Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U can be found on my website.

 

 

Valley Vista Services to Pay $21.7 Million for Wrongful Termination

Local news flash: City of Industry-based Valley Vista Services and its parent company, Zerep Management Corp. had a jury award one of their employees $21.7 million of which $16.5 million was punitive damages.  The jury found that the employee was wrongfully discriminated against and terminated because of a mental disability and that the companies acted with malice.

Do you Have a Workplace Policy Banning the Electronic Recording of Conversations?

In Jones v. St. Jude Medical Center the employee was fired for surreptitiously recording workplace conversations about her job performance.

 

Jones claimed the firing was retaliatory and argued that because she made the recordings to gather evidence about discrimination, the act of recording was protected activity under Title VII.

The 6th Circuit concluded that the hospital fired Jones because she violated its policy against recording conversations in the workplace, and rejected her retaliation claim.

 

Importantly, the Court further concluded that Title VII's anti-retaliation provision does not protect the act of recording in and of itself. The court said that Jones might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. But none of Jones’ claims suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy.

 

Cautions for employers:

If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. The abundance of smart phones in the workplace has only made it easier for employees to make recordings, both audio and video. You never know when an employee is going to try use a recording device into a termination or other meeting.

 

Your managers and supervisors should assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many employees keep detailed notes regarding their perceived treatment in the workplace. Managers need to be vigilant in making sure that they do not say anything that could come back and haunt the company in later litigation.

 

The Health Insurance Portability and Accountability Act (HIPAA)

What does HIPAA do?

HIPAA protects the privacy of medical records and personal health information (PHI)

 

Who is liable for PHI?

Health care providers, health plans, business associates, employers 

 

What information is protected?

Information created or received by a health care provider, health plan, business associate, employer, etc., that relates to the past, present or future physical or mental health of an individual, the provision of health care to an individual or the payment for provision of health care to an individual

 

What is a Business Associate?

A “business associate” is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. Covered entities must have a written business associate contract or other arrangement with the business associate that establishes specifically what the business associate has been engaged to do and requires the business associate to comply with the Rules’ requirements to protect the privacy and security of protected health information.

 

When does HIPAA impact employers?

• When they need to obtain and use protected information
• If they administer their own health care plan or review health benefit decisions

 

What are some circumstances where an employer may need to obtain protected information?

• When obtaining medical information for FMLA purposes:
• To determine whether an employee has a serious medical condition
• To determine whether an employee is able to return to work
• When trying to determine the parameters of a reasonable accommodation under the ADA
• When trying to determine an appropriate modified work schedule for an employee returning to work after suffering a work-related injury

 

How may an employer obtain protected information?

The employer must obtain a valid authorization that includes the following:

• A description of the information
• The identity of the person/entity authorized to make the disclosure
• The identity of the person/entity to which the disclosure may be made
• A description of each purpose of the requested information
• The signature of the individual whose information is sought
• Certain statements notifying the individual of his or her rights, including that s/he is entitled to revoke the authorization and receive a copy of the requested information
• An expiration date

 

What are the potential penalties?

• Civil fines
  • Minimum fine is $100 per violation, maximum is $50,000 per violation
  • Maximum annual fine for multiple violations ranges from $25,000 to $1.5 million per violation

 

• Criminal fines
  • Up to $50,000 and one year in prison for disclosing protected health information
  • Up to $100,000 and 5 years in prison for obtaining protected health information under false pretenses
  • Up to $250,000 and 10 years in prison for obtaining or disclosing protected health information with the intent to use it for commercial advantage or malicious harm
  • Imprisonment

 

Top HIPAA tips

• Keep all health information confidential and separate from other employee files
• Limit use of any protected information to those specifically provided in the authorization signed by the employee
• Request and use only the minimum amount of medical information necessary for your purpose

 

Factoids

• 57% of employers over tuition reimbursement, up from 35% in 2009 (Compdata)
• Employers are 3 times more likely to hire a mature worker (60%) as a millennial worker (20%) (Adecco)
• Average Maximum tuition reimbursement allowance for 2012 was $4980

 

Reasons other than being sick when workers take a sick day:

• 34%     just don’t feel like going to work
• 29%     feel the need to relax
• 16%     catch up on sleep
• 15%     run some errands