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Fired yesterday, retaliation for OCR/HIPPA

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SoopremeBeing

Junior Member
Maryland

I was fired yesterday from my union position during my probation period.I was hired at the end of March. My boss said she had recieved numerous complaints from my entire building that I was rude and unapproachable to them, as well as to the patients. Also I apparently violated the dress code several times, I was even accused of wearing a miniskirt! I work in Medical Records. I never recieved a single notification about any of my errors until the day before I was fired. Nor was I given the opportunity to address the complaints or correct my bad "behaviors."

I am in shock. I have been in medical records for over 10 years and I have never recieved numerous complaints from staff nor from patients. I believe I am being retaliated against due to the complaint I filed for HIPPA violations two weeks prior to my firing. I approached my boss about some concerns I had about my training and the documentation and safeguarding of PHI. It is very poor, so when she did nothing about it I made the complaint.

I do not have documention of the complaints against me and I doubt that there is evidence of me violating the dress code. I was there for almost 90 days and I only saw my boss in person 3 times. So she took hearsay as applied it as truth and fired me. I never spoke to my uniom rep.

I am seeking legal action and I plan to sue for wrongful termination. In the meantime I am afraid I will not get unemployment. How well does hearsay hold up in court? My boss never witnessed any of the things I have been accused of. I am very scared and beat down because the work environment was becoming very hostile.
 


FlyingRon

Senior Member
Check with your Union rep. If you have a collective bargaining agreement or other employment contract this may be your best option.

It's HIPAA by the way. Whistleblower protections in non-goverment positions are quite limited. The HIPAA whistleblower covers only proper reports to the PHA not random internal griping about what's going on.

They don't need a reason to fire you.

Wrongful termination is a very specific term. Unless you fall within the specific whistleblower protection, you were not wrongfully terminated.
You can be terminated unfairly: based on personality issues, incorrect information, personal vendettas from your supervisor, etc... and it is NOT wrongful termination and there's nothing you can do about it.

Wrongful termination means a termination that is in violation of a specific law (firing you because you are over 50 for example, or because of religion). The only fragment that may be wrongful here is if you were terminated by a proper, good faith report of the HIPAA violation to the responsible health authority.

Otherwise, employment is "at will." They don't have to continue to employ you and you don't have to work there.
 

commentator

Senior Member
Regarding unemployment insurance. Regardless of anything else you might think you could do, including talking to a lawyer about a "wrongful termination" lawsuit, the first thing you need to do is file a claim for unemployment insurance. That is where all the situation about whether you were terminated for a good misconduct reason will come into play, as well as whether or not you were aware that there was a problem with your behavior or whether you were given a chance to change your supposedly wrong behaviors and errors and keep your job.

Unemployment is NOT a court. You aren't going to court, because you don't have a wrongful termination suit, but you do have a pretty good chance you will be approved for unemployment insurance. You need to file immediately after you are fired, as you cannot be back paid for time before you filed the claim. You have to have the monetary eligibility, which means you have to have wages from covered employers in the last two years, and then they'll get into the reason you no longer have a job. If the employer fires you and they cannot show it was a valid misconduct reason to fire you, which from what you said, it doesn't really sound that way, then you are likely to be approved for unemployment. As far as "hearsay" evidence, the unemployment agency is not the same as a court of law. It is an agency tribunal. They will take down your side of the story, and the side of the story they present, and they will decide which of you will be most believable and whether you qualify according to unemployment law. After the first decision, either party can appeal the decision, and there will be a hearing, at which both parties will present their story again and a second decision will be made.

You were not fired for whistleblowing, and unfortunately, in your situation the law doesn't have any protections for you against whistleblowing. SO you do not have a wrongful termination. But first file for unemployment insurance, and then start thinking about all that. The unemployment office will not deal with the whistleblowing issue, or any HIPAA violations you claim they may have had. They work with just the facts of why they said you were fired and why you say you were fired.
 

SoopremeBeing

Junior Member
Thank you for your responses.

Yes my immediate concern now is the UI proceedings. I filed this morning.

I am concerned because my supervisor never actually saw anything I was fired for. She is simply going off what other people in my building have said to her. I was not made aware that I was doing ANYTHING wrong or making any errors until the day before I was fired. So I was not given the chance to correct anything. I was not written up or even verbally counseled.

