Top 10 Checklist When Firing an Employee

Employee terminations have an impact on everyone within the organization

The key to a “successful termination” begins with hiring and continues throughout the employer/employee relationship. Performance reviews also play a critical role in a “successful termination”, but the actual process of termination is what stays on everyone’s mind the longest time.

Here is a checklist to follow when firing an employee:

• Decide exactly, and succinctly, why you want to fire the employee.
• Compare your reasons for wanting to fire the employee with the job descriptions for that employee’s position. Does at least one of your reasons include that the employee is actually not doing the job properly?
• If the employee is working pursuant to a contract, you must comply with the terms of the contract having to do with termination; otherwise you may be in breach of contract.
• Inform the employee as to the reason behind their termination. This should be presented to them in writing (termination letter) at the time the firing occurs. The termination should occur in a private area. Be sure to have a witness with you during this time, but the witness should not be a co-worker or manager of the employee being fired.
• After you tell the employee why they are being fired, allow them to tell you any defenses or other responses they have to your reasons for termination. It just may be that you are making a mistake or the employee may confirm your decision to fire them.
• Make sure the employees’ files include a copy of the termination letter. In addition, add an additional note outlining what the employee said in their defense.
• Be sure all wages, benefits, property, or other items belonging to the employee or to which the employee is entitled are given to the employee when they are notified of their firing.
• At all stages of the termination process, treat the employee with common respect and courtesy.
• Never do anything to humiliate the employee. Simply being fired is humiliation enough for an employee.
• In general, the less said to co-workers and other employees the better. It is important to notify them of the firing, but you do not want to infringe on the terminated employee’s privacy.

Firing an employee is not a pleasant thing. However, being confident in your decision, following proper procedures, and keeping objective records of the decision and the event can put you in the best position possible in case the employee later makes accusations against you, or if they decide to pursue legal action.

For more information on this and other topics related to HR, HIPAA, OSHA, and Medicare, please emailsupport@hcsiinc.com or visit our website at http://www.hcsiinc.com

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Employee Classification

Classifying Your Employees

Federal and State laws generally do not define the terms of full-time, part-time or temporary employees.  This leaves the employer with the flexibility to categorize their employees. Most often, these classifications are based on the number of hours worked and the duties performed.  Typically the classification determines eligibility for benefits.

Basis for Classification

Employees usually fall into three major categories:

·         Full-time

·         Part-time

·         Temporary

You may want to use the eligibility requirements under your insurance benefit plans (many health care plans exclude part-time employees who work less than a specific number of hours per week)

However, the definition chosen will not affect the employee’s eligibility for legally mandated benefits, such as worker’ compensation, unemployment compensation, unpaid family and medical leave and military leave.

Also note that the Fair Labor Standards Act (FLSA) further classifies employees as eligible or ineligible for overtime pay and refers to them as being either exempt or non-exempt from the Act’s provisions.

Full-time Employees

A full-time employee is generally defined as one who works a normal workweek for an indefinite period of time.  Since the FSLA sets 40 hours as the maximum number of hours worked before employers must pay overtime to non-exempt employees, you may use that number as their normal work week.  (You can also use 37 ½ hours or even 35 hours, depending on business hours and meal schedules.) Full-time employment could also be defined according to part-time employment hours.  For example, if part-time employment is defined as 30 hours a week, then someone who works more than 30 hours per week could be classified as full-time.

Part-time Employees

Part-time employees work fewer hours than the normal full-time schedule, but are employed on an ongoing basis and typically receive some benefits.  Part-time employment may mean irregular hours or workdays.  A common definition or part-time employment is an employee who works less than 30 hours per week.

Employers may choose to provide their part-time employees with a pro-rata share of benefits such as sick leave, vacation and other paid absences based on the number of hours worked.

Temporary Employees

Temporary employees may work full or part-time hours.  What makes the employee status “temporary” is that the worker is hired for a particular project or for a finite period of time.  Because of the short-term nature of employment, temporary employees generally do not receive any benefits other than those required by law.

Some practices use temporary workers as a way to screen potential full-time candidates.  Because some temporary employees may have an increased expectation of advancing to regular employment and eligibility for benefits, employers should make it clear that temporary workers are being hired for a limited period of time and are not eligible for benefits.

Employers should explain the temporary nature of the job in a letter or other written document stating an approximate limit for the period that a worker is expected to be employed and give the option for the employer to extend as needed.

In addition, employers should monitor the status of temporary employees so that if a limited duration of their employees change, the employee can be reclassified and correctly offered benefits they may entitled to.  Failure to do so may conclude with a misunderstanding and potential legal claims.

