In the summer of 2017, a small group of veterinary personnel formed the National Veterinary Professional Union (NVPU). The members of this grassroots movement are largely from Seattle, and they have prompted plenty of conversation about the benefits of unionizing the profession, as well as the challenges that will likely arise. It should be noted that, in rare instances, unions have already existed in the veterinary industry, but these have been isolated ones under unique circumstances.
Here are more specifics about the current situation.
More About the NVPU
The organization has been called the brainchild of Morgan VanFleet, a veterinary technician who is leaving the industry to work in nursing. Another technician, Liz Hughston, is serving as the organization’s communications director and is listed on the group’s website as president. She has pointed out how quickly credentialed staff are leaving the profession, calling the current environment unsustainable and a motivation for unionization.
More specifically, citing a 2016 demographic survey by the National Association of Veterinary Technicians in America (NAVTA): the average veterinary technician works in the field for seven years, with Hughston saying that reasons for the exit are numerous, with one of them clearly being compensation levels. And, because not enough people are graduating in the field to fill in empty positions, people involved in the NVPU are seeking solutions for a labor shortage that has the potential to become a real crisis.
One initiative of the NVPU is their Wage Transparency Project. A representative of the NVPU has said that wage uniformity is not a goal, but transparency is important because it’s difficult to bargain for pay increases if it isn’t clear where the wage basement and ceiling currently exist. As the organization has gathered wage information from people willing to disclose specifics, they have discovered that significant discrepancies exist, with new employees sometimes making more than employees with long tenures. To keep employees engaged in the workplace, achieving more parity is important, as is letting them know what monetary compensation is possible if they work hard and commit to staying in the industry.
The NVPU is currently local and, to nationalize their efforts, they are using Facebook to spread the word (https://www.facebook.com/NationalVeterinaryProfessionalsUnion/) and receiving some print coverage. They also have a basic website at http://www.natvpu.org and, as they get more dues-paying members, they plan to expand their outreach. Hughston expects this movement to grow slowly, first in Washington, then in the West Coast and then elsewhere around the country.
Obtaining better wages and benefits is a key focus, with other foci including requiring practices to invest more in training and providing enough quality protective equipment along with an overall safe working environment. Goals also include more workplace support for employee veterinarians, as well as technicians, unlicensed assistants, reception staff, client-care coordinators and other unlicensed support staff.
Hughston compares this movement to the 1960s and 1970s when nurses began to unionize, pointing out how it is a well-respected profession today. And, in fact, a longer-term goal of NVPU may include joining a larger union, such as the Service Employees International Union, for greater impact and bargaining power. This union represents about two million members who are nurses, nurses’ aides and home health care workers.
American Veterinary Medical Association Position
They are remaining neutral, saying the following. “We respect the right of our members who are employees to self-organize; to form, join, or assist labor organizations, and to bargain collectively through representatives of their own choosing. Similarly, we also respect their right to refrain from any such activity.”
Is it reasonable to argue that corporate buyouts of individual practices are the impetus for the unionization movement. The reality is that increasing numbers of practices are consolidating, largely through corporate buyouts. In fact, Mars Petcare alone now owns about ten percent of the animal hospital market in the United States. As corporations own more hospitals, there will be less market competition, which means these corporate practices will be able to have more control over wages in the industry – which are currently staying flat.
Is unionizing the solution? Well, it depends upon whom you ask. If you’re an employee who struggles to meet expenses, the solidarity of a union will might seem attractive. Or, even if you make a reasonable salary, the benefits of unionizing may seem like a positive if you have crushing student loan debt. Yet another group of people who may find unions appealing: those who work at a corporate practice where there is disconnect between headquarters and the needs of the practice site. Hughston from the NVPU notes that, overall, non-corporate-owned practices typically take good enough care of their employees that they aren’t calling for a union. Instead, mostly it’s corporate staff that are clamoring for help and support.
We’ll now look at the pros and the cons of unionizing, as well as two additional related issues.
Well-paid veterinary technicians, according to the 2016 NAVTA demographic survey, are paid only slightly above the poverty line, when income taxes are factored in. So, it’s clear that a problem exists, one that will continue to affect the industry’s ability to retain quality workers. Collective bargaining is one avenue towards helping workers obtain fair compensation and, therefore, boost retention rates at practices, although not everyone agrees it’s the right one.
From an underpaid worker’s point of view, there is a power in numbers. When, as just one example, an independent practice is sold to a corporate buyer, employees will likely feel powerless, and may desire a union to help them to navigate their new environment. And, there is reason for concern. Approximately 27,000 to 30,000 veterinary practices are operating in the United States today. The majority are still one-to-two doctor practices or at least individually owned. But, over the past decade, corporate ownership is increasingly taking hold, with Mars, Inc. owning more than 975 practices. And that was before they announced a successful acquisition of another corporate holding, VCA, Inc. This corporation owned 800 veterinary hospitals in the United States and Canada. This means that Mars now owns just under 2,000 practices in the United States and Canada, with about another 1,000 veterinary hospitals owned by other corporations. And, as the ownership landscape changes, the environment becomes increasingly riper for unionization.
As more practices become corporate, as already alluded to, there is naturally less competition, which gives the practices more ability to control wages. This seldom benefits the worker. According to a paper written by Richard Freeman, Harvard University economist, union members in the United States earn five to fifteen percent more in wages than their non-union counterparts. These figures do not factor in differences in pensions or health insurance, vacation or any other benefits. Unions can help.
And, there are additional benefits of unionization, at least from the worker’s point of view. Hughston points out that unions can help with work/life balance and can help to create professional boundaries that are respected. These can include putting safe procedures and protocols into place; ensuring there is enough staffing for safety reasons; and more.
Let’s reiterate another point. Hughston acknowledges that unionization won’t be an attractive option to employees in private practices, especially those who feel comfortable and effective in negotiating directly with employers. She sees unionization as a valuable strategy to address the growing number of employees who are employed by corporate practices.
