Dealing with Employee Termination: Smart Strategies for Optimizing ...

APRIL 2013VOLUME 7, NUMBER 7THE JOURNAL OF URGENT CARE MEDICINE ®www.jucm.comT h e O f f i c i a l P u b l i c a t i o n o f t h e U C A O A a n d U C C O PAlso in this issue21 Practice ManagementDealing With EmployeeTermination: SmartStrategies for OptimizingYour Team29 Case ReportHodgkin LymphomaA BRAVEHEART PUBLICATION

The Official Publication of the UCAOA and UCCOPA p ri l 2 0 1 3VOLUME 7, NUMBER 7CLINICAL9 An Age-Based Approachto Fever of Uncertain Originin the Pediatric PatientFever in pediatric patients, while frequent, is rarely the result of a seriousillness. Urgent care practitioners must be able to consistently distinguishbetween serious and benign causes with a minimum of invasive testing.Brendan Kilbane, MD, FAAPPRACTICE MANAGEMENTCASE REPORT29 Hodgkin LymphomaClose follow up is necessary for pediatricpatients with vague presentations, lest adiagnosis of childhood cancer be missed.Janet D. Little, MD21Dealing With EmployeeTermination: SmartStrategies for OptimizingYour TeamLetting employees go is never easy. This articleoffers tips for protecting your business andyourself if termination is necessary. Among thekey recommendations are compilingdocumentation and seeking legal advice.Alan A. Ayers, MBA, MAccIN THE NEXT ISSUE OF JUCMOver the course of a lifetime, upwards of 80% of adultsare likely to experience an episode of low back pain. It’sthe second most common reason for office visits in theUnited States and a frequent presentation in urgent care.Next month’s cover story explores the anatomy of low backpain, steps in clinical evaluation and physical examinationof the patient with this complaint, rationale for laboratorystudies and radiographic tests, and options formanagement. To better evaluate and treat such patients,urgent care providers need a good understanding of theanatomy of the back and they must be vigilant for “redflags” that signal a potentially serious condition. Whenthere are no “red flags,” acute low back pain is usuallyself-limiting and neither imaging nor laboratory studiesare required and management consists of a shortcourse of nonsteroidal anti-inflammatory drugs with orwithout muscle relaxants, and patient education.D E P A R T M E N T S7 From the UCAOAChief Executive Officer33 Insights in Images35 Health Law38 Abstracts in Urgent Care42 Coding Q&A48 Developing DataC L A S S I F I E D S44 Career Opportunitieswww.jucm.com JUCM The Journal of Urgent Care Medicine | April 2013 3

JUCM EDITOR-IN-CHIEFLee A. Resnick, MDChief Medical and Operating OfficerWellStreet Urgent CarePresident, Institute of Urgent Care MedicineAssistant Clinical Professor, Case WesternReserve UniversityDepartment of Family MedicineJUCM EDITORIAL BOARDAlan A. Ayers, MBA, MAccConcentra Urgent CareTom CharlandMerchant Medicine LLCRichard Colgan, MDUniversity of Maryland School of MedicineJeffrey P. Collins, MD, MAHarvard Medical SchoolMassachusetts General HospitalTracey Quail Davidoff, MDAccelcare Medical Urgent CareKent Erickson, MD, PhD, DABFMUnlimited Patient Care Center, PLLCThomas E. Gibbons, MD, MBA, FACEPDoctors CareWilliam Gluckman, DO, MBA, FACEP,CPE, CPCFastER Urgent CareDavid Gollogly, MBChB, FCUCP(New Zealand)College of Urgent Care PhysiciansWendy Graae, MD, FAAPPM PediatricsNahum Kovalski, BSc, MDCMTerem Emergency Medical CentersPeter Lamelas, MD, MBA, FACEP, FAAEPMD Now Urgent Care Medical Centers, Inc.Melvin Lee, MD, CCFP, RMCFastMed North CarolinaSean M. McNeeley, MDCase Western Reserve UniversityUniversity Hospitals Medical GroupPatrice Pash, RN, BSNNMN ConsultantsMark E. Rogers, MDWest Virginia UniversityMark R. Salzberg, MD, FACEPStat Health Immediate Medical Care, PCShailendra K. Saxena, MD, PhDCreighton University Medical CenterElisabeth L. Scheufele, MD, MS, FAAPMassachusetts General HospitalJohn Shufeldt, MD, JD, MBA, FACEPShufeldt ConsultingLaurel StoimenoffContinuum Health Solutions, LLCThomas J. Sunshine, MD, FACOGDoctors Express CherrydaleJoseph Toscano, MDSan Ramon (CA) Regional Medical CenterUrgent Care Center, Palo Alto (CA) MedicalFoundationJanet Williams, MD, FACEPRochester Immediate CareMark D. Wright, MDUniversity of Arizona Medical CenterJUCM ADVISORY BOARDMichelle H. Biros, MD, MSUniversity of MinnesotaKenneth V. Iserson, MD, MBA, FACEP,FAAEMThe University of ArizonaGary M. Klein, MD, MPH, MBA, CHS-V,FAADMmEDhealth advisorsBenson S. Munger, PhDThe University of ArizonaEmory Petrack, MD, FAAPPetrack Consulting, Inc.;Fairview HospitalHillcrest HospitalCleveland, OHPeter Rosen, MDHarvard Medical SchoolDavid Rosenberg, MD, MPHUniversity Hospitals Medical PracticesCase Western Reserve UniversitySchool of MedicineMartin A. Samuels, MD, DSc (hon), FAAN,MACPHarvard Medical SchoolKurt C. Stange, MD, PhDCase Western Reserve UniversityRobin M. Weinick, PhDRANDUCAOA BOARD OF DIRECTORSMarK R. Salzberg, MD, FACEP, PresidentNathan “Nate” P. Newman, MD, FAAFP,Vice PresidentCindi Lang, RN, MS, SecretaryLaurel Stoimenoff, TreasurerJimmy Hoppers, MD, DirectorRobert R. Kimball, MD, FCFP, DirectorDon Dillahunty, DO, MPH, DirectorRoger Hicks, MD, DirectorPeter Lamelas, MD, MBA, FACEP, FAAEP,DirectorSteve P. Sellars, MBA, DirectorWilliam Gluckman, DO, MBA, FACEP, CPE,CPC, DirectorEDITOR-IN-CHIEFLee A. Resnick, MDeditor@jucm.comEDITORJudith Orvos, ELSjorvos@jucm.comASSOCIATE EDITOR, PRACTICE MANAGEMENTAlan A. Ayers, MBA, MAccCONTRIBUTING