Can Employee Actions Outside of an Aesthetic Practice Cause Legal Problems?

According to experts, the US Department of Labor is taking a closer look at how the medical industry conducts itself with regard to employment and staffing. Aesthetic Insider™ News has recently written about the various ways aesthetic surgeons can protect themselves and their practices when it comes to labor law. One area that has not been discussed is a doctor’s liability for an employee’s actions outside of the practice. While we all hope that employees are safe and display absolute integrity off-premises, there is no sure-fire way of knowing until it’s too late. This interview with Kurt Tullar, an HR Advisor in the CEDR Solution Center and a licensed attorney with over 10 years’ experience, discusses the importance of clear practice policies.  Kurt spends his days helping medical employers and managers solve workplace problems, understand how employment laws impact their medical practices and improve employee production and morale. CEDR HR Solutions is a leading national provider of Employee Handbooks and HR support. To learn more visit www.cedrsolutions.com.

kurt-1

Attorney Kurt Tullar, CEDR HR Solutions.

Is an employer equally liable for an employee “off” premises as they are “on” premises?

The answer is yes if they are working. If an employee is doing something for the practice, such as traveling from one practice to another, conducting a training meeting outside of the office, sitting in a lecture hall at a medical convention, or simply running out to pick up lunch for everyone, they are technically on the clock. Even if they go to pick up the mail, or drop off the mail after work, they are still working for the practice—and should a mishap occur during that time, then the practice may be liable.

 

What are the most common problematic scenarios outside of the practice?

Every practice is different, and so are the problems that can occur. A simple one, for instance, is that if an employee goes out to pick up lunch for the team and gets into a car accident, the practice may be liable. If that same employee signs off from work for the evening, leaves and gets into a car accident, the practice is most likely not going to be held liable. The bottom line is that a physician has to understand that if an employee is working for them, whether it is in the practice, doing something outside of the office or traveling on their behalf, clear policies need to be in place for the employee’s behavior, as well as the expectations of both the doctor and the staff member in terms of hours, overtime, mileage and other travel expenses, a change in responsibilities, dress and conduct, etc.

Does your litigation background help in the day-to-day legal needs of an aesthetic practice?

Absolutely, especially in terms of employee relations and HR expertise. Before joining CEDR HR Solutions I was a litigation attorney in New York City and represented a company with over 10,000 employees. To say the least, New York is a tough city and its court system is equally difficult to navigate. I am able to bring that experience to our customers, as it has given me a deep understanding of how to get results that deliver fair and equitable outcomes for all parties involved. CEDR HR Solutions works to help a doctor establish and set clear practice policies in writing so that each employee fully understands the rules, thereby reducing the possibility of a lawsuit or Labor Board complaint.

How does CEDR HR Solutions help set employee policies that protect a doctor when a staff member is away from the office?

CEDR creates Employee Handbooks that cover as many scenarios and actions performed in an aesthetic practice as are eligible by law. We help physicians set polices that apply directly to them. Some staff never travel for work outside of a routine errand, but a policy that applies to that errand must be in place. Some physicians have several locations and require staff to travel from one office to another in the course of the week. A policy that discusses pay for drive time, length of drive time, valid driver’s license, etc. must all be taken into consideration. Should an employee be traveling to another state or country, either by land, air or sea, there needs to be a written policy in terms of travel expectations, conduct of staff, working attire and free time, overtime pay, travel pay and expenses, airport parking, and everything in between. A physician is not liable twenty-four hours a day, seven days a week, and the federal government has set expectations on how to pay an employee who travels for you, but there are still other things that can cause a problem if not addressed. We had a case recently of an employee who had attended a medical trade show with several other staff members. When they were departing, their flight was delayed, so they all went into the bar to have a few cocktails while they waited for the flight to be rescheduled. Finally, their flight was called, and while they were boarding, one of the employees tripped, as they didn’t see the gap between the skyway and the step. The employee sustained various minor injuries and upon return to work attempted to file a Workers’ Compensation Claim. However, the claim was denied, as the practice had a very clear written policy about drinking on company time, even when traveling. These are the types of details that CEDR HR Solutions makes sure are in every doctor’s Employee Handbook.

Whiskey with car keys and handcuffs concept for drinking and driCan a physician set policies that control staff behavior outside of the practice?

None of us can really control another person’s behavior, but as a means of protection, a physician can create acceptable and unacceptable policies or behavior as it applies to the practice. Behavior is a big word that covers a lot of territory, so I advise our customers to really take everything into consideration when we address this issue. The word behavior can apply to everything from attitude, actions, dress code, hair styling, confidentiality vs. gossiping, etc. If an employee is expected to be working outside of the practice, all of the policies set forth in an Employee Handbook are still applicable, thereby a physician can technically “control” their behavior while on company time.

What recommendations do you give to physicians whose staff travel as part of their job?

Staff travel for work is generally an exciting time for the employee, and most will endeavor to be a good ambassador for their employer—some even going above and beyond the call of duty, so to speak. We recommend that a physician think clearly as to what their expectations of the staff member are when that person is traveling, i.e., have clear policies about travel—both conduct and expenditures—been established? Has the physician and/or office manager reviewed the Department of Labor rules about employee travel? Reviewing the DOL’s policies will give them a clear understanding of what is mandated by law should employees be traveling for business-related purposes. We recommend that a physician be very thorough in their detail, even down to what is acceptable dress code when traveling.

