The human resources landscape is constantly changing. Dentists have ongoing questions about how to handle staff issues. Take this month's questions, for instance. Could this dentist face legal action after a big argument with an employee? And, how should this office pay a hygienist who wants to earn extra money cleaning the office?
QUESTION: I recently talked with a friend who wants to fire one of her employees. She said, “Of course I can fire the person. I’m an at-will employer.” I’m concerned about this firing because my friend’s employee just announced she’s pregnant. Is my friend correct? Does at-will employment allow a termination of this nature to occur?
ANSWER: Technically, you’re both right. Your friend can fire this employee but, in doing so, because the employee just announced her pregnancy, your friend could bring significant liability onto herself.
All states except Montana have at-will employment as the foundation of the employment relationship. At-will employment means that there are no contracts involved in the relationship, therefore, either party can end the employment at any time.
However, nothing in the employment at-will doctrine says that there cannot be consequences for such actions. That’s the part that’s usually missing when someone makes this comment. This is because there are many laws in place to protect employees from illegal terminations. For example, a woman can’t be fired for being pregnant, and no one can be fired for having a disability. These are just two examples. The protections that exist can vary from one state to the other and may also include city and county regulations.
To answer your question, yes, at-will employment would allow for this individual to be fired. Protections for women who are pregnant would also allow for the employee to file a claim or a lawsuit against that employer. If the employer cannot justify the termination through appropriate documentation and such, then it’s likely the employer would lose and face serious financial consequences.
QUESTION: What can our office do about information we acquired after we hired someone? Here’s what’s happened: we hired a person whose job is to lift heavy equipment on a regular basis. We have now learned that he is embroiled in a lawsuit with his former employer over a back injury. We don’t believe we can have him continue to work if his back is injured. He’s been performing his job just fine since he was hired (about two weeks ago), but we’re concerned about the future.
ANSWER: Without some reason for you to believe he is struggling with an existing injury, I would proceed cautiously and take no adverse action. It’s possible he has an open workers’ compensation claim (with the former employer) for a back injury that is now healed or does not impact his current role with you. In this case, you have no basis for taking any action.
The other aspect of this is that he is under no obligation to inform you of this information prior to being hired. Before hiring him, all you can ask is whether he is able, with or without accommodation, to perform the essential functions of the job. It appears he thinks he can. While there are times you can seek medical information and use it in the hiring process, there are specific steps and rules to follow if you choose to go down that road. It is best to work with a third-party professional to properly manage this before you implement it as part of your hiring processes.
Bottom line is, there’s not a lot you can do. This is interesting information for you to have, but currently, based on what you shared, there is no legal basis for taking any action at the moment.
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Human Resources Questions for Dentists is provided by Rebecca Boartfield and Tim Twigg of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.