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With claims for wrongful termination, sexual harassment and discrimination skyrocketing in recent years, physicians and other healthcare providers need to be more diligent than ever when it comes to employment practices in their offices. Employment practices liability claims can be devastating, with defense expenses alone often exceeding $100,000.
Any solo practice, group or hospital with one or more employees can be subject to an employment practices liability claim. However, a formal and comprehensive employment program will help protect a practice/entity and its assets.
One of the key components of any employee program is to standardize procedures such as hiring, compensation, performance evaluation, discipline and termination. Discrimination claims can arise when applicants/ employees are treated differently from each other. Adhering to standardized procedures can reduce your exposure. Should you be charged with discrimination, you will be able to show that all applicants/employees were treated consistently and in a standardized manner.
Hiring
The employee selection process should be a logical sequence of assessments based on job-related criteria. The hiring process may, and usually does, combine objective and subjective judgments.
Good, thorough hiring practices are essential for reducing your liability. Do not take shortcuts! Even if a position unexpectedly becomes vacant and you need to fill it quickly, make sure you are thorough in interviewing applicants and checking their references.
Anyone involved in employment decision-making should be aware of two federal laws:
- Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, color, religion, sex and national origin.
- The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination based on physical or mental disability. (See sidebar on next page for other applicable laws.)
Federal Laws
Listed are some of the more common federal laws regulating employment practices. To obtain copies of these laws, contact your employment attorney or the appropriate federal agency, Labor Department or website.
- Age Discrimination in Employment Act (ADEA) prohibits employment discrimination based on age. This applies to employees who are 40 years of age or older whose employers have 20 or more employees.
- Americans with Disabilities Act (ADA) prohibits discrimination against persons with physical and mental disabilities. This applies to employers with 15 or more employees (although some states have laws that are more stringent), and protects those who meet the requisite skill, experience, education and other job-related requirements.
- Civil Rights Act/Title VII prohibits discrimination in employment based on race, color, religion, sex or national origin. This law applies to employers with at least 15 employees; those with fewer than 15 employees are usually covered by state law.
- Employee Retirement Income Security Act (ERISA) regulates company pension benefit plans.
- Equal Pay Act requires employers to pay employees who perform substantially equivalent work the same wage regardless of whether the employee is male or female (although pay differences based on seniority, merit or piece rate are permissible).
- Fair Labor Standards Act establishes minimum wage and overtime standards, as well as child labor rules. This applies to employers with two or more employees engaged in interstate commerce. State laws may impose more rigorous standards.
- Family and Medical Leave Act (FMLA) requires an employer to allow up to 12 weeks of unpaid leave each year for certain family matters (such as the birth of a child).
- Immigration Reform and Control Act prohibits employers from hiring applicants without proper documentation of the legal right to work in the U.S.
- Occupational Safety and Health Act (OSHA) regulates workplace safety and health conditions.
- Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions.
Good hiring begins with a wellwritten job description. It should include the job function, duties / responsibilities and qualifications. The job description should tell an applicant what he or she must do to be successful in the position. The next step is to list the specific skills, physical abilities and previous experience required.
Prior to beginning the interview process, ask all candidates to complete a standard employment application to establish a common denominator of information.
The application should provide data on the candidate’s education, employment history, interests, hobbies and references. Questions regarding age, race, gender and religious preference should be avoided.
Interviewing
The interview is the most important part of the hiring process. In a limited period of time, the interviewer must determine if the applicant has the skills required to successfully perform the job for which he or she is applying.
A thorough interview is one that provides answers to the following questions:
Can the applicant do the job?
Past performance is the best indication of future performance. Ask the applicant specifically, “What strengths did you bring to your past jobs?” and “What weaknesses prevented you from being as successful as you might have liked?” Does the applicant want the job?
Share the job description and skills assessment with applicants to determine why they think they will be successful if hired. Ask the applicant, “Why do you want to work here?” and “How will this job be different from others you have had?”
One of the best ways to avoid any perception of discrimination is to ensure that you do not ask for information that could be used inappropriately.
With few exceptions, you cannot use age as a barrier to hiring. Avoid asking what year the applicant graduated from high school or was discharged from the service, or how old his or her children are.
Also, since you cannot consider marital status as a factor in hiring, do not ask a female applicant if she prefers Ms., Miss, Mrs. or her maiden name. Don’t ask a man for his wife’s name.
Do not ask about religious affiliation or beliefs; however, you can ask the applicant if he or she is able to work on Saturday or Sunday if the job requires it.
Avoid asking about membership in clubs, lodges or societies, since many are religiously affiliated.
The ADA protects people from abusive hiring practices regarding health and fitness. Avoid asking candidates if they have filed workers’ compensation claims or how many days they were ill at their previous jobs. Health questions must relate only to the job description: “Is there any reason why you would be unable to perform the duties outlined?”
