I Think I was Fired for Invoking Safe Harbour

ZASHAGALKA, RN · May 24, 2006

Get a lawyer, get a new job; wait for a huge settlement w/ back pay.

I assume you are in Texas; Safe Harbor is a Texas BNE thing. The BNE specifically prohibits retaliation for declaring safe harbor.

If, as you say, the hospital administrators NEVER heard of safe harbor, then it hasn't been used before. If they terminated the FIRST employee to use it, in the SAME week that it was first used, I think a lawyer can convince them that a few hundred grand in your pocket is MUCH cheaper than a jury trial.

These are the kinds of cases lawyers LOVE. You should be able to get one for free that works for his cut.

Texas might be a 'right to work' state, but that doesn't mean they can ignore state 'whistleblower' laws, of which, Safe Harbor is one.

My question: Safe Harbor is nurse initiated peer review (You are, in effect, requesting a peer review of the hospital for its staffing practices). Did you just say 'safe harbor' - or did you download the paperwork from BNE and submit it to your employer; keeping a copy for yourself?

If you didn't follow the paperwork; it might be difficult to establish that you actually declared 'safe harbor' - with the effect from that cause being termination.

As an aside, before safe harbor, my local hospitals didn't have standing peer review committees, but they do now. It's hard to conduct 'peer review' without a peer review committee. It sounds like you were maybe in a LTC environment; that would be even more difficult, but not impossible.

My first advice is to thoroughly review safe harbor on the Texas BNE site.

I might even suggest that an attorney pay them a call on your behalf and suggest to THEM that immediately rehiring you might save them tons of grief, in the long run.

~faith

Timothy.

anne74 · May 24, 2006

Wow - that's a bunch of crap! So much for advocating for your patients! I'm not familiar with any of the legal stuff, but is sounds a little fishy to me. You should talk to a lawyer. Good luck!

TheCommuter, BSN, RN · May 25, 2006

Documentation is everything. As the old saying goes, "It didn't happen if it wasn't documented."

As I am gathering from the original poster's unfortunate story, she invoked the Safe Harbor Act verbally but did not get it documented in writing with the appropriate paperwork and/or forms. I will also boldly conjecture that she did not document her invocation of the Safe Harbor Act in the nurses' notes. If she did not document in writing that she invoked the Safe Harbor Act, she will have a difficult time bringing legal action against her employer because the whole matter will become her word against her former employer's.

Lady Ravenwolf · May 25, 2006

Thanks for the advice Zash! I only verbally stated I was invoking safe harbour and then downloaded then form and researched how I was to proceed. Last night I spoke with a nurse supervisor about everything going on and if she was willing to come in and do the required assessment and she was pleased with that. She also knew I was invoking safe harbour. Today Admin agreed with my proposed plan to take care of all the assessments required so because they agreed I felt it should stop here. Not feeling my job at threat at this point because I came up with a solution I didn't fill out the paper work. I thought we had resolved it before we got to that point! boy did they sucker me! Weekend supervisor said she would give testimony and such concerning this. Do you still think I may have a case?

lovemyjob · May 25, 2006

you might also want to call your state labor board.

ZASHAGALKA, RN · May 25, 2006

It comes down to this:

1. Can you substantiate that you declared 'safe harbor'.

2. Can you substantiate that you were an employee in good standing prior to declaring 'safe harbor'.

You need to consult an atty. Most atty will hear the outline of your case for free or at a set rate.

It might be good if an employee will say that you declared it, but that's easy to say NOW. What happens after the risk manager discusses it with him/her?

~faith,

Timothy.

pickledpepperRN · May 25, 2006

Too bad there are so many hoops to jump through.

At my hospital our patient care committee makes the reports to a government agency. It is in the minutes and all who attended become whistleblowers.

Here is the language from the California Code:

1278.5. (a) The Legislature finds and declares that it is the

public policy of the State of California to encourage patients,

nurses, and other health care workers to notify government entities

of suspected unsafe patient care and conditions. The Legislature

encourages this reporting in order to protect patients and in order

to assist those government entities charged with ensuring that health

care is safe.

The Legislature finds and declares that whistleblower

protections apply primarily to issues relating to the care,

services, and conditions of a facility and are not intended to

conflict with existing provisions in state and federal law relating

to employee and employer relations.

(b) (1) No health facility shall discriminate or retaliate in any

manner against any patient or employee of the health facility because

that patient or employee, or any other person, has presented a

grievance or complaint, or has initiated or cooperated in any

investigation or proceeding of any governmental entity, relating to

the care, services, or conditions of that facility.

(2) A health facility that violates this section shall be subject

to a civil penalty of not more than twenty-five thousand dollars

($25,000). The civil penalty shall be assessed and recovered through

the same administrative process set forth in Chapter 2.4 (commencing

with Section 1417) for long-term health care facilities…

… (d) Any discriminatory treatment of an employee who has presented a grievance or complaint, or has initiated, participated, or

cooperated in any investigation or proceeding of any governmental

entity as specified in subdivision (b), if the health facility had

knowledge of the employee's initiation, participation, or

cooperation, shall raise a rebuttable presumption that the

discriminatory action was taken by the health facility in

retaliation, if the discriminatory action occurs within 120 days of

the filing of the grievance or complaint. For purposes of this

section, "discriminatory treatment of an employee" shall include

discharge, demotion, suspension, any other unfavorable changes in the

terms or conditions of employment, or the threat of any of these

actions.

presumptions affecting the burden of producing evidence as provided

in Section 603 of the Evidence Code.

(f) Any person who willfully violates this section is guilty of a

misdemeanor punishable by a fine of not more than twenty thousand

dollars ($20,000).

(g) An employee who has been discriminated against in employment

pursuant to this section shall be entitled to reinstatement,

reimbursement for lost wages and work benefits caused by the acts of

the employer, and the legal costs associated with pursuing the case.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=60003923487+10+0+0&WAISaction=retrieve

meownsmile, BSN, RN · May 26, 2006

Sorry, it sounds like you were terminated because you threatened to use the safe harbor act, of which i dont know much about. However, it sounds as if it is to bad that you didnt go ahead with the paperwork. You scared them enough they booted you before you could get the chance to complete any paperwork following your meeting with the admin. Really stinks.

Lady Ravenwolf · May 26, 2006

I verbally told the DON and Admin of "I am invoking safe harbour" even though neither knew what that was I think I am covered. And later the admin had the papers on his desk he knows what it is and I think I am covered.

ZASHAGALKA, RN · May 26, 2006

Make an appt w/ an atty.

Any potential case is going to depend on getting the facts down soon. Only an atty can set that into motion for you.

~faith,

Timothy.

kukukajoo, LPN · May 26, 2006

They can't fire you months later over attendance! Register for unemployment, see an attorney and the state lobor board. I am sure they will all see a pattern and their excuses flimsy on reason for termination!

Good luck!