Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
There are multiple issues that physicians should consider when interviewing potential employees, whether physician employees or nonphysician employees. These issues range from avoiding claims of discrimination to ensuring that the physician employers know the background and experience of the person they are hiring.
Mistake 1 Not Checking References
Some studies have shown that more than half of employers do not check in total or in part the references of a prospective employee. One reason that reference checks are so important is the possibility of litigation if an employee with a history of problems harms a patient and that history could have been discovered if references were checked. Second, reference checks can often provide important information about an employee’s attendance or performance at a previous employer.
Many employers are reluctant to provide any information when asked for references (other than dates of employment, position title, salary, and perhaps reason for termination) due to concerns about libel or slander suits if the information provided is negative. However, positive information will often be shared with a prospective employer, and it can help in making an employment decision. In addition, even limited factual information can be compared with the information the applicant put on the employment application to verify its accuracy.
Action Step Physicians should check both professional and personal references of all applicants before making a decision as to employment.
Mistake 2 Asking Questions That Could Lead to a Discrimination Suit If the Applicant Is Not Hired
Federal and many state laws protect people from being discriminated against on the basis of characteristics such as race, color, creed, sex, national origin, age, disability, or pregnancy, and, in many states, marital status. These laws pertain not only to employees, but also to job applicants. There are rare exceptions for bona fide occupational qualifications (e.g., a male obstetrician is required to have a female in the room with him during an examination, and therefore will hire only a female as a medical assistant).
Physician employers must therefore ensure that during the interview they do not make any statements that might seem to indicate a preference for a certain “type of person” and that their employment application does not ask for information about, for example, marital status or age. Because the Americans With Disabilities Act protects only people who can perform the essential functions of their job, with or without reasonable accommodation, physicians can ask, “Are you able to perform the essential functions of the position you are applying for, with or without reasonable accommodation?” They can also ask an applicant who states that he or she needs reasonable accommodation what kind of accommodation is needed. In general, many employers feel that disabled employees have better than average productivity and attendance.
Action Step Physicians should not ask job applicants (verbally or on the employment application) about race, color, creed, sex, national origin, age, disability, pregnancy, or marital status.
Mistake 3 Considering Factors That Should Not Legally Be Considered in the Interview or Hiring Process
Consistent with Mistake 2, during the interview process not only should no remarks be made about any characteristic protected by law (e.g., race, color, and creed), care must also be taken not to make hiring decisions based on whether other people (whether staff or patients) would prefer someone “like them.” Federal law does not generally allow patient preference to dictate hiring decisions (e.g., it is not allowable to refuse to hire someone of a certain race or nationality because a physician is concerned that his or her patients may not be comfortable with that race or nationality). Although claims by applicants who are not chosen for a job are less common than claims by employees who are terminated, claims by applicants do occur. In addition to the federal Equal Employment Opportunity Commission (EEOC), under which an aggrieved person may file a hiring complaint, many states have divisions or commissions on human rights with which a person may file a hiring or employment complaint, without the expense of going to court or hiring a lawyer.
Action Step Physicians should consider only those factors that are tied directly to job performance in determining whether to offer someone a job.
Mistake 4 Making a Job Offer Before the Preemployment Screening Process Is Concluded
It is wise to have a thorough preemployment screening process that includes more than reference checks. Preemployment screening may include verifying—by contacting previous employers, by conducting a criminal background check, or through drug screening—that everything on the employment application is true. In all cases, the applicant should not be allowed to start working until all of the necessary information has been received. The applicant can be told that he or she has the job pending the return of all of his or her information. If the preemployment screening information is not received in a timely manner, the applicant can be asked to contact his or her references or previous employers to forward the necessary information. On the rare occasion when it is absolutely necessary that a person start working before all background information has been received, the applicant should be asked to sign a statement that he or she realizes that the physician employer reserves the right to terminate the employment based solely on any negative information that is received.
Action Step Before hiring job applicants, physicians should wait until all information requested as part of preemployment screening has been received.
Mistake 5 Not Asking about Gaps in a Resume
The timeline on an applicant’s resume or employment application should always be reviewed to see if there are any breaks in time between jobs. If such breaks exist, the applicant should be questioned about them. The reason for a break between jobs may have been to take off time to travel; alternatively, it may be because the applicant didn’t want to list a job that ended badly. Regardless of the answer, the physician employer should be aware of the situation and judge its importance.
Action Step Physicians should look at the job applications and resumes of potential employees to see if there are any breaks in time between jobs and if there are any, ask the reasons for the breaks.
Mistake 6 Not Having Any Notes of the Interview
For each job applicant, a file should be created that contains the employment application, resume (if obtained), and notes of any interview with the applicant. Notes of an interview are important for several reasons; for example, during an interview some applicants make sweeping statements about their capabilities that do not represent their true abilities once they begin work. It is always helpful to have documentation of what applicants said about their experience and ability during the interview process so that a decision can later be made as to whether they misrepresented their abilities and whether this is a reason for termination. It is also helpful to have documentation that the physician informed the applicant during the interview process of the requirements of the job (e.g., working Saturdays), so that if the person hired is unable to perform that job function (e.g., cannot work Saturdays because of religious observance), he or she cannot make a claim of being discharged for a discriminatory reason.
