Physician, Shield Thyself From Problem Employees, Lawsuits


PORTLAND, ORE. — As if it weren't aggravating enough to worry about frivolous lawsuits filed by patients, physicians, like all employers, also need to consider their legal liability with regard to their employees.

Fortunately, most employment lawsuits are eminently avoidable, said employment attorney Kathy A. Peck at the annual meeting of the Pacific Northwest Dermatological Society.

Supervisors should follow the “golden rules” of discipline, said Ms. Peck, a partner in the law firm of Williams, Zografos, and Peck in Lake Oswego, Ore.

These rules include immediacy, consistency, impersonality (targeting the behavior, not the person), and positivism, always remembering that the goal is to rehabilitate employees whenever possible, rather than to punish or ostracize them.

Physicians and office managers also need to watch what they say. Ms. Peck said many cases may turn on remarks, perhaps unintentional, that might be interpreted as being derogatory or stereotypical with regard to a protected class of workers, such as older employees, women, or members of a racial or ethnic group.

Work environment harassment claims are on the rise, so practices should respond promptly and definitively to complaints of sexual, racial, ethnic, religion, age, and disability-related harassment. Just as physicians should monitor their own remarks and behavior, they are responsible for their office environment and should take immediate corrective action if that atmosphere is tainted by “unwelcome conduct,” Ms. Peck said.

Require applicants to fill out an application form. Great interview skills do not necessarily reflect a solid employment history.

“You can hide things in a resume,” she said.

All employees (established and newly hired) should sign an employee handbook documenting policies and procedures. Include within the handbook an “at will” clause stating that the employee is free to resign at any time and that the practice is free to terminate the employee “at will.” The manual also should state that this policy remains in effect unless it is changed in writing by the physician or another designated individual at the office.

“There are huge exceptions” to when an employee can be discharged and why—because of pregnancy, for example—but the clause protects employers from being sued by those who assert they were hired until they retired, or some other vague point in time, Ms. Peck said.

Another issue that needs to be addressed is when an employee has a bad attitude. It's a huge mistake to put up with “posturing princesses” or passive-aggressive manipulators who stir up trouble. These employees can sour morale very quickly, leading to turnover problems, excessive time off, stress claims, and grievances, she said. Their behaviors should be documented.

When it comes to employee performance, it is important to not allow “soft” evaluations. It will be very difficult to justify in court the dismissal of an employee who received above-average evaluations for the past 6 years.

Any decisions that are made regarding personnel must be documented. An employer who can present a record of fair, reasonable, and consistent evaluations and decisions will fare much better if an employment discrimination case makes it to court.

If something does happen that requires action, always listen to the employee's side of the story. Not only is this fair, it might change your perception of an event, and it also helps to establish an accurate line of documentation right away, said Ms. Peck.

A dismissed employee later may come up with a multitude of supposed claims against you, but if someone listened to and documented his or her initial story, it establishes these facts on the record.

When an employee needs to be discharged, do not call it a layoff. Softening the blow to an employee by falsely implying that their dismissal was a result of a reduction in the workforce is a good way to get “into trouble with employment law,” she said. An incompetent 55-year-old employee who is laid off and immediately replaced with a 36-year-old employee has the makings of a successful age-discrimination suit, she explained.

It is also important to provide a “clean” reason when an employee is discharged. If an employee was caught embezzling money, that's a firing offense, and it's enough, Ms. Peck said.

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