Independent practice owners may already be paying their team as much as they can to still manage their budgets, and they may already be doing all they reasonably can to create a quality environment for workers. Because the veterinary industry is cash-based (meaning most clients they see do not have health care insurance for their companion animals), there is a monetary cap of what an independent practice can afford to pay. Wage increases beyond that, then, will translate into increased prices, which may cause clients to go elsewhere to a non-union practice or not make appointments as often. It can also mean that, going forward, these practices will need to hire people with lower skill sets, which could harm the skilled workers, the practices themselves and the clients and their companion animals. Wages increased beyond what a private practice can bear could also lead to staff layoffs.
Hughston’s viewpoint is that there are other ways to boost wages, perhaps by having corporations accept a lower profit margin and for the entire industry to work together to create a sustainable profession. In the long run, she says, this will save all practices (independent and corporate) money. But, that may an idealistic comment, not a practical one, with private practices potentially hurt by unions as difficult industry problems are addressed.
Some people believe that unionization won’t necessarily improve pay and benefits or provide improved patient care. According to the executive director of NAVTA, unionizing will not necessarily be cheap for members, with the NVPU looking at a union model where members would pay two to three percent of their wages to belong. So, the net result in their paychecks may be disappointing.
Here’s another potential negative to consider. How would the patients suffer if practice employees went on strike?
Proactive Actions for Practices to Take
When employees at a practice unionize, life becomes more complicated for management. The practice would need to bargain with union over wages, terms of employment, hours of work permitted and other issues. Independently negotiating with unionized employees would violate federal labor law; going through collective bargaining, meanwhile, can be a drawn-out and often frustrating process.
To try to prevent employees from seeking to unionize, here are tips. First, don’t create fertile ground for unions. If your employees feel ignored or treated unfairly, or if they feel as though dealing directly with employers would be futile, that’s fertile ground for unionization.
The unionizing process would go like this. An employee (or more than one) would work with a union organizer to distribute literature to coworkers, and they would be asked to sign authorization cards. If 30 percent of the staff signed them, showing interest in the union, an election is held. Then, if the majority of people who show up to the election vote yes, the practice has been unionized.
As an example, let’s say your practice employs 30 people. If at least ten sign authorization cards, the issue of unionization is put to a vote. If only three people show up to the election? Then two yesses unionizes the practice.
So, self-audit. Are you paying the fairest rates you reasonably can? Offering the best benefits that fit within your budget? What creative yet low cost benefits can you offer? What can you do to improve morale? Fix any fertile ground.
Also consider creating a written policy, if you haven’t already, that restricts any solicitation, distribution of literature and the like at the practice. If you enforce the policy strictly, then employees can only distribute union literature in non-working areas during non-working times. But, if you don’t have a written policy, or if you have one that you sporadically enforce – perhaps by allowing sales of Girl Scout cookies, local charity donations, sign-ups for races and the like – then you can’t effectively prevent the distribution of union literature because that’s a violation of anti-discrimination provisions in federal labor laws.
If employees express interest in a union, you cannot threaten them, interrogate them or retaliate against them. You cannot promise them benefits if they switch positions to begin opposing the union. Be sure to train your managers so they know the law and how they can and cannot respond, and get advice from experienced labor counsel, as needed.
What If Employees Change Their Minds? Getting Out of a Union
According to a Forbes article, A Deep Secret That Labor Unions Don’t Want Workers to Know, “It is, quite simply, nearly impossible for workers to get rid of a union once it has been certified as their monopoly bargaining representative.” That’s because the National Labor Relations Act (NLRA) does not require an election when a designated term ends, such as the expiration of a contract. This means that workers will likely not get a chance to vote on whether they want to continue union representation.
And, in non-right to work states, if you are a private sector worker who works in a union shop, union membership will be a job requirement. You want the job? You join the union.
The only option for a practice where workers have changed their minds is what’s called a decertification election, “held after the expiration of a contract or a narrow 30-day window near the end of the third year of a contract. The union can circumvent a time window by agreeing to a new contract before the window opens—thus moving the window to the end of the new contract, when they can move it again.”
The bottom line is that it’s important to think very carefully about voting in a union, understanding that, while it’s not literally impossible to vote it out, it can be extremely challenging. This is especially true in non-right to work states, but not exclusively so.
Practices concerned with unionization should proactively listen to employees and see how concerns can be addressed in a way that doesn’t require a union. Although increased wages are typically seen as the primary goal of collective bargaining, a more abstract but perhaps equally important goal is respect. Practice owners who find ways to contribute meaningfully to their employees’ work experiences and environment and who become increasingly aware of and respectful of their employees’ contributions have the potential to create win/win non-unionized solutions.
Originally Published in Today’s Veterinary Business, April 2018
You’ve created disciplinary policies and procedures that are clear, fair and approved by your attorney, and so it appears you’ve got all your bases covered. You carefully document misconduct and poor performance, discuss these acts with all relevant parties – and then an employee throws you a curve ball by refusing to sign a disciplinary notice. You really want this signature as proof of the discipline meeting, so what do you do now?
Here are seven steps you can take to get that signature and help prevent this refusal from happening again in the future. These steps also help you to protect your practice when an employee ultimately does not sign the disciplinary notice.
Step One: Stay Calm
It isn’t unusual for employees to refuse to sign notices related to disciplinary matters and there are reasonable actions you can take to manage the disciplinary process and protect your practice if this meeting later becomes part of a legal matter. The calmer you can remain, the better.
Step Two: Carefully Describe the Signature’s Purpose
At the beginning of disciplinary meetings, it’s best to first provide an overview of what’s about to transpire, which includes discussing the undesirable behaviors that led to the meeting along with any discipline that will occur. You should let the employee know that he or she will have time to review the written document detailing the situation – and that his or her signature at the bottom will only show that he or she has received the document and read it, not serve as an indication of agreement of the document’s contents.
Employees who refuse to sign typically do so for one of two reasons (or both). First, he or she may refuse because of a disagreement over the contents. Or, the refusal may come from a belief that the form is invalid without the signature. To move forward, it may be helpful to first decipher why the signature is being refused. If it’s a disagreement over the contents, see steps three and four. If it’s the second reason, see step five. In either case, armed with the knowledge found in those steps, cordially educate your employee about options available when he or she disagrees with the content and/or about the validity of the document without his or her signature.
