The Law: Understanding Employment Law

When Mark Anthony LaPorta, an internist in Miami, Fla., received a letter from an employee at his practice alleging that he was at fault for causing her a serious injury, he didn’t bother calling his attorney. He simply asked her lawyer to prove the allegation. Why? LaPorta knew that not only was the claim false, but it also could never be proven.

Being an employer means following federal and state laws that protect your employees. Of course, the law also provides you protection against frivolous employee claims and lawsuits. But do you know the difference? Do you know when it’s time to simply inform your employee that you are within your legal rights and when it’s time to call a lawyer?

Luckily, LaPorta did.

“She alleged that I had been cruel to her and yelled at her and caused her to go blind in one eye as a result,” recalls LaPorta. “We knew the poor girl was just sick and emotionally ill. I remember the afternoon that I yelled at her. She wasn’t blind when she left, and she came back to work the next day. The bottom line was, there was no way anyone could prove that … and I think even she didn’t believe her own story.”

But what about allegations that are not so cut-and-dry? After all, the legal system wouldn’t exist without the shades of gray that cloud all aspects of the law.

Although federal law affords protections to most employers, individual state laws can add to those protections or modify the mechanisms through which employees and employers must adhere regarding complaints and remediation procedures. And there are state and federal “threshold requirements” that must be met for certain employment laws to apply. For example, federal laws that protect some aspects of discrimination, such as the Americans with Disabilities Act, do not apply to employers with 15 or less employees.

Although employment law can sometimes feel like a dense thicket of rules and regulations you’ll never be able to wade through, rest assured that there are lawyers on whose expertise you can rely, and a general knowledge of employment law will generally lessen your chances of having to call your attorney.

Time for a check up?

Wise physician employers regularly conduct background checks on potential employees or on existing employees who they are considering promoting or with whom they are having trouble. But do those employees have a legal right to be informed that these checks are occurring? Or is it your right to do so as a potential or existing employer? Like nearly all aspects of employment law, it depends.

“If the employer is conducting a background check that uses a third-party vendor to provide that background check information, then the employer must comply with the Fair Credit Reporting Act (FCRA),” says Jana Woefel, an employment lawyer and commercial litigator with the Dallas-based law firm, Strasburger & Price. “The employer must obtain the employee’s or the applicant’s prior authorization to go through and conduct that background check.”

But if you are conducting a background check on an existing employee, you may not have to inform that employee that a third-party check is being conducted on their behalf if that employee has already signed over that permission in her employment contract, says Woefel. “Some [employment contracts] are written so [background checks] just cover the application process, but it doesn’t give you the right or ability to conduct it during the course of employment. Others are written more broadly to allow it for various reasons during the scope of employment.”

If you do a background check on a potential employee on your own - that is, without using a third-party vendor - then the FCRA does not apply, and you do not have to inform the applicant that you are conducting the check. This applies not only to calls to previous employers, but also to searches through public records.

But the FCLA applies in all cases regardless of whether you use the information gleaned from either a third-party check or a check you conduct yourself to decide against hiring a potential employee or to take adverse action against an existing employee, Woefel says. “There are forms that are required by the FCRA to go through the process, and there are penalties if an employer doesn’t comply with the FCRA.”

Woefel encourages physician employers to ensure their compliance with the law whenever they take any action regarding their employees that involves invoking the services of outside parties. After all, she points out, “It’s not intuitive to most people that if you do a criminal background search … that such actions can be considered a credit report under the FCRA.”

When accidents happen

The Occupational Safety and Health Administration (OSHA), administered by the U.S. Department of Labor, sets the federal standards for workplace safety. Beth-Ann Jackson, associate attorney at Thorpe, Reed & Armstrong in Pittsburgh, says that workplace hazards are generally more numerous within medical settings than they are in other office settings, so physician employers need to pay special attention to OSHA regulations.

“Generally OSHA requires employers to maintain a safe workplace for the employees and to eliminate all known risks and hazards,” says Jackson. “OSHA also requires all employers to keep a log of all injuries in the workplace, and it can also require employers to disclose known hazards to employees so they are aware of some of the hazards they are working around.”