Also I want to add that my supervisor is in control of multiple locations, so in the 70-80 something days I was there, I only saw her in person three days. So I dont understand how she could be so sure that I was in violation of the dress code unless the three times she saw me, I was in jeans, and a mini skirt.

Lastly there was one complaint in the department I worked in. But the complaint was not against me, my coworker failed to document where she left the form for the patient. The patient complained and I had a call from my Area Manager within 20 mins. So I also find it odd that if all of my patients are making complaints against me, I took my managment the 70-80 days to even tell me.
 

FlyingRon

Senior Member
Not a single thing you brought is any grounds for a wrongful termination finding. The boss could insist that you wear blue evening gowns to work while everybody else can wear bikinis and it wouldn't make a difference. Being fired on unsubstantiated information is not going to make a difference. Being fired without counselling or warning is not going to make a difference. You have NO CLAIM for a lawsuit.

Apply for UI. The only issue is if they protest that you were fired for your own misconduct. If so then you can bring in all the argument that you were not.
 

cbg

I'm a Northern Girl
A wrongful termination does not mean that you were fired for something you didn't do. It means you were fired for a reason prohibited by law. And at least initially, the burden of proof is on you to show that there is a valid and supportable reason to think that you were fired in violation of the law.

Nowhere in the law does it say that you cannot be fired unless the supervisor sees you violate a policy. Or that you have to be warned about any shortcomings. Or that you have to be given an opportunity to improve.

Google, at-will employment.
 

commentator

Senior Member
As to unemployment, keep it simple. Detail what you were told was the reason you had been terminated. Be sure you emphasize that this issue had never been brought up with you before, you had had no warnings, no write ups, were not made aware in any way that you were doing something wrong or violating company policy.

They are trying to use a "kitchen sink" termination reason, and this will not stand them in good stead in the unemployment system. In other words, the more things they throw into the reason they terminated you, the more obvious it will be that they did not have a simple valid misconduct reason to terminate you. Yes, they very well may have decided during your short time of employment there that you were a troublesome person, that you noticed when things weren't being done right in your opinion and you said things about them. That means they decided to cook up some stuff and get rid of you. "At will" of course means that what they did was legal. But it does not mean you don't get unemployment insurance.

They have the burden of proof to show you were aware of what you were doing that was wrong, that you were given adequate warnings and chances to change your behavior, that they had told you, and then after you had refused to alter the behavior, you were let go. This of course did not happen here. Keep it simple. They've heard it all before. They'll be listening carefully for their reasons and your explanation, and it sounds like you will probably be determined to be the "more believable" of the two parties. It doesn't matter whether or not the supervisor who fired you saw the misbehavior. They're making this stuff up, which is not illegal to do. They fired you for it, which is not illegal for them to do, but they as I said probably won't be able to show the unemployment system they had a valid misconduct reason to fire you with progressive discipline.
 

SoopremeBeing

Junior Member
One more question:

I have requested a copy of my personnel file from my previous employer. In the state of Maryland, there is no law that says employers are required to give access. But should I be alarmed if I am denied a copy?

My HR consultant is located in our regional office near D.C., but the main HR and headquarters of the company is in California if that makes a difference.
 

cbg

I'm a Northern Girl
It doesn't. The laws in the states where you work are the laws that apply.

I would not worry if you do not get a copy. It's a pain the neck for employers and they may have a policy of not doing so unless required by law. Personally I think it should be law in all 50 states but I can't deny that for most large and multi-state companies providing copies is a headache.

If they object to providing a copy, ask if you can come in and view it. They may not agree to that either but I really wouldn't read anything into that - where I work there is not a single file - there are at least three different parts to it and they're not all even in the same building. (And in our state it is required by law - it's not a happy request to get.)

I'm asking this for a reason. Depending on what you are looking for, your personnel file may or may not contain what it is. What are you thinking that a copy of your file will show? I've kept many a personnel file and can probably tell you if it will be there or not.
 

SoopremeBeing

Junior Member
I would like to see my file to see if these complaints from my coworkers and patients are documented, as I imagine they would be.

As I stated, I have no evidence of the complaint.

Sorry another question:
Maryland's version of misconduct states that it has to be a willful or deliberate act of not following the rules, patient abuse, fighting a coworker, etc to be considered misconduct. Since I am in an at will state, I assume that my employer does not have to warn me or giving me counseling of bad behavior. But they do have to prove that I did all of these things on purpose correct?

