Getting It Right: 10 HR Mistakes Anesthesia Groups Should Watch Out For 

Patricia A. McCausland, JD
McCausland & McCausland LLC, Bala Cynwyd, PA

Over years of practice, I have learned that employers seem to struggle with certain aspects of human resources more than others. These run the gamut from the basics (Who counts as an employee? What laws do we need to follow?) to the more complicated (How do we handle employee complaints? What obligations do we have to employees looking to take leave?). What follows is a list of 10 common HR mistakes and suggestions for anesthesia practices regarding how to avoid them.

Losing track of your headcount. There is a vast array of local, state and federal laws affecting employers, many of which only apply to employers of a certain size. Only employers of 50 or more individuals are covered under the federal Family and Medical Leave Act (FMLA), for example. However, state family and medical leave laws (which are becoming more common) often apply to significantly smaller employers. All practices—but especially expanding practices—need to be aware of any potentially applicable thresholds and keep an eye on employee headcount.

Not knowing who’s who. Keep in mind that not all workers have the same legal rights. Anti-discrimination laws and wage payment laws, for example, commonly apply only to employees, meaning that independent contractors and owners may not be covered. Under some laws, certain non-employee workers also may not count for purposes of determining whether an employer is large enough to be covered.

However, it is important to remember that substance will almost always trump form when it comes to distinctions between employees and other workers. Simply designating someone an “independent contractor” rather than an employee is not sufficient. It is necessary to assess whether the legal standard for that classification can be met.

Owner versus employee classification issues also require analysis. Someone with only nominal or de minimis ownership but no real authority or control over the practice may well be entitled to the legal protections due an “employee.” In addition, employers need to be alert to the legal distinctions between salaried exempt employees—who, among other things, are not entitled to overtime compensation—and hourly non-exempt employees who are. All of these classifications should be reviewed periodically.

Forgetting about state and local laws. This sounds incredibly simple, but employers sometimes forget that federal and state laws are not always identical. The federal Fair Labor Standards Act (FLSA), for example, tends to dominate conversations about wage and hour issues, like overtime. But although many states follow the FLSA, some don’t (or at least they don’t follow it in all respects). And, critically, if a state has a more employee-friendly law, employers must follow it (not the FLSA).

For instance, the FLSA regulates overtime on a weekly basis, but several states (including Alaska, California, Colorado and Nevada) regulate overtime on a daily basis. Other states may not recognize all the exemptions available under the FLSA or may deviate from the FLSA in other ways. Pennsylvania, for instance, has yet to recognize the FLSA’s computer professional exemption, which allows for certain skilled workers in the computer field to be overtime exempt, or the FLSA’s highly compensated employee exemption, which applies a more easily met overtime exemption standard to employees earning more than a certain amount annually. (That amount is currently $100,000 but proposed regulations published in March 2019 would raise that to $147,414.)

As a result, employers who fail to account for state law when classifying and paying employees can find themselves exposed to potential liability because they’ve failed to pay overtime to an employee when state law requires it. Similar problems can arise in other areas in which state laws are increasingly more employee-friendly than federal law, such as LGBTQ protections and employee leave rights.

The problem doesn’t stop at the state level. Around the country, municipalities are increasingly legislating in the human resources space. Dozens of cities and counties around the country now have paid and unpaid leave laws. Some municipal laws provide greater LGBTQ protections than their federal and state law counterparts. As a result, if a practice expands (or simply moves) for compliance purposes, it may not be enough to know that your new office is in the same state. If the new office is in a different city or county, you need to check local laws as well.

Sloppy documentation. Documenting employee discipline and performance issues is no one’s favorite thing to do, but it is critically important when it comes to reducing the risk of employment-related litigation.

First, good documentation practices can help employers achieve a reasonable degree of consistency when it comes to employee discipline (i.e., ensure that Employee A and Employee B are treated similarly for similar infractions), and thus, can help to reduce employee discrimination complaints.

Second, when we get calls from employers looking for advice on separating an employee with longstanding performance or disciplinary problems, one of the first questions we ask is “what does their file look like?” The response, all too often, is “not great” (or, even worse, “what file?”).

Why does it matter? Because life happens. Employees have accidents. They develop serious health conditions. They get married. They have babies. They make complaints. And in the absence of good file documentation, suddenly it can look like an employer is targeting an employee for that reason, increasing the risk of a discrimination or retaliation claim.

I can hear employers everywhere saying, “but we can explain.” Maybe you can. But instead of being able to do that largely through contemporaneous documentation, you’ll need a person to testify. This can make a huge difference, particularly at the administrative stage of a case in a jurisdiction that requires a plaintiff first to go to the Equal Employment Opportunity Commission (EEOC) or equivalent state agency (and where you can expect to receive a request for the employee’s personnel file almost as a matter of course). And it can make a huge difference if the case eventually gets to court, adding credibility questions that make any case more difficult, and therefore, costlier to defend.