Step Three: Add Comments and Clarifications
Many practices allow employees to add comments to the form, which can make them feel better about signing it, as they may feel as though they can provide their own points of view in writing. It is also acceptable and often helpful to have wording above the employee’s signature line that clearly states how a signature does not mean the employee agrees with the content of the document, only that he or she has read it.
If the ability to add comments and/or the clarifying statement above the signature line allows your employee to feel comfortable enough with the process to sign the document, then you’ve solved the refusal-to-sign problem. If not, read on.
Step Four: Suggest A Rebuttal
Perhaps an employee feels strongly enough about the information contained in the disciplinary notice that he or she would agree to write a written rebuttal that could be attached to the disciplinary notice. If so, this helps your practice because it demonstrates that the employee was aware of the discipline and that the practice was following its policy of progressive discipline.
Plus, the rebuttal may bring up points that practice management was unaware of, and it’s important for managers to be open to explanations given. Some rebuttals consist largely of emotional statements (“my co-worker is a jerk” or “my manager has always hated me, so why should this be any different?”) without any information of significance being given.
In other instances, though, the employee being disciplined may bring to light new information that may be relevant to the disciplinary actions being taken. Perhaps your employee will provide written documentation that alters the situation being addressed. What if he or she gives you names of witnesses who tell a different story?
If so, at a minimum, you can correct information on the form, adding and deleting details to make the form accurate. At that point, with correct information and an attached rebuttal, your employee may be willing to sign the notice. In relatively rare instances, this new information may cause you to rethink the disciplinary procedure you’ve started. If doubts are raised about the employee’s misconduct or poor performance, don’t rush through the disciplinary process. Make sure you have all the facts before proceeding.
Step Five: Employee Still Elects Not to Sign: What’s Next?
Some employees may still refuse to sign, even after being offered the chance to rebut the statements made in writing. You could recommend that the employee write the words “I disagree” before signing. On occasion, that works.
Step Six: Employee STILL Elects Not to Sign: Now What?
If there are two people from management and/or human resources in the meeting, add a statement to the document that details what happened in the meeting and note that the employee elected not to sign. Then have both managers/human resources representatives sign below that statement. If there aren’t two people in the meeting that represent management, invite one into the meeting at this point so you can get dual signatures.
By this point, you may feel very frustrated, but don’t attempt to force the employee to sign the notice – and definitely don’t threaten to fire him or her to increase pressure.
Step Seven: Adjust Policies and Procedures Accordingly
You may be reading this article right when you’re in the middle of a disciplinary procedure, one where your employee refuses to sign the notice. If so, then you may not be able to follow these steps exactly as written, needing to adapt them to the stage of the process where you currently are. After that particular disciplinary process is over, though, you should review your relevant policies and procedures to see what needs modified, based upon what you’ve learned and experienced to make future disciplinary processes run more smoothly.
Link to article https://todaysveterinarybusiness.com/break-the-impasse/
Originally Published in Today’s Veterinary Business, April 2018
“Maria’s skirt is awfully short, isn’t it? And she sure doesn’t have the figure to pull that off!”
“You’re not going to believe what I heard about our new client . . .”
“Did you hear who is getting divorced? You’re not going to believe what happened!”
“We’re not getting bonuses this year because of what happened between Fred and Susan.”
“Did you hear why Martin got that raise? And did you hear how much it was?”
Statements like this are heard in workplaces around the country, including veterinarian offices, with victims of gossip being managers, coworkers, clients – and anyone else the gossiper runs across during his or her day. While gossip can contain kernels of truth, stories shared are often blown out of proportion, and are sometimes completely false.
When people who work at a veterinarian’s office gossip, and the manager doesn’t effectively address the situation, the workplace quickly becomes toxic. Some managers don’t address the gossip because they are turning a blind eye (or, more accurately, ear!) to what employees are doing. And, unfortunately, sometimes the managers are active participants in the gossiping, which makes the situation even worse.
Gossip, unchecked, can lead to significant productivity and morale issues. Star employees will likely begin to look for work at another practice, which leads to costly turnover, and significant cases of malicious gossip can lead to legal liability issues for the practice.
So, how should workplace gossip be handled?
Understanding Reasons Why People Gossip
It can be helpful to try to pinpoint why people are gossiping in your workplace. For example, do employees feel as though they aren’t being provided enough information about the workplace and so they are seeking out details among themselves? If the gossip being shared is largely about decisions being made in the veterinary office, then being more transparent about what’s going on can go a long way in quashing the gossip.
Are there trust issues in the practice, especially between employees and managers? If employees don’t trust what their managers say, they tend to rely upon one another to get the real story, and this easily lends itself to creating a gossip culture. Honest and open communicate is key, and that starts with the top.
Other times, certain employees gain a reputation, rightly or wrongly, as someone in the know. If these employees enjoy being perceived as a central source of information, they will continue to play this role to soak up attention. This creates a malignant cycle because, as the information-central employee is rewarded with attention, he or she will likely continue to provide even more gossip. So, what can you do? Once someone regularly engages in gossip, it can be challenging to correct this behavior but it can sometimes be addressed by helping the employee receive attention in positive and productive ways.
Put Policies in Place
Like any other human resource-related issue, employee manuals should contain policies to address the situation, including what is prohibited and the consequences that will occur if someone acts in an inappropriate way. This information should be highlighted during the annual meetings in which the manual is discussed.
It’s important to know the law when writing these policies. For example, it’s tempting to include that employees are not allowed to discuss their salaries – but it isn’t legal to prohibit that. It’s also important to differentiate between harmful gossip and normal workplace discussions. For example, someone might say, “Did you hear that Sara’s cat had six kittens last night? The cat is such a beautiful calico, so I’ll bet the kittens are really cute.”
Technically speaking, you could call this gossip, which can be defined as “casual or unconstrained conversation or reports about other people, typically involving details that are not confirmed as being true.”
The employee is talking about Sara in a casual way, providing details that may not be true. There might have been five kittens – or seven – and maybe none are calico. Or, maybe the cat didn’t even have her kittens yet. But, should that conversation be prohibited by policy?
