Nowadays learning about employee activity outside of work is easier than ever before, which is both a blessing and a curse. On one hand, dentists can learn about any nefarious activity. On the other hand, what they can do with that information is limited and may result in liability, depending upon the action they take. It's tough to know what dentists can and cannot do when it comes to off-duty conduct. In some cases, their failure to act can be problematic too. Let's look into a few areas that may concern dentists.
Do you allow your employees to perform duties off the clock and not pay them? If so, wage and hour claims may be in your future. E-mail is often the major culprit. Employees are often checking and responding to e-mails from home, whether or not they are encouraged or required to do so by the dentist. If this time is not paid, then the dentist has failed to comply with the Fair Labor Standards Act (FLSA).
Off-duty work can also include attending webinars, answering patient phone calls, and so on. The simple fact that something is occurring off duty and off site has no bearing. Whether it is required or not also has no bearing. If the work is being performed, it must be paid, at all times. To discourage this, be sure policies are clear that off-duty work is not allowed, and hold employees accountable for not following the rules (i.e., write them up, suspend them, or terminate them).
State law dictates whether a dentist can take adverse action with an employee based on arrests alone, and the state laws vary greatly. For example, Illinois and California both prohibit using arrest records. On the federal side of things, the Equal Employment Opportunity Commission has released information clarifying that an arrest record may not be used in making employment decisions.
Both state and federal law, however, may support unpaid or paid leave for an employee pending the resolution of the arrest. It may also support termination of employment. It all depends on the underlying reason for the arrest and whether the dentist can justify it is job related. For example, an arrest for selling prescription drugs using a forged prescription pad may very well be job related in the dental industry and may warrant unpaid or paid leave or termination. This should only be handled on a case-by-case basis and with advice from professionals.
All too often we find dentists who erroneously believe that off-duty conduct, as it relates to harassment among employees and supervisors, is not something they should deal with. This is not the case. In fact, any antiharassment policy should state that harassment at any time is prohibited.
One of the worst things dentists can do is fail to act when they have been made aware of potentially harassing behavior by their employees to other employees or supervisors, whether on or off duty. Dentists should investigate such situations because it can easily become part of the work environment. They must confront it and manage it before it becomes a nightmare for them.
As for an employee's participation in off-duty activities, roughly 29 states and the District of Columbia protect employees from discrimination and retaliation for conduct such as tobacco use, lawful use of consumable goods such as alcohol, online activities such as Facebook, political activities, legal recreational activities, union membership, and so on. As a result, these may be untouchable activities.
In limited cases, you may have a discipline policy that includes taking action for on- or off-duty conduct that harms the business interest or reputation of the practice or creates a conflict of interest. Again, a consult with a professional is best before taking action.
Dentists must manage off-hours work and harassment appropriately and take action when necessary. When it comes to other off-duty behavior and activities, whether dentists can act is less clear and possibly fraught with risk. When confronted with these situations, take a deep breath and slow down. Don't act hastily. Call a professional. Everything is manageable with a clear head and some sound advice.
Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.