may prepare you to achieve that objective, either before or soon after the disciplinary proceeding concludes.
Enlisting Your Employer's Disciplinary Support
The above actions may further gain your employer's support in the disciplinary proceeding. If your employer were to correct its disciplinary complaint, removing false, exaggerated, or unsupported allegations of your wrongdoing, then the state nursing board or its investigator may reconsider the pending disciplinary charges. When the primary complaining witness withdraws the complaint, the investigating authority takes notice. The state nursing board's investigator would not want to take a disciplinary complaint to a formal hearing if the complaining witness has already recanted and the investigator has inadequate or no evidence of wrongdoing. While we must not interfere with the employer's participation in the disciplinary proceeding, our accurate, diplomatic, necessary, and helpful communications with your employer may lead to an improvement in your employer's attitude and position, positively affecting your disciplinary outcome.
Qualifications of Disciplinary Defense Counsel
The foregoing discussion of our attorneys' strategic action with respect to your employer's position, obligations, and interest, and our sensitivity to your own interest, including your prompt re-employment, should highlight for you that our attorneys have the supreme qualifications to represent you most effectively in your nursing license disciplinary matter. Do not retain unqualified local criminal defense counsel or an unqualified local civil litigator or transactional attorney. Unqualified counsel may do more harm than good. Value the refined skills and substantial experience of our licensed defense attorneys.
Premier Attorneys for Nursing License Defense
The Lento Law Firm's premier Professional License Defense Team is available to defend you against your state nursing board's disciplinary charges related to non-nursing misconduct resulting in employment termination. Our attorneys appear nationwide, no matter your location, helping hundreds of nurses and other professionals prevail in license disciplinary proceedings of all kinds. Call 888.535.3686 or complete this contact form now for our premier license defense representation.
