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12.21.07 Issue #302 Forward This Newsletter To A Colleague


Michael Moore, Esq.
Director McKenzie
HR Solutions
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Separating Yourself From A Bad Employee

A consistent source of inquiries about terminations is: “How do we deal with a nasty, unreasonable employee when we must let her/him go?” Most doctors are understandably confrontation-averse. And nothing causes the stomach to churn like the fear of a termination turning into a real donnybrook. There are definitely steps you can take to reduce the possibility of an unpleasant or even dangerous confrontation.

Let us begin with the observation that even the best employee can -- and sometimes does -- metamorphose into a vindictive, impossible burden. Sometimes, too, a really evil person can hide their true nature until you have brought them on board. It happens all too often.

The truth is that in almost all situations, there is a good deal of advance warning. Employee behaviors tend to deteriorate over time. Seldom, if your eyes are open, should a crisis come as a surprise.

If you have a solid policy in background checking applicants, you can often weed out the employee from “Transylvania” before they are on the payroll. If you have a well-constructed, affirmative employment relations policy, conscientiously followed, your chances of ameliorating the behaviors that lead to terminations are greatly increased. This can save thousands of dollars in replacing that employee.

But, even in the best run offices, the worst sometimes happens. And there are special dangers in handling these situations, which cannot be underestimated.

Who is the employee from Transylvania?
The answer to that question is we know them when we interact with them. Doctors frequently consult me about the productive long-term employee whose behavior has always been challenging, but who recently has been driving away good employees and patients. The doctor has resided increasing reliance on that employee over the years, and may often consider him/her a friend. So, the decision on what to do is a challenge, both from an organization and personal standpoint.

The other pretty common scenario is the employee who has but a few months with the practice, originally was an okay if not exemplary employee, but the doctor begins to hear through the grapevine that this person is complaining, abrasive and intimidating with colleagues and even patients.

Any doubts you might have had about how serious the situation is are put to rest when you try to counsel these employees. It is not unusual for the employee, when confronted with the behaviors and performance issues, to become immediately hostile and threatening. Whether they do so in your presence in the meeting, or you hear about it shortly after through the grapevine, inevitably things will go downhill and rapidly from that point on.

I was recently consulted by a doctor who was stunned to hear – when she presented a chronically low performing assistant with a final warning -- that she could do a better job “if Raymond [the general manager] was not sexually harassing me.” This bombshell creates a whole new set of hazards to be navigated – and we did with this employee – but the message came out loud and clear. There was no saving that relationship.

Legal liability for a termination gone wrong
A company called CinCom Systems, Inc., learned the hard way how not to handle a contentious termination. Carl Uebelacker was a sales rep for the IT company whose relationship with his supervisor, Veith, deteriorated – as the court described it. Ubelacker complained to Veith’s supervisor, who – as the jury found – minimized the issue and told Ubelacker he would talk with Veith.

What happened next was that Ubelacker received from Veith a “Final Warning of Dismissal” which he responded to by memo and challenged the performance issues set out in the warning. Veith’s superior eventually approved the termination.

One afternoon, Veith showed up at Ubelacker’s cubicle with two employees, Butler and Ream, who were carrying boxes. Veith told Ubelacker he was fired, and demanded that he immediately gather his personal belongings, put them in the boxes, and be escorted from the building.

The jury found that at that point, Ubelacker demanded to speak with the personnel office, Veith “became incensed” and stopped Ubelacker from calling on the phone by grabbing his wrist, while Butler stood in the cubicle entrance, blocking his exit. This incident spanned only a few minutes.

Ubelacker sued, alleging, among other claims, false imprisonment, assault and battery, defamation and intentional infliction of emotional distress. After numerous court hearings, including a grant of judgment for CinCom that was reversed by the Court of Appeals, a trial was held on Ubelacker’s claims.

The jury awarded him $100.00 damages on each of the claims, and $90,000.00 in punitive damages. The court then awarded Ubelacker all his attorney fees and costs and assessed them against the company. On appeal, the judgment against CinCom was upheld.

The award of compensatory damages is very small in this case, so the potential hit was substantially greater than CinCom actually had to pay. This single example -– and there are many more – reveals the catastrophe that a termination can be.

In the next part, we will talk about the steps you must take to prepare for the contingencies in a termination from Transylvania.

Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HRSolutions, Mike is the creator of The Employment Policy and Handbook geared to provide dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
For more information Click Here.
Interested in having Mike speak to your dental society or study club? Click Here.


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