By Ike Devji, J.D.
Imagine that after two decades in business with 100 plus employees and not a single EEOC or employment complaint your business is facing a class action lawsuit by disgruntled former employees discharged for cause. Imagine that these employees call every other employee they can reach and try to get them to join the lawsuit against you. Imagine that many of these employees are currently unemployed or underemployed due to economic conditions and are happy to have a new business, yours. Now wake up, it’s 2011 and all of this is real.
Over the last 45 days I have helped three different clients with issues similar to this fact pattern. In every single case the toxic employee that brought suit and/or encouraged others to do so was employed until the time of the suit, fabricated serious and offensive complaints at discharge or in anticipation of discharge. They also shared one other characteristic, in every single case they had been toxic or had been performing poorly for some extended period of time and should have been fired long ago but were not because of fear of conflict or because the manager of practice owner was trying to “be nice”.
I’m all for charitable giving, but I must be clear on this point; your HR practices are not the place for you to be “charitable” and can cost you and all your other employees your livelihoods. Part of the hesitation we see is based on the fact that most people don’t know how to fire and discipline in a safe and effective way, below is a simple outline we use to help you get a handle on a real “process” just like you have for most other operations in your practice.
Start early, even in the interview process and make all employees aware that you have a specific discipline process and high standards. Encourage them to communicate on any issues related to the workplace and their performance. Be clear about your expectations and requirements and how they will be enforced. Use a written job description that outlines their responsibilities and your performance expectations and then be ready to back it up.
THE FOUR STEP GUIDANCE AND DISCIPLINE PLAN:
VERBAL – Given instructions, corrective feedback and outline your expectations for behavior or performance that is below par or creates conflict with other employees or patients immediately.
WRITTEN – Upon the SECOND incidence of any undesired behavior or shortfall of the performance the position clearly required and which was clearly outlined in the initial interview and written job description (see how it is repeated, re-enforced and most importantly, DOCUMENTED?) provide specific written record of the issue, save it in their file and provide them notice by giving them a copy.
HAVE AN AFFIRMATIVE AGREMENT – As a last salvage attempt and to preserve a record, use an affirmative agreement that specifies the behavior you need to correct and have the employee agree to specific, immediate changes in their behavior and performance to conform to their job description and previous corrections. Use a written form that they have seen before and that should be in their handbook.
FIRE THEM– If after the three above attempts don’t produce the desired results, you’ve done your part and it’s time to discharge the employee; again it is vital to have a process. Get keys, passwords, building entry keys and other security related issues covered and consider changing key locks and alarm codes. Have a witness if possible and follow a specific discharge process including an exit interview. Record the exit interview if possible so that the interaction is documented. If possible provide the employee with a final check they are due or any severance you may offer as a courtesy at the time of discharge, it takes some of the anger they feel away even if they know that being fired was their own fault. Finally, provide them an opportunity to provide feedback, either during the interview or in writing on a form you can provide; give them a chance to speak their mind and vent anger that might result in a lawsuit.
As always and as covered in my previous articles, get both EPLI (employment practices liability insurance) and a real, customized employment manual from a top employment law resource, not a free form of the internet or an outdated one you copied from another practice and get legal advice from an experienced employment law attorney sooner rather than later if you feel you have an employee that threatens your practice.
For more information, see our index under employmentlaw and visit http://lawsuitfreeworkplace.net/members/ my thanks to Douglass Lodmell and Paul Edwards for their guidance on these issues. This article originally appeared at www.physicianspractice.com, the nation’s leading practice manage,ment resource and appears here with permission.
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