At-Will Employment Issue

I’m confused about the term “At-Will” employment. Some have said “You just can’t fire someone without good reason”, yet “At-Will” implies you can. Can you clear up the confusion?

I hear this frequently in my work, almost on a daily basis. Employment law on the local, state, and federal level is confusing to those without formal education and experience. In this article, I’ll do my best to help clear up the ambiguity and provide a few practical steps to solve the issue.

Although many states are “At-Will” states, which is defined as “both the employer and the employee can end the employment relationship at any time for any reason or for no reason without any notice”, you still need to make sure that you are not ending the relationship in violation of any local, state or federal law, act or statute. What dentists, as employers, need to be concerned about is, “How well have employee issues been documented to support personnel management decisions”?

Working with dentists on a daily basis in these matters and as a business management advisor, it is safe for me to say that dentists’ documentation, including misconduct, performance appraisals, attendance and personnel files, is not very good, at best. How do you rate? Check your employee files and ask yourself, “When something goes wrong and I have a discussion with the employee, what do I write down and where do I keep it?” (Sorry, the “It’s too busy, I’ll write it down later; I can remember” card doesn’t work as well as you may think.)

Employers tend to get themselves into trouble by not having proper documentation to support their employment decisions; dentists are not excluded from this group! The biggest reasons I find in my work are fear of confrontation, do not like doing the paperwork, lack of supervisory training and discipline procedures are just too much trouble. Sound familiar in your dental practice?

What’s even worse is that dentists who do an inadequate job of documenting employee conduct or performance are rarely disciplined themselves. Since there is little accountability, why do it? This is what you may be thinking, until a wrongful termination law suite is served and one has to defend one’s termination decision.

Consider these helpful tips to tackle this problem of support personnel management and employment termination decisions.

“If in doubt, write it out”

As the well-known writer on business management, Harvey McKay, says, “Pale ink is better than a short memory”. It is a valuable practice to keep a record of both positive and negative outcomes of employee activity. There will be examples of employee behavior to use in the performance appraisal that will present opportunities to provide positive recognition, which, by the way, is a very popular item on an employee’s “What Gives Me Job Satisfaction” list. Examples also will provide ammunition in disciplinary discussions. Another point: Judges and juries are more likely to believe contemporaneous documents than people.

There should be no surprises when conducting the performance appraisal interview. Many dentists tend to avoid the tedious preparation of a well-orchestrated performance evaluation. Employees want to know why they were rated the way they were and what made the dentist select the rating. This brings home the point of making notes during the time period between appraisals so that ratings have justification – provide examples of instances where the employee shined and did a wonderful job. This can only improve performance, as your people will feel better about themselves being recognized for having done a good job. Just as important is to use examples of when the employee didn’t do so well. When you state specifics about situations that happened, there is little room for discussion. It’s hard to fight facts.

“Three-Strikes, You’re Out!”

Use a three-step method in handling disciplinary issues. Many dentists struggle with handling discipline because it is a distasteful task. No one likes to tell someone that they are doing poorly or violating company policy. The problem however, is that if it is not addressed in a timely and proper manner, it only gets worse.

You know the scene: employee performs poorly, there isn’t time during the day treating patients to pull the employee aside and conduct a quick one-minute reprimand. Time slips away, and before you know it, you never did talk to the employee, they don’t know they did anything wrong, and it is likely they’ll do it again!

First of all, have a discussion with your employee the moment an issue arises. Sure, it’s tough, but find the first available moment to address the issue. Document your discussion. Granted, dentists may talk to their employees, but in most cases, nothing is committed to writing. Do so to avoid problems of recollection and justification later.

A good tip here is to create, on a word-processor, a verbal and written warning guide. This can be a single page that has room for two, three, or four instances, rather than one page for each individual occurrence. Include the following specific points to address. Use the basics of, “Who, What, When, Where, Why, and How” as much as possible; all of them may not apply, but the point is be thorough. In other words, describe who did it, what happened (and what was their reaction to the discussion), when and where did it happen, why did it happen, and how did it happen? Lastly, make notes on what was discussed to prevent it from happening again.

Here is an example; choose the correct way to document employee performance:

“On January 15th, you were 30 minutes late; car trouble. On February 1st, you were 20 minutes late; overslept.”

“You were late three times in the last four weeks.”

Okay, easy one. Sure the first is correct. The second doesn’t provide the specifics necessary to classify as good documentation. Get the idea? Good. Here’s one more, just to drive home the point:

“On December 13th, I heard (employee name) being rude to a caller. Comments such as, “This is our policy; I don’t make the rules; I just follow them.”

“(Employee name) was rude on the phone.”

Did you get them both right? Awesome! Let’s move on.

Have the guide handy so that anytime an issue comes up and you talk to your employee, make a quick dash to the private office, pull the guide from your files, and complete the documentation. Put the filled out guide away under lock and key in the employee’s personnel file.

Okay, that’s strike one. Strike two happens and you find yourself in a position of repeating the discussion. At this point, I suggest a more formal discussion that entails a written warning that the employee will have for himself or herself. Include the date, time of discussion, what was talked about and what the consequences will be if the problem continues this document may be one page for the specific event. Have the employee sign the statement as confirmation of the discussion and that he/she has received a copy of the statement, and most important, that they understand what will happen if it crops up again.

If the problem persists and one of the consequences discussed in the written warning was termination of employment, Strike Three is termination of employment. You now have three pieces of documentation, your notes from the first discussion, the signed statement from the second meeting and the termination notice, which includes a discussion of the verbal and written warnings. This will provide proper backup for most inquiries. You always want to make sure that you have given the employee a reasonable amount of time to improve, that you have spoken with them before about the issue and that the employee has had the opportunity to present his/her side of the story.

In personnel management, as in dentistry, there is no such thing as too much documentation. Train yourself to ALWAYS write it down. This will also provide direction for future situations to ensure that the level of discipline is consistent among employees. Sometimes the things employees do wrong, as standalone items are relatively minor. But when put together, over a period of time, they become your worst nightmare. Document, document, document! It will speed up the process and reduce the chance of litigation.

In conclusion, “At-Will” employment can be confusing. Rather than taking the term literally, be reasonable and prudent when dealing with employee behavior. Prepare documentation regarding employee performance, both good and bad, and use it as a management tool to reprimand poor performance and acknowledge employees for a job well done.