OT: Would you report this "illegal"l request?

[G. Morgan]

Report it. Bob no longer has access to those records, and there may be a reason the 'target' file was requested.

Yes.

[G. Morgan]

Mary should have not involved Karen.

[DerbyDad03]

One might assume that the poor performance evaluations and removal of responsibilities could be considered "counseling". I assume that there were conversations relating to those events.

[RogerT]

First, it's HIPAA, not HIPPA -- the Health Insurance Portability and Accountability Act (

. No big deal since we all know what you meant by "HIPPA", and people mistakenly cite it that way all the time, even in official employee memos etc. But I just thought I'd mention that.

Although you didn't say, I am going to assume that Bob, Mary, and Karen were all co-workers while Bob worked there, but they are not necessarily personal friends outside of work. And, I am going to assume that Bob called Mary at work and left the request on her work voicemail. If that's not the case, maybe you could elaborate a little more regarding this possibly-hypothetical situation.

Then there's the add-on question of, if this is a real situation and if you are not Bob, Mary, or Karen, and you heard about this, -- how did you hear about it, and who did you hear about it from? There could be some employee (and employer) confidentiality and privacy issues regarding how you heard about this and who you heard about it from -- not related to HIPAA.

Given the above, it would of course be a HIPAA violation for Mary to comply with Bob's request since Bob as a former and not a current employee has no need to know the information that he requested. It would also certainly be against company policy for a current employee to be making copies of company records of any kind and giving them out to a former employee. And, even if there is no specific written policy that covers that, there is a common law theory in employment law that says that employees have a duty of loyalty to their employer, and giving out this information would violate this duty of loyalty.

Now, what would I do in the sceanrio you described?

If I were Mary, and Bob was my personal friend outside of work, and even if he left the message on my work voicemail, I would probably take a personal risk regarding my employment and I would just tell Bob that I cannot do that and not to ask me to do things like that. And, I would tell him that he shouldn't ask that of me or anyone else, not just because it is wrong, but also because his former employer could use that against him -- especially if he is trying to build a case or contest his termination. I would tell him that it is not in his best interests in terms of his case. There is something called an "after-acquired evidence" post-discharge termination which means that an employer who after discharging an employee for one reason, who later learns of another violation that the former employee committed after his termination, can also terminate the employee AGAIN later on for the new reason. That would give the employer two termination dates -- and even if the employee won a case for wrongful discharge based on the first incident, he may lose his later termination case based on the second incident based on the after-acquired evidence of a new incident.

I also would not have told Karen about the call, but if I did, I would be risking that Karen would tell my employer and that could cause a problem for me at work.

If Bob was not my personal friend outside of work, and I was not trying to give him some advice as his personal friend, I would just let my employer know what happened and I would not return the call to Bob. I would let my employer handle it from there. Then the employer can let Bob know to not ask any employees to provide company files or information to him and that doing so places those employees at risk regarding their employment. I would let my employer know about Bob's call because fulfilling Bob's request would be a HIPAA violation, it would violate a duty of loyalty that I owe my employer, and most likely it would be a violation of already-written company policies.

If I were Karen, I would tell Mary that she should let her/our employer know about the call. And, if were Karen, I would probably leave it at that. In doing so, I would be taking a chance with my own employment, but if asked by my employer if I knew about this, I would tell the truth and say that Mary did tell me about it and I did tell her that she should tell her boss about the call, and that I assume she did that or was going to do that.

[Steve B]

We are all talking of the hypothetical here. My beliefs are that Mary should have reported it as soon as she got the e mail, therefore relieving herself of any responsibility, and forwarding it up the chain of command. No matter what happened after that, Mary would be in the clear. Enter Karen. Now it compounds.

Rules, laws, whatever, bottom line is, the bosses are going to do what they are going to do. This situation may just die from lack of attention. And after that, all the fine points of whether or not this or that should have been done, or if there was any violation of law, or if it was a just termination will all shake out with the wash, depending on how much time and money any one of the participants should want to throw at it.

It's a complex situation that should have been nipped as soon as Mary received the voice mail.

Steve

[DerbyDad03]

Well, it's all been basically settled, at least as far the topic of this thread goes.

Mary and Karen had a conversation about the manner and Mary decided that it would be in the best interest of everyone (except for Bob, of course) that she tell her supervisor about the request.

As it turns out, Bob had also made the same request of at least one other employee. It is still not clear as to why Bob wanted that specific file, but in the end, Mary and Karen both have clear consciences because everything is out in the open and it's up to the supervisory staff to handle Bob's actions however they see fit.

Mary was commended for bringing the matter to the attention of the supervisor.

[G. Morgan]

That's exactly how it should have went. Now they need to report it to the police because there may be a personal reason why he wanted that specific file, revenge perhaps for losing his job?

[Steve B]

The responding police officer might give them the contact info of an agency that handles such things. The police could do nothing. The best thing to do now that it is all out in the open is to just let it die, or let Bob escalate it, and cause only more trouble for himself. Mary and Karen are in the clear, management is advised, let it go.

Steve

[Kurt Ullman]

That was in response to the very straight forward question about firing her. If she is going to be fired it WON"T be related to HIPAA since there are no individual requirements to report. She has no responsibility under HIPAA to do anything other than refuse the request. If she is going to be fired it would have to be related to some policy of the firm that we can't know about, or just at the whim of the boss (in an at-will state and assuming no union involvement).

>

[JIMMIE]

Then his lawyer would have to request the information using the proper procedures.

Jimmie

[83LowRider]

The last sentence in my previous post kinda says it all.

I understand throwing out a story for the sake of conversation or to get another opinion. In the end tho, it is up to each of us individually to do what we know to be right. The opinion of anyone else (not involved) doesn't matter.

