Bent Ericksen and Tim Twigg
A staff member who caused nothing but agony was terminated after several verbal warnings. Since the doctor was located in an "at-will" state, he thought letting her go wouldn't be a problem. The doctor then received a letter from the employee's attorney charging "wrongful discharge, breach of implied covenant of good faith and fair dealing, emotional distress, and discrimination." The letter intimated that a $100,000 lawsuit would be filed if the issue wasn't settled out-of-court.
Considerations
Courts have ruled that "at-will" employees cannot be fired when certain rights are being violated. Two of these protected rights that supersede "at-will" are discrimination and retaliation. Age discrimination is listed within the discrimination protections.
The Age Discrimination in Employment Act of 1967 prohibits discrimination against individuals 40 years of age and older. The types of claims that can arise under this law include discriminatory hiring and firing.
The dental practice discussed above consisted of 11 staff members. Only one was over the age of 40 — the one that was terminated. While the doctor's contention was that the termination had nothing to do with her age, but instead was based on her poor job performance, there was no documentation to support that claim. The employee denied having had any conversations with the doctor regarding her performance. Further, the employee claimed that another, much younger employee, had not been fired for the same performance.
Solutions
To reduce your risks and prevent charges of discrimination, follow these key steps:
1) Be sure that your staff manual has an "Equal Opportunity Employment" policy that includes the correct language concerning discrimination. Cover such areas as race, creed, color, gender, age (over 40), national origin, religion, physical or mental disability, medical condition, marital status, pregnancy, citizenship, veteran's status, and sexual orientation as required by state and federal laws. Extend this into all areas of the employment relationship, including promotions, wages, benefits, and all other privileges, terms, and conditions of employment.
2) Have written job descriptions that comply with the Americans with Disabilities Act (ADA) regulations. Job duties and responsibilities should be effectively communicated to staff.
3) Treat everyone the same so there can be no misunderstandings regarding favoritism. Such a charge can best be defended or, better yet, prevented, by conducting written performance reviews. Be sure to be completely factual in your evaluations. The recommended interval for written performance evaluations is approximately once a year and twice during the first three months for a new employee. By documenting a true picture of each person's performance — or lack thereof — it is easier to justify why a certain person was discharged and another was not. A termination for lack of performance should never come as a surprise to an employee.
4) Give employees a reasonable opportunity to improve, unless the problem is grievous. Start with an interview with the employee to go over specific problems, and reiterate the possible consequences if there is not improvement or the problem is not corrected. Document the facts, write down the employee's response, and have the employee sign the form. Discretionary consequences could include another written warning, suspension from duty without pay, or discharge from employment.
Caution: Since you want to preserve your employment "at-will" prerogative, do not lead the employees to believe, whether orally or in writing, that you will adhere to a progressive discipline procedure before a discharge will occur. If you do, you will effectively negate "at-will" employment policy.
5) Do not give a nonsatisfactory performer a wage increase. By doing so, courts have ruled that you considered the job performance to be satisfactory. If you later let the employee go because of performance problems, the authorities will question why you gave a poor performer a pay increase and whether you were really sincere in judging the performance as poor.
Before discharging an employee, we suggest you consult with an employment-law compliance specialist.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 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.
