NLRB judge strikes down termination based on HIPAA violation

HIPAA. Five letters that strike fear into the heart of anyone that handles employee medical information. That is, anyone except an NLRB judge passing judgment on whether an employer was justified in firing a union-supporting employee for clear HIPAA violations.

In Rocky Mountain Eye Center [pdf], and NLRB administrative law judge was faced with the issue of whether the NLRA protects an employee of a medical practice, Britta Brown, who accessed co-worker medical information in her employer’s Centricity database for the purpose of gathering contact info for a union-organizing campaign. The judge concluded that the employee’s HIPAA violation did not strip her of the Act’s protection.

I find the Respondent’s comingling of employee and patient data in Centricity, along with its training instructions to employees and its practices, detailed above, preclude any legitimate defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline as a HIPAA violation. While the Respondent's general concerns about HIPAA compliance are unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to stop Brown’s union activity.

In other words, because the employer: 1) permitted the co-mingling of non-protected employee contact information with protected patient medical information, regardless of whether the employee was also a patient, and 2) trained (or, at least, acquiesced in) employees using Centricity to access each others’ contact info for work-related reasons, such as scheduling and social events, the employer could not discipline an employee who used the same tools to access the same information for a union-organizing campaign.

HIPAA isn’t the only law that mandates the confidentiality of medical information.

• The ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
• If an employer has genetic information obtained under one of GINA’s limited exceptions, it must also keep this information separate from personnel files and treat it as a confidential medical record.

If you are a medical practice and your employees are also your patients, HIPAA adds a deep layer of complexity to these confidentiality issues. The judge’s decision in Rocky Mountain Eye Center notwithstanding, take these confidentiality requirements seriously, and train your employees on the proper handling of, and access to, confidential medical information. Otherwise, instead of an unfair labor practice charge, you might be facing a lawsuit from an employee relating to a breach of confidentiality.

John Oliver tackles paid medical leave

Is it time for America to catch up to the rest of the world and offer paid family leave to our employees? Perhaps the best argument in favor of paid family leave is that besides Papua New Guinea, we are the only country that doesn’t offer it. Makes you think we’re a little behind the times.

Here’s John Oliver’s very funny, and poignant, take on the issue from this week’s Last Week Tonight:

Did the 6th Circuit just gut the honest-belief rule?

The only fight I’ve even been in was in 4th grade. For reasons that I can’t remember, Yale Weinstein and I squared off in the schoolyard of Loesche Elementary School. There were no winners, only losers, and the only thing that saved both of us from suspension that day was the fact that the principal knew my dad from his childhood and was friends with my grandmother. It’s not what you know, but who you know, right?

Let’s suppose you have two employees who get into a fight at work, and one happens to be white and one black. Does Title VII require you to fire both employees, or can you make an honest assessment of the instigator, and only fire the responsible party?

According to the 6th Circuit in Wheat v. Fifth Third Bank (5/7/15) [pdf], an employer potentially violates Title VII when an it fires only one participant in a workplace fight, when both are of different races.

The facts are relatively simple. Wheat (black) and Hatfield (white) first got into an argument, which later escalated into a physical altercation. The employer’s HR department immediately investigated, concluded that Wheat was the instigator, and fired him for violating its workplace violence policy.

The 6th Circuit concluded that the trial court erred in dismissing Wheat’s Title VII claim on summary judgment. Critically, the appellate court reviewed the deposition testimony and found that the evidence showed that Hatfield, and not Wheat, was the aggressor.

Even the most cursory of examinations of the evidence before the district court and this court reveals that a genuine factual dispute exists regarding Wheat’s status as the aggressor in the confrontation with Hatfield. In fact, the deposition testimony establishes that it was Hatfield, not Wheat, who pursued the altercation after the two men had separated initially and gone to their respective “corners.” Even Hatfield himself admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their initial encounter. Moreover, even if the defendant’s position is premised upon its belief that Wheat was the initial aggressor when the two men met in the hallway of the bank, the argument must fail. Although Hatfield claimed that the plaintiff “put his hand in [Hatfield’s] face,” Wheat stated during his deposition that he was turning around to extricate himself from the argument when Hatfield “assaulted” him by swatting him on his arm.