EDITORSNahum Kovalski, BSc, MDCMJohn Shufeldt, MD, JD, MBA, FACEPDavid Stern, MD, CPCMANAGER, DIGITAL CONTENTBrandon Napolitanobnapolitano@jucm.comART DIRECTORTom DePrendatdeprenda@jucm.com120 N. Central Avenue, Ste 1NRamsey, NJ 07446PUBLISHERSPeter Murphypmurphy@braveheart-group.com(201) 529-4020Stuart Williamsswilliams@braveheart-group.com(201) 529-4004Classified and Recruitment AdvertisingRussell Johns Associates, LLCjucm@russelljohns.com(800) 237-9851Mission StatementJUCM The Journal of Urgent Care Medicine supports the evolutionof urgent care medicine by creating content that addresses boththe clinical practice of urgent care medicine and the practice managementchallenges of keeping pace with an ever-changing healthcaremarketplace. As the Official Publication of the Urgent CareAssociation of America and the Urgent Care College of Physicians,JUCM seeks to provide a forum for the exchange of ideas and toexpand on the core competencies of urgent care medicine as theyapply to physicians, physician assistants, and nurse practitioners.JUCM The Journal of Urgent Care Medicine (JUCM) makes every effortto select authors who are knowledgeable in their fields. However,JUCM does not warrant the expertise of any author in a particularfield, nor is it responsible for any statements by such authors.The opinions expressed in the articles and columns are those ofthe authors, do not imply endorsement of advertised products,and do not necessarily reflect the opinions or recommendationsof Braveheart Publishing or the editors and staff of JUCM. Any procedures,medications, or other courses of diagnosis or treatmentdiscussed or suggested by authors should not be used by clinicianswithout evaluation of their patients’ conditions and possible contraindicationsor dangers in use, review of any applicable manufacturer’sproduct information, and comparison with the recommendationsof other authorities.JUCM (ISSN 1938-002X) printed edition is published monthly exceptfor August for $50.00 by Braveheart Group LLC, 120 N. CentralAvenue, Ste 1N, Ramsey NJ 07446. Periodical postage paid at Mahwah,NJ and at additional mailing offices. POSTMASTER: Sendaddress changes to Braveheart Group LLC, 120 N. Central Avenue,Ste 1N, Ramsey, NJ 07446.JUCM The Journal of Urgent Care Medicine (www.jucm.com) ispublished through a partnership between Braveheart Publishing(www.braveheart-group.com) and the Urgent Care Association ofAmerica (www.ucaoa.org).4 JUCM The Journal of Urgent Care Medicine | April 2013 www.jucm.com

JUCM CONTRIBUTORSAccording to one study, 91% of parents sufferfrom “fever phobia”—the erroneous belief thatfever alone could hurt their child. It’s not surprising,then, that fever is one of the most commonchief complaints in pediatric patients presenting at urgentcare centers. In the vast majority of these cases, the source ofthe fever will be discovered on physical exam or the explanationwill be a self-limited viral illness. The challenge for urgentcare providers is to identify the pediatric patient with fever whois at high risk of a serious bacterial infection (SBI) such as urinarytract infection, pneumonia, bacteremia, or meningitis. Thismonth’s cover story, by Brendan Kilbane, MD, FAAP, offers recommendationsfor an age-based approach to laboratory testingthat is rigorous yet ensures prompt identification of the “notwell” pediatric patient with fever and appropriate evaluationof the “well” pediatric patient to rule out any possible SBIs.Dr. Kilbane is Assistant Professor, Pediatric EmergencyMedicine, Rainbow Babies & Children’s Hospital, UniversityHospital Case Medical Center, Cleveland, OH.Diagnosing childhood cancers accurately and intimely fashion is a challenge for urgent careproviders, as underscored by this month’s casereport, by Janet D. Little, MD. The patient was a 12-year-old girl with shortness of breath not relieved by heralbuterol inhaler but no cough. Her presenting complaints wereepisodes of nausea and vomiting, sore throat, and chest discomfort.The diagnosis, based on diagnostic studies including chestx-ray? Hodgkin Lymphoma, a disease with peak incidence in theteen years and again in the third decade of life. The message?Remember to counsel patients about the need for close followup,particularly when their symptoms are non-specific.Dr. Little is staff physician and Director of Education at MyCare Express Urgent Care in Eldersburg, MD.Terminating an employee means much morethan simply saying “You’re fired.” It’s unpleasantand whether the rationale is job performance oreconomic necessity, it has an impact on theemployee beyond loss of income. For an urgent care provider,termination is a business decision that also involves legalimplications, as described in this month’s practice managementarticle by Alan A. Ayers, MBA, MAcc. Meant as “food forthought” and not a substitute for legal advice, the pieceemphasizes the need to do your homework before letting anemployee go, balance risks and benefits if the action is “forcause,” and plan ahead for the consequences and the actualmeeting with the employee.Mr. Ayers is Associate Editor, Practice Management, JUCM,Content Advisor, Urgent Care Association of America, andVice President, Concentra Urgent Care.Also in this issue:John Shufeldt, MD, JD, MBA, FACEP, offers 46 “pearls”about ideas that seemed good at the time but in retrospectpresent potential medicolegal disasters that urgent careproviders