The $100,000 Gamble
Ever heard of family obligation discrimination? Unless you've been on the wrong end of a lawsuit in which this was the charge, you probably don't know much about it. But you just might save yourself $100,000 and a whole lot of sleepless nights if you familiarize yourself with the topic, particularly the part about how to avoid being sued for it.
Having spent 18 years suing employers and representing employees who felt they had been wrongfully terminated, that knowledge and experience I now put to work for employers, specifically dentists, who tend to be ill prepared on human resources policies and procedures. In our litigious society, family obligation discrimination is one of the growing areas in which employees are suing their employers. The average verdict in these cases is $100,000 plus attorneys' fees. Dental practices are ideal targets for this type of lawsuit because they hire mostly women with young children and aging parents - the demographic most likely to allege family obligation discrimination.
Making practitioners even more vulnerable for this and other employment related lawsuits is the fact that most offices either don't have human resources policies or procedures, or if they do, those policies have been borrowed from other HR manuals and don't address the specifics of the dental practice.
For those offices that do have HR policies, the approach is typically punitive, and is frequently a trigger for legal action. Employees are often presented with a Final Written Warning. The word “warning” is the term that is so dangerous. I have had hundreds of employees come to me with this document and the word “warning” has caused them to raise their hackles to the point where they go to a lawyer because they feel they have no other options.
Avoid using the term “warning” entirely and use a different strategy such as the decision day discussion and final affirmative agreement. With this approach, the problem employee is brought in and the concerns regarding their employment are reviewed.
They are informed that the time has come in which a change is going to have to be made with their continued employment. However, the employee is told that before the final decision is reached the practice will give them the opportunity to consider if they are committed to the office and the team. To that end, they will have one day off with pay - not for vacation or personal - but for the employee to evaluate their commitment to the practice and consider their options.
When the employee returns, typically one of three things will happen. They will be very concerned about the situation and make the commitment to change their behavior. Or they may quit and never come back. The third possibility is that they come back with a list of grievances.
If they present a list of grievances, it is clear the relationship cannot be mended. At that point, the dentist must listen to the complaints, particularly if there are any references to possible discrimination. For example, “So and so is treated better and she is younger.” The dentist must document the grievances in some form that can be retained. If the grievances are just a rehash of old complaints, the employer can move to terminate immediately. If something new should arise, check it out, but the dentist can still terminate the employee.
If the staff member says they are committed to the practice, present them with the Final Affirmative Agreement. This document acknowledges in writing that the employee will not continue to display these behavior problems for a period of time, typically 180 days. If they do, they will have abandoned their employment and that constitutes a resignation. You've given the employee the opportunity to change and you've created a record proving that the dismissal is non-discriminatory. The employee maintains their dignity and the doctor has the documentation they need to defend any claim that the action was discriminatory.
Remember, the decision day and final affirmative agreement process is something that every practice should use in connection with a comprehensive - but workable - employment practices policy. These should not be used ad hoc.
The key is preparation. Too many doctors believe that if they've never had a claim against them, they never will. That is a particularly dangerous assumption. It just means the chances increase with each year.
Mike Moore is ranked among the best in employment law and has been named one of the top 10 lawyers in Ohio. As Director of McKenzie's HR Solutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
Click here to hear Mike present “7 Elements of an Effective Employment Policy.”
To order your “customized” Dental Employee Policy manual Click Here
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