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

The Nine Risk Factors in Terminations

Today I had a call from a doctor who asked the question: “I need to fire someone – what risks do I have?” In this case, the employee who needed to be let go was a hygienist hired two months ago. She is in her thirties, presented well in the interview, had a good record, and was clearly qualified with a number of years’ experience. Unfortunately, after being hired, she exhibited behaviors that very soon got under the skin of the doctor.

The incident that set the stage for her departure involved a patient who called in for a teeth cleaning. The patient hadn’t been seen for a couple years. The front desk scheduled the patient for a cleaning appointment on a day the doctor was out. When the patient showed up, the hygienist refused to treat him. The patient was sent home without service, obviously not to return. The doctor lost the patient, a couple hundred dollars immediately, and more down the road. He also is at risk for the former patient expressing his dissatisfaction to others.

When the doctor confronted the employee about the refusal, she began to talk about state dental board rules of practice. The doctor had to explain that she was misinterpreting the rule that she was citing, but she remained unconvinced despite him copying the rule and showing her the exact language.

This employee is one of those “dental office lawyers” – ones who are always willing and very able to quote laws and regulations to the doctor or other staff. These folks view the world in a black and white manner, and tend to be rigid and very resistant to change or education. They also most often get the law or rules wrong. Given their righteous world view, they can also be trouble if they believe they have been given a raw deal.

Now, this situation is a poster-child for a discussion on how proper hiring practices can help you eliminate such people from consideration before they ever get in the door. But that is a subject for another day. Suffice it to say here that the doctor spent thousands of dollars in direct and indirect costs in hiring the employee. He does need to terminate her, but he will now face double the costs in finding a replacement after only two months.

He was intent on terminating her. The immediate issue was what risk factors did he face which might impact the decision? The risk factors we’re talking about here are those which relate to a potential for a lawsuit or an administrative charge of discrimination that the doctor might have to defend - at a cost of many more thousands of dollars.

The rule of thumb is that an employer – depending on the state – will incur a minimum of $10,000 in legal fees and costs in dealing with an administrative charge of discrimination. If suit is filed, the charges, even if successfully defended, can exceed $50,000.

 The factors relate to the practice and to the individual. Here they are:

1. Does the practice have a written employment practices policy that includes provisions for counseling and discipline?
2. Did the doctor document the issues with the employee? Did he/she follow the policy?
3. Is the doctor a man?
4. Is the employee a woman?
5. Is the employee pregnant?
6. Is the employee over 40 years of age?
7. Is the doctor aware of any medical issues the employee might have?
8. How long has the employee been employed?
9. Has the employee complained about the doctor?

For dental offices, these nine factors are the key issues a doctor must consider when weighing a termination decision. Let’s address them individually.

The first two are policy issues. The risk factor in a termination is higher if there is no policy or procedure in place – and particularly higher if there is one and the doctor has not used it. On the other hand, if there is a policy, and the doctor has used it, this is a major positive – and probably trumps all the other risk factors combined.

The third and fourth risk factors, and the ninth, relate to possible sexual harassment issues. If the answer to the ninth factor is a “yes,” the risk is greater that some complaint will follow.

The fifth factor, pregnancy, is a troubling one. Terminating a pregnant employee can substantially increase risk.

The seventh factor – knowledge of medical issues – can give rise to a claim of discrimination on the basis of disability or perceived disability. Knowledge that the employee has a long-term chronic medical condition can increase the risk of a claim.

The eighth factor, longevity of employment, is a key one. The longer the employee is employed – for example a positive answer to the sixth factor [over 40 years of age] – tends to raise the risk. The shorter the employee is there, the less the risk. The law has a term for this: “the same actor inference.” In most jurisdictions, where the person hiring and firing are the same, and the termination occurs relatively soon after the hiring decision, the courts assume that unlawful motives are not at work. This follows the common-sense proposition that an employer is not going to go through the process to hire someone that he will turn around and fire for discriminatory reasons.

Turning to the situation my doctor presented to me, he had only two positive risk factors – he did not have a policy in place and he certainly had not used it to document the issues. However, the remaining seven factors all favored him, and so I advised him to go forward with the termination. His risk is extremely low for a legal claim.

I did advise him, however, to grant her an additional week’s pay – she was terminated in the middle of his two week pay cycle. It always helps to ease the employee out to grant a small amount of compensation. It’s no guarantee that you will not receive some sort of claim – but a good faith gesture can influence a lawyer looking at the matter even if it doesn’t do so with your former employee.

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.

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

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