I see this scenario too often. Unfortunately, employers do not fully know the do’s and don’ts during union organizing drives and resort to self-help action to punish union organizers. And employers always lose.
Here, a pro-union employee was going to be given a warning for failing to check a patient’s vital signs prior to the patient’s discharge from the hospital. In an effort to defend himself, the employee accessed and printed the patient’s electronic medical records for use in the hospital’s internal grievance procedure. The hospital ended up discharging the employee for what it called a HIPAA violation. Wrong move hospital.
The problem is that the hospital changed its story several times when trying to justify its reason for terminating the employee.
First, the hospital actually acknowledged that HIPAA allows the use of protected patient health information for the resolution of internal grievances;
Second, the evidence showed that the hospital had granted the employee permission to view, copy, and use the patient’s file in the grievance procedure, and there was no evidence that the employee exceeded the scope of the authorization.
Third, the hospital changed its tune after first telling the employee that he would not be fired but then abruptly firing him.
Fourth, the hospital did not discipline the doctor and the department manager who also accessed the same records for use in the same grievance proceeding.
Fifth, the hospital’s argument that it had an “honest belief” that a HIPAA violation had occurred was not credible to the NLRB because of the above facts.
The NLRB concluded (and I agree) that the hospital seized upon the alleged HIPAA violation as a thinly veiled attempt to rid itself of a known and vocal union organizer. Union organizers must be treated the same as all other employees. Obviously that did not occur here. The threshold for proving retaliation against a known union organizer is very low. So tread lightly – and involve labor relations professional like yours truly – before taking action against union organizers.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.