Disclosure of confidential medical records held to be protected activity

Bernadine Vaughn worked as a nurse at Epworth Villa, a non-profit,
continuing care retirement community. On April 28, 2004, Vaughn filed a charge with the EEOC alleging that Epworth Villa discriminated against her because of her age and race. Specifically, she claimed that she was disciplined for making errors with a patient’s medical records, while a younger, white employee was not. In support of her claim, Vaughn provided the EEOC with several pages of unredacted medical records concerning an Epworth Villa patient. Over a year after Vaughn had filed her charge of discrimination with the EEOC (which remained pending), Epworth Villa learned about Vaughn’s disclosure of the unredacted medical records, which Vaughn admitted. Within a week, Epworth Villa terminated her employment for disclosing confidential medical records to a third party.

Vaughn subsequently claimed retaliation -- that he disclosure of the medical records to the EEOC in support of her discrimination charge constituted protected activity, and Epworth Villa terminated her because of that protected activity.

In Vaughn v. Epworth Villa (10th Cir. 8/19/08), the 10th Circuit Court of Appeals agreed that Vaughn's conduct was protect activity, but nevertheless affirmed the dismissal of her retaliation claim because her disclosure of confidential information violated the employer's policy:

Epworth Villa asserts that it terminated Vaughn because she violated the organization’s policies and procedures regarding confidentiality when without authorization, she provided the unredacted medical records to the EEOC. ...

Unless Vaughn can show that other Epworth Villa employees were not terminated for engaging in the same or similar conduct – intentionally disclosing unredacted medical records to a third party – the fact that Epworth Villa was not required to terminate Vaughn does not give rise to an inference of pretext. In the absence of any evidence that similarly situated employees were treated differently, it is perfectly plausible that Epworth Villa would terminate Vaughn – whether it was required to or not – for intentionally disclosing the unredacted medical records rather than for some retaliatory purpose.

Current employees who file discrimination claims might go snooping to uncover favorable evidence to bolster their chances of success. While such snooping might constitute protected activity, this case gives employers a powerful weapon to combat it. The catch is that companies must have a confidentiality policy and must consistently enforce that policy against employees who violate it. Otherwise, enforcement against the one employee who happened to have claimed discrimination will most likely be viewed as retaliatory.

Should businesses be reviewing paid leave policies in advance of the Healthy Families Act?

The above-the-fold headline on the front page of Sunday's Plain Dealer business section reads, "Employers consider altering benefits before voters decide sick days issue." A whole lot of ink has been spilled in law firm newsletters all over Ohio discussing this very issue. As the article notes, some lawyers are recommending and business are considering making revisions to benefit plans and leave policies now, to potentially lessen the blow if the Healthy Families Act passes on Nov. 4.

This debate centers around two sentences in the proposed law, section 4114.07:

(B) An employer with a leave policy providing paid leave options shall not be required to modify such policy, if such policy offers an employee the option at the employee’s discretion to take paid leave that is at least equivalent to the sick leave described in this section.

(C) An employer may not eliminate or reduce leave in existence on the date of enactment of this Act, regardless of the type of such leave, in order to comply with the provisions of this Act.

Some are considering changes now because of 4114.07(C). Before the law passes, a company will be able to reduce employees' vacation days to insert paid sick leave, or amend its current leave program to switch to a paid time off system. After the law goes into effect, however, current leave programs cannot be subtracted from to add the 7 paid sick days.

The question in my mind is what does "leave that is at least equivalent to the sick leave described in this section" mean? Is is leave that an employee can for his or her own physical or mental illness, injury, medical condition, or professional medical diagnosis, or that of a child parent or spouse? Or, does the leave have to comply with the subtle nuances of the statute, such as lack of notice, incremental leave as small as 1 hour, and no medical certification for leaves of less than 3 days?

If a business has policies that, alone or take together, enable employees to take 7 paid sick days, that business should, in theory, be okay under 4114.07(B).

If companies try to get out in front of the OHFA and change their personnel policies now by converting vacations in paid time off, which can be used for any reason including sick leave, will business still have to grant an additional 7 days of sick leave if the PTO they do grant does not meet the OHFA's minimum requirements for the use of paid sick days?

Common sense would dictate that a day that can be used as a paid sick day should suffice, and the other nuances are merely administrative and can be added in after the fact by businesses if the OHFA passes. However, there is nothing common sense about this law. Businesses run a real risk by making any changes in advance of the election. They very well might end up paying double benefits.

In other words, their are serious pros and cons to making any changes now.

 

Pros	Cons
7 days that an employee can use for sick days is equivalent to the overall leave provided for in the HFA, and therefore should suffice under 4114.07(B).	Ambiguities in the proposed law mean that any changes made now might not suffice unless the paid sick leave is tracked feature-by-feature, such as no notice and leave in 1 hour increments.
Waiting to make changes risks not be able to subtract from current benefits, thereby adding the cost of 7 paid sick days.	Making changes now risks that they will not suffice under the statute, thereby adding the cost of 7 paid sick days.
Employees may prefer a more flexible leave program.	Negative employee morale by changing leave plans, such as eliminating vacation days.
PTO policies offer employees greater flexibility in how they use their time off.	PTO policies provide employers less control over how employees use their time off.

 

Any decision about amending leave and benefit policies in advance of the election is not a easy as it might sound. These decisions must be carefully thought out after weighing these pros and cons.

