A successful colleague of mine once proposed that his optometry practice would be nirvana if he could make it “employee-less.” While some days we all may agree, the concept is not realistic and perhaps a bit too cynical. The old adage, “Employees will make or break you,” is far more accurate.
Competent, productive employees are an essential element of a successful practice. In America’s litigious society, where employee vs. employer lawsuits abound, keeping your staff informed, motivated and happy is vital. In human resource management, the concept that “rules are made to protect the innocent” is gold. So, the federal and state laws regulating HR almost always work in favor of the employee.
The most common lawsuits brought against employers include hiring discrimination, failure to pay for overtime, harassment, discrimination in decisions for pay increases or benefits, retaliation against the employee, whistleblower actions against employers, failure to provide disability accommodations, unfair termination and defamation following termination. In 2013, the two most common employee lawsuits were retaliation and Fair Labor Standards Act (FLSA) violations.
It would be nice to just be a doctor and not worry about rules and laws, but that is a fantasy. Let’s review some of the most common employee “headaches.”
1. State Employment Laws
More than 15 federal statutes and countless state laws regulate your relationship with your employees. In all, tens of thousands of pages of legal jargon define proper employer behavior and employee benefits (better stated as employee advantages). Potential pitfalls abound. You surely know some of them, like discrimination and harassment, but there are many more that can pose equally serious consequences in the event of noncompliance.
Are you aware of your state’s laws regarding employee benefits, surveillance, smoking, obtaining credit, criminal arrest or conviction reports, firearms in the workplace, drug testing, mandatory leave of absence for jury duty, time to vote, military leave, mental health leave or pregnancy leave––just to name a few? If not, you need to research those areas or get assistance from a compliance company or HR attorney. Not following any one of these laws can cost you a great deal of money and damage your reputation.
2. Fair Labor Standards Act (FLSA)
The Department of Labor (DOL) cites the FLSA as the most abused employee law in the United States. The main purpose of the FLSA is to make sure employees are paid properly for every hour they work regular time and especially overtime. It is an extensive piece of legislation, but the part DOL says is “abused” is the way employees are classified––either as salaried or hourly wage earners. To qualify as an exempt or salaried employee, the position must pass three rigid tests—the Salary Level Test, Salary Basis Test and the Duties Test. Generally speaking, executive, administrative, professional, outside sales employees and some computer workers who pass specific occupation-related tests and make no less than $455 per week may be exempt from overtime pay.1 Check the Department of Labor’s website for specifics on the tests for each occupation.
We can make it simple and state that it is very rare for any employee of a doctor’s office, including your office manager, to qualify for a salaried exemption. The Office of the Inspector General (OIG) has placed this issue in its 2014 Work Plan, along with other national concerns like immigration, drug control, crime in the streets and health care fraud.
The OIG has also teamed with the American Bar Association in an openly designated “sue your employer” program to find and help employees improperly paid on a salaried basis. The program, called “Bridge to Justice,” can be found on Facebook and billboards all across the country. Failure to comply with the FLSA cost one of your Texas colleagues $108,000. This is not a law to be taken lightly.
3. Occupational Safety and Health Administration (OSHA), Centers for Disease Control (CDC)
Federal law requires you to provide a safe working environment for your employees and infection control for your employees and patients. Compliance with OSHA and CDC standards requires a written Hazard Manual and documented training of your staff. OSHA deals with safety in the workplace and how you deal with hazardous chemicals (Windex is a hazardous chemical to OSHA!). The CDC is concerned with infection control—how you dispose of products that have touched your patient or their eyes, how you disinfect your office, how you handle employees or patients who present with potentially infectious diseases. No health care provider is exempt from OSHA and CDC regulations, optometrists included.
Little Headaches Most Employers Don't Know About
A little problem can turn in to a monster if you aren’t aware of it. Here are some pitfalls that come with pricey consequences:
• New-hire-reporting portals. One “little thing” that can cost you $25 per day for noncompliance is failure to report all your employees to the state new-hire-reporting portal. If your HR or compliance consultant does not provide you with this information, you can usually find the reporting website on the Internet.
