By Kevin Troutman, Partner, Fisher Phillips
Litigation is a painful process, especially for defendants. The experience is costly, time-consuming, distracting, potentially-embarrassing and, of course, stressful. The legal department, human resources, participating supervisors and other witnesses all feel this pain to varying degrees. And this occurs even when you win.
During employment litigation, personal accusations and strong feelings can make the litigation seem more like a nasty divorce than a business dispute. Allegations like sexual harassment, retaliation and race discrimination arouse cauldrons of emotion. These feelings may be even more likely in a healthcare setting, where life and death struggles touch almost everyone’s duties.
Establishing a Successful Model Focused on High-Risk Areas
While some employment conflicts may be unavoidable, the hospital’s legal and HR departments can act effectively to reduce the frequency of contentious litigation. By doing so, they also can ensure that when litigation does occur, the organization is prepared to resolve cases faster and less expensively. This task is not easy. But, when implemented successfully, the payoff can be remarkable.
Organizations realize even greater benefits when they focus on managing the high-volume, problem-prone areas that crop up most frequently in employment litigation. These areas include claims of:
Discrimination or harassment;
Failure to accommodate an employee as required by the Americans with Disabilities Act;
Interference with the exercise of rights under the Family and Medical Leave Act;
Retaliation or whistleblowing; and
Violations of federal wage and hour laws.
Together, these categories encompass the vast majority of employment litigation.
Critical Collaboration Between the HR and Legal Departments
A successful system begins with a collaborative relationship between Legal and HR leaders. This requires frequent interaction, focused on identifying and effectively addressing those high-risk, problem-prone areas in a consistently timely manner. This is a wide-ranging task, which helps the employer attract and retain a top-flight workforce; resolve problems early; and enable supervisors to generate essential documentation for use when charges, investigations or lawsuits do occur. From this foundation, leaders can respond honestly and effectively to emerging challenges and changes in the business and legal landscape. After all, HR and legal decisions are business decisions.
Specifically, how can a healthcare organization build such a collaborative model?
The framework begins with legal and HR leaders who have earned the respect of administrators and everyone else who manages people. This obviously requires more than technical knowledge and competency. It requires demonstrating an understanding of the pressures that operational leaders face every day. In short, legal and HR can most effectively manage risks by showing their internal customers that they “get it,” specifically demonstrating that they are determined to help implement practical solutions, without incurring undue legal or regulatory risks.
Stated another way, the rest of the organization must view legal and HR as resources, not roadblocks. A CEO cannot magically mandate this. The top level of the organization can and must expect it, however. At the same time, organizational leaders must include legal and HR leaders in high-level planning, decisions, and decision-making. While inviting and empowering legal and HR into this role, the CEO must hold them accountable for functioning as effective resources and partners to the rest of the organization. At this level, job titles do not matter nearly as much delivering results.
A Practical Example – and How It Benefits Everyone
A simple example illustrates the key to this model: Historically, supervisors do not adequately document poor employee job performance or disciplinary problems. When their patience runs out, these supervisors demand that HR must sign off on a termination that is not well-supported by records. Or they may circumvent HR completely. Why does this happen? One critical reason is that, especially in healthcare, outstanding clinicians/caregivers get promoted into supervisory positions with little or no management training.
Whatever the reason, this scenario heightens tension and leaves both HR and the supervisor frustrated. A common refrain may result: “HR won’t let me terminate anyone.” In that scenario, the frustrated supervisor throws up her hands and either ignores an ongoing employee problem or simply executes an adverse employment action without necessary supporting evidence. A better model, however, can produce outstanding results for everyone (except perhaps a recalcitrant employee).
To turn this situation around, HR can demonstrate its determination to help the supervisor solve this problem. Instead of sending the supervisor back to the drawing board too quickly, HR must dig through the details and help the supervisor prepare documentation needed to define the employee’s shortcomings and the improvements that are required. If the situation is especially complicated, legal may have to assist with this step. HR may even need to help the supervisor deliver the message to the employee, giving clear direction in the process.
In short, HR must go the extra mile with the supervisor, to own the issue and help resolve it. The more often HR delivers this level of service, the more often supervisors will seek the department’s assistance early, before small problems mushroom into big ones. In effect, supervisors will become more effective managers and “issue spotters” – and HR leaders will come to be viewed as problem-solvers.
As a bonus, such productive interactions pave the way for effective training and developing supervisors, who will come to value (rather than resist) HR guidance. Supervisors will do this because they recognize that HR is helping them reach their goals. When followed conscientiously, this strategy helps ensure that, when terminations occur, employees are not surprised. Such employees resort to litigation less frequently, and, even when they do, the hospital’s case is much better positioned for pre-trial disposition. Such positioning, of course, saves time, stress, and money.
A Vital Caveat for Success
Besides hard work and attention to detail by HR and legal, this model includes one important caveat: It will not be effective unless all supervisors are required to obtain the concurrence of HR before implementing an employee termination. There are many good reasons for adopting this safeguard, one of the most important being to ensure that terminations occur only in accord with the organization’s standards.
Besides ensuring the vital element of consistency, this approach enables HR to perform an indispensable final assessment for the organization: Would a neutral third party conclude that the employment action taken was “fair?” If the answer is “no,” others would probably draw the same conclusion. This is extremely important because experience shows that judges and juries do not like unfairness. In fact, they tend to punish the appearance of unfairness.
Through this suggested model, the organization develops better supervisors, improves consistency in dealing with its most important (and risky) employment decisions and ensures that employees will be treated fairly. Finally, by using this approach for people management, healthcare organizations can reduce both the hard and soft costs of employment litigation. t