In This Issue

• NINTH Annual Labor and Employee Relations Seminar: FEBRUARY 11, 2002
• Retaliation Can Come Back to Bite You
• Employer's Implementation of Adequate Safety Measures Serves as a Bar to Intentional Tort Death Claim
• Are You Ready for HIPAA?
• Full Administrative Trial before the OCRC May Not Bar a Later Complaint in Court
• OSHA Agrees to Delay Implementation of New Recordkeeping Rule

NINTH Annual Labor and Employee Relations Seminar: FEBRUARY 11, 2002

Kegler, Brown, Hill & Ritter will sponsor its ninth annual Labor and Employment Law Seminar on February 11, 2002, in Columbus, Ohio. The seminar, entitled "Selected Issues in Managing Labor and Employee Relations in the Workplace: The Employer's Perspective," will feature presentations on a wide variety of employment related topics and developments.

The speakers will also be available for a question and answer session both during and following the seminar. In addition, detailed written materials on each topic will be provided to each person attending the seminar. A reservation form (PDF) for the ninth annual seminar is included in this Newsletter, or you may contact Ann Krai at Kegler, Brown, Hill & Ritter at (614) 462-5400.

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Retaliation Can Come Back to Bite You

By Larry Feheley

Everyone has them — employees that are constant complainers, and who profess to be the "jailhouse lawyer," always telling their supervisor what the law and their rights are. The employee who is always the victim, who never takes responsibility for their own acts, because it is everyone else who does something that makes them look bad. It's only human nature to want to get rid of a complainer or a problem employee, but it's also fertile ground for a retaliation claim.

It is undoubtedly a difficult situation when you have an employee who files a discrimination claim, or takes FMLA leave, or complains of sexual harassment, or files a workers' compensation claim, and then performs so poorly that discipline or even termination is appropriate. On the other hand, how can you be sure that a supervisor's desire to rid himself or herself of a problem employee isn't the real reason for the disciplinary action?

It isn't a problem only in theory. Retaliation charges filed with the EEOC have steadily increased over recent years, doubling in number between 1991 and 1998. And many believe that it's actually easier for employees claiming retaliation to survive dismissal, and win a lawsuit, than others who claim discrimination. The reason is that the key evidentiary fact in a retaliation claim is usually simply one of timing: the employee made a complaint and a short time later they were disciplined, or transferred to Guam, or terminated.

A retaliation claim has three elements: (1) protected activity by the employee, (2) adverse action against the employee, and (3) a causal connection between the two. Many employers are unaware that "protected activity" can arise even if the employer did not act unlawfully. For example, even though a company is not guilty of discrimination, or even if no sexual harassment ever occurred, an employee who merely threatens to file a charge or complaint, or who complains about discrimination or harassment, even if they are mistaken, is protected under the law. The EEOC has indicated that an employee is protected in opposing an employer's practice as long as the employee acted with a "reasonable and good faith belief" that the practice was discriminatory.

One way to test the legitimacy of discipline for a complaining employee is to assess the proposed discipline against how other employees, who never filed a charge or complaint, have been disciplined. So, if there is a clear track record of similar discipline of other employees (with no history of complaints), whose performance problems were like those of the complaining employee (in like circumstances, frequency, and severity), there is a good basis to show that retaliation was not a factor. On the other hand, given the popularity and ease of retaliation claims, many employers seek to make a monetary investment in avoiding later problems by reaching a separation agreement with a complaining employee, whereby the employee agrees to leave the company and executes a release of all claims. Although this approach can be criticized as extortionate at worst, or expedient at best, many companies find that it can be a prudent and comparatively insignificant investment for the future.

On a more basic level, employers can protect against retaliation claims by training supervisors about the concept, so that inadvertent violations do not occur. In addition, everyone involved in a workplace investigation should be specifically informed that no retaliation or reprisal will be tolerated because a complaint was lodged.

It has become commonplace for a retaliation claim to be tacked on to a discrimination claim or a harassment claim. All too frequently, employers find that they can win in the battle of discrimination, only to lose in the war of retaliation. In many cases, even when the discrimination claim is dismissed, the retaliation claim is upheld.

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Employer's Implementation of Adequate Safety Measures Serves as a Bar to Intentional Tort Death Claim

By Tom Metzger

An experienced employee was killed in a workplace accident in which he fell approximately thirty feet from scaffolding used during bridge painting work. Although the employee had consistently worn fall protection equipment that was provided to him, he apparently was not wearing the equipment at the time of the fall. The employee's estate proceeded to file a complaint for an intentional tort against the employer.

In response to the complaint, the employer demonstrated that it had implemented an adequate safety program. Specifically, the employer maintained a mandatory safety awareness and training program, which included daily and weekly safety meetings. The employer also demonstrated that it provided fall protection equipment, as well as training sessions on the use of the equipment. During the fifteen years prior to the fatal accident, none of the employer's workers had suffered an injury due to falls.

In concluding that the employer had not committed an intentional tort, the court emphasized that the employer had providedadequate safety devices and procedures —even though the employee may not have used those devices and procedures at the time of the accident. In the end, it was the employer's implementation of an adequate safety program that prevented this workplace accident from becoming a massive liability for the employer.

The case demonstrates that employers who consistently provide detailed and adequate safety training, and who keep good records of the training process, can use the training to demonstrate that the employer did not knowingly expose employees to dangerous conditions. The case further serves as a reminder that an employer's lack of training, and lack of documentation, could serve as a substantial liability.

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Are You Ready for HIPAA?