would do well to avoid.Nahum Kovalski, BSc, MDCM, reviews new abstracts onliterature germane to the urgent care clinician, includingstudies of DTaP injection site reactions, UTI recurrence inmen, and computed tomography for evaluation of rightlower quadrant pain.In Coding Q&A, David Stern, MD, CPC, discusses primarycare in the urgent care setting, E/M codes with other services,and penicillin injection.Our Developing Data end piece this month looks atwhat methods urgent care providers are using for patientregistration. ■To Submit an Article to JUCMJUCM, The Journal of Urgent Care Medicine encourages you to submitarticles in support of our goal to provide practical, up-todateclinical and practice management information to our readers—thenation’s urgent care clinicians. Articles submitted forpublication in JUCM should provide practical advice, dealing withclinical and practice management problems commonly encounteredin day-to-day practice.Manuscripts on clinical or practice management topics shouldbe 2,600–3,200 words in length, plus tables, figures, pictures,and references. Articles that are longer than this will, in mostcases, need to be cut during editing.We prefer submissions by e-mail, sent as Word file attachments(with tables created in Word, in multicolumn format) toeditor@jucm.com. The first page should include the title of thearticle, author names in the order they are to appear, and thename, address, and contact information (mailing address, phone,fax, e-mail) for each author.To Subscribe to JUCMJUCM is distributed on a complimentary basis to medical practitioners—physicians,physician assistants, and nurse practitioners—workingin urgent care practice settings in the United States.If you would like to subscribe, please log on to www.jucm.comand click on “Subcription.”www.jucm.com JUCM The Journal of Urgent Care Medicine | April 2013 5

Practice ManagementDealing With EmployeeTermination: Smart Strategiesfor Optimizing Your TeamUrgent message: Letting employees go is never easy. This article offerstips for protecting your business and yourself if termination is necessary.Among the key recommendations are compiling documentationand seeking legal advice.ALAN A. AYERS, MBA, MAccLetting an employee go, whether due to job performanceor economic necessity, is never a pleasant situation.Although an urgent care center strives to providehigh-quality patient care, it’s also a business. Thismeans that difficult decisions regarding front-linestaffing must take into account the bottom line.Despite the ease with which Donald Trump terminateshis apprentices, the reality for urgent care operatorsis much more complicated than simply saying“You’re fired.” Terminating an employee affects anindividual’s ability to provide for him or herself andfamily, interrupts daily routines and social relationships,and skews the person’s sense of purpose, identity,and fairness. A child’s security and wellbeing—bothtoday and in the future—is jeopardized when a parentloses a job. In this regard, the act of terminating an individual’semployment is quite traumatic and, as such, itpsychologically impacts everyone concerned, includingco-workers and even patients.In addition to making the difficult decisions concerningstaff terminations, as well as planning howthat uncomfortable meeting may play out, there are alsoAlan Ayers is Content Advisor, Urgent Care Association of America,Associate Editor—Practice Management, Journal of Urgent Care Medicine,and Vice President, Concentra Urgent Care.legal considerations that are designed to protect theemployer and the employee. Doing your homeworkprior to terminating an employee is necessary to limitpotential adverse outcomes to the organization.The Consequences of Ignoring Problem EmployeesBecause of the time, effort, and frustration that humanresource issues can create for managers, sometimes it’s© corbisimages.comwww.jucm.com JUCM The Journal of Urgent Care Medicine | April 2013 21

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A MTable 1: The Effect of a Problem Employee on an Urgent Care Center• Loss of productivity - An employee who arrives late to work, leaves early, and spends most of his/her working time “stirringthe pot of discontent” is not committed to you or your business, which means you’re being short-changed on the wage you pay.• Employee morale - An employee whose underperformance is tolerated or who is allowed to behave badly decreases morale andcreates a workplace that can be detrimental to your effective and committed employees.• Bad behavior is contagious - Problem workers’ bad attitudes and habits sometimes “rub off” on their fellow employees. An employeewho does not face consequences for poor performance may cause other employees to believe that they, too, can get awaywith such behavior.• Breeding resentment - Your employees who care about their jobs, the business, and your opinion of them will resent that theywork harder, better, and more professionally—and may draw the unflattering conclusion that you care more about one problememployee than about the rest of the team.• Staff turnover - If you want to retain staff, nipping an employee problem in the bud will prevent your most productive andhappy employees who resent working with “deadweight” from leaving. “Like attracts like” so those who are disengaged or lackopportunities elsewhere stay, and over time your center spirals down to a “B-” or “C-” grade operation.