Most dental offices have staff employed "at will," which means that, at any time, either the employer or the employee can terminate employment without cause, but not in violation of the law. Discrimination is a violation of the law and is the underlying theme in most wrongful termination claims. State and federal laws protect against discrimination. While state laws may vary, several categories are protected in many jurisdictions.
Areas where you may not discriminate in hiring or firing:
Sex (including gender identity, sexual orientation, and pregnancy)
Laws also protect employees from retaliation. "Whistleblowing" (an employee reporting suspected violations to a law-enforcement or other government agency, or raising safety complaints) is protected by law in most states and cannot be thwarted by termination or threats of termination. Termination for refusing to do something illegal is unlawful. Not allowing an employee to perform his or her lawful duty, such as serving jury duty, is also unlawful either because of a statute or because it violates public policy. The federal Fair Labor Standards Act prohibits termination of an employee for asserting his or her rights for such things as wage and hour disputes, filing a complaint, testifying, or exercising rights under federal occupational safety and health law, or a workers' compensation claim.
Every clinic should have written employment policies that spell out if the employment is at-will, what the employment policies are, whether and what sort of progressive disciplinary process the clinic might have, and what the employer and employee responsibilities and rights are. These policies should be a part of an employee handbook that has been reviewed by an attorney, and they should be followed uniformly.
Verbally warn the employee, and document that you’ve done so in his or her personnel file.
Give the employee written warning detailing the problem, the measures the employee is expected to take to resolve the problem, and the date by which the improvement is expected; place a copy his or her personnel file.
Inform the employee that any further problems could result in further disciplinary action up to and including termination.
If there is still no improvement, terminate employment.
Review employee materials. Make sure that every newly hired staff member reads any available employee handbook and signs a document spelling out the consequences of breaking the rules or not meeting expectations.
Establish effective employment policies. Conduct regular job reviews plus a 90-day competency review after hire to keep employees apprised of your expectations and perceptions. Keep thorough records of all comments made during the job review and of employees’ promises to improve lagging performance. Document everything, including conversations with the employee and comments made by patients and other staff members.
Create a formal discharge procedure. Never summarily fire employees. Even in blatant cases, follow a set procedure, and allow employees to present their points of view. Employers may come to regret decisions made in the heat of the moment. When possible, it’s safest to issue a warning and allow a set period of time for improved results before dismissing anyone.
Be open and fair with employees. People deserve to know why they’re being released. At the termination meeting, communicate the reasons straightforwardly and objectively, listing facts from the record, and let employees exit with as much dignity as possible. Offering a severance package and outplacement assistance can do much to soothe bruised feelings and discourage calls to lawyers.
This material includes general guidelines. The laws of each state may vary, and the reader may want to contemplate seeking legal advice from an attorney licensed in the state the health care provider practices for specific guidance.