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Protecting Your Private Health Information

Keeping medical information private is an important concern. Unauthorized disclosures of health information can have serious consequences for patients. These consequences range from damaged relationships with friends and family to disrupted careers. Individuals may have good reason for keeping their treatment for an illness, like a sexually transmitted disease or drug addiction, out of view from unsupportive family members. Employers who inadvertently learn about a job candidate’s health situation might decide to hire someone else. To protect patients from consequences like these, health privacy laws provide robust tools for them to protect their privacy rights. The Privacy Rule under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) restricts disclosures of individually identifiable health information by certain covered entities. These include most health care providers, providers of insurance and other forms of health benefits, and intermediary organizations that process health data for other businesses. The law protects information in a patient’s medical file, as well as the content of communications (whether oral, telephonic, or electronic), and billing information, among other things. Covered entities are required to adopt policies to protect information that falls within the law’s scope. Under HIPAA, disclosures may only be made under certain limited circumstances, primarily related to the patient’s care or to facilitate bill payments. Someone who has had their HIPAA rights violated can file complaints against the offending organization with the U.S. Department of Health & Human Services. HIPAA protects patients who file complaints from retaliation. Note that although this administrative process may result in an examination of the offender’s practices, HIPAA doesn’t provide for a private cause of action, so the affected patient cannot sue a health care provider for HIPAA violations. Note that the scope of “covered entities” under HIPAA does not capture employers unless they are also administering a health plan, such as administering a workers’ compensation program. Employers may end up with the health information of a job candidate or employee outside of the health plan context. For example, an employee may disclose a health condition to a manager to let the manager know about a job limitation the employee has. An employee may disclose a pregnancy in anticipation of filing a Family Medical Leave Act claim. Or a candidate may submit information through the pre-employment screening process, including the results of drug tests. Each of these circumstances may fall under a different set of standards than HIPAA. In general, employers are restricted in how they can use health information when making job-related decisions and may be subject to a claim of unlawful discrimination in some circumstances. When a health privacy violation leads to serious consequences, it can be helpful to talk to an attorney about your options for seeking compensation. The law firm of Greenman Goldberg Raby Martinez represents clients in the Las Vegas area in cases involving personal injury, workers’ compensation, and other matters. If you think your health privacy rights have been violated, please contact us today for a free attorney consultation.  Call us today at 702-388-4476 or contact us through our website.

Suing to Stop Spying by Drones in Nevada

The privacy implications of drone-mounted cameras and microphones are only just beginning to be examined by lawmakers and civil society. The power of modern high definition cameras allows drones to see and record things that intrude into the private sphere. When a drone is deliberately used to “spy” on someone, the resulting footage can be used to harm the victim through harassment, embarrassment, or worse. People who have been harmed by malicious spying by drones may have recourse to Nevada’s laws regarding photography generally, as well as laws specifically limiting how drones may be used.

Photography and privacy in Nevada

Just because a camera is mounted on a drone does not alter the basic fact that the operator of the drone is acting as a photographer and is therefore subject to the restrictions that apply to photography. Here are some that may apply to “spying” cases:
  • Trespassers are not entitled to take photographs of private property.

Making recordings while unlawfully intruding on private property is not permitted. “Trespass” can include flying over property with a drone (see below). Trespass can also include things like lifting a camera over a fence to take photos of what lies beyond it, even though the camera itself is not over the private property. In practice it can be difficult to answer the question of where public space ends and private space begins. A fence around a property creates an unambiguous privacy barrier, but the case can be less clear if a property is not fenced, or the photographed activity is being conducted in a way that seems to disregard privacy concerns. In short, the question of privacy expectations requires a case-by-case analysis.
  • The right of publicity restricts use of photos and videos of others.

Nevada law restricts the commercial use of photos and videos of other people without their written permission. This can protect victims of drone spying from some kinds of use of the resulting video, for example if a video is incorporated into a television program (other than a news broadcast or other exempted use).

Drones are subject to place restrictions

To lawfully fly drones over a certain size in Nevada the drone must be registered with the Federal Aviation Administration and must comply with state laws and regulations with respect to altitude and other matters. For example, a drone that is flown lower than 250 feet over private property is trespassing (and therefore its photographs or video are unlawful), but only if the owner of the property has notified the operator to stop flyovers or posted signs prohibiting drone use. This is a frustratingly high bar for someone who has suffered spying by drone, but it does give a quick method for starting the process of addressing unlawful drone use. Ultimately someone who knows about drone spying should consider seeking an injunction to force the operator to stop. An invasion of privacy can lead to serious consequences for the victim and courts are unlikely to look kindly upon unscrupulous use of drones. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area seek compensation for personal injuries. If you are wondering how the law can help you address problems with unlawful use of drones in your area, call us today for a free attorney consultation at 702-388-4476, or ask us to call you through our contact page.

Are Mandatory Flu Shots Legal in Nevada?

Are Mandatory Flu Shots Legal in Nevada?
Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?

At-will employment gives employers leeway

Nevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time. Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.

Responses to a mandatory flu vaccine

Employees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:
  • Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
  • Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
  • Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
  • Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.

GGRM serves the Las Vegas community

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.

Can My Employer Fire Me for What I Post on Social Media?