Define what you mean by gossip. You might, for example, determine that, when conversations about others are disruptive, or have the potential to hurt feelings or damage relationships, that’s gossip. If it drains employees’ morale, that’s gossip.
Model Appropriate Behavior
After a long day, it might be tempting for you – as a veterinarian or practice manager – to make an off-the-cuff remark about a difficult client. But, beware. To help ensure that employees don’t gossip, it’s crucial that you watch what you say. When employees make a comment that can be construed as gossip, you can model how that same concept could be shared in a non-gossipy way or explain why it wasn’t appropriate to say. When an employee occasionally makes comments that cross over into gossip, behavior modeling and employee coaching generally work. Call yourself out, as well, when you slip into behaviors along the gossip spectrum.
Deal Directly with Problem Employees First
If an employee is a hard-core gossiper, then you will need to follow your progressive disciplinary procedure, a process that most likely starts with a verbal warning and ends with termination. Meet individually with a perpetrator in a confidential location and discuss the impact that his or her gossiping is having on other individuals and the practice. Review with each perpetrator the disciplinary procedures that will be followed, and then stick to them, even if it results in firing an employee who resists improving his or her behavior.
It’s important to meet individually with gossipers first, rather than going immediately into a team meeting or sending out an email blast, and here’s why. You might remember being a child in a classroom where a teacher vented about the high absenteeism rate – ranting, of course, to the students who did show up to class. Sending a group email or holding a team meeting without individual counseling and discipline is the grown-up version of the teacher chastising people with good attendance for absenteeism.
When you do meet with your entire team, discuss the topic of gossip on a broad level. Invite your team to brainstorm solutions to help ensure that your workplace culture is as positive and gossip-free as possible. This can include rewarding employees when they share positive news with one another, perhaps giving kudos to a fellow employee who received an important certification or handled a difficult customer especially well (making sure that these “kudos” aren’t really a disguise for gossiping about the challenging customer!).
Finally, you need to protect employees who share instances of gossiping with managers. Ironically, you also need to watch to ensure that this reporting doesn’t become an insidious form of gossip. Remain firm and consistent in your efforts to root out gossip. This process can be challenging, especially if gossiping behaviors have been entrenched into your workplace culture, but the ultimate rewards are significant and worthwhile.
Click link to see article in Today’s Veterinary Business http://todaysveterinarybusiness.com/?s=workplace+gossip
Originally Published in Today’s Veterinary Business, February 2018
It can be tempting to consider an extraverted person as a “good” employee and an introverted one as less attractive. In reality, people all along the spectrum can make outstanding employees.
Workplace culture in a veterinary practice is significantly influenced by the personalities of the people who work there. So, it makes good sense to gain a clear understanding of personality assessments and how they can benefit a practice.
In 2015, the Society for Human Resource Management (SHRM) published an in-depth piece about personality tests and their value in the workplace. The writer noted that as many as 60 percent of workers must now take workplace assessment tests, either as part of the hiring process or for career development purposes.
If you decide personality assessments would be a valuable addition to your practice, it’s important to discern which test is the right one. And are there downsides to the tests?
That question is easy to answer: Yes, there are downsides, as the quality of assessment tests varies widely and some of them might put the company in legal trouble. So, if you choose to use personality testing, investigate the best choice and administer the tests consistently using a policy you develop. Also, respect confidentiality.
The Big Five
The SHRM article referenced the five-factor model of personality testing, noting that a good percentage of workplace personality assessments are based on this model. It measures:
- Openness to experience.
This model is the most extensively researched to date and is explored in “The Big Five Personality Traits,” an article by Kendra Cherry at www.verywell.com.
Research indicates that both nature and nurture — biological inheritances and the influences of a person’s environment — play key roles in developing each person’s personality. As far as behavior, this is an interaction between someone’s personality and the situation at hand. In most instances, people respond to a situation in a way that’s consistent with their core personality.
How This Can Play Out
- If you have employees who would land along the extraversion side of the scale, know that people who rank high in this area will gain energy by engaging with other people. So, they will likely want to talk about situations occurring at work and may speak out before thinking in depth about their comment. If the extraverted person is working with an introvert, this can present a challenge, as the introvert probably won’t want to engage in much small talk and will get worn out by socializing beyond his or her comfort level. It can be tempting to consider an extraverted person as a “good” employee and an introverted one as less attractive. In reality, people all along the spectrum can make outstanding employees, although they will likely excel and interact with other people in different ways.
- The personality trait of agreeableness plays out differently. Agreeable people care about others and feel empathy and concern. Low on agreeability? This person isn’t interested in you and doesn’t care how you feel. It fact, he or she might engage in insulting others. So, you want agreeable employees.
- Next is conscientiousness. People high on the continuum prepare for tasks, prioritize and finish on time. They tend to enjoy set schedules. People low on this scale dislike schedules and structure, procrastinate and even fail to complete important tasks. Yes, you want conscientious employees.
- People with high levels of neuroticism worry, feel stress and anxiety, and tend to experience dramatic mood shifts. People with low levels deal well with stress and are emotionally stable.
- People with high levels of openness are creative and enjoy trying new things and taking on new challenges. They enjoy delving into abstract concepts. On the other end are people who dislike change and new ideas, and they don’t enjoy theoretical concepts.
Myers & Briggs Types
One of the most well-known personality categorization tests, from the Myers & Briggs Foundation, lists 16 personality types. These are based off Carl Jung’s psychological types theory, where people can be characterized by where they fall on four spectrums:
- General attitude: extraverted (E) vs. introverted (I).
- Way of perceiving: sensing (S) vs. intuition (N).
- Way of judging: thinking (T) vs. feeling (F).
- Additional way of judging: judging (J) vs. perceiving (P).
Jung believed that, in each person, one of the four functions described above predominates his or her personality. Here is what each spectrum means:
- Extraversion-introversion: An extravert expresses energy largely externally, whereas an introvert’s energy exists largely internally.
- Sensing-intuition: This indicates how someone perceives information. Sensing is largely from external cues and intuition is largely from internal cues.
