A dentist had an employee who was making scheduling mistakes and was negligent in handling financial arrangements with patients. The dentist discussed this with her on several occasions, but didn’t put anything in writing. When performance did not improve, the employee was discharged. The former employee filed charges for discrimination, wrongful discharge and emotional distress.
Considerations
The dentist thought that because he was practicing in an “at-will” state, he could discharge employees anytime without problems. “At-will” employment does mean the employment relationship can be ended with or without notice and with or without cause by either employer or employee. However, the evolving nature of employment regulations has imposed hurdles that can supersede the “at-will” prerogative. One of these is violating an employee’s civil rights. Employers may not discriminate against an employee who belongs to a “protected class,” which includes age, gender, race, color, religion, or national origin. This protection takes precedence over “at-will.”
Not only was this employee in a protected class, but her wrongful discharge claim was further strengthened by the fact that other nonprotected employees were making similar mistakes and had not been fired. The employer now had “the burden of proof” to demonstrate that termination was based on legitimate, nondiscriminatory reasons.
Solution
The solution is to administer discipline fairly and consistently. Counsel an employee who has a performance or behavior problem, and document it in writing. Written records help employers defend against allegations of wrongful termination.
The written documentation or Employee Counseling Memorandum (our Form No. 418) should include:
1)The reason for counseling. Be as specific as possible. What happened? When? How often? Example: “In the last two months you have been absent 10 times: May 5, 6, 15, 25, and 31, and June 10, 11, 12, 20, and 21.”
2)Nature of disciplinary action. Indicate whether it is a verbal warning, written warning, suspension, or termination. If suspension, specify the duration and that it is without pay.
3)Corrective action expected of employee. Be specific. Include the date action must be accomplished if appropriate. Example: “Attendance must immediately improve.”
4)Potential consequences. Warn that failure to improve in areas of deficient performance will result in further disciplinary action, which may include discharge. Initial this paragraph to signify that the potential consequences were covered. Note: If a breach of conduct occurs again, follow through immediately with discipline. If you do not, and the employee is later discharged, you will be considered to have condoned the poor performance/behavior, since you allowed it to continue after the warning.
5)Employee’s comments. Allow the employee reasonable time to attach any comments to the form when received.
6)Employer/administrator’s comments. Describe the employee’s reaction to items covered in the interview. Note that he/she was informed (regardless of agreement or disagreement) that his/her behavior/performance must be changed consistent with the doctor’s expectations. If the employee is suspended, state the date and time of return, and that he/she was advised that failure to return at that time would be considered a voluntary resignation.
7)Employee’s signature and date. Just above the employee’s signature state: “My signature indicates that the above items have been presented and discussed with me and does not necessarily indicate that I agree with the reason(s) for the counseling.”
8)Signature of witness and date. Potential witnesses may include an associate doctor, your spouse, accountant, or consultant. A witness should always be a neutral party. Avoid using an employee’s co-worker or peer.
9)Employer/administrator’s signature and date.Attach all records pertinent to the disciplinary action to the counseling form and place in the employee’s personnel file. Examples include related personnel policies, attendance records, previous employee counseling memos on the same issue, complaints from patients or co-workers, etc.
In this case, since the doctor had administered discipline inconsistently and without proper documentation, he was found liable for discrimination and forced to pay a significant monetary award to the former employee.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
