Category Archives: Performance and Discipline
Impairments and Health Professionals: What’s an Employer to do?
Health professionals, including physicians, dentists, nurses, paramedics, pharmacists, psychologists and social workers, are far from immune from chemical dependency, mental illness, and other conditions that impair their ability to do their jobs. When an impairment leads to poor performance or misconduct, health care employers, like other employers, must analyze whether discipline, a reasonable accommodation, or another approach is warranted. But they do so in a highly regulated environment, where patient health and safety are paramount.
Where the health professional is licensed, the employer and other involved professionals may have duty to report the facts to a professional licensing board or, as discussed below, to a diversion program. Employers of physicians and registered nurses, for example, are to report certain: (a) actions taken by the institution to revoke, suspend, or limit the professional’s privilege to practice; (b) disciplinary actions; or (c) resignations by professionals before investigations are concluded. See Minn. Stat. §§ 147.111 and 148.263. Each of the licensing statutes for the many licensed health professions is different, but many contain some form of mandatory reporting. Some require reporting from the employer and others require reporting only from licensed professionals. Many contain protections from liability for those making a report.
A reporting to a licensing board may not be the only required report. Depending on the circumstances, an employer may have other reporting obligations — for example to the Department of Health, to a welfare agency or common entry point for issues involving minors or vulnerable adults, to the DEA, or to the Board of Pharmacy among others.
As to licensing board reports, typically, once a report is made, the board will investigate and, depending upon the outcome of the investigation, may enter into a corrective action agreement with the professional, or proceed to revoke, suspend or condition the license of the professional, or take other disciplinary action. The public nature of disciplinary actions has led to concerns that some situations might go unreported, and leave impaired professionals in practice, and without monitoring, practice restrictions, or treatment, thus posing ongoing risks to public safety.
Minnesota has developed a program to address at least some of these issues. The Health Professional’s Service Program (HPSP) typically provides referrals for evaluation and treatment and develops an agreement with the professional that may include health and work place monitoring, practice restrictions, random drug screening, support group participation, and requirements regarding documentation of compliance. Generally, health professionals are eligible to participate in HPSP if they are licensed by a participating board and are “unable to practice with reasonable skill and safety by reason of illness, use of chemicals, or as a result of a mental, psychological or physiological condition.” They are unable to participate, however, if they have been noncompliant in the past, are already under a disciplinary action, were accused of sexual misconduct, are believed to create a serious risk of harm if they continue to practice, or if they have diverted controlled substances other than for their own self administration. The HPSP statute currently provides that a report to HPSP fulfills the requirement that a report be made to the licensing board under that professional’s practice act. See Minn. Stat. § 214.29. Employers should note, however, that bills were introduced in the Minnesota House and Senate in the current session (see H.F. No. 1604 and S.F. No. 1181) that would require employers to report knowledge of diversion of narcotics or controlled substances to the appropriate licensing board and provide that reporting to HPSP alone would not be sufficient.
Takeaway: It is important for employers to review each circumstance carefully and fully understand their reporting and other obligations in dealing with a health professional whose impairment has or may lead to problems in the workplace. Employers should take action to protect public health and safety while also fulfilling their obligations as an employer to the affected professional.
Employee Emotional Distress Claims – Usually More Bark Than Bite
If an employee claims he or she is suffering “emotional distress” on the job, a good employer takes the situation seriously since it can affect morale, productivity, and turnover. But from the legal liability standpoint, the employer can take some solace in the narrow definition and high bar to bringing an intentional infliction of emotional distress claim against an employer.
To bring such a claim, courts require proof of the following:
- Extreme and outrageous conduct that was;
- Intentional or reckless; and
- Caused severe emotional distress.
That is a high burden for the employee to prove. One noted Minnesota case characterized “extreme and outrageous” conduct as conduct which is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Hubbard v. United Press Int’l., 330 N.W. 2d 428, 438-39 (Minn. 1983). That is a rare occurrence and a very tough standard.
What does this narrow definition mean in practical terms? Let’s say you are facing an upset employee with a credible claim that he or she has been treated in a hostile or negative manner by a supervisor or co-worker. The employee is using the terms “emotional distress” and talking legal rights. The conduct described seems unprofessional, harsh, or rude – but not “atrocious” or “utterly intolerable to the civilized community.” In such a case, you do not need to go on legal “red alert.” Rather, you can step back a bit from the situation with some confidence that you are not dealing with a legal cause of action and take measured, corrective action based upon good principles of human resource management rather than adopt immediate steps to defend against a lawsuit.
