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TERMINATION

Three layers of protection: a handbook, candid reviews, and progressive discipline

To avoid the risks of employment law claims, an office needs three layers of protection, advises employment law attorney Peter T. Mavrick of Ft. Lauderdale, FL.

One is a handbook, one is a procedure for progressive discipline, and the third is candid reviews.

With those three elements in place, the office is safe from just about any type of EEOC claims.

Here’s what each entails.

What goes into the handbook?

The first protection is the employee handbook.

A handbook serves both sides of the office, Mavrick says.

For employees, it’s a guide. It shows them what they have to do “to keep straight” and perform well in their jobs.

For the office, it’s strong defense against legal claims, because it shows there are procedures in place to prevent violations and to deal with them appropriately if they occur.

Here are the basic items to include.

An at-will employment statement. Say that the handbook does not create a contract but that employment is at-will at all times, which means employee or employer can terminate it at any time.

• The work schedule. Give the office’s hours and tell when people are expected to show up for work.

List the paid holidays plus the vacation, personal, and sick leave allowed and tell how to request days off.

• Overtime requirements. Outline the working hours required and tell what lunch and break times are allowed.

Also lay out the office’s requirements for getting authorization to work overtime and how to turn in overtime hours. Or, if the office doesn’t allow overtime, say so.

Mavrick points out that there’s no way around having to pay overtime. If somebody works extra hours – even without authorization and against office policy – that person has to be paid. For that reason, it’s essential to explain the office’s rules so that if somebody doesn’t follow policy, the office can treat it as a discipline problem.

He adds that “the largest source of claims today” is overtime law. “And it’s easy to run afoul of it” unintentionally.

For protection, keep records of the hours people work.

In addition, set up some sort of procedure for people to clock in and out, and enforce it.

• Discrimination complaints. Put in a brief summary of the discrimination laws and outline the office’s complaint procedure. Also name at least two contact persons for complaints so no one can say there was no recourse because the contact person was the one doing the discriminating.

“A complete complaint procedure protects the employer,” Mavrick says.

It’s an affirmative defense, because it evidences a commitment to prevent discrimination. If discrimination does occur, it’s easy to prove that the guilty party was a “rogue employee” and that the offense can’t be attributed to the office.

• Confidentiality. Cover it with a statement that employees cannot discuss patient or business activities outside the office.

Staff also need to sign a confidentiality agreement that includes everything from patient information to data confidentiality.

• Personal Internet and e-mail use. Put in a statement that the office owns the information system and has the right to monitor its use. A good addition to that is a warning that staff “should not access sites they wouldn’t want the manager to know about.”

Don’t limit personal use altogether, he says. “There’s no need to be a slave driver.” But don’t lose sight of the fact that the office is paying those employees while they are playing on the internet. Take a common sense approach and say that staff must use it judicially. Then if it becomes a problem, address it as a productivity issue.

• Worker’s compensation. Tell how to report injuries and also how to apply for coverage.

• Dress and professionalism. With dress, don’t get specific. It’s enough to say that employees are expected to dress professionally or in whatever style the office requires, and leave it at that, Mavrick says.

As for professionalism, things that would appear to be common sense still need to be covered, so say that staff are expected to conduct themselves in a professional manner.

Also point out that each person’s behavior impacts patient care and affects the office’s image and reputation in the community.

• Insurance and benefits. List whatever coverages the office provides.

• Mediation requirements. Some employers require mediation for employment law disputes. If so, that should be stated in the handbook.

• State and local laws. Mavrick also recommends consulting with a local employment law attorney on state or local laws that need to be mentioned. In Florida, for example, there are specific requirements for jury duty leave.

Beware the too-nice review

The second layer of protection is candid reviews.

Any review that’s less than candid “can come back to bite,” Mavrick says.

Where managers run into problems is in giving good reviews to mediocre and even poor employees. Some do it to encourage better performance; others do it because they don’t like conflict.

But if it later becomes necessary to discipline or fire the employee, all those good reviews are going to hit hard. Here comes the EEOC saying “Wait a minute! You gave a good review, and now you’re saying this person is terrible?”

The goal of the review “should be to encourage people to do better,” he says. But tell the truth. Outline the good points and the bad. Be honest and be candid.

If there are issues the manager doesn’t like, perhaps that the staffer is chronically late to work or doesn’t get along with another employee, the review is the time to raise them.

Never lose sight of the fact that most employment relationships end at some point. And they don’t always end as the manager had hoped. Given a chance, “people will go after some money.”

Also, he says, managers need to be aware that “employees and employers think of the work much differently.”

Progressive and safe discipline

The third protection is the old standby – a progressive discipline policy.

That plus documentation showing the manager has followed it is proof enough that the office has given the employee every chance to succeed. It’s a solid defense against any claim of discrimination or wrongful termination.

The manager can demonstrate that the employee had “a track record of past infractions” and that the discipline or firing was warranted.

A progressive policy needs to cover two parts, Mavrick says.

One is the verbal warning. That’s given when the manager first learns of the inappropriate behavior.

Keep the warning informally. Document what’s said, but don’t ask the staffer to sign anything. Do that and the staffer goes immediately on the defensive.

Word the warning so as to help the staffer succeed. If the issue is tardiness, for example, phrase it as “You’ve been 10 minutes late three days this week. I need you to start work on time. I want you to succeed here, and to do that, you need to get to work on time every day.”

There’s no effort to push that person out the door. The manager has simply told the staffer that improvement is necessary.

That shows a genuine effort to help the staffer do well at the office, and people appreciate it. “They’re getting a chance.”

And legal issues aside, he says, the office’s profit depends on all the employees doing their jobs well.

The second part of the policy is the written warning, and that’s given when the staffer hasn’t made the improvements outlined earlier.

The written warning has to be clear so the staffer understands what’s happening, why, and the consequences of not improving.

Tell exactly what the problem is, give the dates of the infractions, tell what the staffer has to do to correct the performance, and explain that if the situation isn’t corrected, there will be more serious discipline, including termination.

Have the staffer sign the warning and put it in the personnel file.

After that, give more written warnings, suspension without pay, and even terminate the staffer. But document every step along the way.

All that shows “the office didn’t jump the gun and fire somebody.”

What’s more, if the staffer later files a claim and lies about what happened, the office can show a complete record of everything. It can also show that the employee “had a track record” of unacceptable performance.

But not in the handbook

Don’t outline the progressive discipline procedure in the handbook, Mavrick cautions.

Doing that boxes the office in.

Every situation is different. It might be appropriate to fire a poor performer for some infraction but use other discipline for an outstanding employee who does the same thing.

What more, with the progressive discipline spelled out, someone who is immediately terminated for cause could claim the office promised progressive discipline.

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