• Potential legal issues - Employees who cross the line with other employees may land you in hot water legally. Harassment ordiscrimination of one employee by another employee may involve the employer if it can be proven that the employer was awareand did nothing to remedy the situation.• Lost customers/revenue - A poor employee who does not value customer service, who will not go out of his/her way to servepatients, or constantly seeks to “punish” the owners will cost you word-of-mouth and will negatively impact the ability to attractrepeat visits and grow your business.Adapted from: The Consequences for Supervisors Who Ignore Poor Business Performance. Shaddock, Dianne (2011). Articlesbase. http://www.articlesbase.com/humanresources-articles/the-consequences-for-supervisors-who-ignore-poor-employee-performance-4191377.htmltempting for a supervisor to ignore a chronic problemwith an employee. Unfortunately, ignoring a problemwon’t make it go away and will most likely compoundthe situation and create additional issues with otheremployees who are valuable to the business.When faced with the potential for a performanceissue with an employee, the manager’s first step shouldbe some type of intervention and corrective actionplan—to give an employee an opportunity to fullyunderstand the expectations of the position, to receivecoaching, and to have a “fair shot” at improving his orher performance. But assuming that doesn’t work, theemployee who is chronically late, frequently absent, hasa negative attitude, cannot or does not perform his orher duties, treats patients poorly, or alienates “good”employees through gossip and other forms of harassment,is a liability to the organization, and one it cannotafford to keep.Why Urgent Care Operators Retain Poor EmployeesDespite the damage they know problem employees causethe business—in addition to day-to-day impact on generalmorale, resources, and time—managers have beenknown to keep these people on board for three reasons: “Any staff is better than no staff.” Finding qualifiedemployees can be difficult. There’s a learning curvefor new hires and the business continues at its regularpace without a let-up for new or short-handedstaff. As a result, managers assess there’s less risk insticking with the status quo than facing staffingissues. This commonly occurs when a manager isasked to perform the duties of the vacant positionin addition to his/her own responsibilities. “I don’t have time to replace him/her.” It does (andshould) take time to find a candidate who would bea good fit for the center’s culture and who has theskills and personal qualities desired. Posting a helpwanted ad, screening resumes, and conducting interviewstakes time away from a manager’s alreadyhectic day. Plus, the manager may believe that for allthe effort, there is a possibility he/she you won’t finda person with the qualities and experience needed. “Maybe the situation will improve if I just give it a littlemore time.” Terminating an employee is neverenjoyable, but ignoring the situation will likelymake it worse, not better. The message sent to thisemployee is one of tolerance. That is, managementknows about it and is clearly okay withunderperformance, poor attitudes, workplaceharassment, and unethical conduct. Such perceptionscan devastate a center’s cohesive work environment,esprit de corps, and synergy.22 JUCM The Journal of Urgent Care Medicine | April 2013 www.jucm.com

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A MKeeping a bad employee will affect not only you—theurgent care operator—but also your other employees,your patients, your reputation, and ultimately yourbottom line. Table 1 lists the adverse consequences ofignoring problem employees.Termination Tips and ConsiderationsWhen you decide an employee needs to go, terminationtypically occurs under one of three conditions. Anemployee may choose to be let go voluntarily, he or shemay be fired for cause (involuntary termination), or maybe let go as part of an organizational restructuring orreduction in force. The condition upon which anemployee is terminated determines, in large part, both theemployee’s and the employer’s rights and obligations.Voluntary TerminationEmployees sometimes choose to leave their jobs of theirown volition. When an employee resigns, he or she isgenerally not entitled to state unemployment oremployer separation payments. Employees may “quit”for many reasons, such as a spouse’s transfer, a better/ differentopportunity at higher pay or more desirable hours,to pursue higher education or because they decide theydon’t need the money. Don’t assume that someone isleaving because of unhappiness in his/her present position.If there is any doubt as to why an individual is leaving,it’s a good idea to ask. If there is a problem that youare unaware of that has caused someone to feel dissatisfied,that is information that you should know—eitherbecause you may want to attempt to persuade the individualto stay or you may need to make improvementsto your operation before other employees follow his/herlead out the door. This is why a standard exit interviewprocess may answer some of these questions.Sometimes a job is just not a good fit, and theemployer and employee agree together that this is thecase. This usually occurs during a 90-day post-hire “probationaryperiod.” In other cases there is a blatant violationof company policy, such as stealing, and thewww.jucm.com JUCM The Journal of Urgent Care Medicine | April 2013 23®An affordable wound closure solution.Strong 2-Octyl Cyanoacrylate Formula 1 ®1. Adhezion Biomedical, LLC Data on file.866.579.4508 www.surgiseal.com

