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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11896
Experience:  Significant experience in all areas of employment law.
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I work for a Dental Corp as part of the Oral Surgery Team. I

Customer Question

I work for a Dental Corp as part of the Oral Surgery Team. I am not the lead assistant nor the manager. While the Lead was on vacation last week...she gave a trainee her lead binder with paperwork and patient information in it. The trainee was let go before she could get the binder back and she was refusing. I stepped out of my way, to retrieve the binder with very private information in it. Today, they attempted to write me up for something that was not my job description. In the write stated that I was supposed to send out the releases. I was not. I refused to sign it. I reminded them that I did them a favor, bc legally, they should contact EVERY patient in that book and report to them their record could be compromised. They did drop the write up, but then asked me to keep that information in the room and not to talk to anyone about it. I felt as if they were telling me not to notify the owner, and not to follow guidelines. I was upset at being pinned for the fall guy to cover themselves, but now I don't know how I feel about being told to keep it queit and risk my rda and future. I feel my job is in danger now, but my career my be jepordized
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Texas
JA: Has anything been filed or reported?
Customer: No, the oral surgereon and myself belive the trainee made copies of everything in the binder. it was patient release information as well at corporate playbooks...she kept it for 4 days after termination
JA: Anything else you want the lawyer to know before I connect you?
Customer: I'm just not sure if I was asked to break the law or what I should report if anything
Submitted: 5 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 5 months ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 5 months ago.

As a general matter, employment in the state of Texas is "at will" absent an express agreement to the contrary. At will employment can be terminated for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct (filing a wage claim, taking FMLA leave, etc.). It doesn't matter whether the basis for termination is fair, reasonable or even true.

This means that you can generally be terminated for something that wasn't your fault. It also means that your employer doesn't need you to sign a writeup for them to terminate you for the conduct they allege in the write up.

What complicates matters a little bit is the HIPAA issue. HIPAA has what's called a "Breach Notification Rule" (45 CFR §§ 164.400-414), which requires HIPAA covered entities to provide notification following a breach of unsecured protected health information. If this trainee made copies of protected health information in the binder or otherwise disseminated such information, your employer would be obligated to inform the patients. However, to be honest, it is not clear from these facts whether HIPPA was actually violated as there is no proof that copies of protected health information were made or of any other violation of the Act. It could be assumed, but a speculated HIPAA violation is probably not enough to trigger the notification requirement. There would need to be some concrete evidence of an actual violation.

Now, that said, you could certainly report this incident to the Department of Health & Human Services, which is the entity that enforces HIPAA. Making this report would b e a form of legally protected conduct, which as explained above means that you could not be terminated in retaliation for it. The choice to make such a complaint would be yours.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....