The Conspiracy of Silence

A few days ago, a North Carolina school teacher pled guilty to sexually abusing several young boys.  The school where he had previously worked allowed him to quit after it received “verbal complaints” about him.  He is also accused of sexually abusing children even earlier when he worked as a camp counselor in another state.  If his former employers knew that he was abusing children, they did not warn anyone.  You might wonder if this happens often.  You might also wonder why it happens.

Problem employees present two legal concerns to employers.  First, employers want to avoid being sued for wrongfully firing the employee.  Second, employers want to avoid being sued for defamation in connection with a negative job recommendation.  Accordingly, employers will offer a “neutral” job reference if the employee voluntarily resigns and agrees not to file a wrongful discharge suit.  While this approach may protect the employer, it does nothing to protect the next person who hires the problem employee.  

A few years ago, Allstate fired one of its insurance salesmen.  He had made death threats against coworkers and had brought a pistol to the office.  It appears that he cut a deal with Allstate in connection with his termination.  Allstate provided him with a letter explaining that he had voluntarily resigned in connection with corporate restructuring.  Relying on this letter, Fireman’s Fund hired the salesman.  

Things did not work out at Fireman’s Fund.  Shortly after hiring the salesman, the company fired him.  In retaliation, the salesman went on a shooting rampage killing three former co-workers and injuring several others.  The Florida court ruled that the families of the dead and injured could pursue their case against Allstate on the grounds that Allstate had provided a misleading reference letter.

In response to the case, many employers decided not to provide references for former employees.  Concerned that these policies would result in more situations like the Allstate case, many states, including North Carolina, enacted laws giving employers immunity from suit when they provide a reference for a former employee.  It is very important to note that these statutes do not protect a former employer who gives “false” information.  Attorneys for employees simply have to allege that the employer gave false negative statements about their clients.  Accordingly, our statute provides little protection to employers.  Most continue the “conspiracy of silence.”  That silence has contributed to many deaths and injuries.

In a New York case, a grammar school teacher sexually assaulted a child.  The teacher’s previous employer did not warn the grammar school that the teacher had been charged with sexual misconduct while in its employ.

In Michigan, a previous employer failed to warn of its employee’s history of violence and drug use while in its employ.  In his new job, the man beat and murdered a fellow employee. 

In a Minnesota case, a regional church office knew that one of the pastors had sexually abused a child.  Nevertheless, it withheld this information from the local church that hired the pastor.  The results were predictable.

The courts usually rule that absent a “special relationship of moral duty,” former employers have no obligation to warn of dangerous workers.  You would think that no more “special relationship” could exist than that of a school or church and the defenseless children in their care.  Until the courts or the legislature recognize the irreparable harm that current policies cause, children will continue to be raped by repeat offenders and co-workers will continue to fall victim to criminals.

Lawmakers should require employers to report criminal actions committed by employees.  They should also prohibit employees from suing employers who comply with this law.  North Carolina has already taken one step down this path.    Our laws require employers and others to report nurses who are incompetent or dangerous to the Board of Nursing.  The Board regularly receives reports when facilities discipline or fire nurses.  The Board then shares that information with potential employers.  Hopefully, our state will expand the coverage of that law to other settings. Until then, we can expect that children and others will continue to be victimized by the “conspiracy of silence.”

The Illusion of Privacy

The feds are at it again.  They’ve spent countless months writing up new HIPAA privacy regulations that went into effect this year.  Those amendments will cost the health care industry approximately $225.4 million dollars.  Additional amendments to HIPAA regulations are already in the works.  Judging from the hundreds of thousands of privacy breaches that have been reported since the enactment of HIPAA, our medical information remains far from private.  In truth, privacy has always been illusory. I’ll share a few stories.

Many years ago, a major health care clinic in the western part of our state hired me to provide confidentiality training for its staff.  We spent six hours reviewing privacy laws and exploring ways to protect patient information.  After we finished, I was worn out.  I decided to spend the night at a local hotel rather than drive home.  Kicking off my shoes, I tuned into the local news as I chowed down on a cheeseburger and fries. 

Apparently, there was nothing going on that day in the small community where the clinic was located.  In fact, it was so quiet that our privacy meeting was a major local news item.  While we were in our meeting room that day, a TV crew had come to the clinic and talked with the front desk personnel about the course on confidentiality.  To spice up the story, the TV cameraman filmed the clinic and the patients who were seated in the waiting room.  As I watched in horror, the TV news plastered their faces across the screen. Mission accomplished.

Back in the 1990’s, I watched as a local news anchor interviewed a county health director about his efforts to stamp out venereal disease.  As he explained his public health initiatives, the news team aired an archived film clip of a nurse drawing a blood specimen from a smiling patient.  I’m sure he wasn’t smiling after seeing himself on TV as the poster boy for VD.

I attended the grand opening of a health clinic in another part of our state.  It began with a tour of the new facility.  The clinic administrator showed us the “Family Planning” clinic, the “Communicable Disease” waiting area, and the part of the clinic assigned for mental health patients.  I mentioned my concern that anyone who walked into the communicable disease waiting room would be able to determine that people sitting there were afflicted with a contagious disease.  He assured me not to worry.  The clinics were scheduled on separate days.  So if you watch the parking lot on Wednesday, you’ll know to stay clear of all the people arriving that day – at least until their antibiotics kick in.

Not too long ago, a large law firm had a celebratory dinner at one of Raleigh’s most prestigious restaurants.  Unfortunately, the restaurant served spoiled food that night.  Many of the patrons ended up on the front lawn vomiting while they waited for EMS.  Once again, the local news featured the story – complete with film of many lawyers looking far less than professional.

When my son was in a car wreck, we were ushered into a stall at the emergency room to wait for the doctor to examine him.  Apparently, the lady in the stall next to us had arrived earlier.  We could not help but listen as the nurses, who were trying to figure out how much booze the lady had consumed, asked numerous questions about her activities that night.  Afterwards, impressed by what I’d heard, I left our stall for a stroll around the ER.  I got a good look at our neighbor and saw her last name on the triage board hanging on the wall.  Realizing that anyone there could tell why ER patients were present, I hurriedly checked for my son’s name.  Fortunately, the entry for him clearly indicated that he’d only been in a wreck.

But the most remarkable privacy goof I’ve seen took place at a local ambulatory care center.  A friend of mine had broken her ankle and I took her to the center for a minor surgical procedure.  As I sat in the packed waiting room, a physician came running out of the surgery suites in a state of excitement.  He approached a man and began explaining that the D&C procedure he had just completed on the man’s wife was a great success.  But he expressed concern about the fact that the inside of her uterus seemed covered by a dark, sticky, oily substance that he could not identify.  Neither I nor any of the other 60 people in the room could offer any helpful suggestions, but we each waited with baited breath to get a look at this woman.  When the unfortunate lady came out, we couldn’t help but stare at the woman in the wheel chair with the internal grease slick.  Hopefully, no one snapped a cell phone photo.  Her husband was mortified.

So, I return to my mother’s advice.  “Never do anything that you don’t want ending up on the front page of the News and Disturber” – or the TV news – or Facebook – or Twitter.