Takeaways: Emotional distress is certainly a “five dollar word” and can be easily used by an upset employee. But as a successful legal claim, it is rare. An employer should consult with legal counsel when there is a possibility that “severe” or “atrocious” conduct occurred, but run-of-the-mill incidents of negative interactions or nasty misconduct can usually be addressed on their own terms and without an underlying concern about legal liability.
What Is Respondeat Superior Liability?
Respondeat superior is a legal doctrine under which an employer may be held vicariously liable for the torts of an employee that are committed within the course and scope of employment. The employer’s liability stems not from the fault of the employer, but from the public policy notion that an employer should have to bear liability for acts committed by its employees within the scope of their employment as a cost of doing business.
There are two different tests for respondeat superior liability under Minnesota law – one for an employee’s intentional misconduct and one for an employee’s negligent misconduct.
Respondeat Superior Liability for Intentional Misconduct: An employer may be held liable for the intentional misconduct of its employees when: (1) the source of the harm is related to the duties of the employee; and (2) the harm occurs within work-related limits of time and place. The critical inquiry to determine if the source of the harm is related to the duties of the employee is whether the employee’s acts were foreseeable. Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 911–913 (Minn. 1999).
Respondeat Superior Liability for Negligent Misconduct: An employer may be held liable for negligent acts of an employee committed in the course and scope of employment when: (1) the conduct was to some degree in furtherance of the employer’s interests; (2) the employee was authorized to perform the type of conduct; (3) the conduct occurred substantially within the employer’s authorized time and space restrictions; and (4) the employer should reasonably have foreseen the conduct. Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 745 (Minn. Ct. App. 2000).
Takeaways: Respondeat superior liability is one of the key reasons why employers should take care to make good hiring and retention decisions. Employers who hire or retain employees who are likely to engage in intentional misconduct or negligent acts may be subject to vicarious liability under the doctrine of respondeat superior.
Does Poking a Coworker Constitute Employment Misconduct?
Poking a coworker can potentially constitute employment misconduct and render an employee ineligible for unemployment insurance benefits. The Minnesota Court of Appeals addressed this question in Potter v. Northern Empire Pizza, Inc., 805 N.W.2d 872 (Minn. Ct. App. 2011).
In Potter, the court emphasized that, while Minnesota law used to recognize an exception for a single “hotheaded” incident, that exception is no longer the law. Current Minnesota law “does not provide a single-incident exception” for employment misconduct determinations. The court further held that “angry physical contact between employees constituted employment misconduct regardless of frequency.” Accordingly, the employee’s single incident of poking another coworker constituted employment misconduct and rendered the employee ineligible for unemployment benefits.
Takeaway: Employers should not tolerate violence in the workplace. Even a single incident that does not result in any harm may be grounds for termination and may constitute employment misconduct under Minnesota law.
Employee Theft and Criminal Restitution
An employer who discovers an employee theft is forced to deal not only with loss and betrayal, but is confronted almost immediately with questions of employee discipline, insurance reimbursement, significant tax implications, and possible criminal prosecution.
Criminal prosecution is perhaps the most personally difficult issue since the employee will face penalties and possible jail time. When the theft is by a long-time, trusted employee and the motivation is desperation or compulsive behavior, an employer can often lose the stomach for the rigors and results of criminal prosecution. Also, prosecutions bring publicity.
But even if you are satisfied with terminating the employee and seeking insurance reimbursement, reporting the crime to public authorities may be forced upon you because:
- The insurer will often expect that the employee will be prosecuted. Due to subrogation rights, the insurer can usually obtain some restitution. A promise not to prosecute can potentially endanger insurance coverage.
- Criminal restitution will cover insurance deductibles.
- Shareholders and managers will usually expect to preserve company resources by using the “power of the state” to obtain restitution rather than the costs and delays of a civil suit for restitution.
- A restitution order is backed up by possible jail time, which is a much more effective tool of enforcement than a civil judgment can offer.
Takeaways: It may be that for the reasons above (and others) the employer will need to report a theft to law enforcement and seek restitution. Dealing with the prosecution demands of the insurer, working with criminal prosecutors, and off-setting bad publicity are some of the negatives associated with prosecutions. Legal counsel can certainly help think through and deal with those challenges. Unfortunately, discovering the theft is usually just the beginning.
Can an Employer Enforce a Dress Code Policy?
Employment lawyers are hearing more inquiries about drafting and enforcing dress codes or professional appearance policies. This may be in response to casual days run amok. Or it could be the come-back of the “professional look” courtesy of Don Draper and his colleagues at Mad Men.
Whatever the reason, an employer can legally implement a dress code policy and enforce it. But there are certain touchstones that employer should keep in mind, including:
- Have a carefully written policy: Otherwise, enforcement can be subjective and inconsistent. This doesn’t necessarily mean a detailed description of what can or cannot be worn, but rather a policy rooted in business-based reasons. These can include public image, customer relations, productive workplace, and safety. And if there are specific items of clothing you want to prohibit (jeans, cut-offs, sandals), a “non-exclusive” list limits subjectivity.
