Protect your practice from third-party troublemakers

There's a new development in employment law. Just when you thought your practice had a handle on unemployment, workers' compensation, minimum wage and the Affordable Care Act, yet a new headache has emerged. Are you prepared to deal with employer-employee problems that arise solely as a result of a third party who is outside of the employment relationship?

Although it may seem far-fetched that an employee-related problem could stem from a source outside of the workplace, you may have already seen examples in your own practice. Ever have a receptionist go through a breakup, only to have the jilted partner show up at your practice either begging her to get back together or swearing at her for ending the relationship? If the behavior stops soon, no problem. But what if she can't (or won't) dissuade the ex from coming to the clinic and putting on a show in front of your clients?

Do you take out a restraining order? Move the receptionist to behind-the-scenes tasks? Fire her and avoid the headaches? There are a lot of options, but none of them are ideal. Let's keep this relatively common third-party mess in mind while considering the a more serious, real-life example that one of our my legal clients recently experienced.

Getty ImagesKaren is an exam-room attendant at Greenwich Village Pet Clinic in New York City. Her job performance is fair-she's been written up for laziness, but the clients and other staff members like her so she's managed to keep her job for a few years. Karen's live-in partner, Joan, is chronically unemployed and relies almost exclusively on Karen's income.

One day, the office administrator at the Pet Clinic begins getting insulting and downright abusive texts from Joan's number. The texts say that Karen isn't getting paid enough. Joan peppers the texts with profanity, sexually demeaning expletives and personal insults. And, in a ridiculous and foolish twist, Joan signs the texts “Dr. Slater”-the name of the clinic's owner.

You can't make this stuff up! And I haven't because except for the names and a few other minor changes, this is exactly what recently happened to one of our New York clients.

Clearly, something has to be done. The situation is toxic and complex and can't be allowed to continue. Let's study this third-party employee problem, and consider what can be done both to solve it (with minimum impact on business), and to prevent something similar from happening again.

Options

What would your next step be?

• Confront Karen?

Positive: She might be able to control her partner, thereby diffusing the problem.

Negatives: 1. Bringing it to Karen's attention could easily exacerbate the problem. 2. Discussing it with Karen reveals that if she's subsequently discharged, it's not her behavior causing the consequence.

• Fire Karen without explanation?

Positive: The problem is immediately resolved after the locks are changed and the clinic security system is recoded.

Negatives: 1. The inevitable unemployment claim could be long lasting and almost impossible to defend against. 2. Staff morale is upended. As far as the other employees know, Karen had done nothing wrong and wasn't even given two weeks' notice or a severance check. “Might I be next?” they wonder. The drama is certain to be intense and destructive. 3. You might have some serious cynicism and/or self-doubt. Can you feel good about firing somebody for another person's acts? Or should you be infuriated that Karen and Joan might have been acting in concert so that Karen could stop working and have an almost perfect case for receiving unemployment coverage?

No doubt, the decision to fire Karen involves many critical considerations. But think about it on an even deeper level: what additional legal ramifications could exist in this third party-induced firing? Is there, in addition to everything else, a serious risk of placing the clinic in the crosshairs of a wrongful termination lawsuit?

Taking action

In most jurisdictions, with the absence of a contract or labor union, employers are generally free to fire employees for nearly any reason. However, the Civil Rights Act of 1964 and numerous other federal and state laws prohibit firing an individual for certain reasons. At the same time, remember that it's an absolute legal obligation of employers to protect their employees from sexual harassment and an abusive work environment.

Consider how these laws affect the owner of Greenwich Village Pet Clinic.

Dr. Slater must do her best to avoid a lawsuit by her office administrator for Joan's sexual harassment. The only way to do that is simply to make it stop.

Simultaneously, she must handle Karen in such a way as to avoid a claim that she wrongfully discharged her (fired her because of her gender, age, religion, race and so on-reasons for which the law does not permit employers to fire workers.) If, due to the delicate circumstances, no reason is given for the firing, the vulnerability to such a lawsuit is likely greater.

But the story has a good ending! Dr. Slater had been doing all the right things to protect herself and the clinic from all types of employee lawsuits. You should strongly consider adopting these sorts of policies:

First, the clinic maintains a clear and detailed employee handbook that outlines what behavior will and will not be tolerated. It explains that any illegal or inappropriate acts perpetrated against clinic workers will be handled promptly and will be pursued to the fullest extent of the law. (In the Greenwich Village case, the police did become involved in dealing with Joan.)

Second, employee files are maintained on all staff members. These files include all of the details of each employee's initial interview, any requests for pay raises, how those are answered, as well as any additional pertinent information about each worker.

Third, each employee receives regular reviews conducted jointly by the office administrator and the clinic owner. Detailed notes are taken about any oral understandings, admonishments or corrective actions taken with each employee. In this case, the office administrator would be interviewed by the practice owner and serve as a witness in order to document the events related to the inappropriate texts from Joan's number. Ideally, written transcriptions of that texted material would also be obtained from the cellular phone provider. (Or in the case of voicemails, a CD of any verbal abuse or threats would be created.)

So how did quality record keeping and a detailed employment file help Dr. Slater deal with the abusive text messages originating from Joan's cell phone number?

She fired Karen immediately without explanation. And she felt comfortable doing it. Having read through Karen's employee file, it was immediately clear that Karen could never hope to bring a credible claim for discrimination, unlawful discharge or virtually any other employment-related matter. Karen's file revealed that she had zero credibility!

Right there, in the employment file, was full documentary evidence that Karen had recently been brought up on charges by the state's Unemployment Insurance Department for receiving and cashing unemployment benefit checks from her previous employer while simultaneously working full-time at Greenwich Village Pet Clinic.

And Joan? The NYPD spoke to her and explained that they had reviewed the texts and highly recommended that the clinic manager press charges. The manager declined, and she successfully replaced Karen within a week.

So while it's impossible to completely eliminate the chance of a lawsuit resulting from the acts of a third party, good documentation and well established employee management protocols can help ward off undeserved legal entanglements.