Is it an employee complaint or a practice-wide problem?

Your medical practice is busy, and it gets busier by the day. That's good for business, but it may create legal liability without realizing it. Being "busy" may be masking legal liability that you think is an isolated incident, when it's truly a practice-wide problem. For example, an employee may complain about missing lunch. That may not seem like a big problem; however, if one employee is missing lunch, there are probably others. That could lead to multiple complaints or a potential class action. The reality is that employee complaints are rarely a single employee issue; therefore, the solution should be considered practice-wide.

Why one complaint rarely stays one complaint

In a medical practice, the flow of patients usually takes priority. When schedules get behind, everyone is behind. Though wage and hour rules vary across states, no location is exempt from the rules that protect workers. Even if one employee starts a complaint, treating it as an issue for one can be the beginning of a dangerous chain reaction.

In a busy practice, pay, meal and rest break problems are rarely exclusive to one person. Although the complaints or concerns may come from a single person, when you take the time to peel back the layers, it starts with a flawed process that applies to a group, not an individual.

This is why someone must ensure all employees are entering their hours and taking their scheduled meal and rest breaks to avoid liability issues. If it is not being tracked, that creates a bigger issue because many states have laws that say if the employer does not have the requisite written records, then the employee gets the benefit of the doubt about what they are alleging as being true.

Why policy and practice must align

When the company's policy does not align with the organization's practices, it may be the first thing a plaintiff's lawyer will attack. For example, many businesses tend to have an employee handbook. While most states do not require one by law, a problem arises when one exists but is not followed. When that happens, a lawyer can point to the failure to follow established procedures as evidence that the medical practice did not meet its own standards, helping support a claim of liability. Similarly, during any kind of dispute, it's the practice's records, or lack thereof, that are typically weaponized against it. They are the first thing an employee's attorney requests and examines. They are looking to see what happened versus what the policy says was supposed to happen. They are also looking to see whether there is something bigger that was missed within the practice to allow for a larger claim. This is why someone must ensure that the practice's policies are created, trained and tracked for compliance for all employees.

The first few weeks after a complaint

What the owner does in the first few weeks can determine the scope of the liability. Any time there is an employee complaint, it is critical that records are preserved, and issues are investigated to determine how many employees it affects. Similarly, because the physician is busy, it's best to have an office manager or a human resources person document to ensure everything is tracked and compliant.

When an issue is spotted, the first thing to examine is the process that allowed the complaint to arise in the first place. It is critical to determine the source of the problem and remedy that rather than remedying only the symptom. A closer review often reveals a process issue affecting multiple employees, creating liabilities that scale with the size of the practice.

Whether it is an individual issue or a practice-wide problem, the correct solution is never to immediately terminate the complaining employee. Federal and most state laws protect workers who report legal violations. Retaliation, including reduced hours, changed duties or termination, can create additional liability and claims, including punitive damages that may multiply the employee's otherwise recoverable damages.

An employee complaint may feel like an interruption to the practice, but it may actually be the canary in the coal mine. It's an early warning system. So, fix the process to avoid a complaint becoming a class action.

Parag L. Amin, Esq., is the founder of LawPLA.