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Issue #46 - 5.27.08
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Avoiding Employee Termination Retaliation
Dr. N operates an established multi-office dental practice in Saginaw, Michigan. Last September, he hired a male dental hygienist—Gary—to work in two of the offices. As part of the office’s procedure, Gary was supplied with the practice employment handbook developed by McKenzie Management containing the policies and procedures. He was given time—paid time—to read the document and signed an acknowledgement that he had read and understood it.
Additionally, Dr. N has in place an alternative dispute resolution policy (also a McKenzie product) that diverts most employee/employer legal claims from the courts to mediation and binding arbitration. Gary was provided with literature on that policy, and signed another document acknowledging his acceptance.
Nine months later, Dr. N’s office manager comes to him with surprising news. Gary’s co-workers are telling her that Gary has been talking about the photographs he’s taken of broken equipment, exposed needles, etc. That isn’t all. He’s also claiming that if he’s ever fired, he will go to OSHA with the “evidence.”
Dr. N’s office manager, following the procedure in the McKenzie employment practices handbook, meets with Gary in the presence of a witness. When asked if he has been taking photographs, Gary admits it, but then claims it was all a joke and that he has emailed the photos to his wife. He makes no reference to any OSHA violations and tries to laugh off the incident. Gary was asked if there were any other issues to discuss; he volunteers that Dr. N is not conducting proper patient examinations.
The office manager confirms that Gary has never approached management about Dr. N’s alleged improper examinations—even though he is encouraged to do so by the “Employee Concerns” process set out in the McKenzie employee handbook. This process provides a vehicle for employees to bring any concerns to the attention of management, including filling out a form with the concern identified. The office manager gives Gary the form and asks him to fill it out, which he does. Again, he makes no mention of any OSHA violations.
Gary’s objections to Dr. N’s examination procedures are found to be without any substance. The employment policy contains a non-exhaustive list of prohibited conduct. Confirming that Gary’s actions have violated several provisions of the employee conduct rules—a commonsense conclusion—Dr. N decides to terminate his employment. A termination letter specifically detailing Gary’s violations is prepared and delivered to Gary by Dr. N at a termination meeting. The letter also confirms that any dispute Gary might have with the practice is governed by the alternative dispute resolution policy, which diverts most legal claims from the courts to binding arbitration.
Had Dr. N not had this policy in place, like many doctors I work with, he would have been consumed by indecision about just how to deal with Gary. He may not even have had the fortitude to terminate the employee.
The only real risk to the practice in this situation was the possibility of Gary making a claim that the termination was in retaliation for his having complained about OSHA violations. The OSHA Act and the common law of many states both allow a civil claim for damages and reinstatement if retaliation is proved. However, when Gary was confronted by management and twice offered the opportunity to identify his concerns, he failed to mention safety violations or any intent to notify OSHA. He confirmed this in writing when he failed to list such concerns in the “Employee Concern” form he filled out. With this, Dr. N was free to terminate him without concern of a viable retaliation claim.
Why was he justified in having no concerns? First, he documented everything including, and possibly the most important, the termination itself. I cannot make this point enough: plaintiff lawyers do not take cases in which the employee’s own words contradict his or her later claims. Gary’s failure to document any concerns about OSHA violations in the Employee Concern form is the kind of omission that causes plaintiffs lawyers to turn these cases away. Second, a plaintiff lawyer will be even less likely to take a case for which arbitration will be the sole means of recovery.
The lesson here is that it never pays to avoid addressing rumors that come from employees. It always pays to have a game plan, to have the employment policies in place and to follow through with them when confronted with a potentially dangerous employee like Gary.
Moreover, it is critical to document the reasons for termination in the file and the letter given to the employee. Remember, if that employee seeks legal advice, the first thing the lawyer will want to see is the termination notice. If there is no termination letter, or if the employer is foolish enough to either give no letter or to justify termination with the far-too-common “things aren’t working out,” the lawyer is much more likely to give an ear to Gary.
Dr. N may yet receive a letter from a lawyer asking for more information. If that happens, it is no problem. Dr. N will send the lawyer Gary’s entire file, including the “Employee Concern” form that Gary executed. Knowing that any claim will have to go to binding arbitration and that there is a solid non-retaliatory basis for termination, the lawyer is not likely to take Gary on, so Dr. N can rest assured that the matter has been concluded successfully.
Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to provide dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
Click here to hear Mike present “7 Elements of an Effective Employment Policy.” Email Mike at mike@thedentistsnetwork.net.
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