HIPAA, Wright Line, and the Return of Pretext Analysis at the New NLRB

HIPAA, Wright Line, and the Return of Pretext Analysis at the New NLRB

One of the first signals of how the new NLRB will approach mixed-motive discharge cases came in a Board decision involving a hospital that fired a radiology technician for improperly accessing a patient’s electronic medical records.

The employee had also engaged in union activity, and the General Counsel argued the discharge was retaliatory. Under Wright Line — the long-standing burden-shifting framework — the GC must show the employee engaged in protected activity, the employer knew about it, and animus or causal link to the discharge exists. Once that is made, the burden shifts to the employer to prove it would have discharged the employee anyway.

The Board found the hospital met its burden. Key facts that drove the result:

* The investigation was triggered by a manager with no knowledge of the union activity and no apparent motive to fabricate.

* A HIPAA audit corroborated the complaint — the employee did access records outside the scope of a radiology technician’s typical duties.

* The hospital had previously terminated other employees for comparable HIPAA violations.

The result: a reasonable belief in misconduct + consistent discipline + no pretextual reason = no NLRA violation. Pro-Union NLRB Member Prouty dissented, arguing the investigation was inadequate and ignored exculpatory evidence.

For nearly a year, the Board could not issue decisions because it lacked a quorum. The minimum three-member quorum is now in place, and we’re starting to see how Wright Line will be applied under the new majority. The signal is straightforward: a well-documented investigation, consistent discipline, and a non-union-related triggering event will be respected.

Three practical takeaways for employers:

1. Consistency. Comparable discipline for comparable conduct, regardless of union status, is the single most important factor.

2. Independent triggering. If the investigation was triggered by a manager outside the union activity loop — and you can show it — your defense is dramatically stronger.

3. Contemporaneous documentation. The hospital won because it could produce the audit, the prior terminations, and the timeline. Build the file in real time, not after.

Disciplining employees who are engaged in protected activity is always uncomfortable. The legal framework doesn’t say you can’t — it says you must do it cleanly and consistently.

How does your discipline tracker look right now if a union organizer were to be the next person up?