Based on the appellate court’s reading of the deposition testimony, it concluded that “divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

To that, I say hogwash. Courts have long held that they do not, and will not, sit as super-personnel departments, second-guessing an employer’s business decisions. Indeed, an employer’s “honest belief” in its decision will act as a shield from a later claim of discrimination. As another panel of this same court recognized a few years ago, in Brooks v. Davey Tree Expert (internal quotations omitted):

Under the “honest belief” rule … so long as the employer honestly believed in the proffered reason, an employee cannot prove pretext even if the employer’s reason in the end is shown to be mistaken, foolish, trivial, or baseless…. For an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action. Although we will not micro-manage the process used by employers in making their employment decisions, we also will not “blindly assume that an employer’s description of its reasons is honest. Therefore, when the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process unworthy of credence, then any reliance placed by the employer in such a process cannot be said to be honestly held.

It seems to me that as long as Fifth-Third Bank’s HR department engaged in a reasonable-under-the-circumstances investigation of the fight between Wheat and Hatfield, a court is not in a position to second-guess the results of that investigation or the terminations that flowed therefrom. Yet, by examining the deposition testimony and reaching its own independent conclusion of which employee was responsible for the fight, hasn’t this court undermined (or, more accurately, ignored) the employer’s “honest belief?” And, if that’s the case, what does it say about the future of the honest-belief rule as a viable defense to a discrimination claim in the 6th Circuit?

For now, however, if you are faced with two employees of different races (or national origins, or religions…) fighting in your workplace, is it just best to fire them both, if your honest belief of who was the instigator won’t protect you if that “instigator” happens to be of different race?

WIRTW #365 (the “en français” edition)

One of the curricular pieces I love about my kids’ school is that they start foreign language in kindergarten. My daughter, Norah, is now in her 4th year of French (which she gets every other day), and my son, Donovan, gets both French and Spanish, alternating each day.

When we attending Norah’s first parent/teacher conference when she was in kindergarten, I remember her French teacher telling us all about the play that would cap their year. I sat in disbelief as she explained how the kids would perform “La Poule Maboule” (Chicken Little), all in French. Imagine my surprise a few months later when I sat at school and watched the kids masterfully pull it off.

Now, three years later, the performances are no longer a surprise, but are still a delight to experience how little minds soak up foreign languages.

So, I present Donovan’s kindergarten class performing “La Poule Maboule,” and Norah’s 3rd grade class performing “Comment y Aller.”

Here’s the rest of what I read this week:

Discrimination

• Well, that stinks! Doo-doo creates a discrimination claim. — via Eric Meyer’s The Employer Handbook Blog
• When Are Reasonable Accommodations NOT Required For a Disabled Employee? — via Minnesota Employer
• EEOC Launches Digital Charge System — via Workplace Prof Blog
• Does Title II of the ADA Apply to Employment? Two Views — via Understanding the Americans with Disabilities Act
• Timing of termination creates question of fact in association discrimination case — via EmployerLINC
• EEOC Denied Inspection Of Employer’s Premises — via Workplace Class Action Litigation

Social Media & Workplace Technology

• Regulatory Update: DOJ and SEC Issue Privacy and Cybersecurity Recommendations — via Privacy and Data Security Insight
• Social Media Assets in Bankruptcy: Facebook and Twitter Accounts Subject to Reach of Creditors — via Socially Aware Blog
• Five Key Social Media Questions All Health Care Employers Should Consider: Question #1: When is it okay to fire an employee for a social media post? — via netWORKed Lawyers
• The poisonous nature of too much of our online dialogue — via Minding the Workplace
• One-third of jobs will be replaced by robots — via Inhouse Blog
• You can’t spell “idiot”  without IoT (Internet of Things) — via The Verge

