Chapter 17

Employment Law

Pamela Zarkowski and Mert Aksu

Introduction

Consistent with the goals of any employer, owners of dental practices seek to hire competent, ethical, and an empathetic dental staff. Additionally, the employer-owner seeks to create a work environment that legally protects the employer and the employee. All phases of the employer-employee relationship, from initial hire to possible termination, are influenced by federal and state laws, as well as local jurisdictions.

Hiring Process

A dental office, depending on the size and services provided, will often have many employees, including associates and support staff. An important first step in the hiring process is to outline a job description for a particular position. In drafting the job description, it is critical to be familiar with the legally defined scope of practice. This strategy assists in recruiting, interviewing, selecting, and hiring the right employee. Following the drafting of the job description, an applicant pool must be generated. Specific staff positions can be advertised using local newspapers; professional association publications or websites; dental, dental hygiene, and dental assisting schools; or word of mouth. “Help wanted” advertisements are a reasonable method to reach a significant number of potential applicants. It is important to carefully phrase an advertisement to reduce the possibility of an accusation of discrimination. Similarly, word of mouth may limit the applicant pool because employees or others advising friends or relatives about a job opportunity often speak to those of the same race and/or gender. It is suggested that applicant résumés are requested to allow the dentist or individual delegated to review the applicant pool to determine whether credentials, licenses, and experience criteria necessary for the position are satisfied. Chapter 18 on staffing has sample position/job descriptions as well as sample advertisements.

Key to the selection of an employee is the interview. If the applicant pool is large, a review of résumés will reduce the pool to a manageable number. Some employers use initial telephone interviews to screen applicants for suitability. It may be helpful to develop a written plan or schedule that details the steps included in the selection process. The process should be communicated to all the employees who are involved in screening the applicants being considered for employment; for example, the dentists in the office, as well as the office manager. An office will benefit by developing a set of standard or core questions that are used with all potential employees. The questions should seek to expand on the information provided in the résumé, as well as provide an opportunity for the applicant to present him- or herself in a one-one-one situation. Although an interview may be perceived as an opportunity to “get to know the applicant” better, on a more personal level, an employer must be cautious about the nature and type of questions that are asked. In many states, specific questions about age are unlawful. For example, one can ask an applicant if he or she is 18 years or older, but not the year of birth. In most jurisdictions the following questions can be part of the interview:

• Full name and whether the applicant has ever worked under a different name
• Address
• How long an applicant has lived in the city or state
• If the applicant is 18 years or older
• If the applicant was ever convicted of a crime, and if so, when, where, and the nature of the offense (felony or misdemeanor), or if charges are pending. (But not if she or he has ever been arrested.)
• If the applicant is a U.S. citizen. If applicant is NOT a U.S. citizen, you can ask:

• If applicant is NOT a U.S. citizen, after hiring you can ask:

• Educational background
• Employment history and names and addresses of former employers
• Seek to find out if the applicant can perform the essential duties of the job, with or without accommodation
• Organizations the applicant is involved in if you exclude those that involve race, color, religion, national origin, and ancestry
• Names of relatives currently employed by employer
• If a noncompete clause was signed with a former employer

A recommended guidepost for questions is that if an inquiry has little to do with the job or is not critical to determining whether the applicant can perform the responsibilities associated with the position, do not ask it.

To protect the office, and not be subject to an allegation of discriminatory hiring practices, an interviewer should NOT ask the following questions:

• Place of birth
• Height or weight (in some jurisdictions)
• Religion
• If the applicant is pregnant, has children, or plans to have children
• Race or national origin
• Marital status
• Sex
• Age or date of birth, or other dates indicating age
• Arrests that did not include conviction
• Physical or mental condition, unless related to the job
• Maiden name, or original name if changed by court order
• Prior work injuries or if ever filed a workers’ compensation claim
• Garnishments
• Clubs, societies, or lodges
• In addition, no photograph can be required

State guidelines may have a similar or modified list of legal and illegal inquiries in an effort to protect the civil rights of state citizens. The state guidelines provide additional topics or questions that are illegal to ask, such as marital status or sexual orientation. The local or state civil rights office can provide printed or online materials that will assist an employer in determining lawful versus unlawful questions. Chapter 18 on staff management includes sample interview questions and suggestions for interviewing.

