In the long run the pessimist may be proved right, but the optimist has a better time on the trip.
─Daniel L. Reardon

Whistleblower Protection for Nurses in Health Care Reform Bill

Protected from Whistle Blowing by New Health Care Reform Bill

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

To Your Resounding Success in 2010

After receiving a huge response to the following email, I decided to share it with everyone here on the site as well.

Podcast #10: Bully Boss Creates Hostile Work Environment by Forbidding Bathroom Breaks!

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Main Segment
In the Main Segment of Episode #10 we tackle the issue of “Bully Bosses Who Forbid Bathroom Breaks.”  This craziness happens much more frequently than you may think.  Can you guess who the primary victims are?

#1 Spanish radio station in Miami

The radio show I mention during the show is 98.3.  My thanks to Frank, the Undercover Lawyer community member from Miami who got the book and called in to 98.3 to talk about it.  Thanks Frank!

1. http://www.work-surf.info/
2. http://www.anonymous-proxies.org/2009/07/all-about-work-proxies.html

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Whistleblower Stops The Train of Hostile Work Environment

Federal OSHA ordered Union Pacific Railroad to give the welder his original job back, repay the welder for all the time and mileage he spent commuting to the second job he was transferred to, pay his attorney fees and pay him compensatory damages.

OSHA doesn’t release the names of employee-whistleblowers, but here’s what we do know about the situation: the employee was a welder based in Beverly, Iowa, who worked on repairing railroad tracks for Union Pacific Railroad. You’ve heard the old adage that you’re never supposed to stop on railroad tracks, right? Well that’s exactly where this welder spent his work day — sitting on railroad tracks. It’s dangerous work.

So one day he is particularly concerned about on-coming trains. In fact he goes to his Track Manager and asks for a lookout. “Hey, while I’m looking down at my welding torch could we have someone there looking out for trains?”

“No.”

“Well, here’s some ideas for some tools that would make the welding job more safe.”

“You can’t have them.”

So what happens to this employee for speaking up? He’s rewarded with a hostile work environment. A retaliatory, illegal hostile work environment. In fact the Track Manager was so mad at the welder that the Track Manager tried to terminate the employee by eliminating his position, and forcing him to quit or accept a welder job that was further away — 131 miles (over two hours driving) further away in Marshalltown, Iowa.

But our welder didn’t cave in. He fought back against his bully boss and filed a complaint with OSHA. He kept his job, made the horrible commute, and argued to OSHA that the job transfer created a hostile work environment in retaliation for raising safety concerns. There was an investigation, a hearing, and the bully boss lost.

The OSHA investigator concluded that the Track Manager acted illegally when he eliminated the welder’s position and forced him to chose between resigning or taking a job two hours away. The investigator noted that the manager’s actions not only made the welder’s work day longer and his commute more expensive, but the change also “took him away from his family for extended periods of time.”

OSHA said that this story should be a lesson to other managers. “A supervisor does not have the right to abolish a job position because he becomes annoyed by a worker voicing safety concerns,” said Charles E. Adkins, OSHA’s regional administrator in Kansas City, Mo. “While OSHA is best known for ensuring the safety and health of employees, it is also a federal government whistleblower protection agency.”

To learn how to fight back against your own Bully Boss and protect yourself from an illegal hostile work environment, get the book that is helping employees across all fifty states, “Work Laws Exposed” by Curt K, the Undercover Lawyer.

The Whistleblower Wins Money. Big Money.

A male flight crew employee working for “Southern Air Inc”, which is a cargo airline, complained twice to managment about safety concerns. First he complained about inadequate rest breaks. Then he complained about being forced to work extra hours, beyond what the FAA allows by law. So what happened next?

Southern Air retaliated against the employee, of course! First he received less work. Then the company “discovered” problems with his job performance. Then, in April of 2008, he was terminated.

After being terminated the employee filed a complaint with a regional office of OSHA.  OSHA investigated, and found that the employee’s complaint had merit.  OSHA issued a prelimiary opinion, ordering Southern Air to pay the terminated employee:

“$300,000 for loss of career wages, $135,240 in compensatory damages, $7,394.65 in attorney’s fees and back pay of $1,485 per week, plus interest, from April 7, 2008, through the date of payment.”

That comes to a total of $505,004.65 before interest.  To break down how OSHA reached that figure, let me explain that “career wages” means how much money the flight crew member would have made between now until the end of his career at Southern Air — if Southern Air had not illegally terminated him for being a whistleblower.