By Helen Mac Murray

Do you know what HIPAA is? If not and you are an employer, then you should. HIPAA is an acronym for the Health Insurance Portability and Accountability Act of 1996. Most employers are familiar with the Act's original requirements concerning health insurance portability. On the horizon now, however, are rules that set the standard for the privacy of an individual's identifiable health information.

What employers are covered?

Maybe you have heard of HIPAA but think it applies only to "covered entities" like health plans, health care providers and clearinghouses. Unfortunately, that is not necessarily true. If you maintain a self-insured health plan or even just an on-site nurse's station, you are a "covered entity" and must comply with HIPAA.

Even if you do not provide these services, you are likely to suffer the "trickle down" effect from your interaction with health care providers and health plans. So what can you expect? What should you be doing to prepare? How long do you have to get all of this done?

Obviously, this short article cannot comprehensively answer all of these important questions. Employers should, however, immediately determine whether they are a covered entity as described above. If so, you have until April 14, 2003 to comply with HIPAA. Employers who sponsor an employee welfare benefit plan covered by ERISA (if it has at least 50 participants or is administered by a third-party organization) must also comply with HIPAA by this deadline. Although 15 months may seem like a long time, most analysts agree that companies initiating HIPAA compliance programs now will barely have enough time to address all of the standards.

For all employers, HIPAA applies to an individual's "protected health information" (PHI). PHI is defined as individually identifiable health information.

What are the HIPAA requirements?

Some of the other provisions that employers who are not "covered entities" may still need to know about HIPAA include that it:

• Requires an employee's "consent" for certain basic uses and disclosures of PHI (e.g. treatment or payment).

• Requires a patient's written "authorization" for all other uses and disclosures of PHI, unless specifically required or permitted by the rule.

• Limits the release of PHI to the minimum amount of information necessary to achieve the purpose at hand.

• Establishes a series of new privacy rights for individuals with respect to PHI:

• Right to receive adequate notice of privacy practices

• Right to inspect and copy PHI

• Right to request an amendment or correction to PHI

• Right to receive an accounting of PHI disclosures (other than those permitted without authorization)

• Right to request restrictions on uses and disclosures of PHI

• Right to revoke a previously granted consent or authorization

Another tricky hurdle for employers to navigate will be the interaction between HIPAA and employment laws such as COBRA, FMLA, OSHA, ADA and state workers' compensation laws. HIPAA prohibits employers from using PHI for employment determinations without the employee's consent. Although some exceptions exist, it will be a difficult balancing act for many employers.

What are the penalties for failing to comply?

So why bother? Because this is a law with sharp teeth. The U.S. Attorney General may assess both civil and criminal sanctions including fines up to $25,000 per violation and imprisonment for up to 10 years. Employees do not, however, have a private right of action for HIPAA violations.

So what to do? First, educate yourself and those in your company about HIPAA and its requirements. Second, develop a HIPAA plan of compliance. Third, ensure that every appropriate person in your company receives training regarding the plan.

And take heart, this is the "Administrative Simplification" part of HIPAA!

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Full Administrative Trial before the OCRC May Not Bar a Later Complaint in Court

By Tom Metzger

An employee who had been working with a union alleged that he was fired in retaliation for statements he gave in another employee's harassment complaint. After he was fired, the employee filed a charge of discrimination with the Ohio Civil Rights Commission. After investigating the allegations, the OCRC initially determined that there was "probable cause" to issue a complaint against the employer for retaliatory discharge. Based upon the preliminary probable cause finding, the OCRC issued a complaint against the employer.

The complaint was then scheduled for an administrative hearing before one of the OCRC's hearing officers. As is ordinary in these proceedings, only the OCRC and the employer were permitted to conduct discovery. Similarly, once the matter proceeded to the hearing, the attorneys for the OCRC and the employer examined the witnesses —but the employee was not afforded an opportunity to do so. At the conclusion of that hearing, the OCRC hearing officer dismissed the complaint in favor of the employer.

Undaunted, the employee then filed a separate complaint (and not an appeal of the prior dismissal) in the Franklin County Court of Common Pleas. The trial court dismissed the employee's complaint based upon collateral estoppel. In essence, the trial court explained that the employee was barred from filing a separate action since the matter had already been fully heard by the OCRC.

On appeal, the Court of Appeals determined that the employee should not be barred from going forward with another complaint. It concluded that the employee did not personally have a full opportunity to litigate his issues before the OCRC. Specifically, the Court of Appeals emphasized that while the employee was permitted to file a charge with the OCRC, he was not permitted to conduct an investigation, prepare the complaint against the employer, or directly participate in presenting his claims to the OCRC. The Court of Appeals noted that while the employee could have an attorney accompany him to the hearing before the OCRC, that attorney could not examine or cross-examine witnesses, make objections, or otherwise directly advocate on behalf of the employee.

Based upon these factors, the Court of Appeals concluded that the prior OCRC hearing could not serve as a bar to the employee's later complaint. In other words, the employee gets to pursue his complaint all over again, this time with his own attorney.

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OSHA Agrees to Delay Implementation of New Recordkeeping Rule

By Tom Metzger

Although the Occupational Safety and Health Administration has a new set of recordkeeping rules as of January 1, 2002, it has agreed not to cite employers for failure to abide by the new rules for the first 120 days of 2002 —so long as employers make a good faith effort to track workplace injuries.

Based upon a settlement recently reached with the National Association of Manufacturers, OSHA has also agreed to clarify that an injury will only be deemed to be "work-related" if "an event or exposure in the work environment is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition." Earlier this year, OSHA also agreed to delay until January 1, 2003 a requirement for employers to designate certain injuries as musculoskeletal disorders.

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