Paul Edwards

Like that seasonal flu going around, you've avoided dealing with a toxic employee in your healthcare practice. You see the negative impacts on other employees, you hear the swirls of gossip around the office, and maybe you even have other team members leaving because of that one bad apple. You know this person needs to go, but it never seems like the right time.

Now that 2017 is well under way, it's a perfect time to revitalize your team. But before you start cleaning house, there are some precautions you'll need to take.

Even though it's sometimes necessary, firing an employee can be one of the riskiest moves for a small business owner. According to the 

, discrimination lawsuits have increased steadily over the last two decades, while charges alleging retaliatory behavior have doubled, making employers feel like they're walking on egg shells anytime they must discipline or terminate an insubordinate worker.

You don't have to fear making decisions for the well-being of the physician practice just because of the looming dark cloud of litigation. By taking precautionary steps, you can safely carry out necessary changes to your team.

First, know what you can and what you can't do, as an at-will employer. While you can terminate for virtually any reason except an illegal one, you're still bound by law not to fire based on protected classes (race, color, gender, age, pregnancy, many others) and protected activities (discussing wages, voting, filing a workers' comp claim, among others).

If you do try to terminate for one of these numerous illegal reasons, or if an employee claims you did, at-will can quickly turn into "at-risk" for a dangerous lawsuit. Protections cast a wide net, which often makes terminating employees a legal minefield.

Does that mean physicians and managers can never fire an employee who falls into a protected class, or who has participated in a protected activity while employed at your healthcare practice? Not at all. It's just that you're safest if you have very clear documentation showing that the termination was entirely for legitimate business or performance reasons. 

Your first defense against false claims begins well before the termination stage. You should always keep a paper trail of past issues, requests for correction, and the results of your interactions. Without a record of events, it's very hard to prove that you didn't fire for the illegal or retaliatory reason an employee may claim.

Firing someone is never fun. Even the most justified terminations can leave you feeling like your company's grim reaper. It is emotionally difficult for you and the affected worker, which is why preparing for the meeting is essential.

Here are some tips to make the medicine go down a bit easier:

•Choose a private setting, and arrange to have a witness present.

•Plan to terminate at the end or very beginning of the day, when no patients are due.

•Be straightforward and professional. Don't make it personal.

•Have a termination letter, including the final paycheck and exit interview form (see below), ready. (States have strict rules on final paychecks, so make sure you know what yours are.)

•Give the person a reason that is true and brief. Don't list all the things they did wrong. And don't call it a layoff if it's not-that's a different legal category.

•Listen as they vent or comment, but do not defend your decision. State that the decision is final.

•Gently but firmly ask the employee to clean out their desk and turn in company property. Make sure this process is supervised.

•Make note of any accusations they make, including threats.

What NOT to do at the termination meeting:

•Do not back down from your original statement.

•Do not lay your hands on the employee.

•Do not hesitate to dial 911 or inform the employee that you are considering calling the police if you feel you are in danger.

•Do not make any statements based on opinion. Only facts will support you in the future.

•Do not give the employee a letter of recommendation to soften the blow. It will be used against you.

An exit interview might be the last thing you want to do when firing an employee you know is unhappy-but it should be the last thing you do.

Exit interviews can be used as protection against future allegations of wrongful termination at your practice. If their story changes, you will have the exit interview to back you up.

If the employee uses the exit interview to write an incoherent angry rant about you and the practice, you can use this as evidence of their mindset at the time of termination. Never has trash talking been such a useful thing for an employer. Plus, you get to show that you gave them every chance to voice a legitimate complaint, even after there was no fear of retaliation.

Termination is already difficult enough for both you and your employee-there's no need to make it tougher or riskier by firing without adequate preparation. By taking these steps beforehand, you can keep the process as safe and dignified as possible for all involved.

CEDR HR Solutions, a leading national provider of customized medical employee handbooks and expert HR support for medical practices of all sizes and specialties. He can be reached at 866-414-6056 or 

Articles

Terminating an employee is never easy, but making the right preparations for your final conversation will help things go as smoothly as possible.