HR & Employee Relations

• How to Keep Your Office Weird, Without Getting Sued — via In House
• Millennials want a work-life balance. Their bosses just don’t get why. — via Washington Post
• Unlimited Vacation, Free Beer and Kids at Work. Is this the Future Workplace? — via Rush on Business
• People Are Not Trade Secrets — via HR Examiner with John Sumser
• Making the Case for Pre Employment Personality Tests — via Newton Software Blog
• What do you do with old personnel records? — via Mike Haberman’s Omega HR Solutions
• Arbitration … be careful what you ask for — via Michigan Employment Law Connection

Wage & Hour

• Study: minimum wage hurt employment, earnings, mobility for low-skill workers — via Walter Olson’s Overlawyered
• NFL Cheerleaders To Be Deemed “Employees” And Protected Under Proposed Law — via Wage & Hour - Development & Highlights
• FLSA Exemption Changes: More On Salaried-Employee Alternatives — via Wage and Hour Laws Blog
• Wage and Hour Basics Series: Penalties for FLSA Non-Compliance — via Wage & Hour Insights
• Proposed overtime rule has been sent to OMB — via Robin Shea’s Employment & Labor Insider
• Intermittent FMLA — and More Recurring Issues — via The Emplawyerologist

Labor Relations

• Inside the Case That Could Hold McDonald’s Responsible for Union-busting — via Workplace Fairness
• Cleaning Up Your Employee Handbooks, NLRB-Style — via Dan Schwartz’s Connecticut Employment Law Blog
• Employer beware: NLRA rulings often conflict with existing employer policies — via Technology for HR

OSHA chimes in on transgender bathrooms

OSHA is no stranger to regulating workplace bathrooms. Now, Employment Law 360 [sub. req.] reports that OSHA and the National Center for Transgender Equality “have entered into a partnership to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.” According to NCTE Executive Director Mara Keisling, “Transgender workers can be prevented from using common workplace restrooms, which is a threat to their physical health and a violation of federal law.” Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels adds, “Through this alliance, we will jointly work with the NCTE to develop products and guidance materials to improve workplace safety and health for all workers.”

This is an interesting issue, and, especially for employees and employers for whom this issue causes some degree of discomfort, can present a real problem. Yet, this is a problem with a simple solution—establish a unisex bathroom. Or, you can permit transgender employees to use the bathroom of the gender with which they identify. Either way, this is an issue you should be discussing with your employees and building in your EEO / anti-harassment training. This issue is not going away (see Bruce Jenner), and the sooner you address it in your workplace, the less risk you are taking.

[Image courtesy of Robin Shea’s Employment & Labor Insider]

Is hiring for “digital natives” age discrimination?

Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to Fortune.com, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”

“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”

• “This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global

• “I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney

Let me offer a counter-argument. I’m 42 years old, more tech savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.

Failure to accommodate may not equal retaliation, says federal court

In Neely v. Benchmark Family Services (S.D. Ohio 4/21/15), the plaintiff claimed that his employer retaliated against him for failing to accommodate his undiagnosed alleged sleep disorder. His symptoms included averaging two or three hours of sleep per night, and randomly falling asleep during the day, including while at work. The court dismissed Neely’s ADA discrimination claim and failure to accommodate claim, in large part because there was no evidence that his sleep issues had a medical root. Then the court turned to Neely’s retaliation claim:

One might wonder how retaliation claim in the absence of a disability can be squared with the text of the statute…. The line of cases relied upon by the Sixth Circuit explains that “[a]n individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.” Thus, “although ‘[i]t is questionable’ whether an employee who merely requests a reasonable accommodation ‘fits within the literal language of the statute,’  we are bound … to conclude that making such a request is protected activity….”

Plaintiff would have the Court extend this reasoning even further to himself, a litigant who was not disabled under the act, unlike the cited cases, did not request an accommodation and had not yet filed a formal charge…. Other courts have refused to extend retaliation claims to employment actions taken after an employee’s complaints of health conditions to a manager, and so will this Court.

What does this mean for you, as a practical matter? When an employee complains about a health problem at work, do your diligence. Determine if the employee is requesting an accommodation. If so, seek and gather from the employee medical information in support of the claimed disability and the requested accommodation. Then, make an informed decision about whether the employee is disabled if and if you should offer an accommodation. These steps will put you in the best position to defend against discrimination, accommodation, and retaliation claims under the ADA.