EXECUTIVE SUMMARY
ASCs should be aware that even minor employee disciplinary actions can be viewed as breaking employee laws and policies.
- Employees are protected under the American with Disabilities Act, even when their disability occurs during work as a result of stress.
- Train staff according to standards of care and expectations with appropriate handbooks and policies.
- Some employees will game the system. Learn to deal with it.
Each time an organization disciplines an employee, there could be liability risk.
“Even if you don’t have a unionized workforce, there are rights and protections under the National Labor Relations Act,” says Joseph T. Ortiz, partner with Best Best & Krieger, LLP, in Riverside, CA. Ortiz speaks with ASC leaders about employee laws and policies at national conferences. He is scheduled to speak at the upcoming 2018 California Ambulatory Surgery Association (CASA) conference, set to take place Sept. 5-7, 2018, in Huntington Beach, CA.
For example, some minor actions could be viewed as breaking laws protecting labor organizing. “You might not realize you are impinging on their right to organize,” Ortiz explains. “If you discipline someone for handing out union literature, then that could be a problem under the law.” ASCs must establish and follow written policies and procedures regarding employee reviews, discipline, corrective actions, and discharge. These policies must adhere to both federal and state employment laws.
These laws include anti-discrimination laws, such as the American with Disabilities Act (ADA), Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act of 1967 (ADEA), and California’s Fair Employment and Housing Act (FEHA). Protected categories include race, national origin, color, ancestry, sex, sexual orientation, gender identity/expression, age, physical and mental disability, religious creed, medical condition, marital status, and veteran status. Not all states include each one of these protected categories, so ASC leaders should make certain they check their respective state employment laws.
“In any court of law, one of the things [judges] look for when determining if you terminated an employee for a legitimate business reason is whether you queued up expectations and standards of care,” Ortiz says. “Train staff according to standards of care and expectations, and make certain you have the appropriate handbooks and policies.”
An example Ortiz offers concerns an employee who is handing out leaflets for his employee association in an attempt to get workers to protest. The worker’s supervisor wants to give the employee a written reprimand for soliciting during work hours. The employer has a policy that prohibits solicitation during work hours, but management allows another employee to sell Girl Scout cookies during work hours. This discrepancy between the written policy and how it is enforced in some cases and not in others could result in an employment law issue. Ortiz offers some additional advice on handling employee issues:
• Classify employees lawfully. “I see a lot of cases in California where surgery centers utilize people they think are independent contractors when under California or national law, the person would really be classified as an employee,” Ortiz says. “Make sure we’re taking a look at those individuals and not passing over or not paying attention to the person because you think they’re a contractor.”
• Anticipate disability issues. Employers often make mistakes in the area of disabilities, Ortiz says.
For example, an organization intends to discipline an employee for too many unplanned, missed work days, but is unaware there is a medical reason for the person’s absences. There’s an interactive process to follow if an employee claims to have a disability.
“The law requires you to communicate with them, and figure out their limitations and what accommodations are necessary,” Ortiz says. “You need a formal, interactive process meeting and a letter requesting that meeting. This sets out limitations. Have the employee come to the meeting prepared to discuss limitations and what the accommodation might be.”
• Watch for employees who are gaming the system. Frustration ensues when employees game the disability system. For instance, an employer might plan to discipline an employee for legitimate reasons, and the employee, knowing this will happen, heads to the doctor to obtain a physician’s note that says the employee is suffering from stress. Then, the employee might file a workers’ compensation claim of stress-related disability.
“Even if we’re confident it’s gamesmanship, we have to play the game and take the doctor’s notes at face value,” Ortiz says. “You need to work through the process and, probably, get a human resource consultant or attorney [involved].” Federal and state laws allow employers to challenge disability certifications, but it’s often not a successful solution, Ortiz notes.
“Doctors have big hearts, and they’re not going to challenge employees coming to them, saying they have quality of life issues — especially when it’s stress,” Ortiz says.
A better solution would be to proceed with caution and talk with the employee about potential resolutions, he says. This interactive process might involve looking at severance packages, if the employee is amenable to this solution.
“You have to be careful with that because you don’t want it to appear the employer is trying to get them to leave,” Ortiz adds.
• Document performance standards. ASCs should set employment expectations. Employers can determine levels of discipline, including giving notice, carrying out a performance improvement plan, handling unacceptable misconduct, and moving toward termination, Ortiz says.
“The first step is to have something in writing,” he explains.
When rules and expectations are not put in writing, unexpected problems can occur. (Editor’s note: See story later in this issue on creating useful performance reviews and performance improvement plans.)
For example, an employer might have just become unionized. Since performance standards were not written and followed consistently, the union fights with the employer over these standards, Ortiz says.
“There might be a true standard that the owner or shareholders think should be happening, and that erodes over time,” he says. “Employees think they can do it this other way, and pretty soon that becomes the standard, which is a huge problem.” All accepted practices must be written into processes and standard operating procedures. Employees need to sign an acknowledgement that they’ve received these policies and understand them. This is how organizations can hold employees responsible, Ortiz explains. “Put standards in writing and make everyone stick to them,” he adds.
• Create arbitration agreement with class-action waiver. In May, the U.S. Supreme Court ruled that employers can enforce arbitration agreements and class-action waivers. (Editor’s Note: Read more about the case at: https://bit.ly/2kFXSgY.) If employees have a claim regarding pay, harassment, or a technical employment violation, they will have to take their claims to an arbitrator and waive the right to a class-action lawsuit, Ortiz says. In its decision, the Supreme Court ruled that employers can force workers, who were hired under arbitration accords, to use individual arbitration in lieu of class-action lawsuits in wage and hour claims. This means a single attorney won’t be able to represent the entire workforce in a single class-action suit.
“Everybody should be doing arbitration agreements with class-action waivers,” Ortiz says. “Class-action suits for wage and hour concerns are commonplace and can destroy a small business.”
For instance, a simple mistake in tracking employees’ lunch time could result in class-action suit, he warns.
• Avoid employee-supervisor landmines. Sometimes, there’s a long-standing employee-manager conflict that the employer will resolve through firing the employee. If this is handled poorly, the employee might file an employment claim of harassment or disability. These issues often result in the ASC calling an employment law attorney for assistance.
“It is an interactive process where I step in and work with them,” Ortiz says.
A solution might be to find the employee a suitable exit strategy that will enable the person to find another job where there could be a more successful relationship.
“They’re looking for some motivation and a little compensation that would allow them to transition,” he says. “I’ve had that success where we sit down and find that success for everybody.”
Even minor employee disciplinary actions can be viewed as breaking employee laws and policies.
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