In the “Employment Law Basics for the Small Ophthalmology Practice” session Nick R. Masino, Esquire, and Megan E. Gehret, Esquire, Wade, Goldstein, Landau & Abruzzo, P.C., identified the most common legal issues facing small practices today and clarified how to minimize exposure in those areas. What follows is a summary of the top 10 issues they discussed in their session. 

1. Hiring Issues

Hiring good employees is one of the most important things to do to ensure the success of your practice. Many issues discussed later can be mitigated or avoided by making the right decisions in the hiring process. 

Regarding the pre-interview stage, the job posting must accurately and fairly reflect the functions of the job. The instructors also advised to avoid false expectation and include minimum qualifications; and to start with the job description and make the advertisement based on that — it’s important to have a clear job description so as not to give any preference to any protected class. 

When it comes to the application, be mindful of the questions you ask — can they serve as the basis for making a decision; and are they explicitly or implicitly inquiring about an individual’s status in protected class? Some questions to avoid, the instructors said, are questions about age, disability and criminal record. In addition, they also pointed out that “Ban the Box” laws prohibit employers from asking about criminal background during certain stages of the interview process. 

2. Employee Handbooks

The instructors also pointed out that employee handbooks does not create a contract. It should be signed and acknowledged and reviewed annually. The employee handbook also ensures compliance. They also noted that if you have an employee under contract — if the contract is silent in an area, the handbook will govern. 

3. Pay/Overtime Concerns

The work week equals any consecutive 168 hour/7 day period, chosen by the employer. The FLSA allows for exemptions from these overtime and minimum wage requirements for certain employees who work in administrative, professional and executive jobs (known as "exempt" employees). 

It is also important, the instructors said, to keep track of employee work time for those working from home and who are non-exempt. Make sure you reinforce overtime policies, like requirements of getting permission to work overtime, but know that if an employee works over 40 hours in a week regardless of whether they had permission, they must be paid for that overtime.  

4. Disability

Some points to be aware of regarding disability the instructors pointed out were: coercing someone to forgo an accommodation to which he or she is otherwise entitled; intimidating an applicant from requesting accommodation by indicating that such a request will result in the applicant not being hired; threatening an employee with loss of employment or other adverse treatment if he/she does not "voluntarily" submit to a medical examination or inquiry that is prohibited under law. 

5. Discrimination/Harassment

Some practical tips mentioned regarding discrimination/harassment included: have a policy for making complaints; take complaints seriously; respect the individual complaining; do not retaliate; engage legal counsel; investigative procedures; interview all involved; keep it “under wraps”; look for corroboration and/or contradiction; keep a complete record; cooperate with governmental agencies; and be prepared to take appropriate action. 

6. Social Media Use by Employees

Regarding HIPAA, they said “venting” about a patient on social media can cause serious problems. Also, as far as "friending" patients of the practice, you probably do not want to outright prohibit it but should have a clear policy “advising against it” and making clear that the patient’s status as a patient of the practice cannot be discussed.  

Employees generally have a right to privacy in their social media pages when kept private. Many states have imposed laws on employers’ ability to access employees’ private social media pages when the employee does not voluntarily provide such access (ie, by accepting “friend request”). You can limit access to certain sites; however, if your practice uses social media, an all-out ban could hinder your practice. 

7. General Employee Rights

The Occupation Safety and Health Act (OSHA) includes safety and health standards, hazard-free workplace standards and enforcement. The Employee Retirement Income Security Act (ERISA) includes pension or welfare plans and COBRA. The Family and Medical Leave Act (FMLA) includes eligibility and guaranteed leave.  

8. Employee Privacy

The instructors said to draft and communicate a privacy policy. The policy should state:

• What is prohibited — eg, personal use of internet, email, etc.
• That the employer “may” monitor using legally “permissible” techniques
• Establish business reasons for monitoring
• Be respectful of privacy — even in the workplace, there is some minimal expectation of privacy

9. Performance Reviews/Discipline

You never want your employees to be surprised by what you’re telling them in their review. Communication should be open and regular so employees are aware of how they are doing and if they need improvement. Termination should not come as a surprise. 

In terms of discipline, the instructors said to have clear communication of management expectation; consistent and fair enforcement of policies and procedures; and accurate and complete documentation. 

10. Termination

In regard to the termination of an employee, the instructors said to distinguish between “problem employee” and one who needs to be immediately terminated. If immediate (eg, theft, violence, gross misconduct) can you prove it? Have others been treated the same way?

“It’s important to get the basics down, that will give you an understanding of the big issues you’ll face with regards to employment law,” said Mr. Masino. “You don’t necessarily need to remember all the details, but knowing what to look out for will go a long way in identifying these issues early before they become major issues for your practice.” 
 
Ms. Gehret added: “Understanding your employees’ rights will provide you with the tools you need to prevent the issues that are within your control and properly respond to the issues that are not, allowing you to create a safe and efficient workplace.”