[DerbyDad03]

It only matters if it sparks an interesting discussion.

[Robert Green]

My read? Bob has asked someone to commit a crime - accessing records he no longer has a right to receive (except by legal subpoena should he sue). She needs to report it in case he gets access to those records some other way and she gets blamed for it. It's a CYA thing.

Bob, although possibly wronged by his bosses is asking his co-worker Mary to be fired, too. She shouldn't have told Karen - but once she did, she exposed herself even though she passed no records. Still, IMHO it's a no-brainer. If Bob asks a co-worker to steal for him, he's the SOB - plain and clear. Anything that happens to him after that is Bob's fault. (-: Karen's right to cover both her ass and Mary's. It sounds harsh but he ensnared them. His foul, his penalty.

If I were Bob, I would ask that they make personal copies for their own files (but not to give to him). That way, no records pass, and if something different appears in court via subpoena they would know whether their bosses were lying, forging SOB's or that Bob was a bad worker. They could then decide whether to help Bob by revealing the forgery. I expect that won't be the issue, though.

Like many others, he could be caught up in NY's crackdown on abuse by caregivers. NY state has been forced by a series of NY Times article to review and remove workers that are unqualified to work with seriously developmentally developed kids, some who have died:

If Bob doesn't care about getting his co-worker in a jackpot, I wonder what else he's done that's of dubious moral fiber?

-- Bobby G.

[Robert Green]

Yes, Bob's certaining a shi+ for asking his co-workers to break the law.

True, but the subpoenaed copy might not be the one he was working from. (-: I think most people would be amazed at the initiative line managers show in creating fraudulent documents when they know a lawsuit's coming. Especially ones that downplay their culpability.

The law firm I worked for had a retired FBI document examiner on retainer to examine all subpoeaned exhibits for potential forgeries. The simplest test: run your finger over the ink on any handwritten document alleged to be more than a few months old. .

Anything recovered by subpoena is usually at least a few months old unless it's been recently created. Smudged ink is a sign it's not very old. As you might imagine safety log reports, time sheets, performance evaluations (especially in wrongful termination suits) and even contracts get mysteriously modified. If something that was supposed to be a year old smudged, it went into the "suspicious" pile. If only Dan Rather had used him, he might still have his old job. Dan's such fun to watch now that he's gone insane from the humiliation of Bush fitness report forgery debacle. Ah, the TV news. One story makes you, another story breaks you.

Back then is where I learned if you sign a multipage contract, each page should say 1 of X until X of X and be initialed and dated. Doing just that can make forging an "insert" page very, difficult.

-- Bobby G.

[Kurt Ullman]

Their having personal copies is likely to be a violation under HIPAA, though. They may have a legitimate reason to access, but not to keep copies. Besides if they did do this, it would then be THEIR responsibility to safeguard the information and that puts them in all sorts of legal jeopardy. Finally, how do they let anybody know about the forgery without disclosing they had it? This wouldn't be one of the self-disclosing options in the law. If I was an employer I would toss someone out the door substantially quicker if I found them copying files that they did not have a legitimate reason to do.

[Robert Green]

I guess it all depends. If a coworker had been canned over the document AND I thought I might be next AND I had legitimate access to it, I might want to cover my ass even though I could get into later trouble for it.

Yeah, I guess you're right. But I'd still copy them if I thought they were going to be used to hang *me* after they finished with Bob. Especially if I thought they stood a good chance of being modified by the time a subpoena got issued. I would say the number one truism about litigation is that very few people can resist trying to bolster their case and that many, by doing so, end up being their own worst enemy. Ask Bill Clinton. Or Dick Nixon.

There must be a management school where they teach managers to add defamatory information (in smearable ink) to litigant's performance evaluations. Most times, they are not even good forgeries. The sheet often reads:

Bob is an excellent employee. He is a responsible clear thinker.

(And then, in a slightly different color ink that's not as dry as the other parts of the form):

He is often late and rude to his co-workers. He is on probation.

There was a reason Sandy Berger was stealing documents from the Archives. It's the same reason that lots of documents disappear. They made someone look bad. It's a time-honored legal tradition! (-:

-- Bobby G.

[Robert Green]

Morally, after all this discussion, I think Karen and Mary owe it to the people who give them their paychecks to report an attempt to coerce them into doing something potentially harmful to the company. Especially if Bob's a big d*****ad and got what's coming.

-- Bobby G.

[Robert Green]

Reminds me of (I think) an SNL skit about how they stopped the shootings at the USPS. They show a job interviewer and his subject at a pistol range. He hands the job seeker a gun and tells him to shoot at the silhouette (of a postal manager, IIRC). Only the applicants who didn't hit the target at all are passed.

But seriously speaking, you're right to be worried about loco ex-employees. In the newsworld there's a catch phrase I am sure you've read a dozen times. It should be a movie title:

A Disgruntled Former Employee (fill in the horrible blank here)

(Does that mean that happy employees are gruntled?)

-- Bobby G.

[Kurt Ullman]

But there are no reasons that I can think of where anybody would have legitimate access to it for the purpose of copying it for personal files. There is no reason a paper copy should exist outside of the chart, if that is the way they do things.

[Robert Green]

You'll say different when it turns out Bob is really Crazy Buffalo Bob. He's gotten hold of the address of the patient's family that he believes got him fired. Today's he come back to work wearing his ex-patient's carved off face as a mask, carrying a flamethrower singing the lyrics to CCR's "Proud Mary (keeps on burnin'). Hey, it could happen. (-:

I wonder just how many homicides are committed by DFE's (Disgruntled Former Employees). Whatever the number, it's clear some people don't accept termination gracefully. For social animals like humans, it's the equivalent of being run out of the pack.

-- Bobby G.