“Compensatory Damages” of $135,240 includes out of pocket costs that this employee suffered because he was illegally terminated.  A portion could be the cost he had to pay for COBRA health care coverage every month, that would have regularly been paid by the company.  Another portion of that figure could be medical bills that he incurred for stress and anxiety caused by management illegally terminating him. 

His attorney fee award of $7,394.65 is shocking.  Shocking because it’s so LOW.  The usual total cost to take an employment lawsuit to trial if you were paying your attorney on an hourly basis would be $50,000 to $100,000 (not if you were paying the attorney a 33% contingency fee). 

Why is the cost so low?  Because most of the work was done by OSHA, the administrative agency that the employee complained to.  This is part of why I advocate filing an administrative complaint early in the process; it saves you tons of money, and still provides you with legal protection.

Now, this story may not be over.  Both sides can file an appeal with Labor Department.  If they don’t like that result they can appeal to federal district court.  But interest will be accumulating the entire time, and the legal interest right for unpaid judgments is much higher than what banks pay.  It’s 9% here.  That’s a big incentive to pay the employee now and forego all the appeals.

If you would like to learn more about protecting your own rights and learning how to pursue a whistleblower or administrative claim you get can my book on the topic, which has helped thousands of people already.

Or, if you would like to learn more about the employer in this case you can read about Souther Air on the company’s own website: Southern Air Website (with photos); there’s also a short Wikipedia article about the company you might enjoy checking out HERE.

Are You a Victim of Sexual Favoritism at Work?

I was working on a summary of a case called Miller v. Dept of Corrections for the community when, like fate, this question was posted to the forum by a woman who was feeling driven from her job by her boss:

QUESTION: [Edited for clarity]  “I don’t think he’s discriminating based on sex, race or religion. He just didn’t like what I said one day, which was that he “should be more discrete with that girl in accounting” since he is married.

He has had it out for me ever since.

He gave me a horrible review. I went to HR with examples disproving the review. They pushed it to the side and agreed with him. I talked to his boss and stated if someone was going to be given a review that bad then examples should accompany it. She said “Well, he said he told you about it”.

I work in a technical field. His review was based on what I said to him, not my work. When I asked how is that possible in a technical field, where I am given trouble tickets to work on, they said the intangible and subjective items matter most.

Fast Forward, I am now on a performance improvement plan and made to do things that no one else on my 12 person team is required to do. He took away my entire bonus when I can prove, by way of tickets worked, that I do 33% of the work on my team.  I am stressed, I cry all the time, I walk on eggshells and HR is not helping at all. It’s like nothing I say or any proof provided will make a difference. Lastly, it’s Christmas and I haven’t bought my children anything…After i leave work I can’t stop crying enough to make it to a store…”

ANSWER: As I mentioned above, it seemed like fate that this question arrived while I was working on a summary of Miller v. Dept of Correction; let me tell you a bit about it.

Edna Miller worked for the Department of Corrections in California.  Miller worked for a Warden named Kuykendall, who was having three simultaneous affairs with his own secretary, an associate warden, and still a third subordinate employee; The three women were named Patrick, Bibb, and Brown.

Sexual Favoritism Starts

Patrick and Miller both applied for a open management position.  Miller was the senior employee, with more training and more releveant expereience.  A panel of interviewers recommended that Miller be awarded the position, but Kuykendall gave the promotion to Patrick.

Soon after Patrick received yet another promotion and became Miller’s direct supervisor; it was common knowledge that Kuykendall and Patrick were having an affair, and there was widespread grumbling that the way to get ahead was to have sex with the Warden.

To further complicate matters, a new female Deputy Warden named Yakamoto transfered into the workplace and began inviting Miller to dinner.  It was known that Yakamoto was a lesbian, and although Miller refused Yakamoto’s advances Brown did not.  Brown, at this point, was having affairs with both Yakamoto and Kuykendall.

Retaliation Against Miller

Miller believed that because she had refused Yakamoto’s dinner invitations, Yakamoto began interfering with Miller’s ability to do her job.  Yakamoto countermanded Miller’s orders, reduced her supervisory duties, added onerous low-level duties on Miller, and made unwarranted criticisms and write-ups of Miller’s work.  When Miller threatened to report Yakamoto to Kuykendall, Yakamoto and Brown threatened to harm Miller.

Eventually Miller did report Yakamoto’s abuse to Kuykendall, who assured Miller that he “would look into it.”  Nothing ever happened.  Feeling that she had no where else to turn, Miller reported Kuykendall’s failure to control Yakamoto and all Kuykendall’s own affairs to Kuykendall’s supervisor, the Regional Director.

