Tuesday, September 12, 2017

Discussing Pay at the Office

Many employers restrict their employees from conversations about pay at the office, but is this legal?

It is a common practice in many companies for the employee policy manual to contain some verbiage about not discussing compensation and pay with other employees. This policy is easily agreed to by the employees and thus the company has achieved its goal of keeping the often times illegal practice of pay secrecy in place.

Is Pay Secrecy Illegal?

In 1935, Congress passed a law entitled, the National Labor Relations Act or the “Wagner Act”. Under this act, private-sector employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For this reason, restricting private-sector employees from discussing their compensation with one another is illegal. There is a limit as to who can discuss pay with other employees. Supervisors, for example, would not be considered an “employee” and therefore they can be prohibited from discussing pay. In addition, employees who have access to a company’s payroll could also be prohibited from sharing other employee’s private salary information.


Why is the Wagner Act in Place?



It was the purpose of the Wagner Act to protect employees against unfair pay practices. Giving the employees the freedom to discuss their compensation does a lot to help avoid unfair pay practices and puts pressure on a company to ensure pay-for-value (pay based on experience, education, skills, and the assigned responsibilities of the job) is in place. If an organization has a pay-for-value system in place, then they would not be afraid of employees discussing their compensation with each other. It is when a company has something to hide within their pay practices that problems arise when pay is discussed.

Employers Who Violate This Law

Employers who violate this law could have repercussions that would range anywhere from a wrongfully terminated lawsuit to the possible loss of federal contracts.

If an employee has been wrongfully fired for discussing their pay, they are may contact the National Labor Relations Board (NLRB) and file a complaint. The NLRB may begin an investigation into the matter regarding their former employer.

In most cases, pay secrecy is against the law. Employer should have a pay-for-value system in place and avoid any possible penalties for violating the Wagner Act.




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Friday, September 8, 2017

Navigating The Storm: HIPAA Compliance and Repairing Natural Disasters

NAVIGATING THE STORM: HIPAA COMPLIANCE AND PREPARING FOR IRMA
As Hurricane Irma approaches, hospitals, medical professionals and emergency medical personnel in the path of the storm are actively preparing for the storm’s arrival.  Making sure that health information is available before, during and after the storm is a critical part of that preparation. U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) wants to make sure medical professionals and emergency personnel understand when the HIPAA regulations may apply to them – and when those regulations apply, how they can share individually identifiable (protected) health information (PHI) during emergency situations. The Privacy Rule is carefully designed to protect the privacy of health information, while allowing important health care communications to occur.  The HIPAA Security Rule’s requirements with respect to contingency planning also help HIPAA covered entities and business associates assure the confidentiality, integrity and availability of electronic PHI (ePHI) during an emergency such as a natural disaster.   
Planning
OCR makes available on its website an interactive decision tool designed to assist emergency preparedness and recovery planners in determining how to gain access to and use PHI consistent with the HIPAA Privacy Rule. The tool guides the user through a series of questions to find out how the Privacy Rule would apply in specific situations.  By helping users focus on key Privacy Rule issues, the tool helps users appropriately obtain health information for their public safety activities. The tool is designed for covered entities as well as emergency preparedness and recovery planners at the local, state and federal levels. To utilize the Disclosures for Emergency Preparedness Decision Tool, click here.
Covered entities and business associates should also look to recent guidance issued during Hurricane Harvey for more information on how the HIPAA Privacy permits sharing of PHI in circumstances that arise during natural disasters.  https://www.hhs.gov/sites/default/files/hurricane-harvey-hipaa-bulletin.pdf
Security
The HIPAA Security Rule is not suspended during natural disasters or emergencies and specifically requires covered entities and business associates to implement strategies to protect ePHI during an emergency and assure ePHI can be accessed during and after an emergency.  https://www.hhs.gov/hipaa/for-professionals/faq/2005/is-the-security-rule-under-hipaa-suspended-during-a-public-health-emergency/index.html

 In particular, covered entities and business associates must have contingency plans that include or address the following elements: 

1) Data backup plan (required);

2) Disaster recovery plan (required);

3) Emergency mode operation plan (required); 4) testing and revision procedures (addressable); and 5) application and data criticality analysis (addressable).   

For further information, please see:

Please also view the Civil Rights Emergency Preparedness page to learn how nondiscrimination laws apply during an emergency.
 HCSI


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