You can’t run your practice—much less grow it—without properly managing your employees and clearly understanding how to protect yourself against employment liability. “If you have an employee, you have a risk of being sued in an employment related matter,” emphasizes attorney Marcus Crider, who conducted an employment law session at last year’s annual meeting of the Ambulatory Surgical Center Association. The more employees you have, the greater your risk of being sued, he adds.
If you think that only ‘bad’ employers get sued, think again.
The hard truth is that no matter how great an employer you are, you could find yourself with a federal lawsuit on your hands from an angry employee. And a claim filed against you via the U.S. Equal Employment Opportunity Commission could quickly drain your coffers. The EEOC cites retaliation as the leading claim filed against employers. And it’s the leading claim for a very logical reason, Crider says: It comes from a natural tendency to get back at somebody. “Retaliation is often an add-on to another claim and it is more difficult to defend against,” he notes. It’s also hard to get a court to dismiss it, and it ends up going to a jury, which is usually not good for defendants, he adds.
Are you in dangerous employment liability territory?
Having a seasoned HR specialist on board can help alleviate and even defuse a litigious employee situation that could sideline your eye care practice’s expansion efforts and cost you a bundle in attorney fees. And while EEOC claims are often filed in spite of superlative HR, you’ll find the risk is diminished when you have experienced HR personnel who can provide necessary staff instruction on some specific employment liability trouble areas, including:
If your practice has 15 or more employees, the Americans with Disabilities Act (ADA) “prohibits discrimination in hiring, promotions, training, pay, social activities, and other employment privileges” based on disability, speaker Marcia Brauchler, MPH, FACMPE, CPC, COC, CPC-I, CPHQ told attendees at MGMA16. Doctors often aren’t aware of ADA and will say things that could get them in trouble, according to Kat Park, Director of RCM Services, Eye Care Leaders. Your staff needs adequate training on what they can and can’t say.
Under the Family Medical Leave Act (FMLA), if your practice has 50 or more employees, your employees are entitled to up to 12 weeks of “job-protected leave during any 12-month period for the birth of a child, care of an immediate family member, the employee’s own serious health condition, or immediate family member is on active military duty,” Brauchler advises. Legislators passed this law in 1993 and the Department of Labor, Wage and Hour Division is responsible for enforcement. Non-compliance can result in civil actions by employees. So, for instance, if someone’s having a baby, you have to make sure you’re initiating the correct paper work in the correct amount of time, says Suzanne Rupert, Director of Human Resources & Recruiting for Eye Care Leaders. If someone’s hospitalized, you have to tell them if they’re eligible, and so on.
Loyalty toward your practice can have a lot to do with whether or not an employee turns into a retaliator and files an EEOC claim against you. While it’s a bad idea to generalize, younger employees may view jobs as a temporary means of supporting their lifestyle. That’s an attitude quite different from your older staffers’ view which is that their work for you is a career and they’re in it for the long haul. What this means is that a younger employee may be more likely to stand up for ‘my concerns and causes,’ and ‘if you do something to me because I did that,’ that’s retaliation, Crider observes.
“Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964,” Brauchler explains. Penalties that can result from litigation against your practice include lost wages, compensatory damages, and punitive damages. Given human nature, these complaints aren’t going to go away, Crider emphasizes. It’s fundamental to a workplace. What’s evolving is the way individuals communicate harassment. “Twenty years ago, it may have been an actual love letter; now it’s texts. Texts (and email) sometimes lack context. You can make them mean anything you want,” which could lead to harassment claims.
This is the next wave of concern in employment liability. Practices need to be ready to address and define what sex or gender means. Then, think about ways this issue could come up in the workplace. What happens, for instance, if there’s a male or female who doesn’t conform to the stereotype of what men and women look like, act like, talk like, and so on, asks Crider.
Court decisions are showing that we are coming closer and closer to interpreting Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, religion, sex, or national origin, as also including sexual orientation, according to Crider. The Supreme Court has yet to make a formal ruling on this addition. However, practices need to be aware that discrimination on the basis of sexual orientation can “no longer be tolerated.”
Your HR person needs to understand HIPAA compliance—what employees are allowed to share and what they’re not—so that he or she can convey this to staff, Rupert adds. But that’s not all: privacy comes into play during the hiring process, too. Do you utilize background checks? If so, make sure you comply with the Fair Credit Reporting Act and state-specific laws. And if you’re going to do it at all, conduct background checks on every applicant, not just some. If you plan to obtain a credit report from an applicant, you need written permission from the applicant. You also must notify the applicant in writing that the credit report will be part of the employment decision. But beware: credit reports often contain inaccuracies and errors. It’s best to obtain credit reports only if it’s truly relevant to the position.
Don’t Wait to Take Acton
Staving off expensive employment litigation requires specific preventive measures, which may not be intuitive. In other words, what you need to do to protect yourself from employment liability might not be obvious. And if you’re taking on more employees as you grow, you’ll need expert help to manage it all.
Stay alert and respond.
Keep your ears open, listen to your employees, react to anything you can react to, advises Crider. If someone alerts you to something, you can’t just pretend it didn’t happen. You have to investigate it. “We have to live up to the commitments we make in our employee handbooks,” says Crider. Especially “when we say that our employees will be free to work in our facility without threats or retaliation.”
Ensure equal treatment of similarly situated individuals. It’s a good idea to take a hard look at your demographics and hiring trends. That way, you’ll be aware of and can correct biases that could get you in Title VII trouble.
Update your manual.
An obsolete employee manual will increase your employment liability risk. Make sure your manual reflects your current philosophy as a practice. For instance, Fortune 100 and most 500 companies made a decision years ago “to protect their employees from sexual orientation discrimination in their own companies regardless of what the courts say,” says Crider.