An Insider s Guide to Hiring and Firing in Your Medical Practice

1. An Insider�s Guide to Hiring and Firing in Your Medical Practice Massachusetts Academy of Dermatology Spring Meeting, April 14, 2010 Dana S. Gershon, Esq.

2. Disclosure Statement: No financial relationships interests to disclose

3. Why Does This Matter? More than 93,000 charges of employment discrimination were filed with the EEOC in fiscal year 2009 EEOC obtained settlements in discrimination cases totaling nearly $300 million in fiscal year 2009 Verdicts in individual cases run into seven figures

4. Agenda for today: How to Hire Best Practices to Manage Current Employees How to Fire

5. Help Wanted:How to Advertise a Job Always state that your are an equal opportunity employer Stay away from language that could inadvertently suggest discrimination (e.g. ,�Recent College Grad�) Advertise broadly Describe the core of the job � all essential functions

6. Advertisement for a Receptionist: Busy dermatology practice seeks friendly, energetic person as front desk receptionist. Successful candidate must be able to multi-task and interact professionally with patients. Please apply by sending resume via email to Linda Smith, lsmith@dermapractice.com. Your Practice, which recently transitioned to Electronic Medical Records, places the following advertisement What is wrong with this advertisement? (No EEO; application only by email). What does it say about job functions? Your Practice, which recently transitioned to Electronic Medical Records, places the following advertisement What is wrong with this advertisement? (No EEO; application only by email). What does it say about job functions?

7. Sarah applies: Sarah, who is 56 applies for the job. She comes in for an interview and is friendly and warm. In the course of the interview however, she discloses that she does not know how to use a computer. As a result, you decline to hire her and hire Jill instead, who is 30 and computer literate. Any problem? Because of EMR, Computer skills are essential. But ad did not say that. Sarah can argue that computer skills are not an essential job function, and are being used to screen out older candidates.Because of EMR, Computer skills are essential. But ad did not say that. Sarah can argue that computer skills are not an essential job function, and are being used to screen out older candidates.

8. Interview Dos and Don�ts

9. Interview Questions Should Be: Job related Not directed to identify a person as a member of a protected class Not likely to screen out members of a protected class

10. Don�t Ask: Any question that could identify a potential disability (including past drug/alcohol use) Questions relating to children or pregnancy status Questions pertaining to arrests (can only ask about felony convictions or convictions for significant misdemeanors) Any other questions that could give you information about age, race, national origin, religion or any other protected class Can�t ask about convictions for drunkeness, simple assault, speeding, traffic violations and the likeCan�t ask about convictions for drunkeness, simple assault, speeding, traffic violations and the like

11. Protected Classes in MA: Age Ancestry Color Gender Genetics Race Disability Military or Veteran Status National Origin Religion Sexual Orientation

12. Criminal Offender Records Information (CORI) More and more practices are doing CORI background checks on employees Something to think about with anyone who handles finances, comes into contact with children or handles sensitive information To get CORI information on job, applicants must get certified by Criminal History Systems Board

13. CORI and Medical Practices Practice needs to get certified to receive CORI, but if employees will have access to patient records, certification is easily obtained Need a CORI Policy to get certified Will need to specify who in the practice can view CORI and only those individuals should have access CORI check should be last step in the hiring process If the Practice will take action based on CORI, you must inform the person and give them a chance to respond If making a decision based on CORI, consider (a) Relevance of the crime to the position, credential or license sought; (b) The nature of the work to be performed; (c) Time since the conviction; (d) Age of the candidate at the time of the offense; (e) Seriousness and specific circumstances of the offense; (f) The number of offenses; (g) Whether the applicant has pending charges; (h) Any relevant evidence of rehabilitation or lack thereof; (i) Any other relevant information, including information submitted by the applicant or requested by the hiring, credentialing or licensing authority If making a decision based on CORI, consider (a) Relevance of the crime to the position, credential or license sought; (b) The nature of the work to be performed; (c) Time since the conviction; (d) Age of the candidate at the time of the offense; (e) Seriousness and specific circumstances of the offense; (f) The number of offenses; (g) Whether the applicant has pending charges; (h) Any relevant evidence of rehabilitation or lack thereof; (i) Any other relevant information, including information submitted by the applicant or requested by the hiring, credentialing or licensing authority

14. Agenda for today: How to Hire Best Practices to Manage Current Employees How to Fire

15. Employment Postings: OSHA (www.osha.gov) EEO (www.dol.gov) Minimum Wage/Maximum Hours FMLA (50 or more employees) USERRA Workers� Compensation (www.mass.gov) Unemployment Compensation MA Maternity Leave Act

16. Managing Employees: Review at 90 days, one year, then annually Make sure employee manual allows more frequent reviews as necessary Employment should generally be �at-will� No required progressive discipline If issues come up, counsel and document it!

17. Personnel Files: Prudent to keep 10 years These are subject to disclosure in MA With a problem employee, always consider how the documentary record would look to someone evaluating the situation Keep medical/CORI information in separate files

18. Agenda for today: How to Hire Best Practices to Manage Current Employees How to Fire

19. How to Fire: Review the file � have you documented the case thoroughly? If the employee is a member of a protected class, and file is thin, contact counsel Consider what�s next � will you be replacing the person? With whom? Is severance appropriate? You don�t get something for nothing � consider a release of claims

20. What would you do? Lisa is a 39 year old office manager who learns that she is positive for a breast cancer gene. She elects to have a prophylactic mastectomy and takes 6 weeks leave of absence under the Family and Medical Leave Act. While she is out, the Practice brings in Susan, age 46, to cover Lisa�s job. Susan does a great job, and the partners in the practice would like to have Susan replace Lisa. You are the Managing Partner. How do you proceed? What are the potential issues? What questions would you ask? Would you fire Lisa? Would you keep her? If you fire her, assuming no employment agreement, would you do anything special? What are the potential issues? What questions would you ask? Would you fire Lisa? Would you keep her? If you fire her, assuming no employment agreement, would you do anything special?

21. The Actual Event: Have more than one person in the room The less said the better Don�t lie, even just �to be nice� Provide required pay/paperwork Final pay through termination date Accrued but unused vacation Notice of Right to File Unemployment (www.mass.gov) Separation Agreement (release of claims) if offering severance

22. Next Steps: Update your employee manual (or create one if you do not have one) Conduct onsite training for your managers and employees (on these three topics and others) When issues come up, seek advice from HR professionals and/or employment counsel