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A MTable 2: Failure to Document Expectations and Performance Results in Discrimination Claim*About 15 years ago, a physician entrepreneur started his urgent care center with the intention of treating employees and patientslike “family.” He hired a seasoned medical assistant who was returning to the workforce after the graduation of her teenage sons.Through focus and dedication, over the years, she learned clinical coding, medical billing, bookkeeping, payroll, and other business“basics.” As the number of patients at the urgent care center grew, the woman’s responsibilities increased, and the ownerseventually added additional center locations to serve the community. Being involved with the business from the beginning, shewas promoted to the role of Director of Operations.But while the business was advancing, the operations director was falling behind. Equipped with a modest formal education butyears of on-the-job training and “trench knowledge,” her capabilities had been stretched to their limits by the now multimilliondollar enterprise. Employee turnover increased, major accounts were lost, receivables bloated, and volume stagnated due to processand system issues affecting front-line service. The employee was simply incapable of taking the business to the “next level.” Whenoutside investors evaluated the enterprise for equity funding and future expansion, one of their requirements was that a new directorwith an MBA and experience managing larger entities be put into place.Because of the close relationship between the entrepreneurial-founder and the operations director—and his strong desire to not“hurt anyone’s feelings”—there were no annual performance reviews. Expectations of the changing work environment were neveroutlined. Nor was there a plan for the operations director to address her skill deficits. She was constantly told “great job,” “goodwork,” and “keep it up” by a boss who wanted to avoid confrontation and “be encouraging.” Although the business was sufferinga number of cracks, the woman’s personnel file was flawless and she was promised a prosperous future with the business.Then one day the former owner and new management sat her down with a termination agreement. They explained the new directionof the business and how they didn’t feel she was any longer a “good fit” for the role. To “clear the way” for the new director,the former director was not offered a different position, was not offered a remediation plan, and was not offered the opportunityto pursue higher education. She was given a check and her walking papers.Her reaction? Years of praise and a flawless personnel file meant this firing could mean only one thing…age discrimination becausethe individual who replaced her was 20 years younger. By failing to follow a process of outlining, measuring, and providing feedbackon performance expectations, the urgent care center had set itself up for a discrimination lawsuit.*A fictional, hypothetical example, based on common circumstances in growing urgent care centers.employee agrees to quit rather than be fired “for cause,”which can impact the employee’s ability to secure futureemployment. From a management standpoint, this isthe preferred result in a performance situation. Aftereducating and coaching an employee as to your expectationsof the position, he or she may realize that it isn’ta strong match.Regardless of whether quitting is an employee’s soledecision or a mutual decision between employer andemployee, formal written notice of resignation shouldbe provided by the employee to prevent future legalissues. Because an employee who resigns surrenderslegal rights, it’s very important that evidence show theresignation was not forced or compelled. When anemployee resigns, it’s also important to ensure: 1 company property is returned and accounted for(phones, laptops, keys, badges, etc); outstanding charges are paid; a discussion is held for a successful hand-off ofaccounts, customers, or projects; confidentiality/non-compete agreements are discussed; employee is counseled by human resources or payrollpersonnel regarding any insurance, retirementfunds or benefits and how transition will transpire;and an exit interview is performed to discuss theemployee’s reasons for leaving and to identify areasfor improvement for the business.When employees quit voluntarily, it is customary forthem to give advance notice. However, “at will”employment does not require the employer to acceptthe notice. The manager may choose to end theemployment relationship immediately to preventmorale problems with other staff members or theopportunity to steal information or assets. To preventother employees from abandoning their jobs in thefuture, as a courtesy, the employer should considerpaying the 2 weeks’ salary even in the event that theemployee does not work that time.24 JUCM The Journal of Urgent Care Medicine | April 2013 www.jucm.com

