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1.4.08 Issue #304 Forward This Newsletter To A Colleague

Michael Moore, Esq.
Director McKenzie
HR Solutions
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Separating Yourself from a Bad Employee Part 2

In the first part of this series, we talked about how the good employee can go bad and how a solid policy can dramatically reduce the possibility of that employee leading you into a crisis, and what the potential legal liabilities can be for a termination gone wrong. It cost CinCom Systems well over $200,000 in damages and attorney fees to learn the lessons we are about to go into here.

Why counseling and discipline don’t work with this person.
Trying to correct behaviors in these individuals is useless by the point that serious disruption and confrontation is occurring. Whether because of a heretofore hidden personality disorder, continuing dislocations in personal life, or just meanness, you cannot help this person get back to productivity and team spirit. The decision to terminate must be made, and quickly, for both business reasons and the doctors’ peace of mind.

Setting up the termination.
As I counsel on all terminations, you must prepare a termination letter. If there are previous counseling documents that were given to the employee, those must be copied again and must be attached to the termination letter.

The termination letter is a critical document. Many employers are under the misapprehension that they will be better off if they put nothing in writing, and, in fact, do not give the employee specific reasons for termination. Although addressing that issue is the subject of another article, do not give in to the wish to avoid the letter.

The letter should be short, but direct, summarizing the past issues, past counseling [whether or not you gave any documents to the employee confirming that], and behavior and performance concerns. If you have specific data that shows loss of patients or revenue, make sure to include that in the letter. If there have been patient complaints, make sure those were documented and identify them.

Hopefully, you have an employee relations policy, and the employee has received that policy. Your termination letter should refer to the specific provisions in the policy that the employee has violated. For example, the McKenzieHR policy handbook has a non-exhaustive list of behaviors that justify termination. If the employee has, for example, threatened another employee, reference the specific provision, and any others that apply.

Your letter should include information on the employee’s pension or profit-sharing, if any, outstanding sick leave or vacation [if you have a cash-out sick or vacation policy], conversion of health insurance, or any other benefits issues.

Finally, if you feel that it is necessary to re-key the premises, or make other changes, if your employee policy provides that the employee may be charged with the cost of such actions, if the circumstances warrant, you may be able to deduct that cost from the employee’s last check.

There must be a meeting. You should not, and cannot, avoid sitting down face-to-face with the employee unless circumstances absolutely do not allow it. If the employee, for example, has walked off the job, hasn’t shown up for work, and you are not sure if they are returning, it would be permissible to have the letter delivered to their home by courier, making sure to follow up with letters sent both by regular and certified mail.

The dangerous employee
If, before the meeting, you have reason to suspect that the employee may become abusive or even violent, prepare. This does not mean hiring a security guard to stand outside the room. The presence of a large man in a uniform might cow some individuals, but only inflame others.

We recommend that you (1) hold the meeting after patients and co-workers have left the facility, (2) have someone else in the room with you, and (3) notify the police in your area of the possibility of some disruption, and have the number on speed dial.

An additional consideration is the employee whose spouse or significant other is the potentially violent actor. If the other person comes to the office, of course they must be politely told that they will have to wait outside the office.

In the last part of this series, we will address some specific issues in terminations that can go a long way to reducing the confrontation, and documenting for your protection.

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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