Top Employee Issues That Cause Legal Problems

The aesthetic industry is rapidly growing in terms of patient awareness and practice growth. To keep up with this demand, physicians are expanding their practices with new procedures and increased staff. However, these changes are causing many oversights in terms of employee management, and can leave a physician vulnerable to unnecessary labor law issues and employee lawsuits. This interview with Kurt Tullar, an HR Advisor in the CEDR Solution Center and a licensed attorney with over 10 years’ experience, discusses the top employee issues that cause problems in aesthetic practices and how to solve them.  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.

Attorney Kurt Tullar, CEDR HR Solutions

Attorney Kurt Tullar, CEDR HR Solutions

Kurt, please tell us more about CEDR HR Solutions

The team at CEDR HR Solutions handles human resource issues for medical, healthcare and aesthetic specialties nationwide. We focus on private practices rather than hospitals, as it is the smaller practices that need the human resources expertise we offer. For many small practices hiring a Human Resource Manager is too costly and/or may be under-utilized at the practice, so we’re a better option. We provide Employee Handbooks, employment agreements and other document protocol, and also support the practice in the same way a dedicated Human Resources Manager or HR-focused legal expert might.

When it comes to staff, what is the most important area for a physician to concentrate on?

The most important area is the hiring process. Training an employee takes time and money, and if the hiring process has not been carried out correctly, the new hire might not work out for reasons that could have been avoided. Plus, if the employee doesn’t work out then they have to be terminated, which is another risky area and one that requires HR expertise.

What are the top issues that affect an aesthetic practice?

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Tardiness
Job performance
Staff breaks
Using company time for personal tasks
Vacation pay and paid holidays
Inventory theft
Maternity leave
Hiring policies and termination
Lack of understanding of employment laws
Discrimination (although generally not intentional)

 

Can a physician prevent their staff from talking about salary and commissions?

An employer cannot prevent an employee from talking to other staff members about their terms of employment or working conditions. We like to assume that most people prefer to keep these matters confidential, but they don’t always.

What about staff gossiping about other staff members?

In the US we like things rank and file, however, an employer cannot legally prohibit or restrict an employee from discussing anything about their job or their superiors, even if it is malicious gossip or outright lying. If an employer finds they have a situation where an employee appears to be spreading damaging rumours or attempting to sabotage the morale of other staff members, I recommend they first speak with an HR expert such as the team at CEDR HR Solutions, to make sure that they handle the situation correctly. We will then develop the best strategy to handle this particular type of situation.

Ostersund, Sweden - August 1, 2015: Facebook website under a mag

What can an employee lawsuit cost a practice?

It all depends. We recently saw a case of a doctor who fired a person because the employee went home from work mad, got onto their social media Facebook account, and wrote a post about how they didn’t like their job, didn’t like their supervisor, didn’t think they were paid enough money, didn’t get enough vacation time, and so on. Then they ended the post by saying they also knew that the doctor was having an affair. Various staff made comments on the Facebook post, and one of them brought it in and showed it to the doctor. You can imagine how upset he was. It was defamation of character and it wasn’t true. He showed the Facebook post to the employee and fired her outright. However, the employee took that Facebook post to an employment law attorney, who won a lawsuit against the doctor by stating that the employee was fired because she was talking about her job—which she has every right, under federal labor laws, to do. That lawsuit cost the doctor a crushing $50,000 in attorney fees and settlement, not including his time lost from the practice. Adding insult to injury, he was also bound by law to offer this person their job back and pay them for their lost time from work.

How would CEDR HR Solutions have handled this situation?

Our advice is to tell a doctor or practice manager to speak to an HR and legal expert BEFORE firing a person. In this case, we would have reviewed the Facebook post and developed a strategy to terminate that employee without consequence to the practice. She was clearly in the wrong and could have been terminated, according to the law, for defamation of character, without further repercussions. Instead, the attorney was able to twist it into a case of unfair dismissal, because the employee was speaking mostly about her job dissatisfaction. It would have been possible to make this termination 100% safe. Instead, the doctor acted out of emotion and dismissed her without thought. Unfortunately, emotion is something that has to be removed when dealing with any employee issue. The law is black and white and needs to be handled that way.