• Failure to display employee posters. Another “little thing” with a noncompliance fine of $7,500 is failure to put up the correct employee posters in your office. Do not fall prey to expensive “poster companies,” their misinformation and their hard-sell tactics. Visit www.dol.gov/elaws/posters.htm, answer a few quick questions, and download your state-specific, required notifications entirely free. Laminate them for use and replace them yearly for potential changes in the law. “Free” wins every time.
• Disability insurance in Hawaii. Hawaii is totally awesome, right? Well, not concerning disability insurance. Hawaii law requires employers to pay up to half the cost of a state disability program covering all employees. A few other states have similar laws.
• Paid time off to vote. Some states impose fines if you do provide paid time off for employees to vote. In Arkansas, for example, you can be fined for not providing time for your employee to breastfeed. California just passed incredibly lenient laws related to sick pay (AB1522–Chapter 317, signed by the governor September 10, 2014). Just more reminders that understanding state law is imperative to avoid HR headaches.
Optometrists have felt the sting of OSHA as their offices were evacuated and padlocked until they demonstrated compliance. As a side note, compliance with these two laws is a requirement for your participation in vision care insurance providers like VSP and EyeMed, among others.
4. Equal Employment Opportunity Commission (EEOC)
Discrimination in the workplace is prohibited by a collection of state and federal laws enforced by the Equal Employment Opportunity Commission (EEOC). Doctors are familiar with standard discrimination law under Title VII of the Civil Rights Act of 1964––no discrimination based on race, color, religion, sex or national origin. The Age Discrimination in Employment Act (ADEA) protects workers over 40 years old from discrimination in the workplace based on age. Other laws covered under the EEOC include the Pregnancy Discrimination Act (PDA) and the Equal Pay Act of 1963 (equal pay for men and women in the same workplace).
The Americans with Disabilities Act (ADA) applies to any employer with 15 or more employees (combination of part time or full time). The details of disability determination are beyond the scope of this article. If you are confronted with an employee disability issue, you should likely consult an HR attorney.
Recent legislation creates new sweeping changes in standards for disability determination for pregnancy and obesity, designating both as disabilities under this Act. The obesity law is poorly researched and written, and potentially very damaging to employers. Unfortunately, it is based on an employee’s body mass index, a known flawed measure of a patient’s health status in relation to their weight. This measurement can be used to make an employer provide special accommodations to an employee that may or may not be valid.
These new laws, like most employment law, do not work in favor of you as the employer. Significant late night reading material on employee disability rights can be found at www.ada.gov.
These discrimination laws are written with a very broad stroke, and are also very liberally interpreted in court. There are many state regulations related to criminal history, arrest records, credit history, smoking and a host of other issues that an employer must also be aware of related to unfair discrimination. New EEOC rulings even protect employees from discrimination based on religious belief, customs and attire; such provisions cover body painting, tattoos, etc. You can find more information about these laws at www.eeoc.gov.
Sexual harassment is a severe violation of employee rights and must be avoided at all costs. Harassment is commonly but erroneously associated only with comments or actions that carry a sense of “quid pro quo” (this for that). However, most harassment claims fall under what is termed hostile work environment, wherein the culture of the organization is considered offensive even in the absence of a transactional quid pro quo overture. The bottom line is employees deserve a safe and supporting place to work where they are not berated, coerced or objectified.
Big caveat: This law is also very loosely interpreted. Harassment claims may be made by the employee or a coworker of the employee being harassed. One employee can file a harassment suit against you because your treatment of one of their coworkers makes it impossible for them to do their job without stress or fear of similar treatment. Bottom line: Demand the best out of employees but treat them with respect and courtesy.
(We’re halfway there. Stop and take your second or third aspirin about now.)
6. The Prospective Employee Interview
Discrimination in hiring laws significantly constrains what you can and cannot ask a prospective employee. In addition to the standard race, sex and creed issues that cannot be addressed, other examples of things you cannot ask during an interview include marital status, availability of transportation, residence, worker’s compensation history, disability status or history, and the number of dependents—just to name a few.
