Practice Pointers: When it's time to give an employee the boot

July 26, 2002

Employees who break the rules, won't learn, or spread dissension don't belong in your practice. Here's how to cut them loose.

 

PRACTICE POINTERS

When it's time to give an employee the boot

Jump to:Choose article section...You can fire anyone, except when you can't Building a dossier that will hold up in court Doing the deed: what to say, what

Employees who break the rules, won't learn, or spread dissension don't belong in your practice. Here's how to cut them loose.

By Gail Garfinkel Weiss
Senior Editor

Your new back-office clerk isn't working out. Despite tutorials from you and your office manager, she can't get the hang of coding and billing—and she frequently takes unauthorized 90-minute lunch breaks.

What now?

"Firing someone is never easy," says Helena Dahan, office manager of the four-physician Lawndale Internal Medicine group in Philadelphia. But you're not doing your practice, staff, or patients any favors if you don't cut ties with someone who is disruptive, can't or won't get the job done, or has her own ideas of what constitutes a workday.

Like hiring, firing has protocols and legal ramifications. And as with any risky endeavor, planning ahead invariably helps.

You can fire anyone, except when you can't

The law used to be very clear. "The workplace was governed by the 'employment-at-will' doctrine, meaning that an employee—absent a written agreement—had no expectation of having his or her job tomorrow," says Steven I. Kern, a health care attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ. "Anyone could be fired for any reason or no reason at any time."

Over the years, however, state and federal governments and the courts have carved several exceptions into the employment-at-will doctrine. The most common of these, the public policy limitation, forbids firings that infringe on rights granted by law. So you risk being on the losing end of a lawsuit if you terminate someone:

• Because of race, religion, gender, age, disability, or sexual orientation.
• For being pregnant.
• For being a whistleblower.
• For rejecting your sexual advances.
• For filing a workers' compensation claim.
• For serving on jury duty.

Other employment-at-will exceptions in certain states include an "implied contract" limitation, meaning that an employer's oral or written statement, in effect, offers assurances that an employee's job is secure. A statement in your employee manual indicating that, absent certain infractions, employees' jobs are secure after a six-month probationary period, might be construed as such a contract.

Still, you can fire a pregnant, handicapped Asian-American woman for failing to do her job properly, for being disruptive, or for other legitimate business reasons. But not because she's pregnant, or Asian-American, or handicapped, or a woman.

Even if you have a legitimate reason for firing a staffer, you might prefer to give her a few chances to get things right. But that's not always feasible. Helena Dahan immediately fired an employee who was caught stealing. "Theft of money, prescription pads, or drugs is grounds for on-the-spot dismissal," she says. "So is alcohol or drug abuse while working."

Similarly, a Florida physician didn't hesitate to fire the employee who opened up a credit card account in the doctor's name and charged her daughter's wedding to the account, says Roy Huntsman, a practice management consultant with Medical & Dental Management in Gainesville, FL. Hitting a patient or fellow employee, causing property damage, and violating the confidentiality of patient records are also grounds for immediate dismissal, says Alec Ziss, practice administrator at Weston Pediatric Physicians in Weston, MA.

No matter what your policies for dismissal, immediate or otherwise, they should be spelled out in your employee manual or elsewhere and given to all employees—who in turn should sign a statement that they have received and read these rules.

If you want to give an employee a second chance, be specific when expressing your dissatisfaction, says Judy Capko, a practice management consultant with The Sage Group in Newbury Park, CA. "Don't say 'try harder.' Instead, speak directly to the problem: 'You need to see that calls are returned within four hours, and if there's an exception, talk to your supervisor by 5 pm that day.' " Set a time limit to correct the problem, and let the employee know that if it isn't resolved, she'll be let go.

"Labor lawyers recommend that you use a technique called progressive discipline," says Steven Kern. "The first time a billing clerk is rude to patients, warn her not to do it again. A second episode generates a written reprimand. Infraction No. 3 means probation, and finally she'll be out the door. Incremental discipline is especially helpful in large practices, because it makes it easier to establish standards; you can't be arbitrary and apply different rules to different groups of employees."

Ziss thinks that smaller practices can benefit from this multistep process, too. "A discussion might not convince an employee that you're serious," he observes, "but being put on probation undoubtedly will."

Building a dossier that will hold up in court

Most lawyers and consultants recommend that you document an employee's shortcomings carefully and thoroughly.

"Good documentation consists of letters or memos to that person indicating the problem, what needs to be done to correct it, and noting that they've been reprimanded or warned," says Steven Kern. "Note each incident. You have to build a case. It's also helpful to include examples of bad work, like insurance forms that are filled out incorrectly."

Documentation is especially important, Kern adds, "if you're firing someone who differs in some way from your other staffers. If most of your employees are between the ages of 35 and 45 and you fire a 67-year-old, you'd better be able to demonstrate why."

At Weston Pediatric Physicians, a note is placed in the personnel file when an employee is reprimanded for poor performance. "The note is signed by a practice administrator and the employee, acknowledging that the discussion has taken place," says Alec Ziss. "The employee is free to respond, in writing—for example, 'You told me you would mentor me in an area and you didn't.' If the employee refuses to sign, we call someone in as a witness to verify that notice of poor performance has been given."