The Regional Director started an internal affairs investigation.  Miller was required to paticipate in interviews as part of the IA investigation, but she was promised confidentiality.  Soon after, however, it became apparent to Miller that Brown knew exactly what Miller had said during to the investigators.

Failure of Promised Confidentiality

Brown and Yakamoto again began retaliating against Miller; one time Brown screamed at Miller at work, then actually followed Miller home from work to continue screaming at her.

Miller, feeling that the stress was damaging her health, resigned from the Department.  Kuykendall retired.  Yakamoto was demoted and given another transfer.  Brown resigned with disciplinary charges pending against her.  About a year after resigning Miller filed a lawsuit against the Department of Corrections alleging sexual harassment and retaliation.

First Court Battles Lost

The trial court and the appeals court found against Miller, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”

The Supreme Court of California reversed both the trial court and the court of appeals, and instead found for Miller. The California Supreme Court reasoned that it was reasonable for Miller to believe that her employer was hostile toward women because of “widespread sexual favoritism.”

Signs of “Sexual Favoritism” You Should Watch For

The Court cautioned that “the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism,” but, enough evidence can be shown by such things as:

1. Admissions by the participants concerning the nature of the relationships;
2. [B]oasting by the favored women;
3. Eyewitness accounts of incidents of public fondling;
4. Repeated promotion despite lack of qualifications; and
5. A supervisor’s admission that he/she cannot control a subordinate because of a sexual relationship with the subordinate.

Despite all of this, the Department of Corrections argued that Miller should not prevail, because this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised.  The Department argued that it is better to treat sexual favoritism as a matter of personal preference, in order to avoid establishing a “civility code” governing the workplace.

The Court flatly rejected this argument, stating that “it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard” (emphasis added).

If You Are a Victim of Sexual Favoritism

If you are the victim of sexual favoritism at work, don’t be afraid to print this case out and hand it to your H.R. person or any attorney that you are hoping will take your case.

You can download the full case of Miller v. Dept of Corrections with this link: http://bulk.resource.org/courts.gov/states/Cal/S114097.PDF

Although Miller was decided under California law, the California Supreme Court was persuaded by written regulations from the EEOC which apply to all of us, in all 50 states.  You might want to highlight that part for your HR person.  It starts on page 19.

Have you seen this in your own workplace?  I think I did — where young male attorneys could not get a break with influential senior partners who only wanted to work with young attractive female associates.

I think this is an area of the law that is ripe for expansion.  Let me know what you have seen in your own workplace, and I’ll tell you what else on the topic I can find.

-Curt K.

Three Female Employees Win $485,000 For Retaliation & Sex Harassment from Fred Meyer Stores

SEATTLE – Fred Meyer Stores, Inc. (Fred Meyer) will pay $485,000 to three female victims of sexual harassment and retaliation to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC announced today.

According to the EEOC’s suit ( EEOC, et. al. v. Fred Meyer Stores, Inc. No. CV08-0208 HA, United States District Court of Oregon), the company’s practice of harassing female employees occurred during 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started at the top, with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.

The lawsuit alleged that Fred Meyer condoned and accepted this sexually harassing behavior, and the Commission obtained testimony from the company’s human resources manager who witnessed the harassing conduct on several occasions and simply walked away. According to the EEOC, the same human resources manager failed to take appropriate action against the store director or operations manager. In addition, the EEOC charged that the company retaliated against the female employees when they complained about the sexual harassment.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

Under a consent decree filed with the federal court, Fred Meyer agreed to pay $485,000 to the three women who came forward during the EEOC’s lawsuit. The company also agreed to provide anti-discrimination training for the owner, managers, supervisors and employees; establish policies and procedures to address sexual harassment issues; provide information to the EEOC concerning any future discrimination complaints; and allow EEOC to monitor the work site for the next two years.

It is unfortunate that these women had to endure a workplace permeated with such sexual hostility. We are hopeful that Fred Meyer Stores learns from this litigation that one of the most important duties it has to its employees is to keep them safe from workplace discrimination,” said EEOC’s San Francisco District Office Director Mike Baldonado.

EEOC Regional Attorney William Tamayo added, “The evidence in this litigation pointed to an alarming lack of recent workplace, anti-discrimination training for the high level managers involved in this case. It is unfortunate that a sophisticated employer like Fred Meyer Stores failed to recognize the importance of such training for its managers.”

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender, religion, national origin, age and disability. The Seattle Field Office’s jurisdiction includes Alaska, Idaho, Montana, Oregon, and Washington. Further information about the EEOC is available on its web site at http://www.eeoc.gov.

Can Complaining About Job Harassment Save You From Layoffs?

