Case study: unprofessional conduct

April 1, 2004
A doctor recently fired a staff member who consistently had a "poor attitude." She is suing, claiming discrimination, harassment, and wrongful discharge.

Bent Ericksen and Tim Twigg

A doctor recently fired a staff member who consistently had a "poor attitude." She is suing, claiming discrimination, harassment, and wrongful discharge. The doctor practices in an "at-will" state and thought he had the right to terminate anyone who was a detriment to the practice.

Considerations

This doctor told staff members that "as long as they were doing their job, they would be assured of continued employment with the practice." The doctor did not have written policies in place and did not have an "at-will" agreement signed by each employee. Because of his statement that assured continued employment and the fact that he did not have written policies and signed agreements, the normal "at-will" employment relationship was changed to one where staff could only be discharged for "cause."

The doctor contended there was good cause for the discharge since the employee's poor attitude was expressed in her behavior on the job. He gave examples of the employee not making proper financial arrangements, not recognizing patients when they arrived, and making unauthorized adjustments to patient's accounts. He also felt this individual was not getting along with other staff members, was argumentative, and complained to staff and patients about not receiving her yearly pay increase.

This staff person belonged to a "protected group" because she was over 40 years old. She claimed she was discriminated against because of her age. She also said she was harassed because the doctor "continually criticized" her performance.

Although the doctor had talked to this employee about her performance and behavior problems, there was no documentation in her file, and, consequently, no signed record documenting the fact that she was advised of her deficiencies or the possible consequences.

Solutions

Do not make any statements to staff other than employment is "at-will." Your "at-will" statement should be included in the employment application and in the employment agreement, such as our Form 200. The "at-will" employment statement should appear in the beginning pages of your policy manual, and should be highlighted in such a way that no one reading the manual could ever say he or she did not see it. Have all employees read the manual and sign an acknowledgment form similar to our Form 203A, indicating they have read the manual and agree with its provisions. This will protect you against wrongful discharge claims.

Your policy manual also should include a section that defines what constitutes unprofessional conduct. Although it is not possible to identify every "ground" for disciplinary action, the list should be as complete as possible. Some examples from the list of 36 items in our staff policy manual include unsatisfactory work performance, discussing work-related issues within hearing distance of patients, inappropriate dress, inability to establish rapport with the employer, other staff members, or patients; falsifying, making inaccurate entries, or unauthorized adjustments to patients accounts; insubordination, misconduct, repeated absences or tardiness; and violation of any employer policy.

It is important to define possible consequences for policy violations. These consequences might include 1) an oral or written warning, 2) suspension from duty without pay, or 3) discharge from employment.

When an employee's performance is not satisfactory, document the details in a form like our Employee Counseling Memo No. 418 and have a meeting with this person to cover the items in need of correction. Inform the employee that the performance must be improved to the doctor's satisfaction and advise the employee of the consequences if the corrections are not made. This puts the employee on notice and documents the deficiencies and consequence.

Even though the "at-will" doctrine essentially states that an employee can be discharged at any time, with or without cause, issues that are considered potentially discriminatory or retaliatory take precedence over "at-will." This is why documentation of poor job performance is critical. Numerous court rulings have undermined the "at-will" doctrine, and employers should seek legal counsel or call our office before discharging an 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.

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