Common injuries in physician practices include coming into contact with patients’ bodily fluids via exposure to sharps, disposing contaminated waste, and even handling office laundry. OSHA-required responses to accidents that can result from these types of risks have been in place since the early 1990s, says Jackson, who says that most physicians have by now become quite familiar with the protocols the Department of Labor requires to protect employees in these common scenarios.

But OSHA may also dictate other aspects of employee activity in the office that may not be as obvious. For example, says Jackson, physician employers need to be “very careful” regarding where they allow their employees to eat lunch. And then there’s the question of whether or not you should allow employees to wear sandals to work, Jackson adds, noting that there are “over two hundred” OSHA requirements that apply to employee use of protective equipment when working within patient care environments.

Bruce Armon, a partner in the Philadelphia-based firm, Saul Ewing LLP, notes that due to their training, nurses are very likely to be knowledgeable about what precautions they should take in the office. Other staff, who may have less clinical knowledge, will be more likely to adhere to the protective protocols that you require they follow if they understand the reasoning behind them. “Ensure everyone knows the reason everything needs to be clean, the reason why waste should be labeled appropriately, the reason why dirty linens need to go in a specific place,” says Armon. “What we’re doing in terms of preventing infection requires job-specific appropriate reminders.”

Physician employers must make an employee injury log available to OSHA should they conduct a safety audit of their workplace. And as of February 2008, OSHA began requiring employers to post a summary of the total number of job-related injuries and illnesses that occurred in their workplace during 2007 on a specific OSHA form downloadable from the Internet.

According to OSHA’s Web site, “The [posted] summary must include the total number of job-related injuries and illnesses that occurred in 2007 and were logged on the OSHA Form 300. To assist in calculating incidence rates, information about the annual average number of employees and total hours worked during the calendar year is also required. … The form must be signed and certified by a company executive. Form 300A should be displayed in a common area where notices to employees are usually posted.”

Of course, there are some exemptions; employers with 10 or fewer employees are exempt from this law. And state laws governing workplace safety can also apply.

Jackson admits that wading through OSHA’s numerous and dynamic regulations can be overwhelming. “The standards can be pretty technical, but they are available on the Internet, on OSHA’s Web site,” she says. “The other way [to be in full compliance] is to consult with an attorney and develop safety practices for the practice. … OSHA’s Web site can be a bit of information overload.”

Preventing discrimination

Employees can allege workplace discrimination on a number of grounds, including gender, race, religion, disability, and age. Individual states may also have legislated against discrimination on other grounds, such as sexual orientation. While many discrimination claims are legitimate and rightfully prosecuted, employers often do not know all the facts and must protect themselves against unfounded allegations. Expert lawyers agree that there are a number of ways they can do so.

In fact, federal law requires employees to have remediation procedures in place and in writing should an employee allege discrimination or harassment. “They should … clearly identify a person to whom harassment can be reported,” says Woefel. “They should also provide a bypass mechanism in the case that, say it’s your supervisor that you’re supposed to report to, and he’s the one who is harassing you, you need a bypass mechanism. If the employee doesn’t avail himself of that procedure, then there’s an affirmative defense” should legal action ensue.

If the employer cannot work out the problem via its own remediation procedures, employees may contact the Equal Employment Opportunity Commission (EEOC), or depending upon where they are located, an equivalent state agency. These government entities may investigate and find cause for a lawsuit. But most cases don’t make it that far. “The EEOC doesn’t want to respond to every complaint,” says Woefel. “They want employers to police themselves and address problems as they arise. … The EEOC is meant to be a fail-safe when that system breaks down.”

Maureen Binetti, chair of the employment law department in the law firm of Wilentz, Goldman & Spitzer in Woodbridge, N.J., says of federal discrimination law: “It basically says, ‘Now we want you to stop this stuff before it happens. And if you can’t, then at least you have to immediately look into it and remediate it after it happens.’” That’s why training is so important, says Binetti. If employers train their employees about sexual harassment and other areas of protected activity in advance, they also give themselves much more protection against liability if there is a complaint down the road.