If the file ends up in front of a judge, you'll be on firmer ground if it contains more than an unrelenting enumeration of infractions and warnings. "We've had no legal problems as a result of firing anyone," says Mary Jo Marlowe, office manager for a six-physician internal medicine practice in Rochester, NY. She attributes that to including everything in personnel records, positive and negative, including cards and letters from patients. "So if a judge were to look over the file, he won't think we're stacking the deck against the person. But we do indicate everything the led to the termination," she says.

Of course, employee evaluations belong in the file, too, and they should be candid. Also document what your practice has provided in the way of instruction and other assistance to help the person succeed.

Doing the deed: what to say, what not to say

When you're showing someone the door, you need to choose your words carefully.

"Staying in control is critically important," says Judy Capko. "Drawing up a short outline will help you do that. So will having written documentation that the person can see as you're talking to her."

You should clearly indicate why the employee is being fired, but keep your explanation brief and don't engage in a debate. Becky Boyer, site manager of a 150-doctor multispecialty group in Johnson City, NY, says, "I gather up my documentation and say, 'We've addressed this problem in the past. It has not been corrected. You've had ample warnings on such and such dates. Unfortunately, we have to let you go.' If they haven't committed an egregious infraction, I give them an opportunity to resign effective immediately. That way, when they apply for another job they can legitimately say they left voluntarily."

Don't provide fodder for a wrongful termination lawsuit. Forbidden comments include, "Now that you're pregnant, you won't be able to handle the high-pressure workload," "You're slowing down; we need someone younger," and the like.

Friday at 5 pm might seem the logical time to break the bad news, but Capko thinks Wednesday afternoon is better. "Someone who's let go on Friday can't begin a job search until Monday; she can't call past employers to see if someone has an opening. She'll spend the whole weekend being angry," Capko says. That's not good for her, and could do damage to your practice if she uses the time to spread the word about how shabbily you've treated her.

No matter what day of the week you do the deed, ask dismissed employees to leave immediately. "Get them out of there before they have an opportunity to copy files or documents, crash the computer, or cause trouble among remaining staff," says Kern.

Let the person gather her belongings, ask for anything you need returned, such as an office key or a key to a lockbox, cut off access to computers and telephone voicemail, and hand over her final paycheck—which should be determined by state law and the dictates of your employee manual. You might be required to pay for accrued vacation time and even accrued sick time.

The federal Fair Labor Standards Act doesn't mandate severance pay, but some practices provide it—as long as the firing is performance-related rather than for an egregious violation, such as theft or insubordination.

Roy Huntsman advises sending a terminated employee on her way with two weeks' pay. At Alec Ziss' practice, severance varies depending on length of service, but a terminated employee is rarely turned away empty-handed. Generally, an employee who's still in the new-on-the-job probationary period is paid to the end of the week, employees who've been on staff for up to two years are paid to the end of the week plus a full week, two to five years' service means two weeks of severance, and—depending on what the practice partners decide—severance pay might be higher for a five-year-plus employee.

"We feel that the employee might be in a state of shock, even if she's been warned more than once that her job performance is below par," Ziss says. "It may take her a while to recover and begin a job search."

Whatever you do regarding a severance package, be consistent, fair, and reasonable, Capko says. If you give a five-year employee one week's pay per year, do the same for a 10-year veteran.

After telling a patient that he's dying, firing an employee may be the hardest thing you'll ever do. "But if you've done your job well in terms of training, supervision, and guidance, then it's not your failure," Ziss says. "Hiring is an imperfect process. You're going to make mistakes. If you know somebody isn't working out, your responsibility is to take the appropriate action, not to live with a problem employee."

 

Breaking the news to the rest of the staff

Chances are, an employee's termination won't come as a surprise to your other staffers, especially if your office is a small one. They've noticed the sloppy work habits, or were aware of the excessive absenteeism; they may even have resented the fact that their colleague seemed to be getting away with such behavior. Still, you should say something to them acknowledging the employee is gone, if only to avoid giving the impression that you treat employees like disposable gloves.

"The next morning, I get everyone together in a meeting and state facts: 'Unfortunately, Jane is no longer with us. We'll be filling her position as quickly as possible,' " says Rochester, NY, office manager Mary Jo Marlowe.

Steven I. Kern, a health care attorney in Bridgewater, NJ, isn't averse to indicating why the person was terminated, at least in broad terms. "You want to reassure your remaining employees that there was a specific reason for this termination, and their jobs remain secure. Otherwise the termination will affect morale," he says.

Naturally, it would be terrific if your remaining employees immediately agreed that the firing was for the good of the group. But you're not always going to get that agreement. Sometimes, the best you can hope for is that your staffers know your motivation, appreciate the fact that you explained things to them, and get on with their jobs.

 

Guess who's calling for a reference

You wouldn't expect someone you've fired to use your name as an employment reference, but it happens all the time.

Most experts recommend the "name, rank, and serial number" approach. "I tell my clients not to say anything other than acknowledging that they worked for you, and confirming their position and last salary," says Judy Capko, a practice management consultant in Newbury Park, CA. "You also need to tell staff not to release information. Instead, they should refer callers to a person in the office designated to handle these types of inquiries."

You might be asked if you'd rehire the employee. Don't be afraid to say No, but don't feel compelled to provide details.

If you feel a moral obligation to warn a potential employer, stick to the facts and be brief, consultants say. Don't go out of your way to malign the former employee or make accusations you can't back up. You could be sued for defamation.

 

Gail Weiss. Practice Pointers: When it's time to give an employee the boot. Medical Economics 2002;14:58.

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