- Thinking-feeling: This describes how information is processed by someone. Thinking uses logic and feeling uses emotion.
- Judging-perceiving: This describes how the person implements processed information. A judging person organizes and follows through while a perceiving person explores options and improvises.
These four criteria form the basis of 16 personality types. Someone who is ESTJ, for example, is extraverted, senses information from external cues and uses logic, then makes decisions and acts upon them. An ISFJ, as another example, is “Quiet, friendly, responsible and conscientious. Committed and steady in meeting their obligations. Thorough, painstaking and accurate. Loyal, considerate … [and strives] to create an orderly and harmonious environment at work and at home.”
Testing for Hiring Purposes
If your intention is to use personality testing in the hiring process, make sure to choose a test that is reliable and measures stable personality traits rather than evolving traits. The test should help you compare one candidate against another. Request evidence that the test provides quality predictors about work behavior.
The Harvard Business Review, in the 2015 article “Personality Tests Can Help Balance a Team,” noted that the best personality testing for workplace purposes can highlight three different elements of personality:
- How someone behaves at his or her best.
- How the same person acts under pressure.
- How this person feels inside (his or her needs, motivations and personal preferences).
Well-chosen tests, the article stated, also help a practice to profile entire groups to determine “whether the group is likely to bond or fracture by examining qualities that predict both success and failure.”
“For example,” it continued, “we know that teams with members who are open-minded and emotionally intelligent leverage conflict to improve performance, whereas neurotic and closed-minded groups fall apart in the face of disagreement.”
If you choose to introduce personality tests to your practice, remember to first develop a policy about how and when the tests will be used. Share the policy with employees when it is created and during annual policy reviews. Make sure to consistently follow the policy and let employees know when changes are made to it.
H.R. Huddle columnist Dr. Charlotte Lacroix is founder and CEO of Veterinary Business Advisors Inc. She serves on the Today’s Veterinary Business editorial advisory board.
Click link to see article in Today’s Veterinary Business http://todaysveterinarybusiness.com/?s=workplace+gossip
In the law of professional negligence, the standard of care is the benchmark by which others assess a veterinarian’s competence. To be within the standard of care, veterinarians must perform their duties with an average degree of skill, care and diligence exercised by colleagues practicing under the same or similar circumstances. Unfortunately, this is a general rule and not always helpful when one is trying to determine whether or not to do something in a given situation. For example, when is it or isn’t it necessary to refer a patient?
In general, compared to other professionals, veterinarians are minimally regulated. Aside from the state board of examiners, DEA and OSHA, few governmental agencies interfere with how we practice medicine. This is a good thing, because veterinarians can still exercise independent judgment. It is a bad thing, however, because it is not clear as to what and what is not the standard of practice. For this reason, authors of this manuscript have compiled a set of veterinary care standards for various exotic species. We believe that it is better such standards are articulated and published “within” and “for” the industry, rather than waiting around and having the lawyers and courts determine the standards one by one, each at the expense of a veterinarian’s career.
There are primarily two areas of law that regulate the conduct of veterinarians and help ensure that veterinarians act prudently and reasonably in their dealings with clients and their animals. The first is the civil court system that adjudicates claims made by clients who allege that their veterinarians have acted negligently. The second is the state board of examiners which is an administrative office charged with enforcing a state’s veterinary practice act which sets forth laws with which veterinarians must comply to obtain and maintain their veterinary licenses. In performing their daily clinical duties, veterinarians should be cognizant of these two areas of law since they represent the two principle avenues by which clients may have complaints addressed.
Receiving letters from the state board of examiners and or a disgruntled client’s attorney can be very distressing, causing veterinarians to respond impulsively and not always in their best interests. This is especially the case with veterinarians who have been practicing for only a few years since they are not likely ever to have been named in a lawsuit or reprimanded by a regulatory agency. It is important for veterinarians to realize that how they initially respond to such allegations can have a significant impact on the outcome. For this reason it behooves us to become knowledgeable about the processes by which state boards and the courts adjudicate such allegations. The following scenario illustrates how these procedures work in real life.
Mrs. Bridges brings in Martinique, her 2 year-old female iguana, to Dr. Steel, a small animal practitioner who prides himself in being knowledgeable about exotics as he is a member of the Association of Avian Veterinarians. Mrs. Bridges informs Dr. Steel that Martinique has not eaten for 2 weeks and after performing a physical examination, Dr. Steel diagnoses “Egg Binding”, a common condition in both birds and reptiles. Without advising Mrs. Bridges of his limited experience with reptiles, nor offering her a referral to a colleague who has more experience, Dr. Steel obtains Mrs. Bridges’ consent to perform a spay surgery on Martinique. Dr. Steel has performed many spay surgeries on birds to treat “Egg Binding”, and performs the same surgical procedure on Martinique whereby he removes the shell glands without removing the ovaries. Martinique is sent home and recovers well from surgery after 3 weeks of antibiotics and hand feeding.
Next spring, Martinique goes off her food again, but this time, she is lethargic and has a markedly swollen abdomen. Mrs. Bridges is concerned this is a recurrence of the same problem and brings Martinique to a new vet in town, who advertises herself as an exotic veterinarian with expertise in reptiles, birds and pocket pets. Dr. Zoo examines Martinique, performs an x-ray and ultrasound, and diagnoses “Egg Binding.” Mrs. Bridges is puzzled and frustrated as to why Martinique has the exact same condition, when the surgery performed by Dr. Steel, a year ago, should have permanently fixed the problem. Dr. Zoo, also is confused, and with Mrs. Bridges’ consent obtains a copy of Martinique’s medical records and contacts Dr. Steel.
The medical records are vague at best. The only notation relative to the surgery is “spayed, surgery routine, recovery uneventful.” Dr. Steel confirms the information in the medical records and informs Dr. Zoo, in a patronizing manner, that his experience is that reptiles are just like birds, and their shell glands can be removed without removing their ovaries. In a defensive tone, he tells her that he has been performing these procedures on reptiles long before she was ever admitted to veterinary school.