Ready, Aim, Fired! Terminating Bad Apples without Fear

As of 11/22/16, a federal judge in Texas has issued an injunction barring enforcement of the new U.S. Department of Labor FLSA exemption/overtime regulations that had been scheduled to become effective on December 1. This is a temporary measure in response to lawsuits brought by 21 states and various business groups. Until further notice, employers in all states are no longer required to comply with these rule changes. 

The article below describes the rule changes that were originally scheduled to take effect. These rules may be resumed (with a delayed effective date), revised, or halted, depending on the pending court case and/or any new legislation.

Keeping overtime costs down is a source of concern (and occasional panic!) for most healthcare practice owners and physician employers. Thanks to recent changes to the Fair Labor Standards Act (FLSA), it's about to get even harder.

Among other rules governing employee compensation, the FLSA regulates which employees may be considered "exempt" from earning overtime pay when overtime hours are worked and which aren't. In May 2016, the Department of Labor announced an update to the minimum annual salary requirement for exemption, resetting it to $47,476 - more than double the previous requirement.

Over four million additional U.S. employees are about to become eligible for overtime pay

, regardless of the havoc this will wreak on employers' budgets. With a compliance date of Dec. 1, 2016, practice owners and managers have just enough time to learn the new rules and prepare, 

Here are three steps to ensure FLSA compliance by the deadline 

Self-audit exempt employees whose annual salaries fall under the new threshold. 

First, determine which of your employees are exempt but earning less than the new salary threshold. For each affected employee (assuming they meet the rigorous FLSA duties test, which has not changed), you have a choice: Should you raise their wages above $47,476 or change their status to nonexempt? The latter option means they must track their time and their hourly pay must always work out to at or above minimum wage. Additionally, you must pay overtime rates for all overtime hours worked.

The best decision for your practice depends on how far from the threshold each employee is and how much overtime they work. You can use tools, like this 

, to personalize this for your practice. For an employee earning $46K and working five hours of overtime each week, a raise to bump them over the threshold makes a lot of sense. For one earning $30K and rarely working overtime, changing status to nonexempt might be a better move.

Then there are the "balancing act" employees: those for whom you may need to change status to nonexempt AND find a way to limit overtime. Whether you reassign duties, hire more staff, or decide everyone must "work smarter, not harder," this too can be a tricky proposition.

 Note that some employees may not be happy about a change back to nonexempt status - so if it's truly necessary, you'll also need to frame it in as positive a light as possible.

Self-audit everyone, to make sure all employees are classified correctly.

It's tempting to ignore employees who won't be affected by the FLSA changes, and to think no further about those you've decided should stay exempt. However, it's better to use this transition period to self-audit the status of 

Here's why: Although the duties test for exemption hasn't changed, it's often forgotten, especially when it comes to office managers and nurses (who, by the way, should almost never be exempt). This new rule presents an excellent chance to fix errors quietly.

Note that the salary level test is not required for doctors, PAs, and NPs, who are exempt by default.

For nonexempt employees, find (legal) ways to limit overtime.

no nonexempt employee may ever waive their legal right to overtime pay, nor work off the clock

This means policies such as, "Overtime hours will not be paid if not approved in advance," are downright illegal. So is, "Overtime is not permitted and therefore will not be paid." So are most policies that try to use equal measures of so-called "comp" time as a workaround for paying overtime. Once overtime hours are worked by nonexempt employees, overtime rates must be paid.

But the need to pay for time worked doesn't leave you without options! Employers 

have a legally compliant policy stating that 

employees must obtain authorization before working overtime. 

This helps transfer some responsibility and it means that if employees break this policy (especially willfully or repeatedly), they can expect to receive corrective actions up to and including termination. Like all policies, this needs to be written by an attorney or HR expert.

The Dec. 1 compliance deadline for the new FLSA overtime rules mean it's time for all of us to weigh our options, determine which employees are affected, and compare costs versus benefits. Then, think about how much you're likely to pay out in overtime initially, and how you can reduce that figure over time. And don't forget that strong hiring practices and employee retention are also overtime reducers!

keeping our overtime costs down afterward may not be easy, but it's the only option the Department of Labor has left us with.

