In March 2010, we reported on a decision by the U.S. District Court for the District of New Jersey that allowed an employee’s retaliation claim to proceed to trial under the New Jersey Conscientious Employee Protection Act (“CEPA”) on the ground that he was engaged in protected whistle blowing activity – voicing concerns regarding his employer’s handling of data security. A California Appellate Court recently adopted a similar line of reasoning.
Rather than addressing an employee’s concerns, a company fired the employee for questioning whether the company’s networks and information systems adequately protected HIPAA patient information contained on those systems. Cutler v. Dike, 2010 WL 3341663 (Cal. Ct. App. Aug 26, 2010) (unpublished). Based on his employment contract, the employee reasonably believed that his job included acting as the company’s privacy officer. As the court found, the employee also reasonably believed:
the database used to test the company’s . . . software contained confidential patient information which would be exposed in violation of HIPAA, because [the company president] had told him it was patient information . . . [and that] confidential patient data would be used in the future as the program was implemented.
The employee had refused to participate in configuring the computer system as directed and voiced his objections that doing so would violate HIPAA rules and regulations. In response, the company president recommended that the employee resign or risk being fired “since you have chosen to be very negative about issues in the organization.” The employee sued the employer for wrongful termination and the jury found against the employer. The employer appealed the jury verdict.
The court began by citing the relevant section of the California Labor Code (Section 1102.5), which states:
[a]n employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
The court went on to hold, “[T]he protection of confidential patient information is clearly the type of general public interest that supports a cause of action for wrongful termination in violation of public policy.” Accordingly, the court upheld the jury’s finding of liability against the employer for wrongful termination in violation of public policy.
Employers across the country generally are prohibited from retaliating against employees for refusing to participate in activities that are impermissible under state or federal law or regulations. This includes retaliating against employees that raise concerns under the HIPAA privacy and security regulations, or other data security mandates under federal or state laws, such as those in Massachusetts, Connecticut, or New Jersey. Employers may find themselves responding to more of these kinds of concerns from employees as employees are more aware of breaches reported in the media over the past few years and become anxious over their own sensitive personal information in their employer’s possession.
An employer should avoid reacting to an employee’s complaint of weaknesses in its data system by firing or disciplining the employee. Shooting the messenger is not acceptable. The company should investigate the issues which have been raised and, if necessary, address them appropriately. Employers are better served by employees who feel secure enough to come forward with unpleasant news, than by suppressing such reports and enduring embarrassing and costly disclosures later. Of course, vulnerabilities can be minimized by taking the preventive steps required under many state and federal laws to safeguard personal and confidential information.