Not to mention that there is a risk you will not have a person to testify when you need them. Again, life happens. People change jobs, sometimes willingly, sometimes not. People die, sadly. Lacking a solid file and lacking a witness because of a death or lacking a cooperative witness because of a firing, an employer facing a discrimination or harassment suit might find itself with little choice but to settle.

Getting hung up on formality. When we hear from employers who are facing an employee complaint of discrimination—especially harassment—one of the first things we ask (and one of the first things an administrative agency or plaintiff ’s lawyer will eventually ask) is whether it’s the first complaint of its kind.

All too often, the response we hear is: “It’s the first formal complaint.” Even in 2019, many employers seem to be laboring under the misimpression that they only need to deal with “formal” employee complaints—a term they may interpret to mean any number of things (e.g., that the complaint must be submitted in writing, or that it must be submitted through the proper channels to the proper person).

Sometimes this is a problem of ignorance. Managers haven’t been properly trained on the need to identify, document and escalate concerns. But sometimes it’s a function of a management team that views the complaint process as an end in and of itself, rather than as a means to an end.

If an employer’s goals are to deal with small problems before they become big problems and to deal with big problems before they become lawsuits—and these should be the goals—focusing on the formality of a complaint (or lack thereof) is a self-defeating approach. It allows problems to go unaddressed simply because they weren’t made “properly.” It also allows would-be plaintiffs to create a narrative that is difficult for an employer to contest later.

Imagine two employees at two different companies who come forward with verbal complaints of harassment. Employer 1 congratulates itself that there’s no “formal complaint” and does nothing. Employer 2 documents the verbal complaint—a process that should involve getting the employee’s buy in to the substance of the complaint along the way—investigates and determines the complaint is unfounded. Not only is Employee 2 less likely to escalate their complaint than Employee 1, but even if Employee 2 goes ahead with an agency complaint or lawsuit, Employer 2 is far better positioned to defend itself than Employer 1—first, because it will be much, much harder for Employee 2 to start recharacterizing the nature of their complaint, and second, because Employer 2 will (correctly) look like an employer that cared about doing the right thing.

A surprising number of employers still fall into similar formality traps when it comes to the Americans with Disabilities Act (ADA) and FMLA. Some think that as long as the employee hasn’t said “I have a disability” or “I need a reasonable accommodation,” they can safely ignore an otherwise obvious problem.

They can’t. Even well-intentioned employers are sometimes hesitant to start a discussion with their employee for fear doing so will create a problem. And there is some potential for “regarded as” claims under the ADA. An employer who concludes that an employee has a disability and treats them differently as a result can create liability for itself (even if the employee does not actually have a disability).

But the solution here is not to ignore an employee performance or discipline problem out of fear it might be linked to a medical issue or disability. The solution is to explore the problem without jumping to conclusions about its cause (or the possible solutions).

Similarly, while many employees will specifically ask for FMLA leave, they may have protection under the act even if they haven’t asked. Employers are required to issue an FMLA eligibility notice within five business days of either an employee’s initial request for leave or when the employer learns that an employee may be out of work for an FMLA-qualifying reason. Thus, employers who learn, for example, that an employee is in the hospital or that an employee has a spouse, child or parent in the hospital should not simply sit back and wait for the employee to ask for FMLA.

Confusing the ADA and the FMLA. We frequently see not only employees and employers but also healthcare providers who get confused about the difference between these two statutes (and/or their state equivalents).

We recently had an employer who received an FMLA certification form, for example, stating that the employee might be unable to work at times or might need to work from home at times due to her serious health condition. One of those things—the need for time off—is an FMLA issue. The other is not an FMLA issue. Work in any form, be it light duty, be it at home, is not leave and, therefore, is not covered by the FMLA. What that employee was really asking for was intermittent leave under the FMLA coupled with a request for accommodation under the ADA.

The other place where the ADA and FMLA can intersect in a way that causes employers headaches is at the conclusion of FMLA leave when employees are returning to the workplace (or not). For employees returning to work at the conclusion of FMLA leave for their own serious health condition, employers need to be careful not to request documentation stating that an employee is 100 percent able to return without restriction. Courts have found that this sort of language suggests an employer is unwilling to consider reasonable accommodation(s). For this reason, it can potentially create an ADA problem.

And for employees not able to return to work immediately at the conclusion of FMLA leave for their own serious health condition, employers have to consider the ADA and whether some additional leave may be a reasonable accommodation.

Missing reverse discrimination. We recently reviewed a handbook for a practice (too small to be covered by the FMLA) that included a policy offering leave for “maternal care for a newborn child” and “placement with the maternal employee of a son or daughter for adoption or foster care.” This sort of gendered policy is not permissible, but they still crop up more often than one might expect, even at large (and, one would think, sophisticated) employers.

In 2017, the American Civil Liberties Union sued a global financial services company on behalf of a male employee based on a policy that allowed female employees 16 weeks of paid parental leave and male employees only 2 weeks of paid parental leave.

In 2018, the EEOC settled with a multinational makeup and skincare company over a policy that allowed female employees 6 weeks of paid parental bonding leave, male employees 2 weeks of paid parental bonding leave and female employees a “flexible” return to work benefit not available to male employees.

