Michael Moore, Esq. Director McKenzie HR Solutions Printer Friendly Version

Treat Employees Like Patients

When I was just out of the Air Force and just married, I went to work for my father-in-law, Dan Hessler. Dan was a brilliant salesman—he literally could sell ice to Eskimos. I went to work in his restaurant as a waiter and “manager.” Over the next few years, I received Dan’s accumulated wisdom.

The restaurant was located on an exit of a major interstate in Ohio, and business was growing. In my years there, it grew from a hot dog stand to a 125-seat full-service operation. Best thing was, my in-laws closed down from January to April and took off for Florida, taking my wife and me along!  But Dan could not move beyond a business that he could completely control and the tragedy of not being able to trust people to do right by him. What sticks in my mind after all these years is his number one axiom: “Customers are your friends, employees are your enemies.” This axiom is at the farthest reaches of employer-employee relations, but we can treat our employees like enemies simply by neglecting them. And employees, being humans, respond by treating the employer as a belligerent.

Representing employees over the years, I often note that a lawsuit could easily have been avoided if the employer had simply treated the employee—now my client—as he would have a customer. If you want return customers, you treat them right. In those situations where the customer/patient is unhappy, rather than cutting them off, wise doctors take the time to learn what the issue is and remedy it, if possible.

My dentist friends make it a policy to refund a patient’s money if there is unhappiness with the result—or to redo the work gratis. This is in most instances a policy that works. You as the doctor give up the value of your service, but the gesture goes a long way to eliminating the possibility of a complaint to the state dental board or a lawsuit. And a “we’re sorry” is very, very powerful.

My litigator friends who specialize in malpractice cases have confirmed that if every doctor simply apologized for a bad result—even without admitting negligence—and returned the patient’s money, there would be very few lawsuits. People, in fact, are reluctant to see a lawyer and are unconsciously looking for a way not to have to go forward with a legal claim. This is true whether it is a patient or an employee who feels wronged.
Thus, when it becomes apparent that an employee simply is not working out, it is often a good strategy to treat them like an unhappy patient. You can do this by way of a severance agreement.

The severance agreement is a standard tool used by corporations when terminating managers and executives. It works just as effectively in ending a relationship amicably when applied to a dental assistant. The severance agreement is a contract like any other. You provide consideration to the employee, and the employee agrees to release you from any possible claims she/he may have against you. Like any contract, the parties can negotiate to a flexible result that works in the particular situation.

A number of our dental clients have long-term employees on staff; sometimes you buy them with the practice when you take one over. These employees tend to become the most pressing issues for the doctors. As they age, they can develop health conditions that begin to affect performance, they have family issues that take attention away or they just get burned out but cannot make the choice to find something else. It is this employee who is of major concern for bringing a claim against you.

You should consider a mutual parting of the ways with a severance agreement. Even though none of us like the task (or expense) of training a replacement, isn’t it better to have the cooperation of the outgoing staff member rather than having to find that replacement after an abrupt termination and possibly ongoing claims?
Typically, a severance agreement provides for some form of continuing compensation for the departing employee. This can be a lump-sum payment or continuing paycheck for a period of time. Often, the agreement provides that the employer will not contest an application for unemployment compensation after the severance payments expire. You can also craft into the agreement for continuing payments that they cease upon the employee obtaining a job elsewhere during the payment period.

The employee may be required under the agreement to be available to answer questions you may have, or even to assist in orienting a replacement. This continuing obligation is best coupled with the continuing paycheck consideration—it assures that you will get the cooperation when you ask.
The agreement will often call for the employer to provide a letter of reference. (You can’t, obviously, give a glowing report on someone you learned has taken money or property from the practice.) You may even offer assistance to the departing employee, through a service, with finding another job.

What you most want from this, of course, is an iron-clad promise from the employee not to bring any claims of any kind, save the unemployment compensation claim. Remember, the release language must be broad enough to cover any possible claim. Ignorance of a possible claim is no defense to the promise.
Even when your office policies include a mandatory alternative dispute resolution provision, which prohibits employees from bringing court claims over disputes, extending the offer of a severance agreement is a sound business decision.

We offer assistance to our clients in developing and implementing severance agreements. The key is, however, that the agreement must be crafted for the specific situation and must be presented to the employee in a manner that ensures, if not happiness, then certainly cooperation.

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 HRSolutions, 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.

Click here to hear Mike present “7 Elements of an Effective Employment Policy.” Email Mike at mike@thedentistsnetwork.net.

Interested in having Mike speak to your dental society or study club? Click here.

Forward this article to a friend.