QUESTION: We want to implement some quality control measures in our practice. I have found a company that will install equipment with the capability to record calls with my patients. I could then use these recordings for training or taking disciplinary action with employees who are not upholding my standards. What kind of notification requirements do I have with either employees or patients?
ANSWER: Recording conversations, whether on the phone or in-person, is regulated by both federal and state wiretapping laws. Federal law is “one-party consent.” Under a one-party consent law, individuals can record a phone call or conversation as long as one party to the phone call or conversation has full knowledge of the recording and provides consent. However, several states have enacted “two-party consent” laws. Although they are referred to as “wo-party consent laws, consent must be obtained from every party in a phone call or conversation if it involves more than two people.
Because of these laws, notification and/or consent requirements will depend on the state in which you reside and the laws that are in place.
Before implementing this program, we recommend that you work with an attorney in your area who is well-versed on wiretapping rules and requirements. Only an individual specializing in this area of the law can ensure that notification and consent requirements are met and that the recording device and method are legal. Without this, we do not recommend that you proceed. Illegally recording people can result in significant liability.
QUESTION: I’m updating my policy manual. It is out of date and some of the benefits have changed during the years. I want to ensure that my manual accurately reflects what I offer the employees of the practice. I don’t provide benefits to the associate doctors because they are highly compensated. Is this legal? I’ve been warned about possible discrimination claims.
ANSWER: If the benefits are not required by law, then this is legal. For the most part, benefits are discretionary. However, with the new sick leave laws being enacted throughout the nation, things have changed. Unless an applicable sick leave law allows for any exclusions, paid sick leave must be provided to your associate dentists as well. This is true for any other federal- or state-required benefits.
You also could have a benefit plan that requires providing it to your associates. For example, some medical insurance and retirement plans have certain eligibility rules that must be followed regardless of what you otherwise wish.
In general, for your typical discretionary benefit such as vacation and paid holidays, employers have long had the ability to decide who receives them and who does not. This is not discriminatory if the choice to provide benefits (or not) is decided using objective criteria and everyone is treated the same if they’re in the same position. This is no different than excluding part-time employees from benefits, like many employers do.
You can make the choice not to provide benefits to associate doctors due to their position and their compensation as long as this applies to everyone. Problems with discrimination could arise if one associate is given benefits and others are not, especially if the ones not receiving benefits are in a protected class of some kind. An example of this is a male receiving a benefit and the one going without is female. This could become an issue of discrimination.
When updating your policy manual, be sure you note within each benefit that associate doctors are not eligible. It is best to be as clear as possible so that everyone is on the same page. This also helps ensure that everyone is treated the same.
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