Protect Your Practice from Wrongful Termination Claims

Michele O'Donnell, MS, HR Services Manager, MMC, Inc.

Wrongful termination. This is one of the most dreaded word combinations for an employer; it can illicit questions such as, "what exactly is a wrongful termination?" "How can I avoid it?" "How can this be; this is an employment at-will state!" The decision to terminate can be daunting. More than ever, employers must also consider the ever increasing risk of a posttermination lawsuit. Post-termination claims seem to be on the upswing, and have become more commonplace with both the economic down turn of the last few years and our current litigation-happy society. Consequently, the cost to defend these suits continues to rise, whether or not the suit has merit. Many employers are looking for the magic recipe to make their terminations bullet proof, to avoid time consuming and costly litigation. Unfortunately, there is no way to guarantee that a "perfect" termination will not end up in litigation. It is important to remember that anyone can file a lawsuit at anytime, for any reason. Still, there is no need for despair. There are many things an employer, including medical practices, can do minimize this risk. For the 2010 fiscal year, the Equal Employment Opportunity Commission reported that private sector workplace discrimination charges filed with the agency hit an unprecedented level of 99,992 charges a 15.9 percent increase over the previous period. The agency also reported they secured more than $404 million in monetary benefits from employers, which is the highest level ever obtained "to promote inclusive and discrimination-free workplaces." EEOC Chair Jacqueline A. Berrien stated, "We are pleased to see that our rebuilding efforts are having an impact on how efficiently and effectively the Commission enforces the civil rights laws protecting the nation's workers. Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure workplaces are free from unlawful bias." The EEOC is the federal body responsible for enforcing the laws which make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. While considering the above, let's briefly address the questions posed in the opening paragraph of this article: What exactly is a wrongful termination? In general, this is a termination that violates an established regulation or public policy. How can I avoid a wrongful termination claim? There is no way to guarantee this. How can I have wrongfully terminated someone if I am located in an employment-at-will" state? In times past, employment "at will" meant simply that either party can choose to end the employment relationship for any reason at any time with or without notice; this is not the case today. Employment at will has been narrowed by legislation (such as Title VII of the Civil Rights Act of 1964), which originally prohibited harassment and discrimination on the basis of race, color, national origin, religion and sex and has now been expanded to include pregnancy, sex stereotyping and sexual harassment of employees. It is imperative that a medical practice be familiar with not only the federal regulations applicable to it, but also all state or local rules that govern employment. Title VII is a federal regulation. Your state may have extended protection to additional categories. An example of this is California, which has extended the Title VII protections to include sexual orientation and marital status. Employers unaware of all regulations that apply to their organization run a much higher risk of a wrongful termination claim being filed.

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One of the most important things physicians can do to protect themselves is to develop well considered policies and procedures to govern the workplace. The practice must ensure that those employees with authority over other employees are trained on the established protocols. It is crucial that the office manager not only fully understand the protocol but they are also accountable to the practice's standard of how situations are handled. Office managers who do not follow the outlined procedures should be subject to the same disciplinary process as any other employee. All persons with supervisory responsibility should receive training on what constitutes discrimination, harassment, and retaliation and also be made aware that they may be held personally liable in certain instances if these actions happen on their watch. Let's assume policies have been developed and management is properly trained. It is crucial for managers to understand how to apply these policies uniformly across the board with all employees. Failure to apply standards consistently can open the door to claims of discrimination, and if there is a termination, possibly a claim of wrongful termination. Take the example of Mary, who recently received a disciplinary action for attendance. Steve has as many attendance issues as Mary, but they are overlooked, as upper management knows he is going through a messy divorce. Many managers would consider this to be a nice gesture towards an employee going through a tough time, but the simple act of not addressing Steve's issues has opened the door for Mary to make a claim of discrimination and/or wrongful termination. In addition to the increased risk of a lawsuit, this type of inconsistency could also damage overall Company morale, and lead to a distrust of management. Anyone with the authority to discipline employees should be well trained in the proper steps to take when a performance issue is identified. The training should include how to identify the issue, properly document it and how to address it. Let's consider Mary again. She has serious attendance issues: routinely tardy, calls out sick often and frequently asks to leave early. On the employee counseling form, it states that "Due to the fact she is a single mother with multiple children, Mary cannot seem to work the schedule needed..." Often, irrelevant personal information (i.e. "single mother with multiple children") is included on performance documentation. A better way to state this would be, "Mary has severe attendance issues in violation of the attendance policy outlined on page 5 of the employee handbook." It would also be appropriate to list the incidents for emphasis, such as 6/15/11 tardy 30 minutes, 6/18/11 extended lunch, 6/20/11 & 6/21/11 absent. Documentation of performance issues should remain professional, and be limited to the actual issue being addressed. Additionally, such documentation should never contain personal details which may lead an employee to believe those details influenced the action being taken. Policies and procedures should provide helpful and useful guidance to Managers when they are dealing with the delicate issue of having to address a performance issue. The importance of proper and consistent documentation cannot be overstated when it comes to defending a claim related to employment. Imagine this: Betty has worked for your practice for a number of years, and her performance has always been subpar; however, she is a nice person. She has been moved through a couple of positions to see if there is a better suited task for her. During her employment, Betty has missed deadlines, had terrible attendance and has had quite a few outbursts that would have resulted in termination somewhere else. Betty was always spoken to about the issues mentioned. Betty was terminated a month ago, and today a wrongful termination claim was received and alleges multiple areas of discrimination. Betty happens to be Latina, foreign born, over 40, pregnant, has a medical condition and is a single mother. It is clear to you that none of these were the reasons for termination, so you pull the employee's file and behold, it is empty not one mention of the numerous performance issues. A judge and/or jury will have to determine if an employer had a valid reason to terminate an employee. In the absence of documentation, it is left to the personal interpretation of the person(s) deciding on the claim. In the case of a jury, it is important to remember that this is a group of people who, at some point or another, feels they were wronged by an employer in the past, and may sympathize with the terminated employee. In summary, the importance of good policies, trained managers, consistent application of policies and proper documentation cannot be emphasized enough, and are the keys to properly defending a claim of wrongful termination.

8150 Beverly Blvd., Los Angeles CA 90048 | Phone: 800.899.662 | Fax: 310.659.1030

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