How Physicians Can Protect Against Former Employees
Physicians who are faced with the need to terminate an employee often worry about the repercussions of such an action. What if the employee steals from you or causes a scene on his or her way out the door? Worse, what if the employee sues for wrongful termination?
In general, it is a good idea to keep records of employee performance reviews, if any, and to note any verbal warnings or discussions of problems with the employee’s work product. Although doing so may take a little bit more time, it will provide the employee with the chance to improve and help protect you in the event termination becomes necessary and the employee files suit.
Of course, a disgruntled former employee may still sue you for allegedly discriminating against them based on age, gender, race, or disability. With each of these allegations, it is important to hire a lawyer who is familiar with the applicable state and federal laws on discrimination. In many instances, the law under which the employee is suing a physician may not even apply to the physician’s practice. For instance, our client recently faced a federal lawsuit accusing it of discrimination under the Americans with Disabilities Act of 1990 and of violating the Family Medical and Leave Act. However, the former law only applies to businesses with 15 or more employees and the latter only applies to businesses with 50 or more employees. We were able to file a motion to dismiss the entire lawsuit on the basis that our client only had eight full time employees and one part time employee.
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Dr. Nick Oberheiden
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Lynette S. Byrd
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Brian J. Kuester
Former U.S. Attorney
Amanda Marshall
Former U.S. Attorney
Local Counsel
Joe Brown
Former U.S. Attorney
Local Counsel
John W. Sellers
Former Senior DOJ Trial Attorney
Linda Julin McNamara
Federal Appeals Attorney
Aaron L. Wiley
Former DOJ attorney
Local Counsel
Roger Bach
Former Special Agent (DOJ)
Chris J. Quick
Former Special Agent (FBI & IRS-CI)
Michael S. Koslow
Former Supervisory Special Agent (DOD-OIG)
Ray Yuen
Former Supervisory Special Agent (FBI)
In another case, an employee had been having performance issues and suddenly left the office and requested sick leave. While the employee was gone, facts came to light that revealed that the employee had exposed the company to hundreds of thousands of dollars in potential liability and possible criminal charges from the federal government. However, the company hesitated to fire her while she was on leave, believing that such an action was always illegal. We advised the company that if they would have terminated the employee even if she weren’t on leave, or if they discovered her malfeasance while she was on FMLA leave, termination was not a violation of the FMLA.
You will also need to decide whether you will fight any unemployment compensation claim filed by your former employee. If you do, your documentation of previous performance issues will be important evidence to present to the commission. Unemployment will be denied if the commission finds that the employee was terminated for cause. The most common findings in support of a denial of unemployment are violations of company policy, violations of the law, or failure to perform the job if the employee is capable of performing it.
If you face these or other challenges from a former employee, talk to us. Find more information at www.rac-audit-defense.com or contact attorney Dr. Nick Oberheiden at nick@rac-audit-defense.com. Dr. Oberheiden holds a Juris Doctor from UCLA School of Law; his practice is exclusively dedicated to federal law. Oberheiden, P.C. is located at 4131 N Central Expy #900, in Dallas, Texas 75204. Prior results do not guarantee a similar outcome. This note may constitute attorney advertising in some jurisdictions.