The recent changes to the Fair Labor Standards Act (FLSA) means practices will have to rethink the way they think about employees and overtime. 

Conquering Overtime the Legal Way at Your Practice

A lot of factors have to come together for a practice to thrive. You need a great team, great patient relationships, and the right infrastructure of policies, procedures, and management to make everything run smoothly - and if you’re like many independent physicians, you spend your days juggling 

of those works-in-progress. But when you think about your top priorities for your practice in 2016 are any of your goals HR-related? If not, they should be!

Here are five HR must-dos that will make your practice safer and stronger this year.

Ask the “five-year question” about every employee.

When you think about your practice as you want it to be five years from now, would you hire each of your employees again, to help you get there? If the answer isn’t a resounding “yes!” for everyone, identify what’s going wrong. Are you giving yourself all the support you need to coach and manage employees successfully?

More training, resets, and all kinds of other options are available to today’s owner or manager. In the end, not all employees may be right for your practice - but before taking any adverse actions, make sure you have documentation in place supporting your management decisions.

Review and update employee job descriptions.

Keeping employee job descriptions up-to-date tends to fall off doctors’ and managers’ radar - you’re busy! But this task is worth the time. When properly written and kept current, job descriptions are a critical tool for managing employees more effectively and decreasing your overall liability.

Why are they so powerful? Job descriptions are written summaries of the duties and requirements for each position in your office. They help you reach out to the right candidates when hiring, and assist your employees in understanding their roles and responsibilities. But because a well-written job description should include 

a comprehensive list of the physical and mental requirements and essential functions of each position

, it can also act as a written record if something just isn’t working out.

Job descriptions are equally important if an employee ever becomes disabled and you have exhausted 

 options for reasonable accommodation. In this case, a properly written job description can be your most effective defense to a claim of disability discrimination.

Put yourself first. Are you motivated and engaged?

Great HR starts with you - the employer. Turn some attention inward and make sure you’re still learning and growing, both as a doctor and a manager.

• Join a professional association, coaching program, or online forum.

 A support system is invaluable when you’re trying to stay independent while building or developing your practice. Plus, you’ll learn new HR and business strategies to make life easier.

• Schedule at least 1 continuing education or training course on HR.

 Staying up-to-date is an ever-present challenge, but it’s important! Luckily, there are tons of learning opportunities out there.

• Engage your team by engaging yourself.

 Statistics show that great managers make a difference to whether employees are engaged.

Along the way, don’t forget to read at least one book that will make you a better leader. One of my favorites is 

: How the Best Leaders Make Everyone Smarter

Independent physician practices aren’t always experienced with the intricacies of employment laws. To make sure you’re not making a dangerous and costly mistake, analyze the following areas:

. This is an all-too-common situation, and the federal government cares a great deal about unveiling it, since tax dollars are at stake.

. Having to pay years of back overtime pay for an employee you thought was “exempt” is PAINFUL!

Travel and training compensation for non-exempt employees

. The Department of Labor often looks at travel and training policies and pay 

when analyzing the merits of employee complaints!

Since state and federal employment laws are 

 evolving, your employee handbook can be your best friend OR your worst enemy. To be the former-and to help you manage both better and more safely-it must be kept continually up-to-date by experts (don’t try this at home).

If it hasn’t been updated in the last year then it needs to be thoroughly checked. Not knowing you’ve fallen out of compliance isn’t an excuse if the Department of Labor comes knocking.

Areas where your policies likely need updates include:

Pregnancy & Maternity Leave of Absence (MLOA)

Making sure your employee policies are all up-to-date and legally compliant is THE MOST important HR step you can take this year - and I recommend that you do it right away, by contacting an HR expert you can trust. Cheers to a successful 2016!

CEDR HR Solutions, the nation’s leading provider of customized medical employee handbooks and expert HR support for medical practices of all sizes and specialties. He can be reached at 866-414-6056 or 

Your practice is only as strong as your HR and management infrastructure. To ensure a thriving practice in 2016, here are five tasks on your to-do list.

