Whistleblower Protection for Nurses in Health Care Reform Bill

The “Health Care Reform Bill” that has been at the top of the news lately contains some good news for nurses, nursing home employees, and other health care workers who are suffering under a bullying boss or being harassed at work.

Now this reform bill, which is actually named “The Patient Protection and Affordable Care Act of 2009,” does not outright prohibit bullies in the healthcare workplace. Although it would be a good idea to catch the U.S. up with the rest of the civilized world, we’re still a ways off from making it illegal to purposefully ruin another person’s career.

But, this law can be a another tool that you can learn to use in your fight against an unfair supervisor.

Specifically, the Bill gives whistleblower AND retaliation protection to health care workers! The “PPACA” also puts some muscle on the False Claims Act. If an employee reports anything, even to his or her own employer, that the employee “reasonably believes” is a violation of the Title I section of the Bill, then that employee is a whistleblower — and thus part of a protected class.

So you are probably wondering what “Title I” prohibits… and what things you must report to be protected by this new law. Title I prohibits denying coverage based upon preexisting conditions, it includes policy and financial reporting requirements; and it prohibits treating patients differently based on whether they received health insurance subsidies. Put another way, the bill will protect employees who point out a broad range of infractions their employer is engaging in.

Similar to Title VII, this new bill’s whistleblower rules include a 180 day deadline, and a requirement to file first with an administrative agency (in this case OSHA). And also like Title VII claims there is an option to litigate against your employer before an administrative law judge, or, you can choose to remove the claim to federal court (like getting a “right to sue letter” from the EEOC) and litigate there in front of a jury. This new whistle blower protection allows for reinstatement to your job if you’ve been fired, the back pay you should have received, and attorney’s fees.

What you have to prove is that your whistleblowing was merely “a contributing factor” in your employer’s decision to fire you, demote you, transfer you, give you a bad appraisal or review, deny you a raise, etc.

So what is “a contributing factor,” you ask? It is “any factor which in any way affects the outcome of the decision” to deprive you of your job, a good appraisal , a raise, etc. So all you have to show is that your whistleblowing affected a bosses decision to give you a bad review, for instance — your whistle blowing does NOT have to be the only reason, or even the main reason, that your boss gave you a bad review.

After you prove that, then your employer has a chance to get off by proving “by clear and convincing evidence” that it would have done the exact same thing to you even if you had not blown the whistle. Unless you got caught stealing, this is pretty hard for an employer to prove.

Our next post, later this week, will further explain the new bill’s protections for employees at nursing homes, so be sure to check back.

And what do you think of this aspect of the new bill? If you are a nurse or in health care, have you ever seen patients treated differently because of what insurance they have or don’t have? Have you nurses out there been retaliated against in the past for pointing out policy violations where you work?
Healt Care Reform Bill Sections Protecting Whistleblowers

Steps Toward Workplace Civility Law & Could You Qualify for Disability Benefits?

In Episode #14 of the Hostile Workplace Podcast we review two recent cases, both of which point toward the federal courts gradual expansion of discrimination law, inching closer to requiring civility in the workplace.

Ingrid Reeves v. C.H. Robinson Worldwide (11th Cir., January 20, 2010)

Indergard v. Georgia-Pacific Corp., (9th Cir., September 28, 2009)

We also have a highly informative interview with Brian Therrien of Disability Digest. We’ve featured [Read more]

New Work Laws Protecting You in 2009

With a new year come new laws that can protect you.

At the Federal level, new laws went into effect on January 1, 2009 which expand the definiation of “disability” under the ADA, and extend and expand FMLA protection for people who have had a loved one serving in the military.  The Federal minimum wage will also go up on July 24, 2009 to $7.25 per hour. (Until then the Federal minimum wage is $6.55 per hour).

At the state level, a bevy of new laws come into effect.  In California, for instance, new laws address meal and rest periods, pay for computer professionals, work comp reporting, and (during your commute) ban text messaging while driving.

New laws in Illinois also expands the reach of both the FMLA and ADA as applied in that state, by making eating disorders qualify under the law as “serious mental illnesses.”  This will also give individulas with these disorders the ability to get insurance coverage for treatments.

Illinois also passed a law prohibiting employers from discriminating against job applicants on the basis of genetic testing.  The fear was that employers would eliminate applicants who have a family history of breast cancer, for instance, because if hired the applicant would be more likely to miss large amounts of work time and cause insurance rates to increase.  Of course, the applicant may actually never get breast cancer and thus the “discrimination” this law tries to ban.

New Mexico raised it’s state’s minimum wage to $7.50 per hour.  Be a aware that specific cities are free to increase the minimum wage even higher than the the state level.  For instance, even though New Mexico’s minimum wage is now $7.50, if you are working in the City of Santa Fe you get the City’s whopping minimum wage rate that just went up to $9.92 per hour.

