Healthcare Employment Hazard: Limits to Enduring Patient Harassment

Employers have a duty under Title VII to take reasonable steps to protect employees from abusive behavior—even when the harasser is not a fellow employee. When the harasser is a patient who cannot properly control their behavior, a healthcare worker charged with that patient’s care may have to put up with more than s/he would from a coworker. Still, there are limits, and healthcare employers cannot simply chalk up the harassment to the nature of the workplace. A recent 5th Circuit case illustrates this challenge. In Gardner v. CLC of Pascagoula, LLC, an assisted living facility took several missteps. The facility knew that an elderly male resident had dementia, mental illness, TBI, and a personality disorder, and that he aggressively groped female employees and asked them for sexual acts. The facility had the resident undergo psychiatric evaluation, but allowed him to return. When one CNA complained, her supervisor laughed and told her to “put [her] big girl panties on and go back to work.” The resident then punched the CNA repeatedly, putting her out of work for three months. When she returned, the CNA refused to be assigned to care for the resident, and the facility fired her primarily for that “insubordination.” The facility’s actions—and inactions—allowed the CNA’s Title VII claims of a hostile work environment and retaliation to proceed to jury trial. What should the facility have done differently? At minimum, take the complaint seriously, investigate, think twice before terminating the CNA, and consider remedial measures: for example, a transfer of the resident or the CNA, medication, or requiring two or more caregivers at all times. Ultimately, proper training for managers on this issue might have prevented a lawsuit. 

If you have questions about how to comply with Title VII in healthcare, or other employment issues, please contact Nicole Gardner at Nicole@GardnerSkelton.com for assistance.    

Unclaimed Property: Exciting to Find, Expensive to Miss

An important, but frequently unaccounted for, area of commercial state tax law is properly handling “unclaimed property.” Businesses are responsible for following specific procedures concerning the protection of third-party property in their possession. From a consumer’s perspective (and occasionally another business), it is an exciting endeavor to search the various “unclaimed property” websites ( www.nccash.com , www.missingmoney.com ) in hopes of finding loot from an old bank account or dearly departed rich relative. These websites and programs connect owners with lost property, but they generally do not pull back the curtain to show how the magic happens. And with magic, there are always potentially negative side effects.

North Carolina regulates its unclaimed property program through the State Treasurer. The program details what is supposed to happen when one party possesses the property of another, and the property goes unclaimed. The types of property generally at issue are bank accounts, stocks, wages, safe deposit box contents, etc. (There was an interesting case in New York involving unused tickets to the concert Elvis was scheduled to play before he passed away.) These laws are rooted in consumer protection (reuniting owners with their property) and anti-windfall (allowing public use of the property rather than use by whoever possesses it). The laws apply to those persons who possess another’s abandoned property, and owe an obligation to that owner (the law refers to these persons as a "Holder").

A Holder of abandoned property must identify properties that should be reported to the State, attempt to locate the owners, prepare and submit a report, and remit the funds that are due to the State. There is also a priority schedule when other states are involved. You would be surprised at how much money is generated for states through these programs and how competitive things can get. One of Delaware’s largest sources of revenue (several hundreds of millions of dollars) is its unclaimed property fund. North Carolina earned over $60 million in 2015-2016, which funded public university student scholarships.

To protect property owners and raise public revenue, compliance audits of the program are quite aggressive. The Holder must maintain specific records about the owner and the property. Certain records must be kept for ten years (related to reports filed before mid-July 2012), and others for five years (for reports after that date). If these records do not exist, or are incomplete, an auditor may “fill in the blanks” using error rates and averaging to estimate liability. Those estimates could be higher than what reality may have been. If the Holder has not paid the proper funds to the State, that will generate financial penalties, including punitive assessments and interest. Not an ideal situation.

As a property owner, it is thrilling to find some extra coin through these programs. As a Holder, it is a daunting responsibility. It is well worth reviewing your company's policies and procedures to make sure you are helping create the magic, and not paying unnecessary penalties.

Fred Parker is available to assist with tax and corporate matters, and can be reached at Fred@GardnerSkelton.com.