In Part I of this series, I wrote about the big picture, discussing the final Overtime Rule, the Defend Trade Secrets Act and the EEOC's position on Wellness Programs. In this installment, I want to address the Small Picture, relating how skydiving had an impact on my view of employment law.
Skydiving is all about safety. Being my first time, my instructor was very careful to review the little details that kept me safe: how the parachute works; that the emergency parachute would open automatically at 5,000 feet should the main parachute not open by then; where to place my arms and feet when free falling; goggles; altimeter; harness; etc. All had to be in good working order to survive.
Likewise, in the employment world, attention to details can keep employers out of trouble, or at least minimize their legal exposure. The following are examples of what can happen if details are ignored.
- Title IX. I have previously blogged about higher education and Title IX, Part I and Part II. Over the past several months, there have been additional developments. With respect to the UAB situation, it has been reported that the Department of Education has initiated a formal investigation into allegations by a female student that UAB did not handle her complaint of an alleged sexual assault in compliance with Title IX. It will take some time for the DOE to complete its investigation, and to date, there has been no determination that UAB violated Title IX. Also, in Knoxville, the University of Tennessee has been in the headlines on a number of Title IX issues. The University of North Florida has recently agreed to pay $1.25 million to a former women's basketball coach who alleged she was discriminated against based on her gender. All schools, both at the high school and the collegiate levels, must be aware of the implications of discrimination in sports programs based on gender. The biggest story in recent weeks has focused on the Baylor football team: As the result of allegations concerning the improper investigation/handling of a number of rape/sexual assault cases against Baylor football players, Art Briles, the head coach, has been terminated, Ian McCaw, the Athletics Director, resigned, Tom Hill, an Associate Athletics Director was terminated, and Ken Starr was removed as President by the Board of Regents. I find it interesting that as of last week, according to the Waco Tribune, Baylor is not one of the 195 schools currently under investigation by the Department of Education concerning Title IX sexual violence allegations, although a complaint may have been filed with the DOE.
- HIPAA.A number of years ago, I was representing a client who is in the medical profession. As part of a TV story, some patient names were inadvertently revealed, and one of the patients filed a lawsuit alleging that patient confidentiality was breached in violation of HIPAA. The case was quickly resolved for an insignificant amount of money. Recently, New York Presbyterian Hospital agreed to a $2.2 million settlement as the result of alleged HIPAA violations when NY MED, an ABC television program, was provided “virtually unfettered” access to the hospital and disclosed patients' protected health information. The first small step by any health care provider, before allowing media access, is to review the Department of Health and Human Services website, where, in a FAQ bulletin, it states: Health care providers cannot invite or allow media personnel, including film crews, into treatment or other areas of their facilities where patients' PHI will be accessible in written, electronic, oral, or other visual or audio form, or otherwise make PHI accessible to the media, without prior written authorization from each individual who is or will be in the area or whose PHI otherwise will be accessible to the media. Only in very limited circumstances, as set forth below, does the HIPAA Privacy Rule permit health care providers to disclose protected health information to members of the media without a prior authorization signed by the individual.
- OSHA. In May, 2016, OSHA published its Final Rules mandating that employers electronically submit injury and illness data. The Final Rules permit OSHA to publish this information on its website, as well as make it easier for OSHA to review the information and to cite employers for various violations. OSHA also incorporated the existing prohibition on retaliating against employees for reporting work related injuries or illnesses.
- Equal pay. Members of the US Women's National Soccer Team have filed a lawsuit against the US Soccer Federation claiming that they are paid less than their male counterparts. The women are claiming they are paid approximately 25% less than the men, while the US Soccer Federation claims the disparity is only 2.2%. ESPNW has a number of articles on this lawsuit, and among the best can be found here.
Practice pointers. Paying attention to the small details can result in employers complying with the law. Know what laws and regulations apply to your business. Google can be your friend in learning about these laws and regulations. Google can also be your enemy because many of the laws and regulations are complicated, and you cannot trust everything you find on the internet. Reading the laws and regulations does not guarantee that your business will be in compliance: there may be court rulings or agency interpretations that conflict with the plain reading of the laws and regulations. As we approach the middle of 2016, with all the new laws and regulations that have been put in place over the past several years, and the continued aggressive agendas of various federal agencies, including the EEOC, DOL and OSHA, now is a good time to have your employment counsel perform an audit of your practices, policies and procedures to ensure compliance, avoid the courtroom and reduce your exposure.