If a job requires overtime hours, it is not acceptable to ask whether the applicant’s spouse minds if he or she works overtime or whether the applicant has small children. However, it is acceptable to ask if there are any barriers to working overtime.
Even if the applicant on his or her resume makes reference to age, marital status, disability or other personal information, avoid questions such as the following:
- How do you feel about being supervised by a younger employee?
- How do you feel about having coworkers nearly half your age?
- What does your husband/wife do?
- Do you have, or are you planning to have, children? How many?
- Whom do you currently live with?
- Were you born with your disability?
- Have you ever filed a workers’ compensation claim?
- What kind of name is that?
- Do you think you would fit in? Successful staffing requires planning and attention. Consider the following suggestions:
- Ask appropriate job-related questions during the interview process to determine if the applicant can do the job as described.
- Verify references prior to making any offer of employment. If a third party is used to check or verify references, make sure you obtain the applicant’s consent pursuant to the Fair Credit Reporting Act.
Documentation
Just as comprehensive records of patient care are key to the defense of professional liability claims, detailed personnel records are pivotal in defending employment practices liability claims. Such documentation can help prove that you have acted responsibly and in good faith as an employer.
Personnel files should include documentation related to the interview and reference checks. It should also contain documentation of all employee performance reviews and any instances of an employee’s improper conduct, including when the incidents occurred and the actions taken. Copies of written warnings or reprimands, signed by the supervisor/office manager and the employee, need to be included. The employee must always have an opportunity to respond to accusations of misconduct in writing while the event is still fresh in memory.
Termination
Sometimes employees are not the right fit, or are no longer the right fit, for a particular job.
Among the most common reasons for firing are the following: failure to follow direction and supervision, attendance problems, poorquality work, incompetence, insubordination, and substance abuse. (Some states require employers to provide treatment for alcohol and drug abuse prior to termination, since it is deemed to be an illness.)
If termination is indicated, keep these basic rules of thumb in mind:
- Before you terminate an employee, do your homework. Review your policies and procedures on employee termination to ensure that the employee has indeed acted in a manner that deserves termination. Problems could arise if an employer fails to have properly written policies in place, does not advise employees of expected behavior, or does not advise employees of disciplinary procedures that could lead to termination.
- Conduct an exit interview. Ask the employee for feedback, including why things did not work out. Give the employee his or her final paycheck at the exit interview and, if possible, have at least one company representative present.
- Terminate respectfully. A decision to terminate an employee should never be made quickly. The termination should occur respectfully and with confidentiality parameters. This allows the terminated employee some dignity.
Attention to these simple rules may help avoid a costly legal battle with the terminated employee.
To minimize the risk of liability, the termination decision should not be a surprise to anyone. The conduct, performance or policy at issue should be well-communicated. Many employers fail to give their employees fair notice before termination and unknowingly increase the risk of litigation.
Seek legal counsel
When in doubt, consult with experienced legal counsel. Have counsel review your employment application, employee handbook and other forms. In this context, as in others, an ounce of prevention can be worth a pound of cure.
Checking References
After you have interviewed the job applicants and chosen your finalists, be sure to check each of their references. No matter how much you like an applicant, do not skip this crucial step in the hiring process. Be sure to check references on all of your final applicants, not just certain ones, to help avoid accusations of discriminatory hiring practices. When checking references, keep the following in mind:
- Questions should be related to specific job skills, performance, attitude, attendance and the ability to work with others.
- Check enough references to obtain the information you need. If some of the references provide hazy or guarded answers, dig deeper.
- Make sure you apply the results of your reference checks consistently to all applicants.
- Keep written documentation of every reference check. This will give you the proof to defend every hiring decision.
An “acid test” question is this: “If given the opportunity, would you hire this candidate again?” If there is the slightest hesitation, you know there was a problem, and if more than one supervisor is struggling with the question, be cautious.
The courts call it “negligent hiring” when a company fails to do a thorough reference check and hires an individual who turns out to be a threat to himself or herself, or to other employees or to patients. You must be certain that your reference-checking procedures help you obtain the information required to make a proper hiring decision without becoming discriminatory.
You may question references either verbally or in writing about a potential employee’s specific job skills, general approach to the job, attendance record (including tardiness), and ability to work with others. Do not ask questions that are not job-related, such as the following:
- Has the candidate ever filed a discrimination suit against your company?
- Has the candidate ever filed a workers’ compensation claim against your company?
- Has the candidate ever attempted to organize a union of your workers? Inquiries into the applicant’s financial status may be discriminatory.
Such inquiries may include questions concerning car ownership, rental or ownership of a house, and past garnishment of wages.
Also, do not overlook basic verification of the applicant’s educational background: Confirm the applicant’s attendance at, and degree awarded from, the institutions listed; confirm professional licenses and/or certifications as well.
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