Barring teachers: the new vetting arrangements

This article forms the second part of an examination of the law relating to the vetting and barring system for teachers and those who have access to children. It was seen in the first article (Gillespie, 2006, Education and the Law, 18(1), 19-30) that controversy had erupted when it was disclosed that some teachers were allowed to remain in the teaching profession even after being cautioned for child sex offences. The government sought to review the operation of List 99 (the name given to the list of those barred from teaching) and in the longer term wished to completely rethink its approach to the vetting and barring system. This article critiques these proposals and assesses whether they will be any more effective at protecting vulnerable members of society.     

Whistleblower protection for nurses and other health care professionals

Because most employees in the United States, including health care professionals, are employed "at will" (which means their employment can be terminated for any reason or no reason, as long as the reason isn't illegal), retaliatory actions by employers toward employees who speak out (i.e., blow the whistle) are not uncommon. Additionally, the law protecting whistleblowing employees varies greatly depending on the state where the employee works or if he or she works for the federal government. This article examines when and under what conditions a nurse or other health care professional may be protected from having an adverse employment action taken against him or her for reporting such issues as patient safety violations or health care fraud. The authors offer issues a nurse or other health care professional should consider before making the decision to blow the whistle. Finally, the authors also discuss the remedies such as reinstatement, back pay, or other compensatory mechanisms that may be available to employees terminated for reporting wrongdoing.     

Serving two masters: the interaction between Family and Medical Leave Acts and the ADA

The complex interaction between family leave acts and the new Americans with Disabilities Act (ADA) is just coming to light as employers begin to analyze how to comply with both laws. Specifically, the ADA implicates the procedures set forth in most family leave acts for verifying an employee's need for a leave through mandatory medical examinations and doctor's certificates. Many employees who are entitled to a leave of absence under state law are defined as "disabled" under the ADA. The ADA protects these employees with disabilities by regulating medical examinations and inquiries, and protecting the confidentiality of information obtained in such inquiries. This article offers some practical guidance for employers in providing leaves of absence under state family leave acts, while verifying the need for leaves in compliance with the ADA.     

Occupational exposure to bloodborne pathogens; needlestick and other sharps injuries; final rule. Occupational Safety and Health Administration (OSHA), Department of Labor. Final rule; request for comment on the Information Collection (Paperwork) Requirements

The Occupational Safety and Health Administration is revising the Bloodborne Pathogens standard in conformance with the requirements of the Needlestick Safety and Prevention Act. This Act directs OSHA to revise the Bloodborne Pathogens standard to include new examples in the definition of engineering controls along with two new definitions; to require that Exposure Control Plans reflect how employers implement new developments in control technology; to require employers to solicit input from employees responsible for direct patient care in the identification, evaluation, and selection of engineering and work practice controls; and to require certain employers to establish and maintain a log of percutaneous injuries from contaminated sharps.     

Limiting your risks in the new Russian roulette--discharging employees

Time was when an employer had the freedom to discharge employees for a good reason, a bad reason, or no reason at all. As more and more employees bring claims of "wrongful discharge" to courts, however, employers' discretion to terminate employees at will is being restricted. This is particularly so where cases are presented before juries, which tend to be more sympathetic to the employee's plight. In the following article, the author examines the circumstances under which courts are now finding employers responsible for wrongful discharge. He also discusses ways in which employers can limit their exposure to wrongful discharge claims.     

Biological monitoring: the employer's dilemma

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers' economic stability. Often these hazards are documented and dealth with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses. This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute a monitoring process that takes full advantage of technological developments in medical care. The Article suggests an approach employers may take until some of the disincentives surrounding the implementation of monitoring are removed.     

Employee assistance programs: an employer's guide to emerging liability issues

Increasing numbers of employers are implementing employee assistance programs (EAPs) designed to assist employees with personal issues that affect their work performance. Studies show that EAPs can dramatically increase employee productivity, but the benefits from EAPs have been accompanied by a less welcome development: lawsuits filed against employers by employees who allege that they suffered harm in the course of obtaining services through their employers' EAPs. Although the potential for liability will always exist, the employer that adheres to certain guidelines will be able to minimize its risk and make its EAP well worth the investment.     

Medicare program; Medicare secondary payer data match--HCFA. Notice

This notice provides employers with information about the Medicare Secondary Payer (MSP) Data Match Program that involves HCFA, the Internal Revenue Service, and the Social Security Administration. The Data Match was provided for by Section 6202 of the Omnibus Budget Reconciliation Act of 1989. Under this provision, employers who receive data match questionnaires from HCFA for those employees who are Medicare beneficiaries or the spouse of a Medicare beneficiary must report certain health plan coverage information. The information will be used to determine whether Medicare payments for these beneficiaries should be or should have been primary or secondary to any payment that should be or should have been made by an employer group health plan (GHP).     