Of course, perceptions of discrimination and harassment can vary widely on an individual basis. What may be perceived as a casual friendly gesture by one person could be perceived as inappropriate by another. Michael Schaff, chair of the corporate and healthcare teams at Wilentz, Goldman & Spitzer, says not explicitly spelling out for your employees what may be perceived as harassment can have consequences. “If practices don’t do the training, they don’t understand the risk of putting an arm around a coworker when you’re talking to them,” he says. “If it’s someone of the opposite sex, they may claim that it was inappropriate.”

But sometimes allegations will be made regardless of the amount and quality of training you provide. It happened to LaPorta.

“In 1997, one of the employees in my practice insinuated that I was a little too close with her, which took me by surprise,” he recalls. “I was told that the woman alleged I was fresh with her, that I hugged her all the time, and that it must stop or she would file a complaint. Well, she had already filed a complaint by telling the office manager.”

Rather than call an attorney, LaPorta chose to work with his office manager to remediate the situation. He says the manager spoke to the woman about her allegations, ultimately concluding that they indeed had no factual basis. “I know there were no threats, and we basically made it go away through reasonable, mature conversation,” says LaPorta. “I told the manager that I had never touched the woman, and she replied, ‘I know that, and now she knows that.’ We used real character, real humanity, to fix the problem instead of having to hire a lawyer.”

Online on company time

You know they do it. They know they do it. Heck, even you probably do it. The Internet is a ubiquitous presence in the workplace, and its occasional use by employees for personal matters is generally perceived as relatively harmless, given that it does not cut too much into an employee’s productivity. But what you perceive as the harmless checking of personal e-mail accounts and occasional employee Internet bargain hunting may expose your practice to risks you may never have considered.

Not only can the Internet become an extreme distraction in the workplace, cutting significantly into employee productivity, it can also expose your computer network to viruses that can be easily and unwittingly downloaded into your system by unsuspecting staff.

Binetti recommends that employers establish broad policies that block employees’ use of all company-owned computers and telephones for any personal use at all. “In general, if you as an employer tell your employees in advance that the Internet, that their e-mail, that even their voice mail … is for business purposes only, and if they choose to use it for personal reasons, they must understand that the employer has the right to do whatever they want, including listening to voice mails, viewing e-mails, and viewing what sites they’ve visited,” says Binetti.

She reasons that having such a policy in place can protect employers from some state-specific laws that do provide some protections to employee Internet and e-mail use in the name of privacy. “If you have a policy already in place that states otherwise, then that argument is out the window,” Binetti says.

When Uncle Sam calls

Today more than ever, the possibility of employees being called up for active duty is a very real one. Reservists are now serving multiple tours of duty that can take them away from the workplace for long periods, leaving their employers - especially businesses - in a quandary over what to do in their absence.

The Uniformed Services Employment and Reemployment Rights Act requires all employers, no matter their size, to hold the positions vacated by reservists for up to five years. Woefel says that not only must employers offer returning troops their same or an equivalent position, but also any promotion or seniority that they would have acquired were their employment uninterrupted, as well as the pay raises that accompany those promotions.

“That may mean that you have to hire someone on a temporary basis, but when that service member returns, whether it be at the scheduled end of their deployment or for a shorter period of time because of an injury or whatever circumstances that allows them to return home earlier, then you have an obligation to return them to the position that they had or would have had in regard to seniority or promotions,” says Woefel.

Yes, employment law can seem like a labyrinthine maze which you as a physician have little knowledge. But you’re not alone. Practices built on solid business plans with the help of attorneys who specialize in employment law can help you find your way. And when issues arise, these experts are trained to help you deal with your situation. Just choose your counsel wisely - a business attorney may not know the intricacies of the specific state and federal employment laws to which you must adhere.

The more knowledgeable you become on the employment laws that govern your practice, the more prepared you will be when legal issues arise. And remember that training your employees on your office’s processes and procedures can go a long way toward saving you from future headaches. Binetti’s mantra, “an ounce of prevention is worth a pound of cure,” is more than a cliché. It may one day save your practice.

Barbara A. Gabriel holds an MA in English literature and is the associate editor of Physicians Practice. She has served as editor and writer for numerous healthcare publications during the past 10 years. She can be reached at abeckel@physicianspractice.com.

This article originally appeared in the May 2008 issue of Physicians Practice.