Wrongful Termination and Constructive Dismissal

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

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.

 

3 HR Challenges And What You Can Do

Originally Published in Today’s Veterinary Business, December 2017

 

Recruiting, training and retaining quality employees is an ongoing challenge for veterinary practices of all sizes. Successfully doing so, though, is crucial if a practice is to thrive.

Team members involved in human resources should know how to address the three key issues below. Let’s look at the issues, questions to consider and methods of dealing with the challenges.

The Millennial Age

As baby boomers retire and Generation X ages, increasing numbers of millennials are entering the workforce. Expectations have been high for this generation, known as ambitious high achievers, but their transition into the workforce hasn’t necessarily been smooth. Intergenerational misunderstandings and conflicts waste millennial potential.

It’s important to note that a large percentage of millennials were raised by parents who packed their kids’ schedules with music lessons, sports practices and more. Many parents approached teachers and coaches if they felt their child did not receive a fair grade or wasn’t getting enough playing time.

Because of this helicopter parenting, some millennials are not as accustomed to asking for what they want and need, as previous generations were, which helps to explain why 93 percent of millennials left their last jobs and changed roles without first approaching their supervisor.

How can the lines of communication be opened between generations? How can the energy and talent of millennials be effectively harnessed in your practice?

  1. Work-life balance. According to one study, 57 percent of millennials say that work-life balance, along with personal well-being, is very important. A lack of flexibility was one of the main reasons millennials quit a job. How can you incorporate flexibility into your practice?
  2. Family oriented: Almost 40 percent of the millennial generation is so unhappy with the dearth of paid parental leave that they are willing to move to another country to obtain the benefit. How can you address the concern?
  3. Team oriented: Why does team-based work appeal to millennials? One, they find the work more pleasurable, and two, some prefer to avoid risk. Accommodating this preference would be beneficial to your practice, as these workers tend to contribute their best efforts when working in collaboration with others. They enjoy tackling challenges and don’t like to be bored. How can you harness this positive energy?
  4. Externally motivated: Many millennials are motivated by personal achievement and they appreciate participating in cross-functional situations where their expertise is merged with the skills of others to achieve common goals. They are accustomed to frequent feedback, so if you want to boost their potential in the practice, be transparent about your expectations and provide the desired feedback, including but not limited to regular performance reviews. Also, give praise and recognition when deserved, and create opportunities for promotions.
  5. Open communication: These channels are important to millennials. Despite being well connected via technology, they appreciate face-to-face time.

Drug Landscape

U.S. drug use and abuse negatively impacts the workplace. Heroin use is rising in many demographics and in both genders. Prescription opioids are problematic, too. More than two-dozen states and the District of Columbia have legalized marijuana, at least medically and sometimes recreationally.

Alcohol and drug abuse cost U.S. businesses an estimated $81 billion a year through lost productivity, according to one report. Substance abusers are absent 10 times as much as non-abusers and are late three times as much, studies show. Moreover, abusers use medical benefits 300 percent more often than non-abusers.

Veterinary practices face an additional challenge: a drug cabinet full of potentially addictive drugs, both controlled and non-controlled.

Drug testing is an option to address this situation in your workplace. What should your practice do? Steps include:

  • Become aware of your state’s laws on drug testing.
  • Create a formal, written drug abuse policy that addresses why the policy was established, what you expect from employees and what the consequences will be if the policy is violated.
  • Set the parameters of the drug testing policy, including whom you will test, when you will test, for which reasons you will test and the logistics of the testing procedures.
  • Determine how to address potential problems with drug testing. These include employee morale issues and resentment; claims that abuse-prevention programs are sufficient without testing; the financial expense; and legal challenges that may arise from the testing protocol.

Paid Time Off

Policies governing paid sick leave were left to individual companies before 2011, but then Connecticut mandated paid leave for service workers. Since then, Oregon, Massachusetts, California and Vermont, plus the District of Columbia and Puerto Rico, have passed paid sick-leave laws. Arizona joined the list last summer, and Washington State will be added in January 2018. Some counties and cities mandate paid sick leave for people working within their boundaries.

In general, states that have passed sick-leave laws require employers to provide an hour of paid sick time for every 30 hours worked, with 40 hours of leave annually often the minimum. This time typically can be used for family care as well.

To ensure compliance:

  • Know your state’s laws and be aware of pending legislation.
  • If paid sick leave is not required in your state, double-check county and city laws.
  • Review your practice’s policies.
  • Determine what modifications you should make. Perhaps create a policy from scratch if the necessary changes are significant.
  • Update your employee handbook and redistribute it.

Effective Jan. 1, 2018, New York is mandating paid family leave for all employees as part of a worker-funded initiative. Payroll deductions start at 70 cents a week and rise to $1.40. This means that any employee covered by the state’s temporary disability insurance law who has, for 26 weeks or more, worked full time will be eligible for paid family leave. This also applies if someone has worked part time for a covered employer for 175 days.

All private employers must participate, and public employers have the option to do so.

Click link to see article on Today’s Veterinary Business http://todaysveterinarybusiness.com/3-h-r-challenges-can/

Dissecting and Creating A Paid Time Off Policy

When it’s time to create your paid time off (PTO) policy, it’s important to answer the five Ws and the H: who, what, when, where, why and how. Focusing first on the “why,” note that, in the actual policies, you don’t typically share why policies are created in the ways they are, but you should definitely consider why you are creating each policy as they are formulated. Annually, when you review the policies, consider why updates should (or should not) be made.

Who 

Who will each policy apply to? How will they differ for different people? Some practices, for example, might offer 80 hours of paid vacation hours per year to full-time employees, while part-time employees working 20 hours per week would receive 40 hours, and so forth

What 

What types of PTO will you offer? Vacation time? Sick time? Personal time? Some practices lump all the hours together as PTO because it’s easier, administratively speaking, to track the total number of days (or hours) someone has available rather than breaking it up into multiple categories. The advantage of breaking it up: you can limit vacation time, for example, or the number of days someone can call off for personal time.

What can employees do with unused days at the end of the year? Carry them over to the next year? If not, will that PTO simply expire or can employees ask to be paid for those unused days?

When

When can employees use the PTO? Making it all available at the beginning of the year is easier but some employees might use all the time in Q1 and quit, so perhaps half can be available in Q1/2; the other half in Q3/4. When can employees start to use PTO? Is there a waiting period? If so, the waiting period for practices is typically 30 to 180 days. When will the amount of available PTO increase for employees? After they’ve worked at the practice for three years? Five? By how much will it increase?

Where 

Where should employees submit their requests for PTO? In a designated place on the company’s internal website? In the mailbox of the human resource director?

How

How much notice will you require when someone requests time off? This ranges from one to six weeks in most practices, depending upon the types of PTO offered. Do you allow any last-minute requests (outside of sick days which naturally are last minute)? If so, what?