Health Law

Chapter 14

Case 1:

1. Do you think the standard of the search articulated in this opinion is the correct standard for determining whether a search violates the fourth amendment? Think of arguments for both the employer and the employee.

Ans: I believe that the court of appeals did the right overturn.  The employer failed to establish a prima facie case by seizing all personal items including the private gifts as well as photographs were boxed without permission.  On the other hand, the organization had sufficient evidence to terminate the doctor but should have waited until the northern district court verdict had been reached before boxing up the doctors belongings for him to come and get his property.  It would have helped the employer if they had a written documentation on workplace termination.

1. How can an employer protect himself from a claim of unreasonable search conducted in the workplace?

Ans: The Company must have a policy of regarding when a search can take place, procedures during the search and the reason for the search.  The policy must reflect the court’s ruling that a search is justified if the evidence collected reflects that the employee has violated and is guilty of work misconduct or the search was conducted to retrieve a document or file.  The search is permissible when the measures adopted are in line with the objectives of the search and do not infringe or be intrusive excessively on the nature of the misconduct.

1. What could you do as an employee to protect yourself from a company search?

Ans: To protect oneself the employee must ask and research if the company has conducted similar searches, notification of the search was proper and reason documented?, was the search warranted?, was the search conducted by authorized personnel?, were you held or threatened against your will?, how did you cooperated in the investigation?, was there any physical or verbal threat? And was there a clear company policy for workplace searches? The employee must keep in mind that company property are subjugated to the search, private property is not.

Case 2 Yoder v. Ingersoll – Rand Company a.k.a. ARO

1. Do you think Yoder should have prevailed on his state law claim of invasion of privacy? Why or why not?

Ans: I believe in the invasion of privacy he does not prevail and that is due to the fact that he is not able to have a prima facie case on two points, the first that the employer knowingly sent the letter to his mother to do harm and the second being that the company employees read the memo to provide harm.  He does have a case against the employer under HIPAA for failure to protect against medical records and unauthorized release.

1. Do you think this case would have been decided differently if the mail clerk and Yoder’s supervisor did read the doctors statements?

Ans: This depends on if the employer has release of breach or information form.  We know in this case the employer did not but if the clerk and Yoder’s supervisor did read the statements it depends on what they do with it.  If they keep it to themselves there is no tort for public since it has not been leaked but if they tell other employees then it becomes a public domain and the case would be decided for the plaintiff.

1. How many would have to read a sensitive document such as this to meet public disclosure requirement for an individual to prevail on his or her claim?

Ans: There is no specific number needed to meet the disclosure violation as the law as the law states that public disclosure must be communicated either to the public at large to many people that the matter must be regarded as certain to become public knowledge for example if the information of the HIV was sent or leaked to all of the employees.

Chapter 15

Case 1

1. Do you think the court made the right decision in this case?

Ans: The court granted in part and denied in part.  The company showed how far they can go and legally block every move made by the Board and the Union until they reached a satisfaction ending.  The court did support the defendant on a technicality to modify Gimrock II since the circumstances change and the injunction ineffective.

1. Given that there is a statutory duty to bargain in good faith, why do you think management chose to do what it did?

Ans: The management believed that the workers strike was an unlawful jurisdictional strike and as such did not want to bargain in good faith.  The court also ordered the company to negotiate and reinstate the striking workers but the company did not want to give back pay since the union had rejected the offer and the back pay formula was speculative.   The management also believed that there was no bargaining unit once the strike occurred and the request to do so was unreasonable.

1. Given how strict the final order to bargain was on the employer, does the employer’s strategy make sense to you?

Yes, I agree with the employer, that they were not consulted when the strike occurred and yet were ordered to negotiate.  It seems that the employees could strike and force management to negotiate.  Though the strike was economic no requests were asked or made and when not reinstated had to give back pay.  As a manager, I would have taken the same hard stance and this actually has weakened the union.