Dr. Zoo responds to Dr. Steel by informing him of her residency training in exotics, experiences working at various zoos around the country, and tells him that reptiles are not at all like birds and must have their ovaries removed. She further explains that since the ovaries were not removed during the first surgery, Martinique has re-presented with the same symptoms because she has ovulated eggs, which are now in the coelomic cavity. In fact, she tells Dr. Steel that it is likely that Martinique was just pregnant a year ago and did not have “Egg Binding” condition as he had diagnosed and due to his misdiagnosis, Martinique will need a second surgery.
After speaking with Dr. Steel, Dr. Zoo informs Mrs. Bridges that Martinique will need a second surgery and discusses the procedure and fees involved. Mrs. Bridges, who is angry that she has to pay a second time for the exact same procedure, asks Dr. Zoo to discount her fees. While sympathetic and understanding, Dr. Zoo explains to Mrs. Bridges that a discount is not possible. Frustrated, Mrs. Bridges leaves Dr. Zoo’s hospital with Martinique. Later that night Martinique became weak, started mouth breathing and was unresponsive to touch. Mrs. Bridges rushed her pet to the local emergency clinic where the doctor on duty performed an emergency exploratory. Sadly, Martinique died during the recovery.
Three months later, Dr. Steel receives two letters; one from the State Veterinary Board of Examiners and another from Mrs. Bridges’ attorney. The state board letter requests Dr. Steel to respond to Mrs. Bridges’ assertions that Dr. Steel was negligent in (a) failing to inform her that the he was not experienced in treating reptiles; (b) failing to offer a referral to a veterinarian who was qualified and experienced in treating reptiles; (c) misdiagnosing Martinique’s condition; (d) performing a surgical procedure below the standard of care; and (e) failure to maintain appropriate medical records. The correspondence from Mrs. Bridges’ attorney includes a copy of a complaint filed with the state court alleging malpractice and a demand for $100,000, for economic and emotional distress damages.
What should Dr. Steel do?
Responding to Allegations of Professional Malpractice
How veterinarians address such accusations will in part depend on whether the allegations are in the form of a lawsuit, state board complaint, or both. Regardless of the form in which the allegation is made, the first step veterinarians should take is to carefully read the complaint and determine what is being requested of them and in what time frame. Once this information has been assimilated, they should gather the pertinent medical records and any other documentation relating to the services in question and write down in chronological order their recollection of the events.
In this case, the complaints allege that Dr. Steel performed a procedure for which he had insufficient knowledge, failed to refer the case and had poor medical records. The facts indicate that Dr. Steel examined Martinique, made a diagnosis and performed the spay to treat the “Egg Binding.” Dr. Steel should carefully review the medical records to corroborate his recollection of the events. Unfortunately in this case, because the documentation is poor, it will be a scenario of Dr. Steel’s word against Mrs. Bridges’. For example, it will be difficult for Dr. Steel to claim that he informed Mrs. Bridges of alternatives, including a referral, as there is no such notation in the records. Since Dr. Steel has a legal obligation to maintain medical records, the fact that he hasn’t will imply that he also was careless with his medicine. As he reviews the records, Dr. Steel should write down the events that led to Mrs. Bridges’ complaint. Most veterinarians will find this helpful since it will refresh their memories, help them develop a consistent “story” as to what happened, and provide a draft from which to develop a written response.
So as not to compromise his defense in the lawsuit, Dr. Steel should immediately upon receiving the complaint, contact his professional liability insurance carrier and ask for advice. However, if Dr. Steel suspected earlier that Mrs. Bridges was likely to pursue legal action, he should have contacted his insurance carrier at that time. Insurance carriers may differ in how they handle negligence actions, but usually require the defendant to fill out a claims form in which the veterinarian describes the circumstances that led to the claim. A claims representative then reviews the facts, makes a recommendation as to a course of action and may assign an attorney to the case if the complaint cannot be settled quickly. In this case, if Mrs. Bridges is offered a settlement and rejects it, it is likely an attorney would be assigned to defend Dr. Steel since in this case it appears that Dr. Steel’s care was substandard in several respects.
In dealing with the letter from the state board, Dr. Steel should be aware that he will most likely be defending his conduct at his own expense, since professional liability insurance carriers generally do not provide coverage for state board actions (exception: AVMA-PLIT now offers a limited policy insuring against state board actions). While Dr. Steel may respond on his own, it is usually advisable for him to obtain legal advice as to how he should respond to the allegation(s) and at the very least have an attorney review his letter. In drafting his response, Dr. Steel should not underestimate the time and effort it will take to address all the issues in the complaint, in an organized and articulate manner. Responses that are, disorganized, incomplete and difficult to follow, often lead to further investigation by the board as opposed to an early dismissal of the charges. Additionally, Dr. Steel may find it helpful to consult with other veterinarians to determine whether they use inform their clients of alternatives and/or “wing it” on exotic patients. This will assist Dr. Steel in determining whether he acted within the standard of care and provide an indication as to his liability.
The burning issues for Dr. Steel of course, are whether he was negligent in failing to (a) refer Martinique, (b) remove the ovaries and, (c) maintain proper medical records. Our courts and juries decide negligence on a case by case basis in light of the specific facts and circumstances of each situation, but, veterinarians should be aware of a few general principles. First and foremost, it is important to note that a veterinarian can be found negligent even if he or she did not intend to cause harm. Simply put, “I didn’t mean to” is no defense to “you should have known better”. A simple mistake can lead to liability.
Secondly, veterinarians can be found negligent even if the rest of their colleagues would have acted in the exact same way. Judges can determine that the entire industry is at fault if it is in the public’s interest. Judge Leonard Hand, a famous judge once wrote in his opinion “[c]ourts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Hence it is a false security to rely on what the rest of your colleagues are doing.
To recover damages from a veterinarian based on negligence, a client must prove four elements by a preponderance of the evidence, meaning it is more likely then not that the veterinarian erred:
Duty of Care. Clients must show that their veterinarians “owed” them a duty of care to provide veterinary services of a certain standard. This element is easy to prove, because courts almost always find that once a veterinarian has agreed to provide veterinary services, the veterinarian also has assumed the legal duty to take reasonable care in providing such services. In our scenario, Dr. Steel clearly owed Mrs. Bridges a duty to take reasonable care in providing veterinary services to Martinique.