Religious Discrimination Case Against UPS

New Ruling Shines Spotlight on Religious Discrimination

In July, the U.S. Equal Opportunity Commission sued the world’s largest package delivery service, United Parcel Services, claiming that UPS failed to hire, promote and accommodate Muslims, Rastafarians and Christians whose religions dictate grooming practices that UPS found objectionable. The lawsuit claims that UPS prohibits male employees who are supervisors or who have dealings with customers from wearing beards or growing their hair below collar length.

One example in the lawsuit is that of a Muslim applying for a driver’s helper position in New York who wears a beard as part of his religious beliefs. He was told to shave if he wanted the position and that “God would understand.” Another example in the lawsuit is that of a Rastafarian load supervisor in Fort Lauderdale who does not cut his hair as part of his religious beliefs and who was told “we don’t want any employees looking like women on management teams.”

The lawsuit against UPS comes on the heels of the U.S. Supreme Court ruling against retailer Abercrombie & Fitch on another religious discrimination claim. There, the company refused to hire a then 17-year-old woman in Oklahoma for a position at a store because she wore a “hijab,” or head scarf. The retailer claimed that the scarf, and all other head coverings, did not conform to the company’s dress code.

Both of these suits claim that the actions of the employers violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based upon (among other things) religion. As the Supreme Court stated in its Abercrombie decision, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Further, under Title VII, unless it would pose an undue hardship on the employer, an employer must make reasonable accommodations to its employees and cannot refuse to hire or promote an applicant/employee if the need for a religious accommodation is a motivating factor. “Undue hardship” on an employer is defined as an action that imposes “more than a minimal burden” on the business. Examples include causing a lack of necessary staffing, jeopardizing security, or costing the employer more than a minimal amount. What is considered “minimal” by an employer and the EEOC can vary significantly.

These cases make clear that religious discrimination is an area of strong interest (and enforcement attention) of the EEOC. It underscores the need for policies and practices that every employer should follow:

● Employers should ensure that managers know the EEOC guidelines, as well as the company’s policies, by providing periodic training to all managers. These trainings should especially cover policies relating to scheduling, dress codes and grooming standards – three of the most common areas of company policies that can run afoul of certain religious practices.

● There should be strict guidance provided to hiring managers prohibiting any jokes or sarcasm directed at any religious belief. These statements, even if made in a non-serious fashion, have no place in the workplace and often form objective proof of and the basis for claims.

● Hiring managers should be aware that an applicant is not required to make a specific request for a religious accommodation, nor may an employer make an adverse hiring, promotion or termination decision based upon “actual knowledge, suspicion or merely a hunch” that an applicant will request an accommodation.

● Policies should require that all managers inform their HR department if an existing or prospective employee requests an accommodation or if they believe such a request will be made.

● Hiring managers should not ask employees or applicants directly if they are groomed or wearing attire for religious reasons. This type of inquiry can lead to a discussion that may trigger a later religious discrimination claim.

● Employers should carefully consider all options available to them before denying an accommodation request, especially on the basis of undue hardship to the company.

Religious discrimination cases, even those resolved prior to any formal lawsuit, are costly and distracting for a business. Implementing an HR training program that reaches all levels of an organization is a wise investment in preventing discrimination of all types in the workplace.

(EBN website)

Employee Handbook Guidelines

Guidelines for Employee Handbooks

An employee handbook is essential for the well-being of every organization. It communicates the employer’s mission, vision and culture, as well as information on rules, policies and benefits. It also contains information on state and federal employment laws.

When well-constructed, employee handbooks help employers build trusting relationships with workers, avoid conflicts and ensure fair treatment in the workplace. When poorly written, they can create a nightmare of situations for HR, ranging from hostile work environments to lawsuits.

According to Allan H. Weitzman, head of the Labor and Employment Law Department of Proskauer Rose LLP, when it comes to employee handbooks, “every word counts.” He says there are seven principles every HR professional should follow when creating one:

1.      Make sure your handbook is NOT an employment contract.

2.      Plainly state employer rules, regulations and procedures.

3.      Describe your policies designed to assist employees.

4.      Communicate your commitment to equal opportunity.

5.      Set guidelines for the termination of employment.

6.      Develop cutting-edge policies.

7.      Incorporate state and local legal requirements into your handbook.

It is imperative that employers update their handbooks on a regular basis to ensure compliance with all state and federal employment laws and with changes to their own policies and procedures. When faced with lawsuits by employees, these check-ups could make or break an employer’s case in court.