- Beware of certain discrimination complications: An employee can, under limited circumstances, claim a religious reason for a type of dress or appearance. In some circumstances, “reasonably accommodation” of certain religiously mandated attire may be required unless it constitutes an “undue burden.” Tattoos and piercings rarely meet the standards for such protection. If an employee claims a religious reason for a dress code violation, consulting counsel on precedent and administrative guidance may be helpful. There can also be “disparate discriminatory impact” concerns in dress code enforcement, such as a disproportionate impact on one gender over the other. A policy should be as gender-neutral as possible.
- NLRA Concerns: The National Labor Relations Act (NLRA) prohibits the universal banning of union insignia, even in non-union workplaces. Labor lawyers can guide you through the narrow exceptions to this NLRA requirement if union insignia is a dress code issue in your workplace.
- Promulgation and manager training: Like any new policy, be sure that employees sign an acknowledgement (or have a clear record of distribution) and train managers on the “dos and don’ts” of the Policy – it’s one that may require more careful training than usual since there is a heightened possibility of a poorly trained manager making religious or gender-specific statements that could cause complications.
Takeaways: Employers do not need to tolerate poor employee appearance. Certain basic legal issues play an important part in drafting an effective dress code or professional appearance policy. Draft your Dress Code Policy with specifics that fit your organization’s needs and stay within legal boundaries. Employers can also keep enforcement legal by keeping it uniform (pun intended).
Joe Paterno, Penn State, and Negligent Retention
On November 9, 2011, Penn State University fired its long-time football coach Joe Paterno and university president Graham Spanier. The University’s Board of Trustees made the decision to terminate Paterno and Spanier based on allegations that Paterno and other top school officials were told that a graduate assistant saw assistant coach Jerry Sandusky assault a boy in a school shower in 2002, but did not report the matter to police. To the extent the allegations are true, the failure of Paterno and other Penn State officials to report the incident to police or take corrective action could arguably expose the University to a negligent retention claim.
Under Minnesota law, liability for negligent retention is “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.” See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440 (Minn. Ct. App. 1996). This theory of recovery imposes liability on an employer for an employee’s intentional torts if the employer knew or should have known that an employee was violent or aggressive and might engage in injurious conduct. The threat of injury or actual injury caused by the employee must be physical in nature for negligent retention to apply.
Takeaway for Employers: It is important for employers to take seriously any incident in which an employee threatens to cause injury or actually causes injury to another person. What corrective action is necessary, if any, will depend on the particular circumstances of the case.
Obscene Insults May Not Be Protected Activity Under the NLRA
In a recent Advice Memorandum, an Associate General Counsel at the National Labor Relations Board (“NLRB”) determined that an employer did not violate the National Labor Relations Act (NLRA) when it terminated an employee for calling his supervisor an obscenity involving the F-word on LinkedIn.
The employee argued that his employer’s reliance on his LinkedIn post as the reason for his termination was a pretext for terminating him because he separately engaged in discussions about overtime with his co-workers. The NLRB held that there was no evidence that the employer was aware of the overtime discussions. Instead, the NLRB found that the employer terminated the employee for violating its Electronic Communications Policy, which prohibited posting material online that is “obscene defamatory, harassing or abusive” to any person or entity associated with the company.
While the NLRB noted that the language in the employer’s policy prohibiting “harassing” material online was potentially overbroad because it “arguably could be construed to prohibit protected online content,” the NLRB determined that the employee’s LinkedIn “joke” was not protected under Section 7 of the NLRA regardless of whether it could be considered “concerted.”
Takeaway for Employers: While the NLRB has taken a very expansive view regarding what constitutes protected activity under Section 7 of the NLRA over the past year, even the NLRB has its limits. Employers still need to give careful consideration to whether online conduct by an employee is protected under the NLRA. But discipline or termination of employees for online misconduct may be warranted and permissible under certain circumstances.
Can Employees Be Required to Take Lie-Detector Tests?
Under Minnesota law, employees cannot be required to take lie-detector tests, but they may volunteer to do so. Minnesota law prohibits employers from directly or indirectly soliciting or requiring “a polygraph, voice stress analysis, or any test purporting to test the honesty of any employee or prospective employee.” See Minn. Stat. § 181.75. It is also unlawful for anyone to sell or interpret lie-detector tests of employees or prospective employees if the individual knows that the lie-detector tests have been solicited or required by an employer.
Lie-detector tests may be administered by employers only in the rare situation in which an employee requests a polygraph test. When this occurs, Minnesota law requires that the employer must inform the employee that taking the test is voluntary. However, the employer may not tell anyone that the test was administered to the employee because Minnesota law prohibits anyone from disclosing the fact that another person has taken a polygraph or honesty-test, except to the individual tested or persons authorized by the individual to receive the results. See Minn. Stat. § 181.76.
Minnesota’s Lawful Consumable Products Statute
Employers need to be careful when disciplining employees for off-duty alcohol or tobacco use. Under Minnesota’s lawful consumable products statute, it is generally unlawful for employers to discipline or terminate employees or refuse to hire applicants because the employee or applicant uses lawful consumable products, such as alcohol or tobacco, outside of the workplace and during nonworking hours, unless certain exceptions apply.
Minnesota’s lawful consumable products statute states that “[a]n employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” See Minn. Stat. § 181.938. For purposes of the statute, the term “lawful consumable products” is defined as “products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.”
The statute includes several exceptions, which provide that it is not a violation of the statute for an employer to:
- Restrict the use of lawful consumable products by employees during nonworking hours if the employer’s restriction either: (1) relates to a bona fide occupational requirement and is reasonably related to the employment activities or responsibilities of the particular employee or group of employees; or (2) is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any of the responsibilities owed by the employee to the employer;
- Refuse to hire an applicant or discipline or discharge an employee who refuses or fails to comply with the conditions established by a chemical dependency treatment or aftercare program;
- Offer, impose, or have in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee’s use of lawful consumable products, provided that, to the extent that different premium rates are charged to the employees, those rates must reflect the actual differential cost to the employer; or
- Refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant’s or employee’s past or present job performance.
Four Tips for Disciplining or Terminating An Employee For Misconduct
Administering discipline or terminating an employee for misconduct can be the most difficult part of an employer-employee relationship. Here are 4 tips to keep in mind when notifying an employee of the reason for any discipline or termination:
- Decide who should talk with the employee. Having two employees present (in addition to the employee who is being disciplined or terminated) helps to avoid subsequent disputes about what occurred or was said at the notification meeting. Generally, supervisors or human resource professionals are in the best position to administer discipline or terminations. Friends or close co-workers of the employee typically should not administer the discipline or termination.
- Stick to the facts and avoid labeling the conduct. The reasons provided for the discipline or termination should be truthful and factual, but should not be overly detailed. The employer should avoid hyperbole, drawing conclusions about the conduct, or debating the conduct or discipline imposed with the employee.
- Be sure the employee understands that he or she is being disciplined or terminated. The employer must be firm, final, and clearly communicate what the consequences of the conduct are and what the next steps may be. Providing a written notice to the employee and asking the employee to sign it will help to minimize misunderstandings. At the end of the meeting, it is also helpful to ask whether the employee has any questions.
- Document all disciplinary actions and terminations. The key facts that should be documented in an employee’s personnel file include: (i) the nature of the misconduct and the date on which it occurred; (ii) the nature of the discipline imposed and the date on which it was communicated to the employee; and (iii) the identity of the employee or employees who notified the employee of the discipline. If there is supporting evidence or documentation relating to the misconduct, that should be included in the employee’s personnel file as well.
5 Tips for Effective Employee Performance Reviews
The primary purpose of an employee performance review is to improve an employee’s behavior and performance. An important secondary purpose is to document the employee’s performance. Here are five tips to help employers conduct effective employee performance reviews.
(1) Performance Reviews Should Occur Regularly: Employees want feedback on their performance. The closer in time the feedback is to the actual performance, the more effective the feedback will be. Therefore, more frequent feedback will increase the effectiveness of such communication. A combination of formal, regular written performance reviews with more frequent informal appraisals often works effectively.
(2) Performance Reviews Should Focus on Job-Related Performance And Should Be Objective, If Possible: Performance reviews should be based on previously communicated and clearly understood expectations that are job-related. No job description, however, can list all the job duties expected of an employee. To the extent possible, explicit and objective measurable standards should be emphasized during performance reviews rather than subjective and vague discussion of performance.
(3) Performance Reviews Should Allow for Employee Feedback: Effective reviews and appraisals often include two-way communication regarding performance. Employees should be given a means to respond to negative performance appraisals and to document any disagreements or concerns.
(4) Performance Reviews Should Identify Goals For Improvement: Performance reviews should highlight both good and bad performance, but performance problems should be reviewed in detail. Specific goals for improvement should be discussed, as well as what will happen if the employees do not meet their improvement goals.
(5) Performance Reviews Should Be Documented: Employees should be asked to sign their performance reviews to acknowledge their receipt and understanding of them. If an employee refuses to sign, the supervisor should note this fact, and sign and date the performance appraisal.
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