An Insider’s Guide to Hiring and An Insider’s Guide to Hiring and Firing in Your Medical PracticeFiring in Your Medical Practice

Massachusetts Academy of DermatologySpring Meeting, April 14, 2010

Dana S. Gershon, Esq.

Disclosure Statement:Disclosure Statement:

No financial relationships interests to disclose

Why Does This Matter?Why Does This Matter?More than 93,000 charges of

employment discrimination were filed with the EEOC in fiscal year 2009

EEOC obtained settlements in discrimination cases totaling nearly $300 million in fiscal year 2009

Verdicts in individual cases run into seven figures

An ounce of prevention is worth a pound of cure

Agenda for today:Agenda for today:How to HireBest Practices to Manage Current

EmployeesHow to Fire

Help Wanted:Help Wanted:How to Advertise a JobHow to Advertise a JobAlways state that your are an equal

opportunity employerStay away from language that could

inadvertently suggest discrimination (e.g. ,”Recent College Grad”)

Advertise broadlyDescribe the core of the job – all

essential functions

Advertisement for a Receptionist:Advertisement for a Receptionist:

Busy dermatology practice seeks friendly, energetic person as front desk receptionist. Successful candidate must be able to multi-task and interact professionally with patients. Please apply by sending resume via email to Linda Smith, lsmith@dermapractice.com.

Sarah applies:Sarah applies:

Sarah, who is 56 applies for the job. She comes in for an interview and is friendly and warm. In the course of the interview however, she discloses that she does not know how to use a computer. As a result, you decline to hire her and hire Jill instead, who is 30 and computer literate. Any problem?

Interview Dos and Don’tsInterview Dos and Don’ts

His hair is disheveled. I wonder if he’s a

drug addict?

Interview Questions Should Be:Interview Questions Should Be:Job relatedNot directed to identify a person as a

member of a protected classNot likely to screen out members of a

protected class

Don’t Ask:Don’t Ask:Any question that could identify a potential

disability (including past drug/alcohol use)Questions relating to children or pregnancy

statusQuestions pertaining to arrests (can only

ask about felony convictions or convictions for significant misdemeanors)

Any other questions that could give you information about age, race, national origin, religion or any other protected class

Protected Classes in MA:Protected Classes in MA:AgeAncestryColorGenderGeneticsRace

DisabilityMilitary or Veteran

StatusNational OriginReligionSexual Orientation

Criminal Offender Records Criminal Offender Records Information (CORI)Information (CORI)More and more practices are doing

CORI background checks on employeesSomething to think about with anyone

who handles finances, comes into contact with children or handles sensitive information

To get CORI information on job, applicants must get certified by Criminal History Systems Board

CORI and Medical PracticesCORI and Medical PracticesPractice needs to get certified to receive CORI,

but if employees will have access to patient records, certification is easily obtained

Need a CORI Policy to get certifiedWill need to specify who in the practice can view

CORI and only those individuals should have access

CORI check should be last step in the hiring process◦ If the Practice will take action based on CORI, you

must inform the person and give them a chance to respond

Agenda for today:Agenda for today:How to HireBest Practices to Manage Current

EmployeesHow to Fire

Employment Postings:Employment Postings:OSHA (www.osha.gov)EEO (www.dol.gov)Minimum Wage/Maximum HoursFMLA (50 or more employees)USERRAWorkers’ Compensation (www.mass.gov

)Unemployment CompensationMA Maternity Leave Act

Managing Employees:Managing Employees:Review at 90 days, one year, then

annuallyMake sure employee manual allows more

frequent reviews as necessary◦ Employment should generally be “at-will”◦ No required progressive discipline

If issues come up, counsel and document it!

Personnel Files:Personnel Files:Prudent to keep 10 yearsThese are subject to disclosure in MA◦With a problem employee, always consider

how the documentary record would look to someone evaluating the situation

Keep medical/CORI information in separate files

Agenda for today:Agenda for today:How to HireBest Practices to Manage Current

EmployeesHow to Fire

How to Fire:How to Fire:Review the file – have you documented

the case thoroughly?If the employee is a member of a

protected class, and file is thin, contact counsel

Consider what’s next – will you be replacing the person? With whom?

Is severance appropriate?◦ You don’t get something for nothing –

consider a release of claims

What would you do?What would you do?Lisa is a 39 year old office manager who learns that she is positive for a breast cancer gene. She elects to have a prophylactic mastectomy and takes 6 weeks leave of absence under the Family and Medical Leave Act. While she is out, the Practice brings in Susan, age 46, to cover Lisa’s job. Susan does a great job, and the partners in the practice would like to have Susan replace Lisa. You are the Managing Partner. How do you proceed?

The Actual Event:The Actual Event:Have more than one person in the roomThe less said the betterDon’t lie, even just “to be nice”Provide required pay/paperwork◦ Final pay through termination date◦ Accrued but unused vacation◦ Notice of Right to File Unemployment (

www.mass.gov)◦ Separation Agreement (release of claims) if

offering severance

Next Steps:Next Steps:Update your employee manual (or create

one if you do not have one)Conduct onsite training for your

managers and employees (on these three topics and others)

When issues come up, seek advice from HR professionals and/or employment counsel