FAMILY CARE COMMITMENT DISCRIMINATION: BRIDGING THE GAP BETWEEN WORK AND FAMILY

This Note discusses the pervasive problem of employment discrimination based on family responsibilities, or family care commitment discrimination. Employees with family care commitments often find themselves being pulled in opposing directions—between work and family. When an employee is forced to choose work, for financial reasons, over family, his or her family ends up suffering. The current state and federal statutes aimed at employment discrimination are insufficient to deal with family care commitment discrimination. This Note proposes a change to the current legislation and explains how this change will protect employees and families, while causing employers to internalize externalities by adopting more family‐friendly policies.     

The summer of union discontent portends a season of employer discomfort

The recent splintering of the unions of the Change to Win Coalition from the AFL-CIO has received a great deal of attention in the media. Few have watched these developments with greater interest than employers in a broad variety of employment settings. As union prospects in the manufacturing industries have dwindled, employers in the service industries such as healthcare have become especially sensitive to changes in the labor movement and the opportunities to organize. This Article explores the philosophical differences responsible for the AFL-CIO schism, the likely effect this division will have on union organizing efforts in the healthcare industry, and the negative consequences these organizing efforts could have on employee free choice within the industry. In addition, this Article outlines some of the steps healthcare employers can take to protect their ability to communicate freely and directly with their employees.     

雇主不当解雇雇员的赔偿责任

根据国际劳工组织相关公约和许多国家的立法，雇主解雇雇员必须具备正当事由并遵守正当程序，雇主缺乏正当事由或违反正当程序将承担不当解雇的责任。雇主不当解雇雇员责任的确定需考虑雇员的工资收入、工龄、剩余工作年限、找到类似工作的可能性、寻找其他工作的费用等复杂因素。目前我国《劳动合同法》的相关规则过于简陋，应该借鉴国外的经验，建立既具有可操作性又能反映雇员实际损失的赔偿规则。     

Health care financing among the elderly: who really pays the bills?

This paper investigates the issue of who pays the health care bills of the elderly by considering the types of subsidized health insurance protection enjoyed by the noninstitutionalized elderly and the way that increased Medicare cost-sharing efforts in the 1980s are affecting those without additional health insurance subsidies. In making this examination we estimate the out-of-pocket health care expenditures of the elderly either directly or as nonsubsidized medigap premiums by income level, taking into account four types of health insurance subsidies received by elderly persons: Medicare, Medicaid, Veterans Administration health care, and subsidized health insurance from either current or former employers. We find that increased cost sharing is likely to fall most heavily on those elderly least likely to afford it: the poor and near-poor elderly who have only Medicare as a health insurance subsidy, particularly those who are older and sicker and who use Medicare services more heavily. These persons are caught between well-intentioned federal cost-cutting efforts and the often confusing panoply of health insurance programs for the aged, and they will bear an inequitably large portion of any future Medicare cost-sharing initiatives.     

Changes to Medicare Secondary Payer (MSP) provisions--HCFA. Notice

This notice describes how subsections 6202(b), (c), and (e) of the Omnibus Budget Reconciliation Act of 1989 (Pub. L. 101-239) affect the Medicare Program These subsections: Create uniform rules for computing Medicare secondary payments for all MSP situations; Exempt from the MSP provisions services performed for a religious order by members of the order who take a vow of poverty; Prohibit group health plans (GHPs) from "taking into account" that an individual is entitled to Medicare when Medicare is the secondary payer; Prohibit GHPs from differentiating, in the services they provide, between individuals with end-stage renal disease (ESRD) and other individuals covered by the plan; Require that GHPs of employers of 20 or more employees provide the same benefits under the same conditions to employees age 65 or older and employees' spouses age 65 or older as they provide to employees and spouses under age 65; Impose a 25 percent excise tax on contributions that employers and employee organizations make to nonconforming GHPs, i.e., plans that do not comply with the MSP provisions; Extend to all MSP situations the Federal Government's right to take legal action to collect double damages if a primary plan fails to comply with the Medicare secondary payment requirements of the law; Make the provisions for special enrollment periods for the disabled parallel to those in effect for the working aged. The statutory changes made by subsections 6202(b), (c), and (e) can be put into effect without first issuing regulations because it is clear on the face of the statute what the Congress intended.(ABSTRACT TRUNCATED AT 250 WORDS)     

Caution ahead: teachers,vetting and the law

At the beginning of 2006 the media reported instances where people who had been convicted of sexual offences against children were permitted to work in schools. A list of unsuitable people (known as ‘List 99’) has existed for over 80 years and yet the system appears to have broken down. In this article I seek to examine some of the issues involved in the operation of List 99, including the suggestion that those who are cautioned for committing offences against children should equally be unable to work with children. A second article will then critically analyse the changes proposed by the government to the operation of List 99 and the vetting of those who wish to work with children.     