How many news stories have you seen or read lately that blare dark and stormy stories of our slowing economy, banks going bankrupt, and workers facing wave after wave of mass layoffs?

Have you noticed, too, how people act out during stressful times?  Sometimes they act out in stupid ways.

A male co-worker acted stupidly toward Jessica Houston, when she was sharing a half-time scheduler position at an Indianapolis hospital.  But the male co-worker wasn’t the only bad actor in this case; Jessica’s manager got involved too.  There was plenty of stupid to go around.

Real Life Case:

The male co-worker was 52, and Jessica was 22.  Two times he found her in a break room or lunch room, sat down in her lap, and whispered in her ear “You’re beautiful.”

Houston felt ashamed and confused.  It was her first real job, and she wasn’t sure what the standard for behavior was in the working world.  After the first instance Houston just hoped it wouldn’t happen again.  But after the second time she knew she had to speak up to somebody in management.

Unfortunately, that “somebody in management” seemed annoyed at Jessica when she complained.  Jessica felt like the Hospital’s response was basically “this isn’t a big deal.”  In fact, the manager did not want to do anything because Jessica did not want to file a “formal” complaint.

That was management’s first dumb error — blowing off Jessica’s complaint and acting like it didn’t really amount to anything.  Jessica felt that she had to justify why this was a big deal, even if she did not want to make her complaint “formal.”  So Jessica revealed that she had been sexually abused as a child.  She could not tolerate this similar behavior at work.

Then came management’s second dumb error — never getting back to Jessica about what was done to the perpetrator.  Management didn’t even tell Jessica if anything had been done.

Jessica felt panicked and stressed when she came to work each day.  First, her manager told her nothing could be done unless Jessica made the complaint “formal” (whatever that means).  Then she had been forced to , Jessica tried to take her complaint up one level.  She complained to the Hospital’s General Counsel about the lack of action on her harassment complaint.

Within two days Jessica saw that the Hospital was seeking applicant for her own position, but at 1/2 time instead of 1/4 time.

The same manager who didn’t take Jessica’s harassment complaint seriously explained that the two 1/4 time scheduler positions were being combined into one 1/2 position with benefits.  Jessica was not invited to apply because she was also a student and had said she could not work 1/2 time hours.

Obviously, Jessica was not hired for the new 1/2 position, and her position was eliminated as part of this “reorganization.”  The hospital said she could still do “on call” work, but after six months she had not been called in even one time.  At that point a termination letter arrived in mail.  The same manager who eliminated Jessica’s job and laid her off had also checked “No Re-Hire” on the termination form.

Houston sued the hospital, arguing that her termination was in retaliation for her sexual harassment complaint, and for her complaint about how her sexual harassment complaint was (not) handled.

The Hospital claimed that the “restructuring” was simply because it’s easier to have one person working 1/2 time instead of two people working 1/4 time.  It supposedly had nothing to do with Jessica’s complaints.

She Loses, Then She Wins

At the trial court Jessica lost.  The court agreed with the Hospital, and tossed out Jessica’s case before it got to a jury.  On appeal, however, 2 of the 3 appeals judges voted to reinstate Jessica’s case and let her present her story to a jury.

The appeals judges ruled that Jessica should be allowed to take her case to a jury, because a jury could decide that she had been retaliated against for her complaints.  The court specifically said that Jessica did NOT have to prove that sexual harassment took place.  She merely needed to show that her manager eliminated her position, terminated her, and gave her “no re-hire” status because she complained.

Hostile Workplace Podcast #5: “I Don’t Know What FMLA Is, But I’m Sure YOU Don’t Qualify For It”

Download PDF Transcript
Have you heard a supervisor admit they don’t know about something with one breath, but then proceed to tell you what you should do about that thing in their next breath?  Listen to one of my readers, Vicki, tell her story dealing with that exact scenario.

Once Vicki used FMLA, others at her work wanted to use FMLA leave too.  This angered her supervisors, who launched a campaign to “get” her.

Listen to Podcast Episode #5 now to hear how Vicki has fared against her company’s attack (and don’t expect a nicey nice happy ending).

You can listen to Podcast #5 through the player here on UndercoverLawyer.com.

Or, if you have iTunes you can click on the link below to listen there and subscribe to the podcast for free:

http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

The Quick Tip for this episode is an update on the subject of Male to Male sexual harassment. New cases are being filed against restaurants you’ve heard of.

Finally, the Hostile Workplace Podcast now has a listener comment line: (360) 450-5750.

After listening to the show call in and let us know what you think of Vicki’s story, or call in and share your own workplace story. You may find yourself on the front page of the iTunes “Careers” section!

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