Given the often intense and fast-paced milieu of the medical practice, it can be easy to lose focus on human resources or “personnel” functions other than time-recording and wage and hour. Smaller practices, in particular, may not have an employee designated as HR “director” or “manager,” tasked with the responsibility of tracking federal and state legislation, local statutes, or EEOC guidelines related to employment issues. Written policies articulating very specifically the practice’s position, rules, and procedures relative to social media or the use of criminal background checks, for example, do not exist. Employee Handbook? Too much time and trouble, you may argue, for an employee group totaling just seven individuals.
Those of us who do follow what is happening on the employment landscape know that social media is one of the hot employment law issues now. The crux of that issue: where does the right of the employee to post what he/she pleases about the employer on, say, a personal Twitter or Facebook account (even if it is pejorative, profane, and vilifying) collide with the right of the employer to access what is posted and react with discipline up to and including termination for that employee? How does the employer gain access to the employee’s posting? What if the employee made his or her posts on a personal computer while off the clock? The courts are currently crowded with legal cases on this one issue. No one definitive answer or guideline has yet been determined but the message to employers is to make sure you have a legally sound and defensible social media policy in place.
Just this one example underscores the fact that our employment landscape is constantly changing. It changes in response to emerging workplace factors (smart-phone technology, remote access, etc.), new legislation, amended legislation, the issuance of new guidelines from EEOC – and charges of “Foul!” brought forth by employees who sometimes are more aware than their employers of the changes.
A recent landscape change was the issuance by the EEOC in April 2012 of guidelines clarifying when and how employers should do criminal background checks on current or perspective employees. Impetus? The EEOC determined that current practices of using blanket criminal background check results as part of the applicant selection process could have a “disparate impact” on certain protected classes as legislated by Title VII of the Civil Rights Act of 1964, as amended. The new guidelines offer a process of “targeted assessment” of applicants for a particular position, for instance one that involves handling the employer’s assets, cash transactions, or providing patient care (especially to the elderly or very young). The message for all employers is that there may be legal ramifications if an applicant is not hired because of an arrest or conviction that happened years ago – and the nature of the criminal activity involved was unrelated to the nature of the job now sought by the applicant. (Find more information at www.eeoc.gov/guidance/arrest_cfm.)
One good screening tool can be interviewing the applicant, and here the employer must also be vigilant. Picture a group interview of an office manager job candidate; he/she is engaging and pleasant, and, in a burst of enthusiasm, one of the interviewers asks, “So, how many kids do you have?” or “You were born and raised in Reykjavik … You speak English so well!” Training about what not to ask is important for anyone in the practice who participates in conducting job interviews. This includes avoiding such questions as: Are you a U.S. Citizen? What is your maiden name? How do you feel about supervising women? How many sick days were you out last year? Have you ever filed for Workers Comp? There are many more areas that should be strictly avoided during interviews of job applicants.
For employees already on board, certain other employment legislation and guidelines apply based solely on the total number of individuals employed. The Family Medical Leave Act (FMLA) applies to companies with 50 or more employees; the Americans with Disabilities Act (ADA) if 15 or more employees. Both pieces of legislation have been amended since 2009, resulting in the need for updated policies and practices. The FMLA, for instance, has been amended to specifically govern military-related leave (more at www.dol.gov/whd/fmla/finalrule.htm). The Americans with Disabilities Amendments Act, or ADAAA, broadened the definition of “disability” (www.eeoc.gov/laws/statutes/adaa_notice.cfm).
While certainly not an in-depth approach to any of the employment considerations mentioned, the message here can be condensed fairly simply: the small practice will not get a pass because it is small, does not have at least a human resource “presence,” or did not know about the applicable law, statute, or “guidance” in question. Knowing about and paying attention to the employment landscape will help your practice avoid many of the potential landmines that lurk in that landscape.
Betty Spohn, BA, MSLS, Ed.D. (ABD), is director of Business Services for access Wellness Group in Lexington, Kentucky, a counseling group that also provides Employee Assistance Program (EAP) services to regional employers. You can reach Betty at (859)338-8929 or bspohn@accesswellnessgroup.com. More information is available at www.accesswellnessgroup.com.