If an employee is expected to drive as part of their job, is it up to the doctor to make sure they have a valid driver’s license?

If driving is part of the job description, then it is advisable to ask to see the employee’s driving license and to make sure that it is valid. An employer cannot assume that just because the employee shows up for work every day in a car that they have a valid driver’s license. We suggest making a copy of the driver’s license and keeping it on file. We also recommend that said driver be covered by insurance. Driving can be a complicated issue. It is easy to ask a staff member to run a quick errand, or drop something off at the post office or somewhere after work. However, there have been cases where an employee got into a car accident that caused a serious injury and their personal insurance did not cover damages. An attorney looking at this situation can easily infer that the employee was on company time, thereby making the practice the target for a lawsuit. We urge all of our customers to be careful about whom they ask to drive on behalf of the practice and to be adequately prepared for problems.

Do you suggest that a practice should have a written “Code of Conduct” And “Dress Code” for staff members who travel on behalf of the practice?

At CEDR HR Solutions we recommend that a practice should have a dress code policy for both in-office employees and those traveling on behalf of the company, as well as a code of conduct policy. It is important to set these parameters.

How should a doctor handle a situation where an employee steps out of line when traveling for business purposes?

Again, stepping out of line is a broad statement and can cover many different scenarios. Having clear guidelines in the Employee Handbook lets the employee know what is acceptable to the practice and what is not. It’s not possible to cover every single incident that might possibly occur, but you can put down in writing the type of culture you want to develop at the practice. Should an issue occur while an employee is traveling for business purposes, if it isn’t covered in the Employee Handbook, I would suggest calling CEDR, where I or one of our other Solution Center Advisors can listen to the problem and offer expert advice to resolve the issue. Often times, doctors (and managers) react emotionally to a situation, which can land them in hot water. At CEDR, we advise from a clear right or wrong perspective and outline any future consequences to the practice from a legal standpoint, as a result of said decision.

If an employee has a run-in with the law, or gets a DUI while not working, can they be fired from their job?

If driving on the job is a required part of the job description, most courts still allow a first time DUI offender to continue to drive for work purposes. An employer should make certain that they understand the restrictions put on a DUI offender and apply those restrictions appropriately during the course of the work day. As far as other run-ins with the law, if it’s a serious felony the employee is going to land themselves in jail, so this type of incident is best discussed with an HR expert. This conversation, however, is an example of something that comes up in the hiring process. We recently had a doctor who was hiring for a front desk position. They really liked the applicant but during the course of the background check found out that the applicant had a recent DUI conviction, which was deterring the doctor from hiring the person. The thing to be careful of in this situation is discrimination. If the applicant is not expected to drive, then a DUI should not affect their opportunity to work. If the applicant falls into a minority group, they could cite the turn-down as an act of racial discrimination. While I am not saying that doctors should hire people who have defied the law, I do think it prudent to study the facts first. Sometimes the outcome of a situation can have a much bigger impact than the intent.

How would you handle an employee you think is taking advantage of travel time outside of the office?

Like anything else, an employee should be held to a performance standard. If it is expected that a staff member drive from one practice to another on certain days, or run errands on behalf of the practice, the doctor or office manager should be able to estimate the amount of time that task takes. Google maps make it very easy for us to estimate driving time from one location to another. Of course, traffic can cause delays, but not every single time the employee travels for work. So if you think the employee is taking extra time on these trips, we recommend treating it exactly the way you would any other performance or tardiness-related issue. Talk to the person first and ask why the task took so long. They might have a good reason. If it happens three or four times, it might be time to bring up a corrective action, to write them up and document what happened. The staff member needs to acknowledge receipt of this write up and go through what we call Progressive Corrective Coaching.

What Is Progressive Corrective Coaching (PCC)?

Progressive Corrective Coaching, or PCC, is a system of working with the employee to turn their behavior pattern in favor of the practice. Many incidents with employee behavior go on for months without anybody saying anything until it’s too late, and by then the disease has spread throughout the entire office. The goal with PCC is to work with the offending staff member from the beginning, develop a clear understanding as to what the problematic behavior pattern is and work with them to correct it. The whole process is documented, with the goal of building the employee into a valuable team member. If the employee does not comply, then you have a valid case for termination. PCC is one of the greatest management tools a doctor or office manager can have, as it communicates clear expectations and goals to all employees.

To learn more about CEDR HR Solutions visit www.cedrsolutions.com.

onair.

 

To listen to Kurt Tullar’s radio interview on BlogTalkRadio CLICK HERE!

 

TO LEARN MORE ABOUT HOW CEDR HR SOLUTIONS CAN HELP YOUR PRACTICE, READ THESE ARTICLES!

“Top Employee Issues That Cause Legal Problems”

“Employment Law For Cosmetic and Plastic Surgeons”

“Why Does An Aesthetic Practice Need An HR Expert?”

“The Secret to Effective Staff Management With Dr. Filiberto Rodriguez”

“Protect Your Practice With Expert HR Support”