Protecting Physicians Against Ex-Employees
When a physician realizes that they need to terminate an employee, they are frequently concerned about the repercussions of such an action. What if the employee steals from you or creates a big scene as he or she leaves the premises? Even worse, what if the employee brings a lawsuit against you for wrongful termination?
Generally, it is wise to maintain accurate records of employee performance reviews, if there were any, and to document any verbal warnings or discussions of problems with the employee’s performance and results. Even though these activities may consume more time, it will grant the employee an opportunity to make positive changes and serve to protect you in the event termination becomes a necessity and the employee files suit as a result.
Indeed, a disgruntled ex-employee may still sue you on the grounds that you discriminated against them based on age, gender, race, or disability. When facing any of these allegations, it is wise to hire an attorney who is well versed with the applicable state and federal laws on discrimination. Quite often, the legislation under which the employee is suing a physician may not even apply to the physician’s practice. For example, our client was recently slapped with a federal lawsuit accusing them of discrimination under the Americans with Disabilities Act of 1990 and of violating the Family Medical and Leave Act. On the contrary, the former law only applies to businesses with 15 or more employees and the latter only applies to businesses with 50 or more employees. We were able to file a motion to dismiss the whole lawsuit on the basis that our client only had eight full time employees and one part time employee.
In another instance, a staff member had been experiencing performance issues and suddenly left the office and requested sick leave. While the employee was out sick, some facts came to light that revealed that the employee had exposed the company to hundreds of thousands of dollars in potential liability and potential criminal charges from the federal government. Nevertheless, the company hesitated to fire her while she was on leave under the assumption that such an action was definitely illegal. We advised the company that if they would have terminated the employee even if she weren’t on leave, or if they found evidence of her unscrupulous actions while she was on FMLA leave, termination was not a violation of the FMLA.
You should also decide whether you will combat any unemployment compensation claim filed by your former employee. If you choose to do so, your documentation of previous performance issues will be important evidence to present to the commission. Unemployment can be denied if the commission determines that the employee was terminated for just cause. The most usual findings in support of a denial of unemployment are violations of company policy, violations of the law, or failure to perform the job if the employee is capable of performing it.
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