Readers often ask how to obtain a copy of the personnel record kept by their employer. Because the ability to do this varies from state to state, it is always a good idea to have a copy of your record, especially if you leave your position, and it is important to know what is in your file when you seek new employment.
Additionally, if you have been disciplined for a breach of the employer’s policies and/or procedures, knowing exactly what the employer has recorded is necessary to successfully grieve the disciplinary action. Filing a grievance is necessary to provide a permanent record of your perspective on the incident, which is the basis of a grievance. Most employer grievance procedures require an employee to give such a statement.
In the following case, a nurse’s account of what occurred surrounding the death of a nursing home resident who fell illustrates the importance of having the nurse’s written statement in her personnel file. (Bennett v. SSC Palisade Operating Company, LLC, Civil Action No. 14-cv-00923-WJM-KLM, United States District Court, D. Colorado, August 1, 2014.)
The husband of the deceased resident filed a wrongful death action against the nursing home. He also filed a wide-ranging motion asking for all of the personnel files of “agents and employees” of the home who were involved in the care of the patient, including, but not limited to “records or documents in any way discussing or involving termination or discipline or other facility action taken with respect to any involved employees and/or the reasons for same.”
After the nursing home’s attorney raised objections, the motion was changed to “disciplinary records of identified employees.”
“…if you have been disciplined for a breach of the employer’s policies and/or procedures, knowing exactly what the employer has recorded is necessary to successfully grieve the disciplinary action.”
One such employee was nurse LG, whose personnel file contained a two-page disciplinary report that presumably might reveal a supervisor found fault with LG and any relevant facts LG might have admitted. LG was no longer employed by the nursing home and many attempts to reach her were unsuccessful.
The nursing home objected to the motion that asked for personnel records on three grounds: The request violated the employees’ constitutional rights to privacy and confidentiality (based on applicable case law); the information could be obtained in a less intrusive manner; and state statutes regarding quality management and federal quality assurance privilege protected this information from discovery.
The court did an en camera (in the judge’s chambers) review of the two-page document. The court first cited applicable case law and then said in this case there was a compelling need for the information requested by the deceased’s husband. To begin with, the patient could not speak for herself about what had happened, due to her death. Moreover, since LG was not located, using her statement in her personnel record would be the least intrusive manner in which to obtain the information.
As to the privacy argument, the court held that “neither the United States Supreme Court nor the 10th Circuit Court of Appeals [whose decisions applied to this court] has recognized a medical peer review privilege under federal common law.” Therefore, the privacy argument could not be applied to this case.
Regarding the federal quality assurance privilege argument, the court pointed out the two-page document’s title was “Disciplinary Action Record” and was not an incident report or a quality assurance report. Furthermore, the Disciplinary Action Record contained no reference to or mention of a quality assurance program.
For these reasons, the court ordered the nursing home to hand over the two-page Disciplinary Action Report to the husband’s attorney.
This case illustrates many points to be aware of in your nursing practice. The first is that the contents of your personnel file may be utilized in any litigation, including a board of nursing disciplinary proceeding. Unless there is an applicable law — state or federal — that prohibits the disclosure of information contained in a personnel record, a court may order your file to be released to the opposing party, particularly if the contents are relevant or a compelling need exists for its disclosure.
Again, if you grieve a disciplinary action, be certain to use the employer’s adopted form for the grievance. In addition, you should file an incident report that reflects the same information you placed in the disciplinary form.
Because your record may be released in a subsequent judicial proceeding, it is essential to be honest and accurate and to include a complete statement about what you are grieving. It would be wise to consult with a nurse attorney or general practice attorney to obtain specific advice about how to prepare your statement.
CE674: Stopping Abuse and Neglect in Nursing Homes (1.5 contact hrs)
By 2060, 98 million Americans will be age 65 or older. The future increase in the aging population suggests that more elderly and disabled people will stay in a nursing home at some point in their lives, making it all the more important for nursing homes to be safe places for residents. Congressional investigators found that one in three U.S. nursing homes was cited for an abuse violation, and abuse in 256 nursing homes across the country was so serious that it put elderly lives in jeopardy or actually resulted in death. Factors contributing to abuse and ways to identify, respond to and prevent abuse are discussed.
CE302-60: Nursing Home Inspections
(1 contact hr)
Nursing home surveys aim to ensure that nursing homes meet national standards of care. The process is detailed in federal regulations. This module provides an overview of the survey process and explains why facilities receive the scores they do. It offers examples of deficiencies and the corrective action needed.