I'm sorry I am asking so many questions. I just feel these accusations are completely made up, especially given the nature of my old position.
 

cbg

I'm a Northern Girl
Complaints may or may not be documented. In an ideal world they should be, as doing so benefits the employer. But some employers don't, and some document such complaints in a personal file, which is not the same as a personnel file and in many cases is not discoverable even in states that mandate employee access to their file. And it is unlikely that dress code violations would be in your personnel file.

Honest answers, okay? I'm trying to gradually whittle things down to determine how likely it is that your termination was due to your filing the HIPAA complaint and if so, whether it's looking like a wrongful term. So I really need truths.

DID you come to work in jeans and/or a miniskirt at any time? I'm perfectly willing to believe that you did not know you were violating the dress code and that no one told you, but DID you?

To whom did you make the HIPAA complaint?
 
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SoopremeBeing

Junior Member
Of course. Not once did I ever, EVER violate the dress code. Even though I never received a copy of the dress code nor did I sign paperwork, I assumed what the dress code was based of what I saw other workers in my medical center. Not even the maintenance or supply guys wore jeans. I took what I saw as business casual. Also I work in Medical Records, which requires a lot of bending and running around between floors and departments. A mini skirt, which in my eyes is anything above the knee, would have given everyone an eyeful with every single move I made. Its just not practical as my job requires a lot of movement. I've worked in Medical Records for 10 years and I was NEVER allowed to wear jeans or even denim, nor have I ever received a warning about dressing inappropriately. You had to look presentable and professional.

In fact I actually recieved compliments about my shirts or hair accessories. And my supervisor even questioned why I don't wear heels(again its not practical as I have flat feet).

Now in regards to being rude, unfriendly, or unapproachable or actually ignoring people, I believe that is a matter of perception. First off, I was the main person at the window helping patients with their records or with any other random questions. Its next to impossible to ignore anyone.

Now I will admit that my answers to certain questions may seem robotic, as dealing with HIPPA and privacy laws on a daily basis, and having to repeat the same things as to why a patient cannot have access to something. I did have to say "no" a lot, but I always gave the patient an alternative or another department to refer to. I never flat out refused to help any patient nor did I ignore anyone who came to my window.

But still I was never told about anything I did wrong, or that I was doing anything wrong. At all. Nothing. And I obviously would have made changes to assure that nothing I said or did would come off as rude or unprofessional. "If you think it might, make it better."

I made the complaint to the OCR office in D.C.
 
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cbg

I'm a Northern Girl
(It's not HIPPA; it's HIPAA.)

You missed a question. To whom did you make the HIPAA complaint?
 

commentator

Senior Member
In regard to unemployment insurance, they don't give a hang whether or not you have your personnel file, or can call witnesses or show the the complaints are or are not documented. Don't worry about this.

The claims adjudicator will ask you, and then they'll ask the employer about warnings, etc. If the employer has given them, documented them, kept records of them, etc. it would be to their advantage to show them. But if they don't have them, they won't have them to give to the unemployment system, will they? You don't need to get involved. The unemployment system will make its own investigation.

When you say "they do have to prove I did all these things on purpose, right?" for firing purposes, they don't have to prove anything. At will state and all. For unemployment purposes, they must have a valid misconduct reason to terminate. But you don't have to worry about determining whether or not it was misconduct. DO NOT try to tell the unemployment system what unemployment law states. They have a lot more practice than you in determining whether something is misconduct and will ask both you and the employer the right questions to determine this according to unemployment law. The more you talk and argue and try to show....blah blah blah, the more you will confuse the issue. Listen and answer all questions you are asked thoughtfully. The question "Did you receive any warnings that your dress was unacceptable?" is not something where you need to throw in that you received many compliments about your dress and it wouldn't have been practical to wear skirts, and everywhere you've ever worked before it was okay....etc etc etc.. Yes or no.
 

SoopremeBeing

Junior Member
(It's not HIPPA; it's HIPAA.)

You missed a question. To whom did you make the HIPAA complaint?
I made it to the OCR office after I brought some PHI safeguarding issues that I believed to have violated HIPAA to my supervisor. I made it in the beginning of June. I have no experience in reporting anything HIPAA-violation wise, so I don't even know if my complaint even made it back to my employer in that short amount of time.
 

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