By Joan M. Roediger, JD, LLM
In every medical practice, challenges in personnel management take up a significant amount of the practice’s administrative time. Practices are repeatedly confronted with problem employees and must address how to appropriately discipline employees. By starting with routine evaluations, problem behavior can hopefully be identified early on and corrected. When necessary, discipline may be implemented, up to and including termination of employment. Implementing uniform practices when managing your employees will likely improve the overall efficiency of your practice, while reducing your legal exposure.
An important part of the discipline process is not discipline at all. It is the routine evaluations that you should be periodically performing on your employees. At a minimum, you should be performing evaluations on all new employees prior to the end of their probationary period of employment! Additionally, you should have yearly evaluations for all employees. The evaluations are the key to promotions, demotions, raises and firing of employees.
The routine evaluation should assess the employee’s understanding of the requirements of their position, the quality of the work performed by the employee and the employee’s interactions with patients and other staff members. The employee’s reliability should also be assessed, including their attendance record, punctuality and dependability. All employees should be evaluated with a standard evaluation form, which is suitable to their position within the practice. One of the goals of employee evaluations is to identify any problem areas and communicate to the employee what is expected of them and what corrective actions should be taken to improve their performance. Your practice should keep accurate and contemporaneous records of the employee’s evaluations to defend or support the practice’s actions in a particular employment related matter.
At times, it may be necessary to discipline the employees of your practice. It may be something simple, such as the employee showing up to work routinely late, or it may be some serious infraction committed by the employee. Regardless of the underlying reason of the discipline, it is important not to respond in a reactive fashion. There is a time and place for everything and, before you discipline an employee, you should carefully consider all options.
When discussing an employee’s performance with the employee (good or bad), it should be done in private. Too often, you hear of an employee being disciplined in front of patients and staff. This can have the effect of causing the employee to be embarrassed and become disgruntled and may increase the likelihood that the employee may file some sort of action against you or the practice.
To avoid this from happening, make sure that you have conducted an investigation of the allegation of the employee’s performance before you formally discipline the employee. Verify the facts that have been presented. Remember, there are always two sides to every story.
When conducting the discipline, think about the four W’s: when, where, who and what. Consider when this discussion should occur, where it should occur, who should be there, and what should be said. The meeting should be conducted either after office hours or during office hours, depending upon the urgency of the discipline. Regardless of when the meeting is conducted, it should be conducted in a private room. It is a good idea to have a chaperone or a witness to the discussion. This individual may be your practice manager or other high level employee.
Plan in advance of the meeting what you will say to the employee. Your conversation should be based upon your investigation and verified facts. After meeting with the employee, make sure a prompt record of the meeting is created and kept. This should include documentation of what was discussed at the meeting, as well as the employee’s reactions. For instance, if the employee admits to having committed the particular infraction, you want to make sure that this is documented. You, as well as the witness to the meeting, should sign this documentation of the meeting. A copy of this should be placed in the employee’s personnel file.
An important part of any discipline process is specifying what corrective steps are necessary. Of course, in some instances, corrective steps are not possible. For instance, if the issue surrounding the discipline is the employee’s bringing a weapon onto practice premises, then immediate termination is warranted and no discipline is appropriate. However, the majority of employee infractions may be appropriate for disciplinary action and a plan of correction for the employee to follow.
Before undertaking the disciplinary action, you should refer to your employee manual. It may contain a provision regarding mandatory progressive discipline. You should make sure that you are consistently applying discipline to all employees. In particular, you do not want to be in a situation where you have disciplined one employee for reporting to work late every day for three weeks in a row, and yet you have another employee on staff who has been late to work a similar amount of times or greater, and that employee has not received any discipline.
There will be times when discipline is not appropriate or where disciplinary action has failed. In such cases, your only resort may be to terminate the employee’s employment. Before firing an employee, you should first ask, “Why is the person being fired?” You should conduct a thorough evaluation of your legal risks of the firing of the individual. It is a good idea for you to consult with your practice attorney regarding your practice’s legal exposure. Even though many states are “employment at will” states that permit employers to fire an employee with or without cause at any time on no notice, claims of discrimination and other employment related matters may arise as well.
The question of when to fire is always difficult to answer. If at all possible, it should be done before office hours or after office hours. You do not want to fire an employee in the middle of office hours or when patients are present in the office. You never know how the employee will react to the news.
Before your fire an employee, you should review your practice security. You should consider the employee’s access to the practice’s sensitive information. For instance, does this employee have remote computer access or access to the office after hours either by key or by security passcode?
It is very wise for you to have all of the steps in place prior to terminating the employee. This may include such things as notifying your landlord or the building security person to deactivate the employee’s security code. It should also include deactivating the employee’s computer access promptly. Above all, make sure to secure all practice information to protect your practice. It is a good idea to have a checklist that includes all of the preventative steps you should take as part of the firing process.
When communicating the decision to the employee, meet with the employee in private. Again, you should consider having a witness present during the termination meeting. Document not only your decision to file the employee, but the employee’s reaction to the firing as well. Place a copy of this documentation in the employee’s personnel file. When communicating the decision to your remaining employees, remember to not disparage the former employee in any way. This will minimize your chance of being sued at a later date for defamation or slander.
Before terminating the employee, determine whether or not you will offer the employee any amount of severance and/or the length of notice you will give the employee regarding the termination. You should think carefully regarding the length of notice. It is generally not a good idea to have employees lingering around the practice after they have been fired. It can affect the morale of your remaining employees.
When determining whether or not to offer severance, if it is not required under your employee manual and in fact is an additional benefit to the employee, you may wish to consider whether or not to have a separation agreement regarding the employee’s termination. A separation agreement is a good idea where you think the termination is going to be contentious or your practice has potential exposure to claims by your former employee.
Your practice attorney, who is experienced in drafting employment termination agreements and releases, must draft the separation agreement. You should not rely on a pre-printed form or template documents. The separation agreement must contain very specific legal language regarding the release and waiver of claims. Additionally, depending upon the employee’s age, further additional language is required.
No matter the reason for terminating the employee, make sure you follow the law with regard to COBRA notification to the employee of the employee’s post-termination benefits. Also, make sure to return all personal belongings to the employee. Ensure that the employee returns all practice property to the practice. Make sure to timely remove the employee from all practice health insurance plans, unless the employee has otherwise elected continuation of health insurance through COBRA or has negotiated continued health insurance as part of their separation agreement. Further, where necessary, make sure to notify individuals outside of your practice who had regular dealings with the employee about the change in your staff.
Finally, after the employee has been terminated, you will likely be placed in the uncomfortable position of being asked to provide a reference on behalf of the employee. Carefully consider what, if anything, you will say regarding the employee’s performance. The most prudent course of action is to simply confirm the date of the employee’s employment. It is permissible for you to confirm the dates of the employee’s employment and state that you certainly wish the employee all the best in his or her future endeavors. The less said, the better to protect yourself and your practice from potential claims by a former employee of defamation or slander.
While no strategy is foolproof, by implementing good employment practices such as described above, you will hopefully minimize your legal exposure within your medical practice. Of great importance in personnel management is advanced planning of employee evaluations, disciplinary actions and firing employees. The time you spend planning these actions in advance will greatly benefit your practice.
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.