Breach of Standard of Care. A duty to provide services within the standard of care is breached when veterinarians fail to meet the standard of care as established by the veterinary profession, that is, when they fail to act with the level of skill and learning commonly possessed by members of the profession in good standing. Mrs. Bridges probably will be able to prove breach of duty if her attorney can show that veterinarians routinely remove ovaries when spaying iguanas. Conversely, Dr. Steel will attempt to establish that he did not breach his duty of care, by showing that most general practitioners do not remove the ovaries and the patients do just fine. It is at this stage that expert witnesses are hired to testify as to what is the standard in the case at issue.
Proximate Cause. Clients must then prove that the veterinarian’s failure to provide services within the standard of care “proximately” or “closely” caused the harm suffered by the clients. If the harm suffered by the client is not a result of the veterinarian’s actions or omissions, it would be unfair to hold the veterinarian responsible. In our case, it is clear that Martinique’s death was caused by Dr. Steel’s initially performing the incorrect surgical procedure. Suppose, however, that Mrs. Bridges is suing Dr. Steel because Martinique died of renal failure a month after spay procedure. It will be a lot harder to prove that Martinique’s death resulted from anything Dr. Steel did or failed to do during the procedure.
Damages. Even after they have proved negligence, clients also must establish that they suffered harm resulting from such negligence. Since animals are considered as property under the law and most state courts do not recognize loss of companionship, this harm is usually in the form of an economic loss. As a result veterinary malpractice awards are usually much lower than in human malpractice cases and clients usually only recover the fair market value of the animal, costs incurred for veterinary care, and loss of income or profits in cases where the use of the animal is lost. However, we are seeing more and more states entertain the possibility of awarding non-economic damages and this is likely to increase the scrutiny with which standards of care are evaluated as well as the number of lawsuits filed against veterinarians.
Responding to Client Complaints
Veterinarians often can avoid receiving letters from clients’ attorneys and state boards by addressing client complaints long before client dissatisfaction leads to legal recourse. Clients often resort to litigation and or state board action when they believe their veterinarian either acted negligently or failed to respond appropriately to their concerns. When faced with a client complaint, veterinarians should consider the following:
- Listen to the client.
- Clients who have complaints are often angry and need the opportunity to “vent”.
- Veterinarians should show their clients that they are taking the matter seriously by listening carefully to what their clients have to say and taking notes of the conversation.
- Do not interrupt the clients since this will only anger them further and likely interfere with a clear understanding of the facts.
- Remain calm and objective.
- Avoid becoming defensive and emotional, since this may inadvertently reinforce the client’s belief that the veterinarian acted inappropriately with respect to the care of the client’s pet.
- A client’s criticism of a veterinarian’s actions, even when fully justified, does not necessarily mean that any negligence occurred. Veterinary medicine is an imperfect science and veterinarians are not omnipotent.
- Communicate, communicate, communicate.
- Many lawsuits are filed because veterinarians fail to adequately communicate with their clients. Often the client does not fully understand the diagnosis or proposed treatment and has unrealistic expectations as to the veterinarian’s services and the respective outcome.
- Veterinarians can enhance communication and reduce potential misunderstandings by 1) obtaining informed consents, 2) providing fee estimates, 3) encouraging questions, and 4) providing handouts explaining the contemplated services.
- Veterinarians should use “plain English” when communicating to clients since medical jargon may not only confuse clients but also intimidate them, making them reluctant to ask important questions.
- Show sympathy and concern.
- Clients whose pets have died are often emotionally distraught and under certain circumstances may seek to blame someone, sometimes their veterinarian, for their pet’s death. Veterinarians who are compassionate and attempt to comfort their clients are more likely to diffuse their client’s perception that the veterinarian should be held accountable for their pets death.
- Veterinarians should not hesitate to recommend grief counseling for clients who appear to have difficulty coping with the loss of their pet. Several veterinary schools have such hotlines, including, the University of California at Davis, University of Florida and Colorado State University.
- Coach the staff.
- Staff members can help diffuse client complaints and should be coached in what to do and say, if anything, when a client complains.
- The staff should remain professional at all times and avoid “offensive – defensive” discussions with clients who may be less intimidated by staff members and therefore more hostile to the staff as compared to the veterinarian.
- Do not admit fault or offer a settlement.
- Veterinarians should avoid making apologetic statements or excuses and should not admit fault, since this would compromise their case in the event a lawsuit was later filed. Veterinarians with only a few years of experience are more likely to feel guilty and accountable for bad outcomes, even though there was no negligence. Remember that “feeling guilty” is NOT the same thing as “being guilty.”
- Veterinarians should not offer to settle a malpractice charge or agree to any settlement offered by the client without first contacting their insurance carrier and attorney since it may be interpreted as an admission of fault, thereby prejudicing their case. Under certain circumstances it may be appropriate to reduce the client’s bill in an attempt to amicably and expeditiously resolve a dispute, but without admitting liability.
Avoiding Client Complaints
Just as an ounce of prevention is worth a pound of cure, the best practice to avoid being dragged into a lawsuit or state board investigation is to take measures to avoid client complaints. Even if successful, Dr. Steel will spend a lot of time, effort and money, defending himself in court and before the state board. In retrospect, it would have been far less costly and burdensome if Dr. Steel had informed Mrs. Bridges that he had limited experience with reptiles and Martinique should be referred to an exotic veterinarian with expertise in treating reptiles—at a minimum Dr. Steel should have done his research before performing surgery.
Veterinarians will save themselves a lot of grief if they periodically evaluate their practices to identify areas where preventive measures and procedures will help avoid complaints before they start. Additionally, veterinarians should regularly consult with the staff, their colleagues and perhaps even their insurance carrier to ensure that they are aware of the latest preventive measures adopted by other practitioners. Keeping abreast of developments in the legal liability field should be an integral part of any veterinarian’s continuing professional education. Because people are people, there is no way to prevent client complaints entirely. But in this area like many others, ignorance is dangerous and a preventive attitude is the best approach.