5 Critical HR Tasks that Will Strengthen Your Practice

Do you tend to keep your cell phone in your pocket (when it’s not in your hand) throughout the workday? Do your employees do the same? And how often do you see them texting or tapping away when they’re supposed to be working?

We’re all addicted to our shiny smartphones , whether it’s a matter of staying connected, staying informed, or keeping ourselves entertained. However, as a physician or practice administrator, this can translate into big problems! Employee productivity issues are just the beginning. You’ve also got patient care standards to uphold and a host of HIPAA-related privacy and security concerns - and it’s 

responsibility to anticipate threats and mitigate possible negative outcomes.

The upshot, of course, is that a robust and legally compliant employee cell phone policy is a necessity in every healthcare practice. After all, most smartphones incorporate not just phone and email capabilities, but a camera, audio and video recording tools, internet browsers, data storage and transfer features, and more. It’s up to you to draw a line in the sand - or on your shiny tile floor -as to what kind of employee cell phone usage is and 

Here are some points to consider when rethinking your employee cell phone policy:

 Maybe you’re trying to solve a current employee issue, or maybe your team is already pretty responsible. Perhaps you want phones kept off employees’ persons except during breaks - or perhaps you’re aware that parents on your staff need their phones nearby to stay in contact with kids home alone. Some small practices have no break room for cell phone usage. Others always have one clinical room open. While each office is different, popular provisions include the following:

-Cell phone use in front of patients, at the front desk, or in patient areas is not acceptable.

-Cell phones may only be used in the break room / outside the practice / in a designated area.

-Cell phones may not be used on the clock, except during designated breaks.

-Other points your policy will need to include: What about photos or recordings, whether of patients, employees, or records/working areas? You will likely need a separate policy covering these topics.

 Federal, state and local laws are updated frequently, and they’re nearly impossible to keep up with on your own. To ensure you’re in line with all laws and best practices that apply to you, have an employment law or human resources expert create and periodically review your policies. DON’T borrow a policy from a friend’s practice or download one online. It will likely have legal pitfalls you’re not aware of.

• Don’t overregulate cell phone usage on breaks.

 You may attract unwanted attention from the National Labor Relations Board (NLRB) if your policies impede employees’ protected rights to organize or better their working conditions through their own or the company’s communication resources. Some states also limit what you can require of (or forbid) your employees during breaks.

 Is every employee’s HIPAA training up to date, so that they fully understand their responsibility NOT to share patient information or photos (even cute or funny ones!) via cell phones, on social media, and/or online? All employees should be re-trained yearly!

• What related technology or device-related policies will you need? 

Camera usage and social media are obvious ones. Also, consider whether Protected Health Information is ever accessed in any way on a mobile device, via email, browser, or software portal? What about tablets and laptops? Are any employees using company-provided phones or devices? If you answered yes to any of those questions, then you need additional policies, which 

be professionally written and HIPAA-compliant.

Not all violations are created equal: An unauthorized patient photo is not in the same league with a quick text to check on mom’s surgery. Allow yourself the firmness to terminate immediately when needed, but the flexibility to coach when warranted. Some situations may generate additional questions or responsibilities. What if an OSHA violation is photographed, even if cameras usage isn’t allowed in clinical areas? In this type of grey area, balance your desire to protect your practice's reputation (say, by deleting the photo) with a very careful understanding of the employee's rights and your obligations to correct the problem. Consult an expert whenever things get tricky.

Regardless of whether our cell phones are recognizable in another 10 or 15 years (imagine the iPhone 25!), personal technology is here to stay, and so is employers’ ever-increasing burden for proactive compliance with employment laws and safety/security regulations. Keeping our employee policies up to date is a necessity, not an option - especially in healthcare.

A smartphone can be a distraction to staff members and also a potential HIPAA violation waiting to happen. Here are tips to avoid that at your practice.

Author | Paul Edwards

Articles

Ready, Aim, Fired! Terminating Bad Apples without Fear

Conquering Overtime the Legal Way at Your Practice

5 Critical HR Tasks that Will Strengthen Your Practice

Six Tips for a Smart Employee Cell Phone Policy