To avoid any implications of discrimination in the hiring process, familiarize yourself with discrimination laws and follow strict hiring guidelines as outlined in your employee manual. It is also not advisable to have other employees “interview” the candidate in private unless they are thoroughly trained in what they can and cannot ask or say. Remember, hiring discrimination is one of the common causes of employee litigation.
No one wants to believe an employee would ever steal from them, but it happens every day. Five good optometrist friends of mine come to mind who suffered losses that would pay the salaries of a couple of employees a year––all of my friends are fine, successful doctors who were simply too busy or trusted too much. Trust is laudable, but standard business protocols are necessary to protect you and your good employees from those who are deceitful or who simply make wrong decisions based on stresses or bad fortune in their lives.
Your office operations manual should clearly spell out the checks and balances you use to ensure proper handling of your hard-earned money, and your employee manual should contain a policy of zero tolerance for deceit in the workplace.
8. Staff Training Required by Law
Staff training is an investment that has a very high rate of return. The more your staff can do without unnecessary supervision, the more time you have to do what doctors should do—take care of patients. This should not be considered an employee headache.
Rather, the headache comes from the federal requirement that you provide documented evidence of staff training in the three major healthcare compliance areas––Health Insurance Portability and Accountability Act (HIPAA), hazards (OSHA/CDC) and now the new Fraud and Abuse Compliance regulations.
Almost everyone is familiar with HIPAA although estimates are that less than half of doctors are compliant, especially with all the 2013 and 2014 changes. Fraud and Abuse is now the number one issue under investigation by the OIG. Filing improper or medically unnecessary care used to be considered more of a mistake—now it is considered a crime. All three laws require written office policy, structured employee training and documentation the training was completed. Unless you want to spend hundreds of hours on the Internet becoming an expert in these programs, compliance companies can help with these federal mandates.
9. Social Media
Test Your Employment Law Knowledge
One of your employees tells you it is hard for them to work because you are constantly yelling at your office manager.
2. You need to hire a new office manager. As part of your application process, you require a criminal background check, a credit status check and a drug test. The applicant provides the information, which reveals that they were arrested for shoplifting years ago.
3. You have no employee manual or documented office policies—no rules means you cannot be held liable for your actions. One of your employees tells you they have filed a discrimination suit against you because they feel their yearly salary adjustment was not fair. How do you respond?
Employee interaction with social media is a new topic in employee policy. There are no federal or state laws or regulations you must adhere to other than the HIPAA Privacy Act. It is highly recommended that you develop policies in your employee manual regarding employees posting on at least your office social media sites.
The best advice is to have one person in charge of monitoring, posting and answering all posts on social media feeds. Make sure your HIPAA training is clear to all employees regarding the prohibition against posting of protected patient information. Also, be wary of posting patient cases, patient pictures or other patient information on social or optometry-specific blogs. Federal and district court rulings have already stated that without specific patient authorization, this is a HIPAA privacy violation. One ruling determined it is a violation even if the patient was not or even could not be identified.
10. Not Documenting Everything
With research on your own or after consultation with a compliance company or HR attorney, you can become familiar with the laws required at the federal level and in your state as the “boss” of your practice. But just having the knowledge is not enough. Much like medical records, you must document everything—as the saying goes, “not written down, not done.”
A complete employee manual is an essential component of owning a business. Not having an employee manual is like practicing without professional liability insurance––you have little to no defense against any action a disgruntled or “entrepreneurial” employee may take who feels you have wronged them or is simply out to test the limits of our employee-centric policies. Although the odds aren’t high that an employee will ever sue you, in today’s society the likelihood is much higher than a malpractice suit from a patient. Employee manuals are necessary to inform your employees of your policies and protect you and your other employees from the actions of problematic or litigious employees.
To protect yourself from financial risk, harm to your reputation and even potentially criminal allegations, you must know and comply with the law, document your policies and treat all employees in a fair and consistent manner.
Rules, compliance standards and massive intervention in our practices, especially in HR management, has unfortunately become the norm. It is imperative we all protect our good employees and the financial livelihood of our practices. n
Dr. DeLoach is president and CEO of Optometric Business Solutions, a compliance and insurance billing company that specializes in optometry business practices.
1. US Department of Labor Wage and Hour Division. Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA). Available at: www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf. Accessed October 16, 2014.