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    Guarding against age discrimination

     

    Doctor Doc has a large practice with many productive happy employees. One of his employees has been with him for more than 20 years and is now 67 years old. Over the past two years, she has become increasingly combative and difficult for both staff and patients.

    Since nobody in his office has any contract, Doctor Doc decides one day to terminate this employee on the spot. Immediately his office becomes calmer and more productive. Six months later, he receives notification that he is the defendant in an age discrimination lawsuit by the former employee. How can this be?

    The general assumption is that employees do not sue happy, worker-friendly companies like most dermatology offices. Employee lawsuits supposedly happen in companies with bad bosses, poor working conditions and hostile environments. This is just not correct.

    Employee lawsuits can and do happen anywhere. According to Department of Labor statistics, in 2011 alone, disgruntled employees filed 23,465 age discrimination complaints, 30,512 in the harassment category and 37,334 complaints of employer retaliation. Our society is becoming increasingly litigious, and the workplace is a prime focus.

    If one looks at some of the reasons employees sue the companies where they used to work, physicians begin to feel like they are entering a minefield of spurious claims and scattershot complaints. Dermatologists, among all physicians, need protection. However, if you think you can protect yourself and your office from complaints and lawsuits simply by providing a thorough write-up to go along with each termination, you are starting way too late in the game. Bulletproof human resources (HR) documentation requires a paper trail that starts much, much earlier — before you even hire.

    The steps include:

    1. Defining the job description. It can be tough to convince a judge that an employee failed to live up to expectations if those expectations were not carefully defined in the first place. The job description is a central document in any employer/employee relationship, and one that should be shared prior to hiring and revisited at each performance review. If the job description changes, this change must be documented and agreed to by both employer and employee.
    2. Job application. A well-crafted job application will eliminate unnecessary information that may appear on a resume, such as date of college graduation (i.e., age) or religious affiliation. It provides a vehicle for all applicants to compete on a level playing field and offers a baseline for discrimination-free hiring (and firing).
    3. Offer letter. A clear offer letter outlines the terms of employment and does not make promises that could lead to false expectations or disagreements.
    4. Employee handbook. Company HR policies should be spelled out in writing — use a consultant experienced in employment law to help create or review the manual — and managers and employees alike should receive an employee handbook when they start. Have everyone sign their receipt and acceptance of baseline employment policies.
    5. Follow the law. Acts as simple as posting government-required documents can make a difference. Make sure you know what is required, and do it. Create and maintain a good filing system. Employee personnel, medical and confidential records must be stored separately, to ensure the wrong manager or employee does not gain access to privileged information. There is no need to create a medical or confidential file for each employee, but when the occasion arises, that information should not be placed into the main personnel file. Designate a secure place for storing sensitive information.
    6. Document retention policy. What HR documents do you need to keep? What files — paper or digital — can or should be discarded on a regular basis? Old emails and other digital records can help or hurt the company. Deleting them on a schedule might be a good idea. But there must be a written policy — and the company must stick to it.
    7. Performance reviews. If an employee is not living up to expectations, the annual or biannual performance review is your main opportunity to document this failure. Remember, the performance review is where you can — and must — inform an employee of what he or she is doing wrong, and warn of the consequences if performance or behavior does not improve. Be specific — and be sure that you are describing a behavior, and not a personality. Make sure you take notes to document the meeting, and include an account of the employee’s responses. A negative performance review should lead to an action plan. Remember, it’s not enough to tell an employee what he or she is doing wrong. Work together to formulate a plan for improvement, with a clear time frame. Put it in writing. Have both parties sign it. Then, be sure to revisit it together at the planned dates.
    8. Terminate compassionately. If you have done your work well, then in the unfortunate situation where termination becomes a necessity, it will not be a surprise to the employee. Bear in mind, though, that termination is always unpleasant for the person being terminated, and a calm and compassionate attitude might ease the moment — and steer the employee in the positive direction of finding new employment that is a better fit, rather than seeking retribution through legal action.

    Termination of by Doctor Doc could and should have been an easy process. Had he taken the above approach, a lawsuit likely would not have happened. 

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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