Can My Employer Fire Me for What I Post on Social Media?
In the era of social media, workers are increasingly discovering that the things they post online can come back to haunt them in various ways. Losing a job over a tweet can seem unfair, but the fact is that employers have a lot of leeway when it comes to firing employees for what they post. However, there are limited exceptions.

Social media and at-will employment

In an at-will employment state like Nevada, both the employee and employer are free to end their relationship with or without cause. That means that an employer can choose to terminate an employee for no reason at all. A post on Facebook that reveals an employer’s confidential information, reveals an employee’s dishonesty, or calls into doubt the employee’s qualifications for the job, may simply give the employer cause.

But isn’t social media private?

Under Nevada law, an employer cannot require employees to disclose their user names and passwords for personal accounts on social media, and cannot take adverse actions against an employee for refusing to provide such information. NRS 613.135. Some read the statute to mean that an employer also cannot require employees to accept managers as social media connections—that is, as a friend on Facebook, or as a follower on Twitter. However, an employer can view public posts on social media just like anyone else. And if an employee voluntarily authorizes a manager to access posts, without prompting from the employer, it could be interpreted as a waiver of the employee’s expectation of privacy. Employees should be especially careful when posting on social media using company equipment. Employers have the right to monitor use of equipment they own. Especially if an employee is posting on social media during working hours, the employer may have a good argument that the posts form evidence of disciplinary problem, even if it ignores the content of the posts themselves. Employers are increasingly adopting specific written policies that address employee use of social media. If your employer has such a policy, be sure to read it. Although Nevada employers cannot regulate many aspects of an employee’s private activities, they can take steps to protect their legitimate business interests, which can include watching out for online behaviors that harm the company. For example, if a job involves working with a company’s clients, the employee should not post things that clients might find offensive, even if the clients aren’t likely to see them.

There are some limits on what employers can do with social media

An employer that bases a firing decision on an employee’s social media posts can violate the employee’s rights in a number of ways. Here are two examples:
  • The federal National Labor Relations Act (NLRA) protects employees from retaliation for posting on social media in connection with collective bargaining or other matters related to working conditions. The NLRA has been interpreted to prohibit employers from taking adverse actions against employees who post negative comments about the company or managers on private social media accounts. Although an employee should not assume that posting public complaints about a boss is a form of protected speech, the NLRA does give leeway for using social media to organize and address problems at work.
  • Social media posts often reveal information about a person’s age, race, ethnicity, national origin, disability, religion, or other personal traits that are protected against unlawful employment discrimination under federal or state laws. In Nevada, an employer cannot fire an employee on the basis of actual or perceived sexual orientation. See this site for a complete list of things protected against discrimination in the state.

GGRM is here to help employees who are wrongfully terminated in Las Vegas

If you have lost a job because of a post on social media and you’re trying to figure out your legal options, it can be helpful to talk to an attorney. At GGRM we have a long history of helping workers defend their rights. For a free consultation, call us today at 702-388-4476, or send us a request through our contact page.

Employee Privacy Rights in Nevada

Employee privacy rights in Nevada
An employer can accumulate a significant amount of personal information about its employees, whether the information is gathered as part of a formal screening process or is learned over the course of the relationship. Privacy laws limit what employers can do with employee information, but Nevada workers need to understand when privacy rights apply, and when they don’t.

Employers must safeguard certain kinds of employee information

Employers are required to keep some types of employee information strictly confidential. Medical records fall into this category. Federal law requires employers to keep medical records apart from other records pertaining to the employee, with access limited to very narrow circumstances. This protection extends to information about an employee’s disability, information obtained in the course of a routine medical examination, and information collected in support of an employee’s leave under the Family Medical Leave Act. Nevada law has similar protections for information related to an employee’s workers’ compensation claims. Various laws also protect some types of information that employers routinely collect as part of their pre-employment screening process. If an employer conducts criminal background checks or credit checks, it must get the applicant’s permission and ensure that such records are properly disposed of. Under Nevada law, an employer cannot request user names and passwords for an applicant’s social media accounts. Finally, although employers are entitled to know a good deal about what happens in the workplace, employees are still entitled to a degree of privacy while at work. Obviously, employees expect privacy in places like bathrooms and changing areas. Personal phone calls and personal email accounts are also generally off limits absent additional facts. In Nevada, phone calls and conversations cannot lawfully be recorded without the consent of both parties. NRS 200.650.

Where employee rights to privacy end

Employees are entitled to a degree of privacy even while they are at work, but employers still can intrude upon seemingly private matters, especially where an employee does not have a reasonable expectation of privacy. In the era of company-issued cell phones and computers, the employee’s use of employer-owned equipment is an especially important area where privacy is not protected. In most circumstances, any business conducted on company-owned equipment, whether phone calls or electronic communications, can be monitored. Bear in mind that some kinds of employment prescreening records are not necessarily private. For example, a check for criminal history or credit information is based on public records. Although an employee who is harmed by inappropriate use of such information may have a cause of action under other theories, privacy may not apply.

GGRM helps Las Vegas workers protect their rights

At Greenman Goldberg Raby Martinez we have seen many examples of employers not respecting the privacy rights of their employees, especially in cases involving injury. If you think your privacy rights have been violated and you’d like to consult with one of our attorneys, please call us today at 702-388-4476. We can also be reached through our contact page.