Sunday, September 11, 2016

Employee suspended and forgotten- Arbitrator orders reinstatement

Grievant was employed as an Investigator by the State of New York-Office of Medicaid Inspector General. In October of 2012 he was suspected of emailing to his personal email address, and to the Comptroller of Albany County, files containing sensitive information, including personally identifiable information and health data. The Office's First Deputy performed a search of emails sent from grievant's computer and confirmed that emails were sent to an unencrypted account and to a person not authorized to receive the data. Based on this information grievant was suspended with pay and escorted from the building. According to the arbitrator there was some question concerning whether grievant was informed of the charges against him and it was "unclear" if any further investigation was conducted between October 19, 2012 and April of 2015.

On April 24, 2015 (after an inquiry by grievant's attorney to the Attorney General concerning his status) grievant was interviewed about the transmission of information protected by HIPAA sent to himself and the Comptroller in 2012. Two months later, the Office issued a Notice of Discipline asserting that the transmission of these emails constituted misconduct and converted his suspension to unpaid status. His union (Public Employees Federation) demanded arbitration, and the case was submitted to Arbitrator Ira Lobel for resolution.

Arbitrator Lobel agreed with the State that the one year limitation on the imposition of discipline did not apply because the matter fell within the contract’s exception for conduct which might constitute a crime.

Nevertheless he found that the State had simply waited too long to impose discipline:

In this case, OMIG knew about the alleged misconduct in October, 2012, when it placed [grievant] on his paid leave. It did nothing to further investigate; its referral to the appropriate State or Federal agencies was minimal at best. Based on the testimony it appears OMIG simply placed [grievant] on leave and forgot about him. When it filed the NOD, it was over two and a half years after the initial suspension. This is simply too long a period to keep any employee in an uncertain situation, with no knowledge of the charges against him. Even though [grievant] was on a paid suspension, he had legitimate concerns regarding his status that an employer should be obligated to address.

While he considered grievant’s conduct “problematic” and a technical violation of HIPAA rules. Arbitrator Lobel dismissed the charges against grievant as untimely.

Arbitrator Lobel's award can be found here.

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