And finally, be sure you stop peeing in public when visiting New Hampshire.  In 2009 the Granite State makes public urination a legal violation punishable by a $1,000 fine.

Is the minimum wage also increasing in your state?  Are their new laws going to effect in your area?  Tell us in the comments section!

Curt K. (The Undercover Lawyer)

Stop Your Harassing Boss With Your Employee Handbook

The Employee Handbook – Know the Rules and Your Rights

By: Jenn S.

When you first went to work for your employer, it is likely that you received an employee handbook, often referred to as an employee manual or a policy and procedure manual. If you did what you were supposed to do, you read it and then signed a document stating that you read and fully understood the rules and policies stated within. Though such “rule books” often seem like mindless paperwork you can easily plow through during orientation and then forget, they are much, much more than that. Instead of thinking of the employee handbook as all of the things that you can’t do or rules that restrict you, also think of it as what your employer has to so do for you.

Key Employee Policies:  So what are the most important policies and procedures to focus on? Which policies are most often utilized by employers to get rid of employees? Which policies should you make yourself highly aware of in order to keep your job? Frankly, you should carefully read the entire manual from cover to cover and then keep it somewhere where you can easily refer to it in the future. However, if you are not big into reading or your employer’s manual happens to fill numerous binders, try to at least familiarize yourself with the following key policies:

Standards of Conduct: Kind of a no-brainer, but you would be surprised how many people are unaware of the multitude of acts or behaviors that can land you on your employer’s hit list. Most policies regarding standards of conduct give a long laundry list of offenses, from poor performance on the job to violence or drugs in the workplace. The standards of conduct are a good place to start to determine exactly what is unacceptable in your workplace so that you can avoid crossing the line right from the start.

Anti-Harassment / Discrimination Policy: This policy is important for several reasons. One, you should know how to use it in case you are a victim of discrimination or harassment or you witness it happening to a coworker. More importantly, you should determine exactly what your employer is promising to do for you in the event that you make a complaint of discrimination or harassment and then hold the employer to it. If the employer fails to follow its policies, you may very well have a valid legal claim. Finally, you should make yourself aware of exactly what constitutes discriminatory or harassing acts so that you can avoid violating the policy yourself or having a complaint filed against you.

Disciplinary Policy / Progressive Discipline Policy: Again, here is a policy that you not only need to know but must hold your employer accountable to following, should you be targeted for disciplinary action. Determine what the progressive “steps” are for each level of discipline and what acts or behaviors fall under each step. For example, repetitive violations of the attendance policy may first warrant a verbal warning, then a written warning, and then ultimately termination. However, a serious offense, such as insubordination or theft may warrant immediate dismissal. Know your rights under this policy and make sure that your employer is applying it fairly and consistently amongst all workers. Inconsistent application of this policy could be grounds for legal action.

Medical Leave and Other Kinds of Leave: At the beginning of your employment, you should make yourself aware of how your employer handles requests for time off. Most employers are bound by laws that require them to provide you time off for certain medical conditions or the medical conditions of particular family members but beyond such required leave, you should also know how any paid vacation or sick leave is earned and how to request such time off. A handbook will usually also cover other types of leaves such as jury duty or witness leave, bereavement leave, and military leave, amongst many. Educate yourself up front on the leave issue so that you know what you can expect from your employer should the need for a leave arise.

Fraternization & Employee Dating Policy: As I have made very clear in previous articles, dating in the workplace is never a good idea, but some employers actually have policies against it. The most dangerous dating relationship (and usually the one that will violate a no fraternization policy) is one between a supervisor and a subordinate. Such a situation not only creates tension and drama in the workplace but it also creates the possibility of legal liability for the employer and the individual supervisor, should the subordinate decide to file a harassment complaint. But even a relationship between coworkers can violate an employer’s policy so be mindful of the rules and if you happen to find love at work, do your best to keep it under wraps and outside of the workplace.

Non-Solicitation / Distribution Policy: Know your employer’s policy regarding solicitation. Most employers do not allow any sort of solicitation or distribution of literature in the workplace, on work time. Some employers might allow it in the break room, when you are off of company time but generally speaking, it is probably best to leave the Mary Kay and Pampered Chef brochures at home or in the car. If you want to give something to your coworkers, do it after work, off the premises.

Confidential Information Policy: Know what you can and cannot talk about, both inside and outside the workplace. Your job may require that you handle sensitive, confidential information and in such cases, employers often have employees sign a separate confidentiality agreement. But for those in less sensitive positions, you might still run afoul of a confidential information policy, especially if the policy includes the discussion of salary information (who doesn’t like to complain to coworkers about their pay?) or other internal information that should not be shared outside the workplace. This is a policy to know and strictly follow, as violations of it often lead directly to termination.

By educating yourself about your employer’s policies and procedures, you will be much more savvy about what your employer expects from you, as well as what you can expect from your employer.