SHOWN THE DOOR When it's necessary to act on difficult employees, compliance with employment law will put you on firm ground.

Employment Law
Will Fired Employees Come Back to Haunt You?

A difficult employee puts all that matters to a surgical facility at risk: quality of patient care, operational efficiency and professional reputation. But even a fully justifiable disciplinary action or termination might result in another risk — costly, time-consuming, disruptive and stressful litigation that alleges workplace discrimination, harassment or retaliation. While you can't protect yourself against every employment dispute, Arlene Switzer Steinfeld, JD, senior counsel in the labor and employment practice at the Dykema law firm's Dallas office, offers a few steps you can take when dealing with difficult employees that will put your facility in the best possible light in the event of a claim.

• See all sides. Before imposing discipline on employees believed to be less-than-competent or unprofessional, carefully investigate all the relevant facts and don't rely solely on the word of a single employee, even if that employee is a manager.
• Does the punishment fit the crime? If an investigation determines that an infraction has actually occurred, objectively consider the suitability of the personnel action to be carried out, in view of the severity of the employee's misconduct or the duration of her performance issues. For example, an employee who mistreats a patient, steals and abuses narcotics, or intentionally violates standard of care protocols is in an entirely different position, discipline-wise, than one who simply requires more training to grasp the full extent of her responsibilities.

From an employment law standpoint, the commission of HIPAA violations, the falsification of medical records or the failure to accurately chart treatments, the assertion of false accusations against co-workers and the willful refusal to perform assigned responsibilities are also grounds for discharge. Workplace-disrupting behaviors such as a demonstrated disrespect to superiors and co-workers, acts of sexual or racial harassment, or the repeated involvement in interpersonal conflicts may also justify termination.

• Is discipline consistent? It's critical to ensure that you mete out discipline uniformly and consistently. Review personnel records involving previous disciplinary situations to see how other employees who had engaged in similar misconduct or showed similarly poor performance were handled.
• Fair warning. Although private employees have no due process rights in the traditional sense, they should be treated fairly. Explore the circumstances surrounding any performance issues in order to ascertain whether mitigating circumstances may warrant a lesser form of discipline. You're not legally required to give employees an opportunity to tell their version of events before you reach a final disciplinary decision, but jurors like to see that you gave employees fair warning that they were at risk of being terminated.
• Don't hesitate to act. The courts respect the rights of employers, especially those in the healthcare field, to conduct their business when there's no evidence of a discriminatory motive. An employee who seems to invite discipline by responding to supervisory instructions with disrespect and hostility, failing to work cooperatively with others or whose attendance is lackluster should never be tolerated, as her impact on the rest of the staff — and, consequently, the facility's operations — can be highly detrimental. For this reason, employers should not be hesitant to discipline employees who fail to live up to their responsibilities.

Always proceed with caution when your actions may trigger legal aftereffects, but you must also methodically consider whether the cost of that potential litigation would outweigh the damage that a difficult employee might inflict upon your facility. It is without question a difficult balancing act, but the salient principle remains: A surgical facility should err on the side of ensuring that the delivery of quality patient care is its first priority.

• Don't allow disrespect. Treat employees, even difficult ones, with dignity at all times. Ensure that the workplace is devoid of any acts of sexual or other forms of harassment. Even though employees may not overtly complain of a hostile work environment, any such hijinks must be strictly avoided. It's not uncommon in employment lawsuits for former employees to allege that they hadn't complained about mistreatment due to the fear of retaliation by their employer.
• Get the facts straight. Review prior performance reviews and personnel files of the employee at issue to make sure that this written documentation aligns with the reasons for discharge that you're communicating to the employee.
• Take the high road. Keep in mind, also, that it is possible to mishandle an employee's termination even when the decision to terminate is justifiable. For example, a supervisor may communicate the decision to the employee in an insensitive manner or unwittingly disparage the employee while announcing the action to his co-workers. This can easily jeopardize the ability to defend the decision before a jury, and the resulting settlement may exceed the true value of the case. To avoid such scenarios, it's best to consult with your legal counsel before initiating a termination.

— David Bernard