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FEATURE


Employees should also know their rights under the law. “All health care companies should have a compliance manual, and included in it should be an employment manual,” Medina says. “This will give every employee notice of their rights and obligations accord- ing to the law, and the consequences of non-performance. The manual should be drafted by legal counsel, and every employee should be required to review it and sign it.”


Letting Go


Sound strategies for employee termination BY ROBERT KURTZ


W


hile you might hope that you never need to terminate an


employee, ASC leaders always need to be prepared to do so, says Damaris L. Medina, JD, a health care attorney with Michelman & Robinson, LLP, who is based in Los Angeles, California. “Wrongful termination lawsuits


have been on the rise in recent years,” she says. “Whether it is due to claims of discrimination, wrongful termina- tion or sexual harassment, for example, employees are becoming more litigious, which should lead health care orga- nizations to start looking not only at how they are managing their current employees, but who they are hiring and how they are firing.”


Know Your Applicable Laws Because laws pertaining to employee termination vary from state to state, ASC managers need to carefully consider how both federal rules and the


16 ASC FOCUS MARCH 2016


All health care companies should have a compliance manual, and included in it should be an employment manual.”


— Damaris L. Medina, Michelman & Robinson, LLP


rules in their home state apply to their ASC’s specific regulatory structure, Medina says. “For example, there are some regulations that apply to centers with fewer employees. There are also regulations that deal with specific protected classes. Therefore, every time you are considering termination of an employee, you will want to determine what laws may apply to that specific situation.”


Maintain Detailed Documentation Documentation is vital in defending yourself from a wrongful termination lawsuit, says Andy Barberio, senior account executive for the perioperative and ASC divisions of Fortus Health- care Resources, a health care employ- ment agency in Utica, New York. “When it is time to terminate an


employee, you need to be able to present specific data and back up your decision to the employee,” he says. “If that person ends up coming after you with a lawsuit, you need documentation to serve as hard proof. The documentation should include records of problems, such as an employee coming into work late or threatening another staff member, when you spoke with the employee, what was said and anything else pertaining to discipline. Hearsay does not carry much weight in court.” If your ASC only has documenta- tion on a single employee’s actions, this might cause problems in the event of a lawsuit, Medina says. “The docu- mentation has to be appropriate for all employees. If your documentation gives the appearance of targeting a spe- cific employee only, you may be setting yourself up for a retaliation claim. “For example, picture an instance


where you have an employee who has not been performing well but you have not been documenting their non-per- formance,” she says. “If this employee complains because he or she feels like a supervisor has been discriminating against them according to race and then


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