Physicians as business owners suffer from the same employment-related issues as other small business owners. Unfortunately, this can sometimes include employee lawsuits. There are five big reasons employees sue their employers: 1) unfair dismissal; 2) wage and hour violations; 3) retaliation; 4) harassment; and 5) discrimination. By following good practices, a business owner can avoid these land mines.
James D. Rosenblatt
Texas is a right-to-work state, but you cannot terminate an employee for an illegal reason. While simple in theory, it can be difficult for an employer to avoid the perception something impermissible has taken place. Publishing employee conduct expectations, establishing a progressive discipline process, consistently applying policies and procedures and honestly communicating issues to your employees can help prevent misunderstandings. Following these recommendations can help avoid an unfair dismissal claim.
Employers often misunderstand the requirements of federal wage and hour laws, resulting in employee lawsuits. Make sure you understand the requirements for exempt and nonexempt employees, and make sure employees are classified correctly. It is also important you have a written policy regarding overtime, computation of the work week and how time worked is submitted and verified. The cost of fighting a wage and hour dispute plus the risks of an adverse finding can be incredibly expensive. Taking the time to understand the applicable laws, keep up with changes and memorialize the basis for determining an employee is exempt can be helpful in the event of a future dispute.
Retaliation claims can take several different forms; however, the bottom line is the employee feels they are suffering an adverse employment action because they made a complaint or took some protected action. It is important the manager who is determining an employment decision be aware of any issues, such as the employee filing a workers’ compensation claim, a discrimination complaint or other protected actions. It is also important the employer understand what constitutes statutorily protected activities which could, if not handled correctly, lead to a retaliation claim. Moreover, it is important the employer keep sufficient documentation regarding employee issues which later may form the basis for an employment action. Retaliation claims are difficult to address, but with care, they can largely be avoided.
Harassment claims have become more complex in a “#MeToo” environment. While historical actions that lead to a harassment claim still exist, there are many actions which may have been tolerated 20 years ago (even if they should not have been) which are now forming the basis for more complaints. In addition to comprehensive training, employers must have a mechanism for employees to report suspected harassment, and for reported harassment to be investigated. Complaints should be addressed promptly and proactively.
The last of the five big employee issues is discrimination claims. Discrimination claims can be based on race, national origin, age, gender/sex, pregnancy, religion, sexual orientation, gender identity or disability. Understanding if an employee is in a protected class is the first issue which must be addressed. Discrimination claims can be intentional or unintentional. Sometimes the most difficult claims to address are unintentional claims in which the grievous statement or action is based on a claim of “concern” but becomes a viable basis for a discrimination claim. Defending such a claim and addressing the Equal Employment Opportunity Commission’s (EEOC) concerns can be expensive. As with any other employment issue, an employer can best address these types of claims by having solid, documented and implemented policies which are consistently enforced.
Since the typical San Antonio medical practice has a small number of employees without a formal human resources department, it is essential the practice have a current handbook with policies which are implemented and enforced. Employee policy violations should be well-documented with a solid factual basis. Seek counsel from a legal expert who can provide advice, assist in investigating complaints, and help your practice avoid an expensive and time-consuming legal action.
James Rosenblatt has been President of Rosenblatt Law Firm and Chair of the transactional section of the firm since it opened in 2005. For the past 14 years, he has been providing legal and business consulting in the areas of asset protection, business, construction, contracts, employment, estate planning, mergers and acquisitions, oil and gas, real estate, and trademarks. For more information, visit rosenblattlawfirm.com or call Rosenblatt Law Firm at 210-562-2900.