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O NInvoluntary (For Cause) TerminationFiring a non-performing employee is never a simple oreasy matter. Even with intelligent hiring, encouragementfor development, and a program for performanceevaluation and corrective action, there will always besituations in which termination is still necessary.Many states have “at-will” employment, meaningthat employees can be fired at any time, for almostany reason, or even for no reason at all. However,there are exceptions to every rule, and especially to thisone. Exceptions include circumstances such as whenan employee has: A collective bargaining agreement or other bindingcontract (oral or written) with the employer; Been subject to illegal discrimination (e.g., age,sex, race, religion, disability, sexual orientation insome jurisdictions, etc.); Filed a workers’ compensation claim; Insisted on a safe/healthy workplace; Reported or refused to engage in criminal acts; Been called for military duty or jury duty; or Experienced financial indebtedness (e.g., wageattachment including child support and IRS garnishment).In addition, an employer may be subject to civil liabilityif harassment has occurred.Discrimination, harassment, and hostile work environmentclaims may arise from a seemingly routineperformance-based termination. These situations canpose traps for employers because although the directcause of termination (e.g., performance) may be welldocumented, the “poor performance” could ultimatelybe traced to an inconsistent application of companypolicy or other harassing or discriminatory actions orconditions (e.g., unequal access to training, threateningor degrading statements, withholding necessaryresources, etc.).Before you decide whether to terminate anemployee, you will want to ensure that no contractexists and that none of these exceptions to “at will”employment apply. The state department of humanrights or employment is a valuable resource for backgroundand education in this area. It’s always best toseek legal advice if you have any questions. 2At the conclusion of the period you have allowed tosee the employee’s performance improve, you mayconclude that he or she has not met the minimumexpectations for the position and should be terminatedfor cause. The following steps should then be taken: 3gainstability.new possibilities for lowcost insurance in anunstable market.The Journal of Urgent Care Medicine | April 2013 25www.urgentcaremedicalmalpractice.comcalmalpractice.com

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A M“The typical objective in a layoff is to reduce expensesthrough the paring down of payroll and benefit relatedcosts. Such cost savings may make a RIF attractive, butlarge-scale reductions also entail substantial costs, bothin upfront severance-related compensation, and in longerterm,often hidden costs, such as legal expenses associatedwith claims by terminated employees, attrition of valuedemployees, and downstream costs of hiring again wheneconomic circumstances improve.”—Tips for Planning Reductions in Force. Rosen, Michael.(2009). Foley Hoag LLP, Foley Hoag eBook Library. Make the decision by balancing risks/rewards. If atthis point you see no other way to remedy the situationand improve the employee’s performance tothe minimum acceptable standards, you mustbegin the process of protecting yourself and yourcompany against any possible negative repercussions.Documentation is essential, and should becollected throughout the improvement process.Examples of poor performance or violation of companypolicy should be “written up” and addressedwith the employee in a timely manner. In addition,notes about any performance meetings or discussionsof write-ups should be documented. Thisshould be a “Memo to the File” and completedimmediately after the conversation. Investigate the conduct/incident. Employers shouldconduct an independent investigation, particularlyif the issue resulting in the decision to terminatedid not directly involve the employer (i.e.theft witnessed by another employee, claims ofsexual misconduct between employees). Again, awritten report is required. Be wary when anemployee claims discrimination and be preparedto defend against such a claim. Let the employeetell his/her side of the story and interview all relevantparties to the incident/conduct. Everyurgent care center should have policies and proceduresfor handling harassment allegations. If anemployee claims that he or she has been subjectto illegal discrimination, you should follow theprocedures laid out by Human Resources andmake sure that the issue is examined with professionalismand discretion. Check the personnel file of the employee. You shouldbecome knowledgeable regarding the employeefile and any documentation therein, especially anydocumentation of previous problems. Check thefile for mention of written/verbal warnings,employee evaluations, previous discussions withthe employee, and the discipline matters or policiesviolated. An empty personnel file may indicatethat this behavior or incident has occurred for thefirst time. This may play a role in your decision togive the employee another chance. In addition, anempty personnel file may also create the conditionsfor litigation over the employee’s dismissal. [See theexample in Table 2] Examine written policies. Make sure you are intimatelyfamiliar with your company policies ineffect during the employee’s tenure. Make sure youhave followed your own policies! The employee shouldhave received adequate written notice that his orher conduct could result in termination (writtencommunication