How would you manage an employee who is a bad apple?

Of course, when CEDR HR Solutions works with a practice, the first thing we are going to do is make sure that the practice has an up-to-date Employee Handbook. In that handbook, we will cover all the things that are acceptable in the course of a day’s work. As mentioned above, there are certain things you cannot prevent an employee from talking about, but the goal is to try and pre-empt any situation in advance by developing good employee relations.

We had an office manager tell one of our Solution Center Advisors that they had an employee who was going from person to person at the office complaining constantly about a whole variety of different things: how much money she makes, when she works, how little she works, how much she works, etc. She was going from one staff member to another and they were complaining that she was distracting and frustrating them. This person had never been written up for any behavioral issues and was completing her work in a timely manner. So, rather than focus on her complaining and her issues, we chose to put the emphasis on the effects on other staff due to her continuous disruption of their work day. The goal was to protect the other employees from her constant assault on their time and productivity, and to do this within the law. By doing this, we could taper off her verbal complaints. The office manager then went back with a script and strategy CEDR had prepared. This led her to a discussion with the “bad apple” telling her that her continuous interruption was causing complaints from several fellow employees and that she had to limit such conversation to her break times, or outside of the office. A note was made in the employee’s file, which she signed, stating that she understood how her behavior was affecting other team members. From this point on the office manager could write the employee up, and continue to monitor the situation.

This opens up the ability to possibly steer the employee back to being a good employee, or paves the way for being able to terminate them appropriately. In this instance, the office manager was able to get the employee back on track to being a happy and productive team player.

Is there a way to spot a bad employee before you hire them?

It’s hard to recognize every complainer or bad employee during the hiring process. At CEDR HR Solutions we encourage our customers to seek future employees not just for their skill level, but also for whether they fit the culture that the practice has developed. For instance, if a doctor has a very high-end exclusive practice, with a lighter but more elite patient base, the actual pace of the practice might be slower, more attentive, and/or private, especially if there is a high-end celebrity clientele.  Working in that environment may not suit someone who just came from working at a very busy, high-turnover, heavily staffed practice. The same applies to a high-speed practice. An employee used to working at a slower pace but with a highly demanding clientele might drown in a high-speed, less meticulous environment. Our advice is to seek a new hire that possesses the adequate skill levels for the particular job opening in question and match their history and personality to the type of practice that has been created. Putting a square peg in a round hole leads to unhappiness, which leads to job dissatisfaction, and so on.

Do you recommend asking for job references?

Absolutely. References are vital to employee selection and are an important part of the hiring process. There are also certain things you do not want to ask ahead of time, such as race, level of ability (or disability), age, etc., as these are all areas that could be considered discriminatory if the person does not get hired. Yes, to reiterate, these are all areas that can get you in trouble even if you DON’T hire the applicant. It really is a mine field out there. At CEDR, we help our customers understand all the questions to ask, and not to ask, during the interview process, all the way up to a conversation with a reference supplied by the employee.

What about giving references for a past employee?

We advise our members, when they are providing references for an ex-employee, to limit it to when the person was employed, what their title or position was, and how much money they made.

Do you recommend that every practice have an updated Employee Handbook? If so, why?

Yes. It is the number one thing we recommend every practice have. Firstly, an employer must have a thorough understanding of the protected classes in employment law, such as race, religion and any other things that can be considered discriminatory. Those things must be covered in the Employee Handbook to make sure everyone is aware of particular sensitivities. Then we go into practice policies that already exist, develop new policies where needed or where laws have recently changed, and create a complete Employee Handbook that each person acknowledges and signs receipt of. This helps avoid any confusion and provides written protection for the practice. It’s more than a mental checklist. It is a thorough and binding document that can literally mean the difference between practice protection and success, or losing everything because of one small error in judgement.

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

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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!

“Can Employee Actions Outside of an Aesthetic Practice 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”