Reference Checks

It is important to exercise due diligence in the employment process, especially related to the applicant’s background. One should not hire an employee because of an impressive résumé or a “good feeling” from the interview prior to conducting a background check and references. Employers should always ask an employee for a list of references. Due to a concern about lawsuits, past employers frequently provide neutral information when a reference is sought. Potential employers can request that an applicant sign a release form allowing the employer seeking to hire an individual to contact previous employers. The authorization should include language that waives any potential legal action against the former employers for responding truthfully to reference checks. Without permission, an employer is able to confirm only the position and dates of employment. Once obtained, the waiver form can be faxed to a previous employer with a cover sheet that explains the request for a reference and indicates that a telephone call is forthcoming to discuss the applicant. The waiver assures the previous employer that they are protected from being sued for defamation if they say anything negative. However, some states consider an employer’s statements as “qualified privilege.” This means that an employer cannot be held liable if they provide information unless that employer knew it was false or reckless. If an employer is going to conduct reference checks, the waiver form, either for references or background checks, should be reviewed by an attorney to assure that it is appropriate for the particular state.

Background Checks

Background checks are an additional mechanism to gain important information about an employee that assists in appropriate evaluation. A simple background check may include confirmation of an applicant’s educational credentials, professional licenses, and previous employment. Some states require that healthcare professionals have more comprehensive background checks. Background reports can range from a verification of an applicant’s Social Security number to a detailed account of the potential employee’s history and acquaintances. There is even some evidence that employers are now searching popular social networking websites such as MySpace and Facebook for the profiles of applicants.

Some areas that may be included in a background check are:

• Driving records
• Social Security number
• Bankruptcy
• Property ownership
• Past employers
• Education records
• Character references
• Military records
• Credit records
• Court records
• Criminal records
• Worker’s compensation
• Medical records
• State licensing records
• Incarceration records
• Drug test records
• Sex offender lists

Since staff responsibilities within a dental office vary, specific information may be more critical depending on an individual’s roles and job responsibilities. For example, an employee that handles financial transactions may also require a credit report. An employer can obtain information about an employee’s credit history under the Fair Credit Reporting Act (FCRA), 15 U.S.C. sect. 1681 et seq. Obtaining a credit report requires an employee to give written permission to the employer, and as with other checks, should occur only after the job has been offered. There is discussion by some states to require background checks for all healthcare professionals applying for or renewing professional licenses.

Pre-employment Testing

Pre-employment testing is used by some employers as a screening tool. Under Title VII of the Civil Rights Act of 1964, it is “unlawful for an employer to refuse to hire any individual, or otherwise discriminate against any individual with respect to his … employment, because of race, color, religion, sex, or national origin.”

Pre-employment testing is addressed specifically in Section 703(h) of the act, which provides that “notwithstanding any other provision of this subchapter, it shall not be an unlawful practice for an employer … to give and to act upon the results of any professionally developed ability test provided that such test … is not designed, intended or used to discriminate because of race, color, religion, sex, or national origin.” Obviously, Title VII does not prohibit employers from the use of intelligence, skills, or integrity tests in the workplace. However, the statute is applicable when (1) an employer uses tests to intentionally discriminate against protected groups, or (2) the tests have an adverse impact on minorities and are not job-related for the position.

The safest practice for an employer is to administer the same pre-employment test to all applicants for a particular position, providing reasonable accommodations when necessary, (for example, a larger computer terminal for someone who is visually impaired, etc.). This is the first step toward a fair and equitable selection process. An English language test can only be required if the position requires superior English language skills. Similarly, if an aptitude or psychological test is required, all applicants must receive the same examination. The test cannot be used to reveal any psychological disorders or impairment. The aptitude or psychological test may be used to screen out less qualified applicants, group applicants by ability level, or hire applicants with the most appropriate scores.

Intelligence tests are not the only pre-employment testing that may occur. Drug tests are acceptable if given to all applicants. The applicant must be notified that once offered the position, drug testing will occur. If the test is positive, a second test must be given. Similarly, physical exam requirements cannot occur until a job offer occurs. The physical exam must be consistent for all employees and must be based on “business necessity,” that is, the focus is related to the ability to do a job. Chapter 18 on staffing includes some testing recommendations for dental staff.

Employment Relationships

At-Will Employment

Specific employment relationships impact the working relationship and, in some situations, the appropriate protocol for termination. An at-will agreement is one in which there is an undefined duration of the relationship. The employer/employee relationship occurs at the will of either party. The employment can be terminated by the employer at any time and for no reasons, or an employee can quit at any time. There is no written or formal employment contract that indicates start and end dates. There is no obligation to provide notice of termination. However, there are exceptions important to the at-will relationship. A public policy exception exists in some states. The public policy exception prohibits an employer from firing an employee if it would violate the state’s public policy or a state or federal statute. Key federal statutes are discussed later in this chapter.

Some states also recognize an implied contract as an exception to the at-will employment arrangement. Under the implied contract exception, an employer may not fire an employee if an implied contract exists, even if there is not writ/>

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