of verbal warnings, clear writtenpolicies in an employee handbook or obvious misconduct).Ensure that your policies do not precludeyou from terminating the individual’semployment, and that you have taken all of therequired and prescribed actions in the organization’stermination process. When legal challengesarise, one of the first questions typically asked is“did the employer follow its own handbook?” Review any statements made to the employee. Reviewwritten memos or notes on verbal conversationsthat have taken place with the employee. Ensurethat oral statements have not contradicted yourpolicies or written statements. Ensure that nothinghas been said that could be construed as harassmentor discrimination. Examine treatment of other employees. Make surethat you treat all employees fairly and equally. Ifyou have treated other employers differently forengaging in the same conduct, can you defendthis? That is, is there a genuine legal justification fordisparate treatment? Consider the possibility of a lawsuit. Based on yourknowledge of the employee do you feel that he orshe might consider litigation? This may be a factorin deciding whether to offer a severance package. Consider alternatives. Ask yourself if there are anyother options short of termination. Can theemployee improve his or her performance? Has heor she been given ample opportunity to do so? Isthere a different position that is better suited for theemployee’s skills? Can an accommodation be26 JUCM The Journal of Urgent Care Medicine | April 2013 www.jucm.com

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A Mmade on the employee’sworking arrangements orsupervision? Get a second opinion. Itmay be helpful to obtaina second opinion froman unbiased person withinthe company, or froman outside source (i.e.legal advice). Along thesesame lines, when appropriate,ask another managerto review the situationand your documentation. Document the reasons for terminating the employee. Documentyour reasoning for ending the individual’semployment and the factors and reasons that supportthis decision. Document clearly, unemotionally,and factually. Use the tone of a newspaper articlewhen drafting these documents. Specify the policyviolation or the failure of the employee to achievethe minimum performance expectations agreed uponin the meetings and coaching sessions leading up tothis point. Summarize warnings, conversations,and disciplinary meetings that have occurred. Plan ahead for possible consequences. Be careful withwhom and how you discuss the employee’s terminationto avoid a defamation lawsuit. The bestanswer to any questions about an individual’s terminationis simply, “John is no longer with thecompany.” Also adopt a neutral reference policy,which only includes the employee’s title, salary,and dates of employment, should a future potentialemployer inquire, and let that person knowthat it is the policy of the company to only releasethose specific pieces of information. Unemployment compensation. Employees may askyou about their eligibility for unemploymentcompensation and whether you will contest sucha claim. If the reason for termination is due topoor job fit or an isolated, minor or unintentionalinfraction, the employee may be eligiblefor unemployment compensation. Rules varyfrom state to state, so be familiar with the rulesin your state. Remember, misconduct (willfullyperforming an action that harms the business) isopen to interpretation. You may choose to waiveyour right to contest unemployment as part of anemployee’s severance package. Moreover, youshould contest unemployment only if you have“If the reason for terminationis due to poor job fit or anisolated, minor orunintentional infraction,the employee may be eligiblefor unemploymentcompensation.”sufficient reason becausecontesting unemploymentbenefits usually results inangry and combative formeremployees. Severance packages. If youhave a severance policy inplace, you should treat allemployees who qualify for it inthe same manner. The packageshould be based on objectivecriteria. This should include thetime of service and level in theorganization, rather than personal or subjective factors,such as the spouse’s income, the employee’sability to quickly get employment elsewhere, or theemployee’s perceived financial needs. The severancepackage should be—whenever possible—conditionedon the employee signing a release from subsequentlegal claims. Nonetheless, a release does notguarantee that an employee will not try to sue. Arelease should: 1) offer sufficient cash payment toease the transition for the employee; 2) avoid imposingtoo many future responsibilities on the employee;and 3) contain language that effectively discouragesor removes the potential for future litigation. During the actual meeting to terminate an individual’semployment,- use objective language and provide theemployee with a letter that gives a truthful and briefexplanation as to why he or she is being fired. Watchthe language. Do not use any language that couldbe construed as biased or discriminatory. Explainclearly the reasons for the termination, such as specificbehavior or actions, policy violations, and/orany discipline and the schedule agreed upon forthe individual’s improvement that was receivedprior to termination. For example, you might referencethe following: “On May 1, 2013, you agreedto achieve minimum standards for your positionby July 1st as indicated in my memo to you dated04/28/2013. We have not seen that improvementwithin that time period.” Keep a copy of this documentfor yourself, give one to the employee, andplace one copy in the employee’s file.Plan ahead for the termination meeting. Prior to thismeeting, discuss with your manager and/or HumanResources who should be present, their roles, and whatshould be stated. Plan who will have the conversation inwhich the employee is terminated. (Ideally it should bewww.jucm.com JUCM The Journal of Urgent Care Medicine | April 2013 27

D E A L I N G W I T H E M P L O Y E E T E R M I N A T I O N : S M A R T S T R A T E G I E S F O R O P T I M I Z I N G Y O U R T E A Msomeone in personnel orHuman Resources and notsomeone with whom theemployee has a poor or antagonisticrelationship). The personwho terminates should not bean unknown to the employee.This meeting should be well documented.Choose a private andcomfortable location. Be firmand professional, and keep themeeting short and to the point.Do not become engaged in anargument or in any discussion about specific incidents ora defense of the action. If available, assign the HumanResources representative to explain the severance package(if offered) and to review any responsibilities that theemployee must fulfill (return of equipment, etc.), as wellas the company’s position regarding future references. Mostimportantly, this brief meeting should be kept confidential.Escort the individual to his or her area to gather anypersonal items and then escort him or her to the exit.(Arrange for assistance from security in advance if you thinkthe individual may not go without disrupting the work area.)“Plan ahead for thetermination meeting. Prior tothis meeting, discuss with yourmanager and/or HumanResources who should bepresent, their roles, and whatshould be stated.”Reduction in ForceA reduction in force (RIF) is the elimination of multiplepositions due to a business slow down or re-structuring.A RIF may be voluntary (voluntary separation or incentiveprogram) or involuntary. There are advantages anddisadvantages to each. Employees who leave voluntarilyin exchange for immediate compensation may beless inclined to sue and may be required to sign an agreement;however, too many or not enough employeesmay choose this route, and you must be prepared to losegood employees who are valuable assets to your company.Typically the employees with the greatest marketabilityare those who take the cash and run. So, incontrast to a voluntary or incentive program, an involuntaryRIF offers the employer complete control.There are a few things that employers must keep inmind when planning a reduction in force: Develop unbiased and uniform selection criteriawhen deciding which employees are to be laid off. Conduct a layoff analysis. Ensure that you are notdisproportionately affecting certain groups, such asolder employees or members of a protected class. Worker’s Adjustment Retraining and NotificationACT (WARN) - Federal and state laws require thata certain time period must be adhered to in notifyingemployees that they maybe laid off (NOTE: this lawoften affects employers withlarge numbers of employees;check the laws in your state). Create a plan that lays out eligibilityfor severance. Ask employees to sign arelease. A valid release should beobtained from workers overage 40 under the Older WorkersBenefit Protection ACT(OWBPA). Keep immigration implications in mind if you layoff sponsored foreign workers and be sure you areaware of your legal and contractual obligations tothem.Because a reduction in force can undermine moralefor all remaining employees, it’s a good idea to firstexhaust all alternatives to a RIF including hiring freezes,reduction/elimination of performance bonuses, reducedhours of work, engaging in selected performance-basedreductions, selectively not re-hiring for positions lost tonormal attrition, and postponing wage or benefitincreases. Understanding that a temporary downturn islikely affecting other health care providers, employeeswho are content in their positions and want to keeptheir jobs are often willing to compromise in order to doso. “It’s better to give up a little than to be seekinganother job,” is their rationale.ConclusionLetting an employee go is never an easy decision. Itinvolves (or should involve) much forethought andplanning in order to ensure that you have covered allthe bases to protect your business. This article is notmeant in any way to substitute for legal advice, butrather to provide “food for thought” if you should findyourself in the position of having to let an employee go.When in doubt it is always wise to seek competentlegal counsel to protect your business and yourself. Andremember to document everything! ■References1. Voluntary Termination of Employment. Mayhew, Ruth. (nd) Houston Chronicle Online.http://smallbusiness.chron.com/voluntary-termination-employment-2897.html2. Employment At-Will: Termination of Employment - Employer Discretion in the Workplace.Maryland Department of Labor, Licensing and Regulation (2010).http://www.dllr.state.md.us/labor/wagepay/wpatwill.shtml3. Breaking Up is Hard to Do: Issues Surrounding Employee Termination. Gruber, Andy(2011). Bingham McHale Attorneys at Law. http://blog.binghammchale.com/breaking-upis-hard-to-do-issues-surrounding-employee-termination/28 JUCM The Journal of Urgent Care Medicine | April 2013 www.jucm.com