By Joan M. Roediger, JD, LLM
No medical practice is immune from the challenges surrounding hiring new employees. Your office may be understaffed and need to hire an additional person. Alternatively, your practice may be faced with an unexpected employee departure or need to terminate an employee, which may necessitate the need to hire a new employee. Unfortunately, hiring a new employee can pose legal risks to your practice. With careful planning, your practice may greatly benefit.
Consider this example: you have decided to hire a new employee. Before you instruct your practice manager to place ads for the employees, stop and consider several factors. First, identify your practice’s needs. Do you really need an additional employee? Determine whether or not the employee is needed to fill a short-term need or a long-term need of the practice. If your practice has a strategic plan, dust it off and consider how this new employee fits into your strategic plan. Recognize that changes in your practice or the economy may necessitate changes in your staffing practices.
Also, before you place your first ad, reevaluate the employees that are currently working within your practice to determine whether or not everyone is working to their full potential. Consider as a cost savings measure whether or not job responsibilities can be reallocated within the practice, thereby eliminating the need for the new employee or reducing the number of hours needed to be worked by the employee, which will result in cost savings to the practice.
You should then review the existing job description for the potential new employee. Do the listed job responsibilities match the practice’s current and long-term needs? If a job description does not already exist, create one. This job description should describe in detail the job requirements and the types of tasks that will be expected of the new employee. It should define the number of hours that the employee will be expected to work per week. It should state that these hours are subject to change at your practice’s direction and that overtime may be required (if applicable) for the position. You should carefully list the qualifications necessary for the employee to perform the job. The job description will aid you in drafting your job announcements.
Once you have defined the practice’s needs and the type of person that you seek, you are ready to begin the search for the employee. Consider whether or not your practice has an employee referral program for finding new employees. An employee referral program rewards existing employees with a varying amount of money for recommending friends and acquaintances for employment with the practice. An employee referral program saves the practice time and money in alleviating the need to place advertisements. However, you need to balance this with potential problems that may occur within the practice if discipline or termination is later required of one of the employees participating in the employee referral program.
When determining where to place advertisements, consider the type of position that you are seeking to fill. Depending on the level of employee, their training and available pool of candidates, you will be able to decide where to target your search. For instance, your front desk receptionist does not require a national search, however, your new practice administrator may require you to look beyond your local area to find the right match for your practice.
There are many types of resources available for you in your job search process. Print media has been the traditional staple of medical practice recruiting. However, the common perception is that print ads are expensive. Further, the response rate is dependent on the prospective candidates reading the newspaper or journal on the exact day the practice’s ad is published.
The Internet has dramatically changed the landscape of recruiting and is increasingly becoming an important tool in reaching potential candidates. The Internet has the benefit of being an efficient and cost effective search tool, as once you have submitted the ad, it is usually promptly placed upon the appropriate web sites and available for candidates to view, instead of waiting days and possibly weeks for your print ad to be published.
If you decide to place an ad on the Internet, decide where to place the ad. See if your specialty society has online recruiting for the type of employee that you seek. It may be that your specialty society has an administrative/non-physician employee society or discussion board. This organization may have a section on the website for online recruiting. You can also look to other medical websites and medical practice management websites for placing advertisements. Further, look to non-medical websites such as www.monster.com, www.hotjobs.com, and www.careerbuilder.com for locating employees.
Before placing ads with an Internet site, see how many ads they have posted which are similar to the position you seek to fill. Ideally, you want to post your ad on a website that is known for listing similar positions. Also, use the other job listings to gauge whether or not your employment offer is competitive with the marketplace. Some websites even offer assistance in determining the appropriate pay range for a multitude of employment positions.
Regardless of the type of advertisement that you place, your advertisement should very clearly state that you are an equal opportunity employer. Your employee handbook should also have an equal opportunity employer statement which you can adapt for use in your advertisement. At a minimum, state that your practice is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, age, national origin, handicap or veteran status in the provision of services or employment. Check with your state and local laws to see if they define any additional protected classes such as sexual orientation.
Ideally, once you place the ad, the volume of responses that you receive will overwhelm you. If so, then the screening process must begin. However, if you receive an inadequate number of responses or the responses that you receive are not reflective of the position you are seeking to fill, you will need to adapt your search strategy. This may include such things as redrafting your advertisement, looking to place the advertisement in different media forms, or possibly implementing an employee referral program if your practice does not already have one.
Prior to the first job interview, make sure your practice has an up-to-date standardized job application form for the job applicants to complete. Besides such items as the applicant’s name, address and phone number, the job application should also contain an area with adequate space for the applicant to detail the applicant’s employment and work history. Further, the application should contain adequate space for the applicant’s references. It is also a good idea to include a space for how the applicant learned of the opening. This allows you to track the most effective ways of recruiting for your practice.
The job application should not include requests for information regarding the applicant’s age, marital status or health status. Be wary of pre-printed job application forms. Many commercially available forms contain legally improper requests for information.
When interviewing potential employees, you should prepare in advance a scripted list of questions that you wish to ask the potential employee. Stick to the basics, such as employment and work history and avoid comments or questions regarding the employee’s personal life. Above all, be consistent in the types of questions that you ask similar potential employees to avoid potential claims of discrimination.
An important part of the hiring process is checking potential employee’s references. In this era of employer-related litigation, do not be surprised if employers are unwilling to be candid with you regarding your potential/their former employee. If you hit a brick wall when checking references, ask the former employer “Would you hire this employee back?” and listen carefully to the tenor of the conversation to try and discern the employer’s feelings about your job candidate. Before you extend the job offer to the potential employee, verify that the employee has not been sanctioned by the OIG. You can perform this check online at www.oig.hhs.gov.
When extending the offer of employment, consider whether or not to extend the offer in writing. If you are extending the offer in writing, you need to be very cautious with the wording. The most well meaning offer letter may later be construed against you to be a contract for the new employee’s services or otherwise providing indefinite employment and benefits to the new employee. If extending the offer in writing, you should have your practice’s attorney review the offer letter to make sure that it has the appropriate language and does not pose a legal risk to the practice.
On or prior to the new employee’s first day of employment, the employee should go through an introduction process with your practice. As part of this introduction process, the new employee should complete employee-related paperwork, including the federally required I-9 form. Employees should be given the information regarding the benefits they will be eligible to receive as an employee. Employees should also be given the practice’s employee manual and be asked to sign the verification that they have received the employee manual. The employee should also receive your compliance and HIPAA manuals and sign verifications for those manuals as well. Don’t overlook the obligations of your compliance and HIPAA manuals. These manuals may require new employee training.
The hiring process is not an easy one. It is necessary to have realistic expectations and recognize that the positions you seek to fill will take time. Proper planning and research will aid in your search and hopefully yield favorable results.
Joan M. Roediger, JD, LLM is a partner with the law firm Obermayer Rebmann Maxwell & Hippel LLP and is a Member of Obermayer’s Health Law Department.