Hugh Doherty, DDS

Failing to effectively communicate with your employees isn't just bad for business. It also can create a work environment that's ripe for legal trouble. If you take time to communicate, explain your actions, stay involved and make the workplace seem rational to employees, you will increase your chances of staying out of the courtroom.Below are five of the most common errors that land employers in court-along with tips on how to avoid making them in the first place. As you'll see, communication lies at the heart of all of them.

1. Failing to document performance issues.

Remember this: Arbitrators, judges and juries will believe one document over 10 witnesses. Your documentation doesn't have to be formal or perfectly written, but it does have to be understandable, contemporaneous-and dated! Many employment cases-especially those involving retaliation claims-hinge on timing issues alone. If the offense is not egregious, follow a progressive disciplinary process. Judges and juries appreciate when the employer can show it bent over backward to try to save an employee. And while not critical, obtaining an employee's signature on documents involving progressive discipline can be very helpful.

2. Failing to have effective policies and preventive measures.

In today's environment, the best way to limit your exposure to employment claims is to have policies on workplace harassment, Maternity leave, workplace violence and standards of conduct. They're critical. Before putting such policies in place, it's always a good idea to seek legal counsel from an employment attorney to ensure they are drafted correctly and that you have covered all the bases.For example, standards of conduct must preserve an employer's ability to be flexible. Harassment policies need to include information about the proper method to report violations if employees experience or witness harassment in the workplace. Job applications and employee manuals also can be great tools to help avoid employment claims. They are the employer's two best friends. On job applications, courts have upheld provisions addressing at-will employment and the right to check with prior employers for references. Your Manual can include a mini-statute of limitations, restricting the period of time that employees can file employment claims against the practice.

3. Failing to provide accurate and honest performance evaluations.

At many wrongful discharge trials, the plaintiff's first exhibits are recent performance evaluations-almost always showing good, if not excellent, performance. If evaluations inaccurately reflect good performance, employees will often argue that their termination from a company was illegal or discriminatory.The doctor is accountable for the accuracy and timeliness of their performance evaluations. Make sure the forms themselves encourage frank and constructive criticism.

4. Failing to explain a termination decision.

Employers that are afraid to tell employees why they're being terminated are opening themselves up to legal action. Tell the truth when you're letting someone go. Don't try to soften the blow by waffling about the reason for the termination, implying that it's not his/her fault, or that they are simply being "laid off." Failing to be up front with an employee you're terminating is a cardinal sin of management. Worse is refusing to give any reason at all. Chances are good the employee will seek answers at an attorney's office.

5. Creating a perception of favoritism.

Employees get disillusioned and angry when their work environment becomes stressful because favoritism is the rule of the day. When workers believe that favoritism is driving a doctor's decision-making, turning to legal counsel is often the next step.To avoid this, it's critical to train office managers to maintain consistency and clarity in personnel actions. They must know how important it is to be clear about why they are doing things the way they are. The doctor should monitor the office manager's performance to make sure they're not creating the perception of favoritism-or worse, discrimination.

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Debbie Castagna and Virginia Moore

Remember when the only perceived downfall to not giving performance appraisals was the hit to your self-esteem because you weren't being a "good" manager? Well, in today's minefield of human resources, the stakes are much higher. Now, it's downright risky. Believe it or not, your staff wants to know how they are performing-and it's not just about getting a raise -- most staff members want to do a great job.

We recommend that salary reviews and performance appraisals take place in two separate meetings, with the performance appraisal coming first. The staff member now has the opportunity to improve performance before discussing salary. If merit and profitability is there, that staff member is likely to receive a raise.

If, on the other hand, a staff member is under-performing, you must have documentation and signatures to support your concerns and expectation for improvement. Don't ever forget, Doctor, that the burden of proof is on you, and the risk involves your practice.

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Jan Keller

The person you designate to make calls to patients with past due bills must understand the seriousness and professionalism required for this delicate task. Here is a suggested routine for calls to delinquent payers:

• Become familiar with the accounts past and present payment history.
• Call the patient and ask to speak with whoever has the authority to make payment.
• Demand payment in plain, non-apologetic terms.
• If the patient offers payment, ask for specific dates and terms.
• If no payment is offered, tell the patient what the consequences will be for non-payment.
• Take and record notes on the conversation.
• Make a memo to check on the promised payment.
• Make a follow-up call if no payment is received, and refer to the notes taken as to any promised payments.

In closing, a strong and well-defined payment policy, in the form of internal credit guidelines that are understood and practiced by all, is a huge step forward not only in creating an environment that fosters trust and confidence between you and your patients, it is an economic necessity if your practice is to survive - even thrive - in challenging economic times.

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