Labor / Employment, On The Job

When Doing Your Job Becomes A Real (Legal) Problem

And here are three steps employers can take when faced with such situations.

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(Photo by George Frey/Getty Images)

Over the holiday weekend, I came across the story of Alex Wubbels, a nurse in Salt Lake City who was “arrested” by an officer because she followed hospital policy regarding a blood draw for law enforcement. She explained to Detective Jeff Payne that it is against hospital policy to draw blood from an unconscious patient without a warrant.

It seems every week we are treated to some new debate about police brutality, with the typical lines drawn by people who believe if you comply you won’t be hurt, and those who think that the police should be required to behave better. I won’t bother with this debate. I have plenty of personal feelings, but none of them is related to employment law.

No, I want to talk about when your job places you in an unfortunate situation with law enforcement.

Usually, when we hear about police brutality and an employee, it is usually an employee who made a call that started the entire sequence of events. For that employee, calling the police is rarely a part of their job. It is very, very rare for employees to finds themselves in the cross hairs of law enforcement for performing their jobs, and even more rare when those cross hairs are for issues over which they have no discretion.

Hospitals are special places, due to privacy concerns. Violations of HIPAA don’t just come with large fines; there can be criminal penalties as well. Nurses, like lawyers and a few other professions, are state regulated. Having a criminal record for violating a requirement of the profession cannot be good.

It’s Not Just Lawyers

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Before Alex Wubbels was arrested, generally the only people getting arrested as part of their jobs were criminal defense attorneys. And because society doesn’t understand how important they are to preserving law and order, these victims receive very little sympathy from the general public. People don’t like attorneys very much.

But people like nurses, and generally for the right reasons. People really like Olympians (like Wubbel, a former Olympic skier). People identify with people who are just doing what they are told and following the rules. These police officers likely picked the most sympathetic victim.

I don’t know what else Wubbels could have done to avoid being hauled off in handcuffs. She tried, clearly, within the confines of her profession. But I am a little glad that for once it wasn’t an attorney.

Practical Takeaways

As an employment lawyer, I think that the hospital personnel and administration handled the situation as best they could when Wubbels had the unfortunate experience with an officer who couldn’t be told no. I think they are doing the right thing now, changing their policy so that they do all they can to keep other nurses from being accosted while doing their jobs. This is a difficult issue to address. The police constantly interact with medical professionals in just the situation Wubbels found herself in. Alex Wubbles has been a nurse at this hospital since 2009; it’s hard to believe she had no idea what happens for a blood draw. What makes this unique for right now?

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There is something in the water this year, at least from my experience as an employment lawyer. I’ve had noose situations, people insisting on wearing confederate flag items regardless of employer dress codes, and incredibly offensive communication reported that was admitted as true. I’ve had three years worth of extreme behavior in one year, and it’s September. I don’t know what is motivating the crazy, but it’s there. So I think that preparation for the crazy may be in order. If you know that your employees are falling victim to the crazy, either because of a function of their profession (you are a hospital with an active emergency department) or by virtue of diversity, you may want to think about preventative measures. Using the University of Utah Hospital’s new policy as an example, maybe you should consider a few changes:

  1. Acknowledge the problem. If you have had a spate of nooses, or if your employee is putting out manifestos, there is a problem. If your employee is being arrested in your parking lot, and causing public uproar, you have a problem. Something about what you do is going wrong. And you need to fix it. For the University of Utah Hospital, they identified the flaw in the level of access that police officers had to the treatment areas. For your company, it may be a failure of training or a lack of understanding regarding possible discipline for putting a noose in your co-worker’s locker. Identify the problem and start there.
  2. Train people for the change. The hospital created a new policy one day after the incident. They knew it was bad, and didn’t bury their heads in the sand. But they didn’t roll out the changes immediately. Instead, they first developed the policy, trained for the policy, and made sure everyone understood the policy. Then they likely informed the police department, and put it into place, about a month later. With the hospital’s policy, they didn’t just treat the single issue. They saw the big picture of what having a nurse arrested and sitting in a police car for three hours while police attempted to bully her into violating policy means not just for her, but for the entire hospital. Hospitals are staffed leanly. That means that dozens of patients had compromised care while this officer enjoyed exercising his authority. Also, the nurse should never have been the one delivering the news. She is supposed to be caring for patients; there is a supervisor who should be discussing policy issues.
  3. Own the situation. In addition to rolling out a policy both internally and to the press, the hospital has stated, in no uncertain terms, that it supports Alex Wubbels. When something awful happens to an employee at work through no fault of their own, an employer should stand behind them. If it involves bad behavior by an employee, the employer needs to follow their policy. If it involves bad behavior by a third party, an employer may need to make up a new policy. But the goal really should be to treat employees respectfully and to make the workplace a good place to work.

I sincerely hope we don’t see any more nurses forcibly arrested for following valid hospital policy and Supreme Court precedent. I hope that we don’t see any attorneys either. While there has definitely been something in the water, I am hopeful that the bad press will cause people to think twice before they do something unfortunate to someone who is only trying to do their job.

Earlier: Issue Spotter: How Many Cops Need To Be Fired Based On These Facts?

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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