Governor Strickland's press release against the Healthy Families Act

For those who are interested, the following is the Governor's press release condemning the Healthy Families Act.

Strickland on Sick Days - Upload a Document to Scribd

The fight between both sides of this issue between now and November 4 is going to be very contentious. It is very significant that our Democratic Governor has taken a public stand against this measure. The key for businesses is to figure out a game plan to capitalize on this publicity and get the message out to employees that there is a significant price to be paid in exchange for 7 paid sick days.

There are a wealth of resources available on the internet about the Healthy Families Act.

• Ohioans to Protect Jobs and Fair Benefits is the official campaign against this ballot measure. Its website not only has information for those who oppose this initiative, but details on how to get involved in the campaign.
• COSE (the Council of Smaller Enterprises) also has a great informational website about the Healthy Families Act, and information on how to get involved in the campaign.
• Play Sick Ohio has been created by the Ohio Roundtable, a non-profit public policy think tank.

And, I will continue to keep everyone updated as this campaign against mandated paid sick leave continues.

WIRTW #44

I guess if Motherhood Maternity can be sued for pregnancy discrimination, then the AARP can be sued for age discrimination. It seems that Bonita Brady, age 63, claims she was passed over for a series of promotions even though she received excellent job reviews. Michael Moore at the Pennsylvania Labor & Employment Blog has some excellent thoughts on what a lawsuit such as this one can mean to an organization's core values.

As for the rest of the week's best posts:

Drug and Device Law provides a manifesto (of sorts) on what it means to be a lawyer. Hopefully they won't mind, but it's so good I'm reprinting the highlights. Please click on over for the rest.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. ...

The Laconic Law Blog and the Connecticut Employment Law Blog have details on amendments to the federal Consumer Product Safety Commission Act that create a new cause of action designed to protect whistleblowers on product safety issues. Also check out the Connecticut Employment Law Blog's summary of issues surrounding the selection of EPL insurance.

The National Law Journal reports on employers' use of surveillance to catch FMLA scofflaws.

The Delaware Employment Law Blog lists the top 5 costs associated with workplace bullying.

Wage and Hour - Development & Highlights correctly reports that lunch time can be counted as work time. For my thoughts on this issue, see More on compensation for meal periods.

The Manpower Employment Blawg presents its list of the top 10 most frightening employment law issues.

Electronic Discovery Navigator reminds businesses that lawsuits can be an expensive IT threat.

Governor Strickland formally speaks out against Healthy Families Act

Governor Strickland's efforts to broker a compromise on the Healthy Families Act have officially failed. He has been tirelessly working behind the scenes to come to some workable solution that would keep the initiative off November's ballot. With that effort having gone for naught, the Governor has now officially weighed in with their opinion on this proposal:

We also recognize it is important to make clear our thoughts on important public policy issues and today are announcing that we cannot support the paid sick-day ballot initiative.  While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result.

Folks, if the Democratic Governor of our state is against this pro-employee measure, is there any doubt that its passage is bad for Ohio?

Blasting through the bulletproof employee

Butler v. Alabama Dept. of Transportation (11th Cir. 7/30/08) concerns a black employee belatedly complaining that a white employee used the word "nigger" in her presence, but admittedly not directed at her. After Butler was terminated, she successfully prosecuted a claim for retaliation. The 11th Circuit took away the $200,000 verdict because the racial epithets of which Butler complained did not amount to actionable harassment:

Assuming that Butler did believe that Stacey’s words immediately after the wreck amounted to an unlawful employment practice ..., her belief is not objectively reasonable. It is not even close. The incident consisted of Stacey’s use of a racial epithet twice a few minutes apart. What Stacey said was, as Butler testified, “uncalled for” and “ugly.” But not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred away from work. It did not happen within the hearing of any supervisors. Butler admits that she never thought the epithets, deplorable as they are, were aimed at her. She has never even suggested that this one-time use of vile language away from work created a hostile work environment. She also conceded during cross-examination that the incident did not affect her ability to do her job. The incident that gave rise to this case is nowhere near enough to create a racially hostile environment.

This case is a boon for employers. Often, employees will complain about bogus incidents of discrimination in an attempt to bullet-proof themselves from an adverse action. Employees believe that the mere threat of retaliation liability will protect their jobs. Sometimes employers become paralyzed over the threat of litigation, no matter how baseless it might be. This case sends the right message to employees, that a meritless complaint will not protect a poor performer.

Of course, this case merely begs the question of what constitutes actionable discrimination. Employers can still get themselves in trouble by trying to make legal judgments of what is and is not a legitimate complaint of discrimination. Whenever a company is thinking about terminating or taking any other adverse action against an employee who has complained about discrimination, it is best to get employment counsel involved to make sure that every "i" is dotted and "t" crossed, so that when the inevitable retaliation claim is filed the company is in the best position to defend itself.

Right to reinstatement under USERRA for returning military personnel is absolute

In 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan.

USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions:

1. The employee must provide the employer notice that the employee intends to take leave for military service.
2. The cumulative length of the employee's service cannot exceed five years.
3. If the leave exceeded 30 days, the employee makes timely reapplication for employment.
4. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave.
5. The employee's separation from military service was under "honorable conditions."

If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position.

What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements.

Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him.

Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges.

The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes.

It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits.

Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work.

According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim:

It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.

This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts.

Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim.