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Surgeons must be savvy about labor laws


Dr. Lotito
National report — Nowadays, there are so many different employee rights, it behooves cosmetic surgeon employers to make sure they have a fundamental labor and employment law compliance plan in place.

While cosmetic surgeons spend time and energy evaluating whether patients will be litigious, and invest in making sure patients have a thorough understanding of the risks and possibilities of surgery, these same surgeons rarely put such effort into workplace issues, according to Michael J. Lotito, partner, Jackson Lewis, LLP, a national law firm that specializes in management, labor and employment law.

Often neglected issues

When it comes to their employees, physicians tend to do little background checking and little in-depth interviewing, and they don't usually focus on whether a job candidate is a solid match for the views and vision of the practice.

Most physicians have small operations without human resources departments, so physicians do not have support from someone who is knowledgeable about the various laws that can affect employers.

Cosmetic surgeons may have out-of-date or poorly conceived employee application forms as well as policies and procedures manuals (such as an employee handbook).

"They tend to lack any kind of documentation for what they are doing employment-wise, because their focus is on their practice," Lotito says. "I try to make the point that while it is true that your patients are important assets who can become a liability in a micro-mini-second if they bring a malpractice claim, think about your employees in the same way: They can be great assets, but if they become disenchanted and bring some kind of a claim against you, there can be significant risk."

Employee rights, legal issues

According to Lotito, employees today have so many more rights in the workplace. Those rights include protection in the areas of compensation, discrimination, harassment, accommodations for disabilities and much more.

Potential legal problems for employers range from the sexual affair that has gone sour to the individual who is being paid on a salary but never receives any overtime. There is no cookie-cutter case, according to Lotito.

"It could be the formerly 'terrific person' who leaves and files a wage complaint with the labor commissioner, asking for unpaid overtime, or the individual who always got great reviews and is now suddenly being forced out and there is no documentation," he says.

Workplace lawsuits stem not only from employees, but also from physician associates being groomed to take over practices.

"All of these sorts of things are not really on cosmetic surgeons' radarscopes because, just like I am not a physician, they are not labor and employment lawyers," Lotito says. "The way that they find out about these things is typically the hard way."

Preventive practices

Cosmetic surgeons can take steps to protect their practices from workplace lawsuits and subsequent payment of damages.

They first should review their hiring practices, according to Lotito.

"If you hire right by hiring people who share your values, you have to worry a lot less about firing wrong," he says.

Employers should make sure to have good, basic forms in place, including employment application forms, express contracts of employment, evaluation forms, documentation forms, etc.

Employers must make sure that they are in basic compliance with state regulations about the posters they are required to display in their practices to visibly advise employees of their rights.

Employers should perform an audit to make sure they are paying people properly.

"Just because someone is receiving a salary does not mean that the individual is exempt. There are many individuals who receive salaries but do not meet the duties test under the Fair Labor Standards Act or various state laws," he says.

Physicians should also:

  • Make sure to have an up-to-date employee handbook, including comprehensive policies and procedures.
  • Have a harassment policy that will stand legal scrutiny, and create different ways for employees to voice their complaints (before they sue), if not to the owner's attention, at least to someone's attention within the organization.
  • Consider having one-, two- or three-hour-a-month retainer arrangements with a local human resources consultant or workplace attorney who can give the employer a high level of support.

"If you are willing to put $5,000 to $10,000 a year into fundamental compliance, (litigation) should not become that big a deal," Lotito says.

He also advises: Think before you fire employees. This is especially true for employees who have been with the practice for some time, and not necessarily as critical for an employee with well-documented workplace problems and little history with the practice.

In many cases, Lotito recommends getting professional expertise before uttering the words "You're fired."

"The worst call that I ever get is: 'I fired somebody,'" Lotito says. "My response is: 'What are you calling me for? You produced the script, you directed it, choreographed it, and it's now in the can.' The call should be: 'I'm thinking about firing someone.'"

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