Magnets for HR Lawsuits - Inconsistency & Retaliation

HR Inconsistency and Retaliation—Lawsuit Magnets

Follow Disciplinary Procedures

If you conduct an investigation and you find that an employee has violated the law or your employment policies, you need to follow your general disciplinary policies and procedures in meting out punishment.

Your disciplinary systems should:

• Ensure that the appropriate discipline is applied (the punishment fits the crime).
• Ensure that discipline is consistent for all employees.
• Give employees fair warning that they have violated company policies.
• Give employees a chance to improve.
• Create a paper trail of evidence to show what the employee did and how you responded.

Make sure you follow your discipline system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch Out for Retaliation

Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the Family and Medical Leave Act, the Fair Labor Standards Act, and many others.

In general, retaliation is any adverse action that’s taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. In the context of firing, the most common type of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

Double Check

Before making a final decision to fire someone, it’s helpful to step away for a moment to take a look at the big picture. Ask yourself if there’s any chance that you’re firing the employee for some reason other than the one you claim. Is the employee being treated differently from other employees with similar performance or misconduct deficits? If so, why? Is there anyone in the company who will be glad to see the employee go? If so, why? If the underlying reason for their feelings is discrimination or retaliation and they had any influence in the firing decision, you could be in big trouble.

What if you make the wrong decision? A growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he’s guilty but whether you reasonably believed he was guilty. As long as your investigation was fair and your conclusion reasonable, you’ll be protected from liability even if you were wrong.

Document Everything

No matter how diligently you follow your disciplinary procedures, no matter how honest and fair your evaluations, it won’t mean much in court without clear documentation to support your decision.

Cell Phone Policy in Health Care

Cell Phones in the Workplace

Q: Does HIPAA have any regulations on the use of cell phones in the workplace?

A: Currently, HIPAA has NO Regulations regarding the use of cell phones by employees or patients. However, with the advances in technology, it would seem inevitable that HIPAA will eventually hand down regulations to ensure the security and privacy of Protected Health Information.

If your practice allows the use of cell phones, you may wish to use the examples below to establish a “Cell Phone in the Workplace” policy to ensure cell phones do not become a distraction, or pose a risk for unauthorized disclosure of Protected Health Information.

1. Cell phone settings should always be set on silent.

A ringing cell phone is a distraction. Employees with cell phones should ensure that while at work, all phones are set on vibrate or silent settings.

2. Cell phones should only be used while on-break.

Employees should only review messages and return calls while on-break and away from their workstation.

3. Text-Messaging should only be done while on-break.

Employees should only review and send text-messages while on-break and away from their workstation.

4. Refrain from taking photographs with your cell phone.

Taking photographs with your cell phone can present a risk for unauthorized disclosure of Protected Health Information.

5. Cell phones should never be brought to a meeting.

Bringing a cell phone into a meeting is a sign that you are not completely committed to the topics at hand. Even if your phone is set on silent, you may be tempted to check your messages, etc.

6. Never use a cell phone in the bathroom. 

This policy is self-explanatory. The sounds overheard in the bathroom could be seen as invasion of privacy. 

Changing Trends in Hiring Healthcare Talent

Trends in Healthcare Talent Acquisition

It’s hard to keep up with all the changes happening in health care, especially as they relate to talent acquisition and the evolving roles of the health care workforce. To help health care recruiters and HR professionals stay current with the latest trends, AHACareerCenter.org has released a comprehensive report using resources from the American Hospital Association and other trusted sources.

Here are three insights from the 2015 Healthcare Talent Acquisition Environmental Scan:

●        The age range of health care workers spans more than forty years, creating distinctive challenges and opportunities for both employers and employees, such as:

○        Organizational hierarchies may be restructured as Gen Xers and Millennials rise to leadership roles. As Gen Xers and Millennials become leaders, health care organizations may need to consider flattening their structure and removing departmental and management hierarchies. Gen Xers and Millennials, the bulk of the workforce, consider organizational hierarchies as barriers to creativity and innovation.

○        Health care organizations may need to modify job requirements to cater to new and emerging roles. This includes adjusting competencies so that the workforce aligns with new population health needs. For example, some jobs will need to be redesigned as technology advances. As jobs are redefined, the workforce may transition and redeploy to different settings, roles and organizational structures.

●        With changing demographics, communities are becoming increasingly diverse. The unique diversity of a community should be reflected in the leadership and staff of its hospitals and health care systems. However, gaps in diversity still exist, made evident by the following statistics:

○        Minorities represented 31% of patients nationally in 2013, up from 29% in 2011. However, minorities comprise only 14% of hospital board members, 12% of executive leadership positions, and 17% of first- and mid-level management positions.

