Eventually, most physicians will have to face the task of terminating an employee.
“Firing people is one of the toughest, most unpleasant things you do as an employer,” James Walsh writes in his book, Rightful Termination (Merritt Publishing, 1994). “Your stomach tightens and your throat gets dry as you prepare to call someone in for the meeting that begins, ‘There’s no easy way for me to do this.’ ”
With the increasing risk of costly legal complications, especially in a medical practice, the proper handling of that difficult chore has become more important than ever.
You may have heard about the legal concept known as “wrongful termination,” which is a serious problem for employers that has grown worse in recent years. When you are faced with the need to discharge an employee, it’s important that you are aware of the legal pitfalls.
Every year, former employees who claim that they were fired illegally haul employers large and small into court. Many of those employees are winning substantial judgments against their former bosses.
An English Common Law doctrine known as employment-at-will was once widely recognized in the United States. It means that an employer has the right to fire an employee for any reason—or for no reason at all. We’ve all heard stories about people being fired because their bosses simply did not like them.
Six Questions to Ask Before You Fire
- Have you given the employee prior notice of unsatisfactory job performance, violation of rules, or other conduct—along with warnings—that these violations could lead to termination?
- Have you documented these warnings in writing?
- Is the reason for terminating this employee in line with past practice or existing policies?
- Has this same conduct by another employee been forgiven and not resulted in termination?
- Did this employee ever receive any assurances—written or oral, implied or stated—regarding job security or permanency of employment?
- Most important, will the termination violate any antidiscrimination laws or other federal, state, or local statutes?
Not anymore. Lawsuits are popping up in every state, and many employers are facing costly legal penalties for firing employees without “sufficient cause.”
“Employees have many rights they didn’t have a century ago,” Walsh cautions.
“I received a call from an irate client who wanted to know if it was illegal to fire an employee for sleeping on the job,” says attorney James P. McElligott, Jr, of the law firm McGuireWoods LLP, located in Richmond, Va. “‘The EEOC is accusing me of sex discrimination for firing a woman for sleeping on the job,’ the client told me.
“I asked him if any other employees had been permitted to sleep on the job. ‘Of course not,’ he replied. ‘What a silly question.’ I suggested the employer check with his supervisors, just to be sure.
“Half an hour later, the employer called back sheepishly. ‘The week before I fired the woman for sleeping on the job, we had a big project and one of our best workers, a man, worked until 1 am on the project, then showed up for work at his regular time. By afternoon, he was nodding off at his desk. His supervisor told him to punch out but didn’t discipline him.’
“Fortunately, we were able to settle the matter by giving the employee who filed the charge 2 weeks’ separation pay in exchange for a complete release,” McElligott says.
The Discrimination Bugaboo
Though you are unlikely to face this type of problem in your medical practice, the story illustrates what could lie in wait when you terminate an employee. Be especially sensitive to the risk of lawsuits based on some form of discrimination.
“Every employee has a race, a gender, a religion,” says attorney Beth Schroeder of the law firm Silver & Freedman, located in Los Angeles. “So, every employee—even new and probationary ones—falls into at least one so-called ‘protected’ class.”
“It costs nothing for an employee to file a charge with the EEOC or state fair employment practices agency,” McElligott cautions. “State and federal agencies can investigate employers for retaliation charges based on OSHA, wage and hour, environmental, FMLA (Family Medical Leave Act), or other violations.
“In addition to the expense of legal fees, employers often must spend hours trying to reconstruct and justify their actions,” McElligott continues. “Moral: Do it right the first time.”
A few preventive measures can help you avoid the nightmare of a wrongful termination lawsuit:
- Lay a solid foundation. Avoiding termination problems begins with the hiring process. “Establish clear performance expectations,” McElligott says. “At the very beginning of employment, communicate performance expectations to employees. It helps to put your expectations in writing in order to avoid misunderstandings later.”
- Keep lines of communication open. Many wrongful termination lawsuits have their roots in an employee misunderstanding the reason for the termination.
“Many employers are under the impression that the less communicated to an employee about the termination, the better. My 18 years of experience in both counseling employers and defending lawsuits suggests otherwise,” Schroeder says.
“The more an employee understands about where he or she stands, and the reason for the employer’s actions, the less angry, frustrated, and suspicious the employee is likely to become,” she explains. “It is that anger, frustration, and suspicion that drives terminated employees to attorneys.
“Employees who are terminated with little or no information about the reason for the termination assume that they have been kept in the dark for a reason—that there must be an unlawful or ulterior motive,” she says.
- Put it in writing. Labor experts agree that careful documentation is an essential part of every employee termination. Incidents or behavior leading up to the termination should be recorded at the time of the incident, or as soon thereafter as possible. The documents should be respectful of the employee but detailed, listing events or issues in a logical or chronological order.
“At the very least, you should put the reason for the termination in writing,” Schroeder says. “The employee is likely to be emotional and upset, and may not hear what you said in the termination interview.
“If the terminated employee goes to a lawyer, the lawyer will hear the story in the employee’s words and will decide whether to take the case based on the employee’s description,” Schroeder continues. “In that case, the attorney may not hear your side of the story until after a lawsuit has been filed.”
In the event a termination is based on a specific event such as theft, assault on a fellow employee, or insubordination, “make a careful investigation of the facts, take notes on your interview of witnesses, and be sure to give the disciplined employee an opportunity to submit a written statement in her own words,” McElligott advises.
“Writing a termination report with details on past warnings and efforts to resolve the problem, and furnishing a copy to the employee, are important ways to reduce your chances of being sued for wrongful termination,” Schroeder adds.
- Remain consistent. One of the most dangerous legal pitfalls for an employer is a charge of inconsistent disciplining or enforcing of rules. A common charge is that one set of work rules was used for men and a different set was used for women.
“It’s important for you to know at least the basics of employment and labor law,” McElligott says. “No discrimination based on race, gender, religion, age, disability, or other protected status is allowed under the law.
“Know about your duty to accommodate employees with disabilities,” McElligott continues. “Know the rules on protected status under USERRA (the Uniformed Services Employment and Reemployment Rights Act), workers’ compensation, FMLA, and other applicable laws. If you have any doubt about the circumstances, get good legal counsel before you terminate an employee.”
- Conduct regular employee evaluations. Under the law, employees are entitled to know how well they meet your expectations. Failure to tell them may not be of any consequence unless and until a terminated employee files a lawsuit that claims you made no attempt to inform them of your dissatisfaction.
Your evaluations do not have to be elaborate or follow any specific format, but it’s always best to put them in writing, even if it’s only a short paragraph or two.
“Always be consistent in evaluating and disciplining your employees, and be sure to review previous evaluations and disciplinary actions if any [have] taken place,” McElligott continues.
Many human resources professionals recommend that you allow employees to review their written evaluations. Ask them to initial the evaluation document, and if the employee declines, you should indicate that on the record.
- Deal promptly with performance problems. Because the task can be so unpleasant, many employers find reasons to delay firing a problem employee. Perhaps the employee will improve, you might say. Perhaps I’m being too hasty. Perhaps living with the problem is the lesser of two evils.
If you’ve done a good job of following the above-mentioned guidelines, and if you’re confident that a termination is justified, delaying the action is probably not in your best interest.
“Not firing a problem worker is often the worst thing you can do,” Walsh writes. “It keeps the problem worker around to create more trouble, making a bad situation worse. That’s not fair to you or to your other employees.”
William J. Lynott is a contributing writer for Plastic Surgery Products. For additional information, please contact .