Because of their relatively small size and close working relationships, physician practices are less likely than larger healthcare entities, such as hospitals and nursing homes, to find themselves in an employment suit.
However, employment suits do happen, and practices should watch for the following employment mistakes to reduce their likelihood:
1. Failure to properly pay nonexempt employees for breaks, lunch, and overtime training. "This is a ripe area for litigation right now," says Cherie L. Silberman, attorney at Florida-based Constangy, Brooks & Smith, LLP (CBS).
2. Inappropriately classifying hourly employees as salaried employees to avoid overtime and other compensation. Just because you slap an "assistant to the assistant manager" title on somebody's name tag doesn't make him or her exempt from overtime and other benefits. Juries salivate over this issue. CBS attorney Michael D. Malfitano recommends that physician practices undertake annual or biannual audits to ensure that they haven't improperly classified employees as exempt.
3. Failure to implement, disseminate, and follow personnel policies. What are your harassment and discrimination policies? What are your corrective action and disciplinary policies? You might have the most progressive and comprehensive personnel policies in the business, but they're useless if you don't follow them.
4. Failure to train employees. Do your employees understand the finer points of the Americans with Disabilities Act? Do they understand that harassment is not limited to sex, but can include religion, age, race, ethnicity, disability, and marital status? This training should apply to all supervisors and managers, as well as HR.
5. Failure to document promptly and accurately. Prepare every document regarding warnings, complaints, and disciplinary action as if it is being introduced at trial and you are the jury. Be objective. Get the facts, not the conclusions. The document should include the date it was created, the name and signature of the author, the name and signatures of the witnesses (when applicable), and the stated purpose of the document.
6. Failure to appropriately evaluate employee performance. Make sure your assessment of your employees is accurate. Don't fudge over the problem areas because it's difficult to refute a former employee's complaint of being wrongfully denied a promotion after a soft-hearted supervisor gave a glowing, but undeserved, appraisal. "If they make a decision adverse to that employee later on because of poor performance but there is no documentation to support that, that could look like discrimination," Silberman says.