Watch for legal risks when hiring
Hiring, interviewing, and reference checking present significant liability issues for ED managers. "This is a very difficult area, which is fraught with legal risks," says Tallien Perry, JD, a Los Angeles-based health care attorney. Here are some ideas to consider:
Avoid interview questions that pose legal risks. When interviewing clinicians, it's important to avoid asking questions pertaining to age, sex, race, or national origin. "Also, avoid general open-ended questions about disabilities, illnesses, or injuries. Any such questions must be specifically job related," says Roger King, JD, a Columbus, OH-based partner in the labor and employment division of Jones, Day, Revais, and Pogue. "In general, avoid questions that don't shed light on the ability of person to perform the central function of the job."
Children or childbearing issues should not be raised. "You can ask as to whether the applicant would foresee any difficulty in regularly reporting to work, but you should not disqualify any applicant because of child care responsibilities at home, since that is a potential form of sex discrimination," says King.
Check certifications adequately. "In some instances, people have falsified their medical credentials and represented themselves as nurses and physicians," says King. "Due diligence in checking must be carried out by the employer; otherwise, negligent hiring issues arise. If malpractice claims were filed and it was discovered that the practitioner was not properly educated or licensed, not only is the hospital liable for the initial damages, but it is also facing potential punitive damages."
Check background adequately. If a hospital should have known about an employee's propensity to commit violent crimes such as child abuse, and a patient was later assaulted in the ED by that nurse or physician, that hospital could be liable. "In that scenario, there is potential for high multiple punitive damage in the millions of dollars," says King.
Adequate checking is essential. "You can do checks with the bureau of motor vehicles in most states, and get a release from prospective employees to initiate a check of any criminal or civil proceedings they may have been involved in," recommends King. "Also, obtain a release to at least attempt to obtain personnel records from previous places of employment."
Get relevant information during interview. When interviewing applicants, it's essential to cover key areas that can pose legal risks. "Have the applicant fill in all potential gaps in their employment background," King advises. "You need to ascertain whether applicants have been involved in any civil or criminal litigation, and can ask whether they have been convicted of any crimes. You should also ask if they have ever been denied staff privileges at other institutions and if so, why? Ask if the applicant is eligible for rehire at their previous place of employment. If they say no, you can probe as to why."
Don't explain why an applicant was not hired. "You have no obligation to tell someone why they were not hired. Simply say you have selected someone else, and leave it at that," says King. "Many employers get trapped into giving full detailed reasons, which end up being used against them in a claim."
Ask objective questions. When doing background checks, the way questions are phrased can affect the responses you receive. "You cannot ask open-ended questions about mental or physical fitness, but you can ask whether an applicant has any condition that would prohibit him or her from performing the essential aspects of the job, and attach the job description," says King. Employers have a right to ascertain whether applicants are qualified to perform specific assigned job duties, he explains.
"Don't ask, `do you think this nurse has a good personality?' Ask direct questions that are objective," says Sue Dill Calloway, RN, MSN, JD, director of risk management for the Ohio Hospital Association in Columbus. "For instance, ask how many days of work they missed, did you ever make entrances in their record regarding standard of practice issues, is there any documentation in the record about being disciplined for a problem. Either there is or isn't."
If the hospital's policy is to only give out date of hire and salary, be creative in searching for other sources of information. "Ask the applicant for the names of immediate supervisors or colleagues they worked with in non-supervisory positions," King recommends. "The lower you go in the chain of command, the more apt people are to talk to you."
Be aware of current laws regarding reference checking. A majority of states have adopted laws that protect former employers who provide truthful, accurate information. "Most states have passed laws providing immunity if giving accurate information in good faith," notes Calloway.
The state laws protect former employers from civil action. "If I decide not to hire a nurse because of something they told me, she may want to sue them. But if the information the supervisor gave is true and accurate, then the hospital has immunity," says Dill.
If applicable in that state, reminding former supervisors about the law often results in more frank discussion. "When you are requesting information, start off by saying, you may be aware that we have a law that protects you giving me truthful information," Dill recommends. "That will make them feel more comfortable."
Don't give subjective information when providing references. "You can discuss attendance, punctuality, evaluations they were given, whether or not they are eligible for rehire, or whether they received any disciplinary action or not," says King. "Those are all verifiable objective issues."
