The Law: Understanding Employment Law<

by: Barbara A. Gabriel

When Mark Anthony LaPorta, an internist in Miami, Fla., received a letter from an employee at his practice alleging that he was at fault for causing her a serious injury, he didn’t bother calling his attorney. He simply asked her lawyer to prove the allegation. Why? LaPorta knew that not only was the claim false, but it also could never be proven. Being an employer means following federal and state laws that protect your employees. Of course, the law also provides you protection against frivolous employee claims and lawsuits. But do you know the difference? Do you know when it’s time to simply inform your employee that you are within your legal rights and when it’s time to call a lawyer? Luckily, LaPorta did. “She alleged that I had been cruel to her and yelled at her and caused her to go blind in one eye as a result,” recalls LaPorta. “We knew the poor girl was just sick and emotionally ill. I remember the afternoon that I yelled at her. She wasn’t blind when she left, and she came back to work the next day. The bottom line was, there was no way anyone could prove that … and I think even she didn’t believe her own story.” But what about allegations that are not so cut-and-dry? After all, the legal system wouldn’t exist without the shades of gray that cloud all aspects of the law. Although federal law affords protections to most employers, individual state laws can add to those protections or modify the mechanisms through which employees and employers must adhere regarding complaints and remediation procedures. And there are state and federal “threshold requirements” that must be met for certain employment laws to apply. For example, federal laws that protect some aspects of discrimination, such as the Americans with Disabilities Act, do not apply to employers with 15 or less employees. Although employment law can sometimes feel like a dense thicket of rules and regulations you’ll never be able to wade through, rest assured that there are lawyers on whose expertise you can rely, and a general knowledge of employment law will generally lessen your chances of having to call your attorney. Time for a check up? Wise physician employers regularly conduct background checks on potential employees or on existing employees who they are considering promoting or with whom they are having trouble. But do those employees have a legal right to be informed that these checks are occurring? Or is it your right to do so as a potential or existing employer? Like nearly all aspects of employment law, it depends. “If the employer is conducting a background check that uses a third-party vendor to provide that background check information, then the employer must comply with the Fair Credit Reporting Act (FCRA),” says Jana Woefel, an employment lawyer and commercial litigator with the Dallas-based law firm, Strasburger & Price. “The employer must obtain the employee’s or the applicant’s prior authorization to go through and conduct that background check.” But if you are conducting a background check on an existing employee, you may not have to inform that employee that a third-party check is being conducted on their behalf if that employee has already signed over that permission in her employment contract, says Woefel. “Some [employment contracts] are written so [background checks] just cover the application process, but it doesn’t give you the right or ability to conduct it during the course of employment. Others are written more broadly to allow it for various reasons during the scope of employment.” If you do a background check on a potential employee on your own — that is, without using a third-party vendor — then the FCRA does not apply, and you do not have to inform the applicant that you are conducting the check. This applies not only to calls to previous employers, but also to searches through public records. But the FCLA applies in all cases regardless of whether you use the information gleaned from either<

For Healthcare Professionals