How to minimize claims from hiring, firing staff
December 1, 1999 4 minutes read
How to minimize claims from hiring, firing staff
Employment claims in the health care industry are "going through the roof," according to John Lyncheski, JD, an attorney with Cohen & Grigsby in Pittsburgh. He cautions that health care risk managers must pay more attention than ever to the hiring and firing processes, always with an eye to minimizing the liability when an angry ex-employee tries to get even.
"Employment claims are the largest class of federal claims, bar none," he says. "Employees are incredibly aware of their rights to sue their employer. Why are they so aware? We tell them. Go down to the human resources department and you’ll see the poster on the wall explaining how to sue you for discrimination."
Recent years have seen both an increase in the number of employment claims filed and a change in the type of claims, he says. It used to be that only white-collar employees responded with "you’ll hear from my lawyer" when they were fired, Lyncheski says. "But now you hear that from the guy you fired from the laundry," he says. "Everybody has a lawyer today."
Lyncheski spoke on the issue at the recent meeting of the American Society for Healthcare Risk Management in Chicago. He told the risk managers in attendance that they must partner with the human resources department more closely than most currently do, so they can get involved in preventing employment claims from an early point. (See p. 142 for examples of how not to hire and fire and p. 143 for Lyncheski’s advice on handling employment claims.)
Michael Barton, corporate vice president of human resources at Regional Medical Center in Madisonville, KY, tells Healthcare Risk Management that health care providers are seeing many more lawsuits related to hiring and firing than they saw in past years.
"People are suing, and I see an upswing, with people more aggressive about it, particularly among young people," Barton says. "I think part of it is that health care organizations have tended to overlook the inexperienced applicant. If the job posting says no experience necessary’ and then you screen them out because they have no experience, they can get aggressive about it."
In such a situation, the applicant may assume you overlooked the person for some other reason, such as age, race, or sex. In reality, the organization often just finds that experienced and, therefore, more desirable applicants appeared even though the job posting did not require experience. In that case, Barton suggests posting the job description again so it asks for experience. "You can say that you’ve looked at the job again and decided that you need some experienced applicants after all," he says. "Let them see that you’ve altered the specifications. We usually repost job specifications for three to five days. There’s no legal requirement to do that, but it makes sense."
You also might tell the applicant in such a situation that other positions within the organization are available without experience, and refer the person to those posted positions. If no such positions are available, you can tell the person the application will be held on file for six months. (Barton also recommends caution with implied promises. See p. 142 for more information.)
However you decide to handle the situation, keep in mind that people can react very poorly if you seem callous or abusive. That applies even when you have no real relationship with the person beyond looking at a job application. Barton says risk managers are seeing an upswing in the number of people charging personal harassment because you asked for more information or questioned items on their applications.
"Particularly now, people are violent when you start playing with their careers, their jobs, their money," Barton says. "I’m not saying they’re going to shoot you, but they get very upset very quickly, and they can get aggressive in filing lawsuits."
Lawsuits possible even when firing justified
Federal job discrimination lawsuits are increasing at a rate of about 20% per year, Lyncheski says, according to data from the Equal Employ ment Opportunity Commission in Washington, DC. Lawyers increasingly are willing to take plaintiffs’ cases alleging employment discrimination, he says.
Some legislative changes in recent years have encouraged more job discrimination lawsuits. The Civil Rights Act of 1991 opened the door to jury trials, compensatory damages, and punitive damages. More opportunities for lawsuits came along with the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimi nation in Employment Act, the National Labor Relations Act, the Fair Credit Reporting Act, the False Claims Act, and the Health Insurance Portability and Accountability Act of 1996.
Class actions also are being approved more frequently by the courts, and they carry even higher potential liability than individual lawsuits. Lyncheski cites these average awards for litigated cases related to employment discrimination:
• age discrimination — $219,000;
• race discrimination — $147,799;
• sex discrimination — $106,728;
• disability discrimination — $100,345.
Employment cases are second only to medical malpractice as the type of jury verdict most likely to surpass $1 million, Lyncheski says. That gap is closing fast, he says.
Defense legal fees average $44,000 per case. "And that’s with an experienced attorney who knows what he’s doing with this type of case," he says. "Your legal fees can reach six figures when the attorney is not experienced."
Lyncheski says his experience and various studies have shown that juries are likely to believe a terminated employee, and a majority of jurors think it is part of their job to send a message to employers in hopes of changing their behavior.
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