Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict. 

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns....

 The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

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Fear Of Defamation Lawsuits For Employee References Is Overblown

Employers Should Give  Employee References

I have a pet peeve and it has to do with employee references. My pet peeve was triggered last week when I read an article in the National Law Journal about the subject.

“Don’t say anything good about an employee on Linked In” – the lawyers warned – you might get sued for defamation.   

As you know, most employers will not give a reference. The only information they will give to a prospective employer about a former employee is dates of employment and positions with the company. Some will give salary information. That’s it.

It didn’t use to be this way. When I started working, it was common to get a letter of reference from an employer. In fact, it was the practice.

Sometime later, and I can’t precisely pinpoint the date (but I think it was in the late 80’s) that practice stopped.

The reason it stopped is because management lawyers told their clients not to give references because they might get sued for defamation. That advice spread like wildfire and suddenly no one could get a reference.

In my opinion, this is some of the worst advice ever given to corporate America and here’s why.

The Threat of Employee Lawsuits for Defamation is Overblown

So what about the argument that the employer may get sued for defamation? In my opinion it’s overblown and ridiculous.

I have been following the law of defamation in the workplace for a long time. I have written about it, spoken about it, and taught it. The truth is, suits in which employees sue their employers for defamation are just not that common and never were.

I have been representing employees for thirty years. Like many employment lawyers, we get hundreds of calls each month from employees who are having problems at work or who have lost their jobs.

In all of my years of practice, I can only recall two defamation cases. One case involved a medical professor who was terminated and falsely accused of being a “womanizer” and  incompetent teacher. The second case involved an employee  who was fired and falsely accused of stealing.

In both instances, the reasons given for the discharges were false, motivated by racial malice, and were communicated to a large circle of people.

So in thirty years – two cases --that’s two out of thousands. I doubt the statistics are much different for most other employment lawyers. The threat of defamation cases  involving employee references is way overblown.

Employees Should Get References Because It’s The Fair Thing To Do

I have represented hundreds of employees who put in 20, 30, 40 years with a company – with excellent records of performance --who can’t get a letter of reference. This corporate behavior, is seems to me, is plainly cruel and completely counter productive.

 If employees have put their time in with a company, and have done a good job, don’t they deserve a letter of reference? I am talking about employees who were let go through no fault of their own – without cause – downsizing, job elimination, layoff, etc.

I have represented employees who never missed a day of work over decades at a job. Isn’t only fair that he or she gets a letter saying that this person is a very dependable employee who never missed a day of work?

The same is true for employees with an excellent record of performance for the company. Don’t they deserve a letter stating that they were a good employee and solid performer?

Since there is no legitimate reason not to, employers should treat employers fairly and give them the references they deserve.

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A Simple Case of Defamation

You don't see many cases where employees have successfully sued their employers for defamation. But when there is a winner, it's likely to look like the case of Gambardella v. Apple Health Care, Inc. recently decided by Connecticut Supreme Court.  

Here's what happened in the case.   

Laurie Gambardella worked as an admissions counselor at a health care facility in Watertown, Connecticut which was owned by Apple Health Care.

A woman by the name of Eleanor O'Brien met with Gambardella concerning the admission of her aunt, Fannie Lauro, to the facility.

Fannie was admitted and Eleanor brought some of Fannie's clothing and furniture with her. Days later, Fannie had a massive heart attack and died.   

Eleanor went to the facility to retrieve some of Fannie's clothing for the funeral. 

At  that time, Eleanor  told Laurie Gambardella that she was not interested in any of Fannie's property, and that Gambardella could do whatever she wanted with it.

In keeping with Eleanor O'Brien's instructions, Gambardella:

  • decided to keep two chairs for herself
  • gave the nursing supervisor, Colleen Busk,  a dresser after she asked for it
  • told Joseph Stolfi, the maintenance supervisor to use the remaining furniture elsewhere in the facility as needed

Stolfi told the  facility administrator, John Sweeney, what was going on and Sweeney decided to conduct an investigation. Sweeney asked Gambardella questions about the furniture.  She told Sweeney about the instructions she had received from Fannie's niece, Eleanor O'Brien.

Sweeney told Gambardella that there was a policy against accepting gifts from residents or their families. Upon learning this, Gambardella returned the two chairs.

Sweeney then contacted Eleanor O'Brien to find out if Gambardella was telling the truth. O'Brien confirmed that she did not want any of the property . She also verified that she told Gambardella to keep her aunt's property and distribute it as she saw fit.

In addition, Eleanor O'Brien wrote a letter to Gambardella in which she stated that the property had been left for Gambardella to keep or distribute to others in her sole discretion. Sweeney received a copy of the letter.

Even though Sweeney had both oral and written proof that Gambardella was given Aunt Fannie's property, Sweeney decide to fire Gambardella for stealing the two chairs (which had been returned).

To make matters worse, when Sweeney told Gambardella that he was firing her for theft, he did so in front of a co-employee, Kate Sloan,  the director of admissions.

Other co-employees who worked at the facility also learned that  Gambardella was fired and the reason why. Not surprisingly, as things go at work, employees were gossiping about  the incident. According to the opinion in the case:

Other people, including the plaintiff's daughter, also heard that the plaintiff had been fired for taking furniture. ..

Some heard that the plaintiff was fired for taking furniture from a dead lady.

Gambardella filed a lawsuit against Apple Health Care, Waterbury Extended Care Facility and John Sweeney for defamation.

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