In addition, although lawsuits or EEOC or other administrative agency claims against employers by applicants who are not hired are not as common as claims by employees who are terminated, it is not unusual for an applicant to file a claim with an administrative agency (such as the EEOC or a state division or commission on human rights) complaining of discrimination in the hiring process. The best defense to such a claim is the assertion that the applicant was not hired because the employer selected a better qualified person. A review by the EEOC as to whether the person hired truly was “better qualified” often will involve assessing both individual’s resumes, experience, and skills, as documented in interview notes. It is always helpful to be able to go back to interview notes and use them to demonstrate that the person hired discussed experience or abilities during the interview that led the employer to believe that person was best for the job.
Action Step Physicians should take and retain notes of interviews that document why an applicant was or was not hired.
Mistake 7 Overlooking Warning Signs
Part of the preemployment screening process is to look at factors regarding an applicant’s experience, education, background, and attitude that can be helpful in deciding whether the applicant would be a good fit for a job. A number of warning signs can appear in the process, including applicants talking about prior bosses whom they hated, or stating that co-workers at their last job didn’t like them because of their race, religion, etc. Other warning signs are when an applicant’s previous supervisor refuses to give any information when called for a reference check, or when an applicant does not have a good explanation for a three-month gap between two previous jobs. By itself, any warning sign may mean nothing or may mean something. The purpose of the preemployment screening process is to try to determine whether a person is appropriate to hire. However, physician employers must be aware that if a job applicant tells them something about their marital status, a possible disability, or a pregnancy, for example, they cannot refuse to hire that person on those grounds. If that person is not hired based on other legitimate grounds, the physician should be sure to have documented that the failure to hire was tied to the other legitimate reason in order to avoid being accused of discriminating based on a protected status.
Action Step Physicians should look for signs in the preemployment screening process indicating that an applicant has had problems in prior jobs that may be repeated in their new position.
Mistake 8 Not Explaining Clearly the Parameters of the Job
It is always wise to discuss in detail during an interview what the job may entail. This is even more important in a medical setting where staff may be exposed to sensitive areas, such as people’s bodies and bodily fluids. Such an in-depth discussion is important for a several reasons: to evaluate the applicant’s comfort level with the functions involved in the job and the applicant’s experience with various job functions; to ascertain if the applicant is willing to learn things that he or she has not done before; and to give the applicant notice of all of the functions of the job so that the applicant can decide if he or she is willing to perform them. If employees may have to help with patient care and do paperwork, it is important to ensure that they are comfortable doing both. The interview is also a good time to explain to applicants the confidentiality requirements involved in working with patients. It may seem like common sense to someone who has been working in the field for years, but it is always best to instruct applicants that no patient information can leave the office, regardless of whether the patient is a stranger or a staff member’s neighbor.
Action Step Physicians should explain clearly to applicants what may be involved in a job, including contact with patients, and instruct applicants regarding confidentiality requirements.
Mistake 9 Making Promises or Assurances of Job Security
If an employee does not have an employment contract, the law generally considers that person to be an employee at will, allowing either the employer or the employee to terminate the employment at will. However, some courts have recognized statements made by an employer as creating a verbal employment contract (the law requires very few contracts to actually be in writing). These statements can be references to “permanent” employment after a “probationary period” or “you will have a job here as long as you want it.” Courts are particularly alert to situations in which an employee left a previous job to come to a new job, allegedly because the employee relied on promises made by the new employer as to the security of the new job.
Action Step Physicians should never promise applicants anything about the duration and permanency of a job.
Mistake 10 Failing to Determine a Job Applicant’s Work Ethic
Although physicians certainly can’t expect other people, including their employees, to treat their practice as their own and work as hard as the physicians do, physicians should be able to expect their staff to have a good attitude and put forth their “all” during the hours that they are on site. In that regard, physician employers can ask about these things during the interview process, including the job applicant’s flexibility to do the multiple tasks that can occur in a physician’s office, their willingness to work overtime if needed, and their ability to interact well with others, both patients and staff. Physicians also can ask applicants whether they are able to work overtime, how much notice they will require prior to working overtime, whether they have a “service” philosophy toward patients, and how they get along with others. Physicians should beware of applicants who seem to have a chip on their shoulder, or who talk about how prior employers treated them poorly and expected them to do extra tasks.
Action Step Physicians should ask during the hiring process about an applicant’s ability to work overtime or flexible hours, and avoid hiring someone who acts resentful toward people.
Physicians should avoid making these mistakes when interviewing potential employees.
Margaret J. Davino, Esq.
Peer reviewed by:
Joan Gilbride, Esq.