Being accused of malpractice can be a disconcerting experience for any veterinarian, but especially for associates who have been in practice for only a few years. These allegations can come in the form of a civil law suit or state board action and require veterinarians’ immediate attention so as not to compromise their defense. Preparing a defense against such allegations is facilitated by having knowledge of the law of negligence and an understanding of the adjudicatory process. Nonetheless, the best defense lies in addressing client complaints when they first arise by using honed listening and communication skills, keeping abreast of the standard of care within the industry and adopting preventative measures.
 The T.J. Hooper [60 F.2d 737 (2d Cir. 1932)]
Wrongful termination occurs whenever you fire an employee for reasons that are illegal and/or against your practice’s policies.
Illegal firings include those that involve discrimination, whether because of race, gender, citizenship status or other class protection. If evidence exists for discriminatory terminations by an employer, this can lead to a charge by the Equal Employment Opportunity Commission (EEOC) as well as to private lawsuits by affected employees. It is illegal to fire an employee as retaliation, whether it’s because he or she acted as a whistleblower or otherwise reported workplace activities or filed a workers’ compensation claim. You cannot fire someone because he or she refused to follow through on instructions that would require the employee to perform an illegal act or because an employee discussed labor issues with co-workers. It is also illegal to fire someone because of his or her medical history.
Dismissals that take place in ways that run counter to practice policies are also wrongful and include those where appropriate warnings were not given to the employee before termination took place, as just one example. Or, if your employee had signed an employment contract that stated terminations could only be “for cause” and you treated that employee as if he or she was an “at-will” employee, one that could be fired for any legal reason, that is considered wrongful termination.
Yet another wrongful termination category is one that isn’t often discussed but should be: that of constructive dismissal.
Constructive dismissal (or “constructive discharge” or “constructive termination”) occurs when an employer makes working in the practice so unpleasant that conditions become intolerable – and so the employee quits. The concept of constructive dismissal is included in wrongful termination laws in most states. And, in those states, whenever an employee resigns because of genuinely intolerable work conditions, that resignation can be legally overlooked because the employer-employee relationship was in fact severed because of the employer’s actions. Legally, this resignation can therefore be considered a firing, which opens the practice up to a lawsuit for wrongful dismissal.
If a former employee who resigned later claims that he or she did so because of a workplace environment that falls under the umbrella of constructive dismissal, that ex-employee will need to prove that certain conditions existed. These conditions are not uniformly defined from state to state, although they are reasonably similar. Typically, the ex-employee must demonstrate how the practice environment was toxic enough that resigning was something that a reasonable person would do. Being able to prove illegal treatment (such as sexual harassment) or working conditions (such as safety violations) is typically part of the process.
Another typical requirement is that the practice owner or employer knew of these intolerable working conditions and/or wanted to cause the employee to resign. Typically, one isolated act is not enough to convince the courts that a case of constructive dismissal exists. Instead, the former employee must typically show how a pattern of an extraordinarily negative environment at the practice existed for him or her. There can be exceptions, however, such as when an employer becomes physically aggressive or even violent towards the employee.
Note that it is also not enough for an employee to simply state that he or she felt the working environment could no longer be tolerated. The court will instead determine how a reasonable person could be expected to act in the circumstances.
Proactive Actions to Take
As the owner and/or employer of a veterinary practice, what should you do? Starting with the most obvious, do not engage in any sort of behavior that could be construed as actions that could make charges of constructive dismissal appear reasonable to a court. And, although you are not required to provide a stress-free working environment, you are required to ensure that a reasonable environment exists.
Carefully observe what takes place at your practice and address any inappropriate behaviors. And, if an employee comes to you with complaints of inappropriate behaviors, take them seriously, investigate and take corrective actions.
Wrongful Terminations Lawsuits at Veterinary Practices
In 2012, a veterinarian was terminated from her part-time position at the East Baton Rouge Parish Animal Control and Rescue Center; the veterinarian – Amy Cangelosi – ultimately filed a lawsuit against the center, claiming wrongful termination for reporting illegal activity. Cangelosi stated that the newly hired shelter director screamed at her after she spoke out against non-veterinary staff performing euthanasia procedures, as well as when she protested an increase in animals being euthanized – unnecessarily so in Cangelosi’s opinion. She also said that, when she spoke out against measures being taken, she was told not to question the director and was even threatened with termination.
Cangelosi and other long-term employees ended up being fired or resigning over their opposition to shelter practices, which included dogs watching other dogs being euthanized and then placed in a pile, deceased animals being beheaded in front of living ones and so forth. One comment made by Cangelosi was that the director “tried to get rid of me by making it miserable,” making the situation a classic foundation for constructive dismissal.
A more recent case involved a housekeeper named Sonia Wescott who was employed by a veterinary clinic in Philadelphia. She worked at the practice for six years, leaving voluntarily when she moved. She was re-hired when she returned to the area but was fired less than a year later after taking a short medical leave of absence.
She had injured her arm at the practice and reported the injury to management. Two days later, she needed to go to the hospital because of cellulitis. She tried returned to work but was sent home when she was still not able to perform her duties. She began taking a medical leave of absence but was told that, if she did not return by a specified date, she would be terminated from employment.
Wescott said that the stated return date was when she needed to have a chest x-ray taken, adding she had a doctor’s note backing her up. She required three more days before returning to work, but she was fired rather than being permitted to add those three days to her medical leave period. She filed a lawsuit because she believed the firing was retaliatory.
Here’s the bottom line. Wrongful termination lawsuits can be costly to practices in time, money and practice reputation, even if the case is dismissed. When the practice loses the case, the effects can be even more devastating.
Losing a Constructive Dismissal Lawsuit
If a former employee successfully proves that he or she was forced to quit, you may be court ordered to pay your employee back wages and benefits as well as lost wages and benefits while your ex-employee looks for new employment. There may be compensatory damages awarded for mental distress suffered by the ex-employee – and, in especially significant cases, the former employee may also be awarded punitive damages. The best defense is to put solid policies into place, including but not limited to termination policies, and ensure they are followed. Cultivate an employee-friendly workplace culture that includes a follow-up process when someone resigns from your practice and consult an attorney before firing someone.