Avoid making subjective comments, such as saying an employee had a bad temper. "Stay away from social or psychological analyses," says King. "However, you can say that the department had complaints from patient or families, if that fact is documented and verifiable, regardless of whether the complaints were valid or not."
Information that is factually provable is generally safe to share with prospective employers. "The bottom line is, if you can back up the statement with objective evidence and have no reason to believe it is false or untrue, you can refer to it," says King. "However, if you knew those complaints were not accurate, you should not share them."
Check references adequately. Employers have a duty to check references that the employee provides them with, says Dill. "You need to do as much checking as possible, finding as many people who can speak to the competence of the employee," she explains. "The main question you need to pose is whether or not they would rehire that person."
But that task can be difficult. "Generally, hospitals prohibit their human resources or personnel departments from providing any information other than job title, date of hire, and sometimes salary level, and sometimes will only confirm a salary that was specified by the employee," notes Perry.
Even problems that affect work performance, such as a history of substance abuse, may be difficult to discover. "There are confidentiality prohibitions against releasing information on an employee's medical records or substance abuse problem, so it may be difficult to get that information," says Perry.
Don't hesitate to contact former colleagues. "When an applicant names a specific individual in a facility as a reference and indicates that you may contact that individual, then there is nothing to prohibit you from calling them directly," says Perry. "Usually, people will include as references only the supervisors with whom they have had a good relationship."
Still, you can learn a lot from speaking with that supervisor, Perry notes. "If that supervisor does not have a company policy, or if the supervisor chooses to ignore that policy, then you can talk freely with that person," she says.
It's generally not necessary to obtain written consent to contact individuals named as references. "The fact that an applicant puts an individual's name on his or her resume or employment application is generally enough," says Perry. "On the other hand, if you want to contact an individual not named as a reference, for example the director of nursing, then get the applicant's permission in writing, signed and dated."
It's a good idea to get written consent if you plan to contact other colleagues. "Ask the applicant to give permission in writing to check past and present employers," says Dill. "If they won't sign that, you probably ought not to consider them at all."
Obtain legal advice regarding state laws. ED managers should have inservicing by local legal counsel who specialize in labor law, Perry advises. "For instance, there are many different traps that a potential interviewer could fall into," she says. "An attorney can provide a set list of questions which are appropriate, and a list of questions not to ask, even indirectly."
Don't withhold pertinent information if laws permit it. There is a liability risk if hospitals withhold pertinent information. "If Doctor A knows he is about to lose his license, but resigns before Hospital A can terminate him, and Hospital B sends a release form to check references, and Hospital A says it's our policy to only give out salary information, that can be a problem," says Dill. "Hospital A has a duty to speak up if a doctor sexually molests patients."
If the hospital does not offer that information and a patient later sues for malpractice, Hospital A can be liable, Dill notes. "At first, people were telling things they shouldn't, and everybody started getting sued," she explains. "Then the pendulum swung the other way where former employers weren't telling them anything, even things they should have known. Now we are restoring a balance, where people can give out truthful things which impact job performance."
Don't require a prehire physical. "If you want to hire someone, you can't do a pre-employment physical. You have to hire someone contingent on the basis of them passing a physical," says Dill. "The only exception is you can do drug screening before employment, but other than that, you need to send a letter saying you are offering a job, conditioned on passing a post-offer employment physical."
Test for substance abuse. Legally you can and should test for substance abuse before offering a clinician a job, says King. "You need to ensure you are not hiring anyone with a substance abuse problem, given the access to medication in the ED," he emphasizes. "The hospital is going to be held to a very high standard in the eyes of most courts and juries, and also viewed as a deep pocket because of perceived high levels of insurance coverage. So even if they show valid arguments in court, the jury may still have so much sympathy for a plaintiff that they award a large verdict."
[Editor's Note: Legally Interviewing, Selecting, Hiring, and Firing Staff by Daniel Sullivan, JD, MD, FACEP, is available from the 1997 ACEP Management Academy. Cost is $22 for members and $26 for nonmembers. To order a copy, contact ACEP Publications, PO Box 619911, Dallas, TX 75261. Telephone: (800) 798-1822 or (972) 550-0911. Fax: (972) 580-2816.]
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