May 6, 2015 Melissa Brown
(Disclaimer: I am NOT an attorney, nor am I offering legal advice. What I write is based only on my own experience. Do NOT consider anything I have written below as legal advice!)
Merriam Webster defines a “guerrilla” as : a member of a usually small group of soldiers who do not belong to a regular army and who fight in a war as an independent unit. That’s me! And I’m here to share my guerrilla nurse tactics with you.
First, my background:
Approximately eighteen months ago, I filed a lawsuit against my prior employer for wrongful termination, age and gender discrimination, permitting a hostile workplace environment and, perhaps most important, violation of the Florida whistleblower law.
Unfortunately, I had to drop my case two weeks ago. My attorney told me my case would likely be dismissed on summary judgment due to a very recent change in the legal interpretation of Florida’s whistleblower law. (It is noteworthy that plaintiff’s attorneys in Florida are collectively fighting this new interpretation.)
Furthermore, had summary judgment been obtained by my employer’s attorneys, I may have been required to pay my prior employer’s attorneys fees, which, according to my attorney, likely numbered in tens of thousands of dollars. In addition to this, I would have been required to pay over $1000.00 for mediation as well as hundreds of dollars for deposition of my witnesses.
I simply could not continue under those financial conditions.
As an aside, one of my dreams for the future is to facilitate development of a national legal fund from which nurses can draw in order to pursue their own lawsuits without fear of financial devastation. In addition, I dream of developing a network of labor attorneys (including nurse attorneys) who are willing to assist nurses with their cases at reduced rates or even pro bono.
During the process of my own lawsuit, I learned so much! It is my intent to share what I learned with other nurses so that they can be better prepared, both financially and emotionally, for legal wrangling.
YOU ARE FIRED!
The worst has happened — you’ve been fired for trumped up reasons. First, you cry. Next, you rage. Depression soon follows. Last, you decide to take legal action. But what? How?
Let’s take a step back here. Let’s face it, most nurses know when they are on the chopping block. What can you do BEFORE the ax comes down?
GATHER THE EVIDENCE
If have a strong belief that your employer is planning to fire you, put your emotions aside. Summon your inner detective and start gathering evidence.
Don’t procrastinate — you may not have much time!
Send copies of all pertinent work-related emails, with the obvious exception of emails that include information that identifies patients, to your smart phone or home computer. Make hard copies if you aren’t a computer geek like me. If you are afraid to send the emails to yourself, cut and paste the contents of the email and save it on your smart phone or tablet. Evernote is a good application to use for this purpose.
Next, make hard copies of all pertinent policies and procedures. If you have been accused of something specific, find that policy and make a copy for yourself. It is far easier to make that copy now than it is to subpoena it later. Be surreptitious! A true guerrilla nurse! In other words, don’t be obvious when searching for and making those copies.
Make a list of nurses or staff members who may end up being witnesses in your case. Don’t forget to document dates, times and occurrences. If pertinent issues have been raised in staff meetings, make a list of the meeting’s attendees, the subject, and the speakers. If you can’t recall the date of a relevant staff meeting, look it up in the minutes (if they exist).
If you have had disciplinary action taken against you, go to HR and hand copy the allegations presented in the disciplinary report. Most HRs will not provide a photocopy, so you must be prepared to copy it all down by hand. Be gracious. Thank the HR person for helping you improve your nursing and communication skills. Above all, do not be rude, critical or defensive. It’s not time for that — yet.
Do NOT, under any circumstances, photocopy a patient’s record. Any and all patient records can be subpoenaed later, so keep a list of dates and times of questionable occurrences. I suggest keeping the patient’s names in your head rather than on paper, since everything you have in your personal written files can be demanded by the defendant (your prior employer) during the discovery process.
If you have a valid complaint about safety in the workplace, write a comprehensive email to your employer. Be specific. If it is a staffing, security or other safety issue, be precise. Include all the details. It is critical that you make suggestions and offer solutions regarding what your employer can do to rectify the issues you express. Either email it to yourself or make a paper copy. This step is CRITICAL if you intend to take legal action.
IF YOU THINK YOUR EMPLOYER HAS BROKEN A LAW
If you think your employer has broken a law, whether federal or state, document the specifics and submit your concerns via email, telephone or in person to the appropriate state or federal agency. Keep in mind that each agency has different time limit requirements regarding submission of concerns.
For example,the Occupational Health and Safety Administration (OSHA) requires submission within thirty days of the qualifying event. The Equal Employment Opportunity Commission (EEOC) requires submission within 180 days. The National Labor Relations Board (NLRB) requires submission within six months of the event or conduct. Whistleblower laws vary from state to state, so do your own research or consult a labor attorney.
After you are fired (and you knew you would be), there are specific actions you need to take next. I will address these actions, including easily available resources, in my next blog entry. Keep in mind that it is NOT necessary to hire an attorney immediately. You can submit your concerns to the appropriate agencies on your own, if you have not yet done so.
I repeat — I am not an attorney. However, I AM a guerrilla nurse who decided early on to fight back rather than simply quit the job I loved and “move on.” I may have lost one battle (my lawsuit), but I do not intend to lose the war. Nest time, I will discuss what nurses face AFTER they have filed a lawsuit or complaint with a regulatory agency.
Until next time,
The Guerrilla Nurse