How to be fair, legal, and ethical when dismissing an employee
Dianne Glasscoe Watterson, MBA, RDH
If you are a practice owner and employ auxiliary staff members, it is likely that you will need to terminate someone’s employment at some point. You should make sure you don’t run afoul of certain employment laws, and the termination conference should be conducted in a way that protects the dignity of the employee.
Terminating someone’s employment is often a difficult decision that can bring on considerable angst for a practice owner. Employers often know within a month or less after hiring someone that the person is not right for the job. But the employer may take months or even years to do anything about the situation. However, if you believe that smooth business functioning is directly related to the quality of the staff as a group, the decision to remove a staff member that has become a negative force is not so difficult.
Here are some termination basics:
- Never, ever terminate a staff member when you’re angry. Wait until you cool off.
- Write down your thoughts beforehand as a guide to what you want to say.
- Do not engage in long explanations, but give a reason for the dismissal. When an employee is dismissed without an explanation, an unjust termination lawsuit is more likely.
- Have a witness. Suitable witnesses include another doctor, an office administrator, your spouse, or CPA. Do not ask another staff member to be the witness, except if you have an office administrator.
- Document, document, document.
- Present any pay that is due, ask for the staff member’s office key, and change passwords.
- Maintain strict confidentiality prior to the dismissal.
- Maintain the dignity of the staff member at all times.
Here is a sample termination script: “I want to thank you for being a member of my staff. However, your [chronic absenteeism, inability to get along with others, whatever the reason] and the resulting effects on our daily work have led me to decide to end your employment. Therefore, your services will not be needed from today forward. Here is a check [for two weeks’ severance pay or any accrued benefits that have been earned]. I ask that you please gather your personal belongings and leave your office key with me.”
While negative employee behaviors should be judged on a case-by-case basis, the seriousness of the employee infraction will determine your course of action. For some behaviors, a discussion and a warning may be sufficient to correct the problem. Those behaviors may include:
- Interrupting or distracting other staff from their work with things that do not further production.
- Conducting personal business during working hours.
- Failing to establish good rapport with coworkers, dentists, the office manager, or patients.
- Failing to report a situation that should be reported.
- Intentionally creating problems for other staff.
- Acting in a discourteous or insubordinate manner.
- Displaying a negative attitude that affects your patients and/or staff.
- Frequently being absent or tardy.
- Failing to perform duties adequately, properly, and willingly.
- Knowingly violating written policy.
Some behaviors can be egregious enough to warrant immediate dismissal. Those include:
- Divulging confidential dental patient information.
- Deliberately neglecting dental patient care on the job.
- Displaying unprofessional conduct such as loud arguing, threatening or intimidating people, or abusive language.
- Neglecting safety and health rules.
- Using alcohol or illegal drugs during the workday.
For a termination to be deemed wrongful or unjust, it must be illegal as far as the law is concerned. There are a number of federal and state laws that prohibit firing for discriminatory reasons on the basis of race, color, national origin, sex, religion, disability, pregnancy, and age. It is also illegal to fire someone as retaliation for reporting illegal activities, or for taking a permitted medical leave. If you have an employment contract with a staff member, termination must not violate the contract.
All states are considered to be “at-will” states (except Montana), meaning employers can terminate any staff member for any reason as long as the reason is not illegal. However, there has been some erosion to the at-will doctrine over the past few years. One example is the public policy exception. Courts have deemed that an employee is wrongfully discharged when the termination is against a well-established policy of the state, such as taking time off to vote, sit on a jury, or serve in the military or National Guard.1
Another example is the implied contract exception. If an employer makes verbal promises of continuing employment, an implied contract is formed, even though no express, written instrument regarding the employment relationship exists.1
A third example of exception to the at-will concept is the covenant-of-good-faith exception. In employment matters, employers must exhibit “good faith and fair dealing.” This exception has been interpreted to mean that employer personnel decisions are subject to a “just cause” standard, or that terminations made in bad faith or motivated by malice are prohibited.1
There are no laws that require severance pay. It is seen as an act of goodwill on the part of the employer to help bridge the dismissed staff member until he or she can find another job. The amount someone pays might depend on the person’s length of employment or some other factor but should probably not be less than two weeks’ pay.
Some employment experts recommend having the departing staff member sign a release of future liability in order to receive severance pay. Susan Heathfield states, “Without severance pay, there is no reason for an employee to sign and release you from all claims. Obtaining the release is important in a world in which anyone can sue you at any time for any reason—or no reason at all.”2 States vary regarding employment rules, so it would be prudent to check with a local employment law attorney to make sure your actions are ethical, legal, and fair.
The best advice is to hire high-quality people and provide all necessary training. But when dismissal is necessary, maintain the employee’s dignity. Your practice success depends on it.
1. Implied employment contracts and wrongful termination. Employment Find Law website. http://employment.findlaw.com/losing-a-job/implied-employment-contracts-and-wrongful-termination.html. Accessed December 7, 2017.
2. Heathfield S. Employment: Severance pay. Reasons why an employer might want to provide severance pay in termination. The Balance website. https://www.thebalance.com/severance-pay-1918252. Published October 24, 2017. Accessed December 6, 2017.
Dianne Glasscoe Watterson, MBA, RDH, is a consultant, speaker, and author. She helps good practices become better through practical on-site consulting. Please visit her website at wattersonspeaks.com. For consulting or speaking inquiries, contact her at [email protected] or call her at (336) 472-3515.