Systematic construction of lawfulness of processing employees’ personal information under China's personal information protection law

With the rapid development and widespread use of digital technologies in the workplace in China, employers’ right to monitor and direct employees has often been abused, raising a number of disputes over the infringement of employees’ right to privacy in terms of their personal information. China must urgently develop an appropriate approach to balancing these two conflicting interests. However, there is currently no coherent and uniform regime governing the protection of employees’ personal information in China. The primary legal source on which employers can rely is the latest version of the Chinese Personal Information Protection Law (PIPL), which offers three lawful bases for employers’ processing of their employees’ personal information. These bases are employee consent; “necessity for the conclusion or performance of an employment contract”; and “necessity for conducting human resource management.” Concerns have been expressed regarding the reasonableness and effectiveness of the three lawful bases under the PIPL. First, it is both legally and practically problematic for the PIPL to rely so heavily on employee consent. Second, it is unclear whether the other two lawful bases relieve employers of the duty of notification and, if so, how to safeguard employees’ right to know. Third, the ambiguous standard of “necessity” requires clarification.This article argues that China should adopt many elements from EU law, while US law should be only followed in relation to the standard of “necessity”. In relation to employee consent, the EU approach is preferable to the US approach. As the EU approach does not generally regard employees’ consent as a lawful basis for the processing of their information and uses the other two lawful bases as alternatives to employee consent, this approach better reflects the customary practices of employee subordination and employer control in China. In contrast, US law deems employee consent to be an absolute general defense to the tort of privacy violation and adopts an employer favoritism approach to balancing these two conflicting interests, which is not appropriate in the Chinese context. In relation to the scope of necessity, three tests taken from the EU and US approaches should be considered by the Chinese courts. In addition, when processing personal information based on the other two lawful bases, employers should safeguard employees’ right to know through collective contracts concluded with labor unions or employee representatives under the Chinese Labor Contract Law, which would effectively address employers’ arbitrariness. Ultimately, these changes would produce a better balance between employees’ right to privacy in terms of their personal information and employers’ need to subordinate and control employees.     

Effective handling of health-related leaves of absence

This article will address the legal obligations of employers in non-union settings toward employees who request pregnancy leave, parental or medical leave, workers' compensation leave, and other forms of disability leave. Specifically, this article will address the legal standards set forth under the Pregnancy Discrimination Act, various state pregnancy and family leave acts, workers' compensation retaliatory discharge authority, and the Americans With Disabilities Act of 1990. In addition, this article will provide practical guidance for employers in formulating effective leave policies that provide the maximum amount of operational flexibility while at the same time minimizing the risk of costly and excessive litigation.     

Limitations on an employer's right to discipline and discharge employees

An employer's prerogative to discipline and discharge its employees has been substantially infringed by the courts, state legislatures, Congress, and governmental agencies. In its recent Materials Research decision, the National Labor Relations Board has expanded the Weingarten principle by limiting the employer's ability to conduct investigatory and disciplinary interviews of nonunion employees. In addition, state courts and legislatures have begun to scrutinize the grounds for an employer's discharge of an employee, and Congress has statutorily prohibited the discipline or discharge of employees who "blow the whistle" on their employers under certain circumstances. This article will evaluate recent developments in this area of law and explore their impact on an employer's right to discipline and discharge its employees.     

Why requiring employers to provide health insurance is a bad idea

There is mounting pressure at the federal (and state) level to require employers to provide health insurance to their employees. However, two quite different groups of workers could be affected by such a mandate. In addition, there are at least five major problems with requiring employers to provide health insurance. Chief among these is the further fracturing of the insurance market, so that the spreading of risk will be reduced, and only the young and healthy will be offered insurance at relatively low premiums. We should be designing a health insurance system that has both universal coverage and a cost-containment structure. Toward this end, we need to tackle issues that transcend alternative methods of financing health care in the U.S.     

Respiratory protection--OSHA. Final rule; request for comment on paperwork requirements

This final standard, which replaces the respiratory protection standards adopted by OSHA in 1971 (29 CFR 1910.134 and 29 CFR 1926.103), applies to general industry, construction, shipyard, longshoring, and marine terminal workplaces. The standard requires employers to establish or maintain a respiratory protection program to protect their respirator-wearing employees. The standard contains requirements for program administration; worksite-specific procedures; respiratory selection; employee training; fit testing; medical evaluation; respiratory use; respirator cleaning, maintenance, and repair; and other provisions. The final standard also simplifies respirator requirements for employers by deleting respiratory provisions in other OSHA health standards that duplicate those in the final standard and revising other respirator-related provisions to make them consistent. In addition, the standard addresses the use of respirators in Immediately Dangerous to Life or Health (IDLH) atmospheres, including interior structural firefighting. During interior structural firefighting (an IDLH atmosphere by definition), self-contained breathing apparatus is required, and two firefighters must be on standby to provide assistance or perform rescue when two firefighters are inside the burning building. Based on the record in this rulemaking and the Agency's own experience in enforcing its prior respiratory protection standards, OSHA has concluded that compliance with the final rule will assist employers in protecting the health of employees exposed in the course of their work to airborne contaminants, physical hazards, and biological agents, and that the standard is therefore necessary and appropriate. The final respiratory protection standard covers an estimated 5 million respirator wearers working in an estimated 1.3 million workplaces in the covered sectors. OSHA's benefits analysis predicts that the standard will prevent many deaths and illnesses among respirator-wearing employees every year by protecting them from exposure to acute and chronic health hazards. OSHA estimates that compliance with this standard will avert hundreds of deaths and thousands of illnesses annually. The annual costs of the standard are estimated to be $111 million, or an average of $22 per covered employee per year.