This is not to say male and female employees must be treated equally in all respects. Leave related to pregnancy, childbirth or related medical conditions can be limited to female employees affected by those conditions. But any non-medical parental/bonding/child care leave must be provided to all new parents (including fathers and adoptive parents of any gender) on the same terms.

Ignoring #MeToo. A Google search for “Millennials and sexual harassment” reveals a wealth of articles and posts written over the past year or so with titles like “Are Millennials Ready to Put an End to Sexual Harassment?” “Can Millennials Put An End To Sexual Harassment?” and “Younger Generations in the Workforce Are Making Discrimination and Sexual Harassment a Board Issue.”

In fact, research suggests that women of different ages/generations don’t differ much (if at all) in what they consider harassment, but they do differ in how they respond to it. Behavior that might have been quietly tolerated in the past is less likely to be tolerated by younger women in the workplace. This means that employers who haven’t already need to get serious about dealing with harassment or face serious consequences, both legal and practical, when they start losing employees unwilling to put up with harassing behavior.

Reinforcing the conclusion that workplace norms are changing is a mini-trend of states legislating more aggressively in the area of sexual harassment. As of January 1, 2019, Delaware now requires employers with four or more employees to issue an information sheet on sexual harassment, and employers of 50 or more must provide sexual harassment training.

Similarly, New York recently passed legislation requiring all employers to have a sexual harassment policy and to offer sexual harassment training that meets certain standards. California, Connecticut and Maine are other states that currently mandate some form of sexual harassment training for certain private employers.

Overlooking OSHA. Many employers are unaware that the federal Occupational Safety and Health Administration (OSHA) not only directly regulates workplace safety in numerous respects but also offers legal protections to employees who complain about workplace safety issues (so-called whistleblowers). We have observed an increase in OSHA whistleblower/retaliation claims recently, and we are not alone. According to OSHA, between 2014 and 2018, the number of whistle-blower complaints filed increased by almost 30 percent.

Obviously, all workplaces have some potential safety concerns, but medical workers face unique risks, making it that much more important for anesthesia practices to handle complaints about safety concerns properly. Some complaints may seem silly (we handled a case once involving an employee who filed a complaint about “workplace violence” and “false imprisonment” with OSHA after a manager held a closed door meeting with her), but employers still need to proceed carefully. Designate someone to handle complaints; document verbal complaints; document the investigation of verbal and written complaints; and document any corrective actions taken to address complaints determined to be valid.

Documentation can be especially important because, as volume increases, OSHA is taking longer to process and investigate complaints. As noted above, memories may fade, and employees may come and go. Without good documentation, it may be hard for an employer to rebut a whistleblower claim by the time OSHA comes knocking.

Retaliating. It is understandable for employers who feel they’ve done nothing wrong to be frustrated by employee complaints, but employers need to be acutely aware of the potential for retaliation claims, which continue to be on the rise. According to data released by the EEOC, as a percentage of total charges filed, retaliation claims went up every year from 2007 to 2017, making up nearly 50 percent of all charges filed in 2017.

One reason for this is the simple fact that retaliation claims are, relatively speaking, easy to prove, often coming down to little more than a matter of timing: the closer an adverse action occurs to protected employee activity (which includes things like lodging an internal or external complaint about unlawful conduct or even just providing information in support of another employee’s complaint), the more that action can look retaliatory and the harder it can be for an employer to defend.

In addition, while an essential element of a retaliation claim is that an employee engaged in protected activity, complaining employees do not have to be correct that something unlawful occurred to be legally protected from retaliation. Rather, they merely have to have had a good faith, reasonable basis to think that something unlawful occurred.

As a result, an employee who complains, incorrectly, about discrimination may not have a discrimination case. But if their employer takes an adverse action against them in response to that complaint, they may still have a retaliation case—a state of affairs that effectively expands the protections of the anti-discrimination and other laws regulating workplace conduct.

Employers need to be aware of this risk and should ask themselves whether an employee has made a complaint (and, if so, how recently) when considering disciplinary action. To circle back to the importance of documentation, employers should also ask themselves whether any action they might decide to take is in line with discipline meted out to other employees for similar infractions (and, if it’s not, be prepared to explain the difference in treatment).

Patricia A. McCausland, JD, is a Philadelphia-area attorney who has been practicing for almost 20 years. Since 2010, when she left a large firm to go into practice with her mother, Ms. McCausland has primarily represented businesses and business owners in commercial and employment litigation. She also advises clients on employment and other contracts, employment policies and procedures, employee discipline and wage and hour compliance, among other things. Ms. McCausland is a frequent author and presenter on employment law topics. A long-time volunteer for the Support Center for Child Advocates, she is also a LEADERSHIP Philadelphia Fellow, a member of the Forum of Executive Women and serves on the Board of Directors of the Wagner Free Institute of Science of Philadelphia. She received her JD from Villanova University School of Law, magna cum laude and Order of the Coif, in 1999, and her bachelor’s degree from Georgetown University. She also holds a master’s degree from Tulane University. She can be reached at Trish@McCauslandLaw.com.