Issue #155-7.31.12

Michael Moore, Esq.
Director McKenzie
HR Solutions
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Separating Yourself From A Bad Employee
By Michael Moore, Director McKenzie HR Solutions

A consistent source of inquiries about terminations is: “How do we deal with a nasty, unreasonable employee when we must let her/him go?” Most doctors are understandably confrontation-averse. And nothing causes the stomach to churn like the fear of a termination turning into a real donnybrook. There are definitely steps you can take to reduce the possibility of an unpleasant or even dangerous confrontation.

Let us begin with the observation that even the best employee can - and sometimes does - metamorphose into a vindictive, impossible burden. Sometimes, too, a really evil person can hide their true nature until you have brought them on board. It happens all too often. The truth is that in almost all situations, there is a good deal of advance warning. Employee behaviors tend to deteriorate over time. Seldom, if your eyes are open, should a crisis come as a surprise.

If you have a solid policy in background checking applicants, you can often weed out the employee from “Transylvania” before they are on the payroll. If you have a well-constructed, affirmative employment relations policy that is conscientiously followed, your chances of ameliorating the behaviors that lead to terminations are greatly increased. This can save thousands of dollars in replacing that employee. But, even in the best run offices, the worst sometimes happens. And there are special dangers in handling these situations, which cannot be underestimated.

Who is the Employee from Transylvania?
The answer to that question is: we know them when we interact with them. Doctors frequently consult me about the productive long-term employee whose behavior has always been challenging, but who recently has been driving away good employees and patients. The doctor has resided increasing reliance on that employee over the years, and may often consider the person a friend. So, the decision on what to do is a challenge, both from an organization and personal standpoint.

The other pretty common scenario is the employee who has but a few months with the practice, originally was an okay if not exemplary employee, but the doctor begins to hear through the grapevine that this person is complaining, abrasive and intimidating with colleagues and even patients.

Why Counseling and Discipline Don't Work
Trying to correct behaviors in these individuals is useless by the point that serious disruption and confrontation is occurring. Whether because of a heretofore hidden personality disorder, continuing dislocations in personal life, or just meanness, you cannot help this person get back to productivity and team spirit. The decision to terminate must be made, and quickly, for both business reasons and the doctor's peace of mind.

Setting-Up the Termination
As I counsel on all terminations, you must prepare a termination letter. If there are previous counseling documents that were given to the employee, those must be copied again and attached to this letter. The termination letter is a critical document. Many employers are under the misapprehension that they will be better off if they put nothing in writing, and, in fact, do not give the employee specific reasons for termination. Although addressing that issue is the subject of another article, do not give in to the wish to avoid the letter.

The letter should be short but direct, summarizing the past issues, past counseling (whether or not you gave any documents to the employee confirming that), and behavior and performance concerns. If you have specific data that shows loss of patients or revenue, make sure to include that in the letter. If there have been patient complaints, make sure those were documented and identify them.

Hopefully you have an employee relations policy that the employee has received. Your termination letter should refer to the specific provisions in the policy that the employee has violated. The McKenzie Employment Policy and Handbook has a non-exhaustive list of behaviors that justify termination. If the employee has, for example, threatened another employee, reference the specific provision and any others that apply.

Your letter should include information on the employee's pension or profit-sharing, if any, outstanding sick leave or vacation (if you have a cash-out sick or vacation policy), conversion of health insurance, or any other benefits issues. There must be a meeting. You should not, and cannot, avoid sitting down face-to-face with the employee unless circumstances absolutely do not allow it. If the employee, for example, has walked off the job, hasn't shown up for work, and you are not sure if they are returning, it would be permissible to have the letter delivered to their home by courier, making sure to follow up with letters sent both by regular and certified mail.

The Dangerous Employee
If before the meeting you have reason to suspect that the employee may become abusive or even violent, prepare. We recommend that you (1) hold the meeting after patients and co-workers have left the facility, (2) have someone else in the room with you, and (3) notify the police in your area of the possibility of some disruption, and have the number on speed dial.

An additional consideration is the employee whose spouse or significant other is the potentially violent actor. If the other person comes to the office, of course they must be politely told that they will have to wait outside.

Mike Moore is ranked among the best in employment law and has been named one of the top 10 lawyers in Ohio. As Director of McKenzie's HR Solutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.

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