○        Diversity efforts in hospital recruitment and retention are lacking. Just under half of respondents (48%) said their hospital has a documented plan to recruit and retain a diverse workforce that reflects the organization’s patient population. Only 22% of hospital hiring managers have a diversity goal in their performance expectations.

●        The rate at which physicians are employed directly by hospitals continues to increase. In fact, physician employment by hospitals has risen by more than 54% since 2000. Other statistics gathered in regards to the physician employment market include:

○        More than 244,000 physicians have found positions in hospitals, due to a variety of reasons: changes in lifestyle, decreased interest in owning a business, levels of regulation, and more. Meanwhile, hospitals are seeking out physicians as a way to increase coordination and manage costs.

○        Only 10% of hospital senior leaders are physicians, according to most surveyed CEOs. This is due in part to the fact that most medical schools don’t include formal business training on running a practice, much less a multimillion-dollar health system. With more than half of new physicians entering the field as salaried employees, the potential pool of physician leaders has grown exponentially larger. Soon, having physician leaders will not only will be important, but a mandate.

(HealthcareSource website)

8 Common Supervisor Mistakes

Eight Common Supervisor Mistakes

Sometimes it seems as though there are a thousand ways supervisors and managers, although well-intentioned, can make misjudgments and end up with employee lawsuits. Here are 8 major, but common, errors to discuss while training your managers and supervisors.

1. Making unlawful pre-employment inquiries

Inappropriate questions during interviews and other pre-employment contacts are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision. Therefore, any questions about or references to protected categories like sex, age, race, national origin, or religion, can later be used against you in court in a discrimination claim.

To the extent possible, standardize the application and interview process. Ask all applicants fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the job.

2. Delivering “dishonest” evaluations

Many managers and supervisors avoid the discomfort of delivering a review that indicates poor performance and instead cop out with a “satisfactory” rating. As a result, many legitimate actions taken against an employee based on poor performance can be questioned because the performance reviews are positive. So it’s important to be honest with performance evaluations. That’s easier when there are clear standards; if they are not met, just say so.

3. Too vague in discipline and performance write-ups

Similarly, and again to avoid unpleasantness, managers and supervisors will often write something on performance evaluations like “needs improvement.” That’s too vague. Does that mean the employee does a great job, but there’s always room for a little improvement, or does that mean that the employee is terrible? Or how about “talked to Sally about her performance and behavior.” And then we’ve got judgment words like “lazy.” Again, too vague. Offer documentation and documented examples of behavior.

4. Making rash disciplinary decisions

Maybe you will ultimately determine that firing is the appropriate thing to do, but getting angry and making an impulsive decision isn’t the way to do it. First of all, an angry tirade, especially if in public, gets those “I’m going to sue” juices flowing. Second, you should never fire without carefully reviewing the circumstances with HR.

5. Making uninformed responses to medical leave requests

Few supervisory situations are as frustrating and challenging as dealing with employee requests for medical leave, particularly since it may involve FMLA, ADA, and/or workers’ compensation. It’s never convenient, but managers and supervisors have to curtail any frustration and respond professionally. The basic rule for managers and supervisors should be to contact HR when employees are going to take leave that might involve any those three reasons.

6. Not knowing and not enforcing policies

Supervisors and managers are the front line for interpreting and enforcing the company’s policies. But if they don’t know the policies and their associated responsibilities, they’ll be begging for lawsuits. For example, imagine a supervisor telling an employee that he or she does not have time to listen to a claim of unwelcome harassment, or safety issues, or potential NLRB violations.

Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees. Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace.

7. Letting problems fester

With bad behavior, it’s always tempting to ignore the problem in hopes that the behavior will improve on its own. But you know that’s not going to happen. And, unfortunately, as time goes by, you appear to be condoning the behavior. “You’ve known he was doing this for six months, and you did nothing, and now suddenly it’s a firing offense?

8. Making “Side Agreements”

Managers under stress may be tempted to make “side agreements,” that is agreements that either go against policy or are promises that likely won’t be kept. Sometimes, these agreements are directly contrary to law and policy; for example, employees can’t waive their right to overtime or pay for hours worked—even if they agree, even if they are eager to do a little work on the side. And three problems arise:

·         It’s illegal behavior and there will be subsequent lawsuits.

·         Employees will be left feeling that agreements haven’t been honored.

·         There’s unequal treatment, so others who didn’t get the special treatment or privilege may sue.

(BLR website)