Keeping the lab out of court.
If there's one thing the clinical laboratory can't afford these days, it's a lawsuit--especially one that's preventable.
Being alert to legal landmines is an essential skill for anyone who hires or fires. As aggrieved employees win increasingly large settlements, administrators want assurance that their management team won't embroil the institution in litigation due to ignorance or unwillingness to minimize risk. Recruitment methods, hiring practices, and discharge procedures present the most hazards. Let's review the dos and don'ts.
If your institution has an affirmative action policy, you must follow it in making personnel decisions. Even if no formal policy exists, virtually all health care employers fall under one or more antidiscrimination laws. Remember to post all openings in the department, and advertise them in an area with the greatest exposure to minority communities.
Complying with publication rules isn't enough. The content of ads also poses the risk of actual or implied discrimination. Let's say you wrote the following ad:
"Position open for medical technologist, must be MT(ASCP), college graduate, and have five years' experience. Requires on-call and every other Saturday work. Must have telephone in residence and own trans-portation. We are an equal opportunity employer.'
What's wrong with this ad? First, unless you can prove that the job requires ASCP or any other recognized certification, it's safer to specify "recognized national certification preferred.' Remember, the burden is on the employer to prove, first, that certification is an absolute job necessity, and second, that only one certification is acceptable. The requirement is not illegal, but it is difficult to justify as a BFOQ (bona fide occupational qualification) --and a legal challenge will cost dearly even if you win.
Omit the college degree requirement as well, unless it relates directly to job performance. Some applicants may have been certified before a college degree was required--and if they're over 40, they could charge the lab with age discrimination. If any present employees in the same position lack degrees, the requirement is even harder to justify. Likewise, "five years' experience' could land the lab in trouble if the position description doesn't justify this demand or if current staff members perform the job with less.
Since the job includes on-call work, it might seem reasonable to require a home telephone and personal transportation. Wrong! This could be taken as an economic discriminator and, by extension, a bar to certain minorities. You can require a driver's license if driving is a BFOQ, and you can require that applicants be available for contact for on-call duty.
Next problem? "Every other Saturday.' This could be challenged as a form of religious discrimination, since some religions absolutely bar work on Saturday. Unless you can prove it would cause a clear business hardship, don't reject applicants simply because they can't work Saturdays.
These are some of the liabilities that can slip into recruitment notices. Have your personnel department write ads from a well-constructed position description. Then you can accept the screening applications and begin interviewing.
This stage has its own risks. By now, most institutions have "legalized' their application forms. But some still ask for these offlimits personal facts:
Name and address of nearest relative or "next of kin.'
Type of military discharge.
Height and weight.
Age, date of birth, race, religion, or national origin.
Arrests or convictions. Traditionally, it was acceptable to ask for information on convictions. Some courts have ruled, however, that an applicant needn't furnish it after a few years unless the job is clearly related to security or safeguarding money.
Marital status and number of children.
General health or on-the-job in-juries. You can ask if any physical limitations would interfere with meeting job requirements.
Date of graduation from elementary school.
Possession of a high school diploma (for lower-level positions).
Obviously, you can't gather much information from a screening application. A personal interview is critical to the selection process, and this is where most managers get into trouble.
Just because you haven't asked an out-of-bounds question on the application doesn't mean you're free to ask it in person. Nonetheless, I'm constantly amazed at what people report being asked in interviews. Female applicants are still quizzed as to whether they plan to marry or have children, or if they have a reliable baby sitter. Applicants are asked if they were in college during the Korean War, or how their spouses feel about their taking the job. These are illegal ways to discover marital status, pregnancy concerns, or age-- all unrelated to job competence.
It is the employees' responsibility to meet job requirements; how they do so is not the employer's concern. Again, we see the importance of accurate position descriptions and workplace policies concerning questions like rotation on all shifts and weekend work. If a qualified applicant cannot work on Saturday for religious reasons, then the employer must try to accommodate the situation.
Position descriptions themselves can pose problems, especially in this delicate area of qualifications. Job requirements and qualifications should be the minimum needed for performance of duties. Don't require specific education, credentials, or experience as nice extras. Could you justify those extras in court?
What you omit from a position description can be just as risky as what you leave in. If you fail to mention the need for interpersonal skills, for example, or any duties with standards of performance in this area, you might find it very difficult to discipline or fire an employee for poor performance in dealing with people.
Job hazards or special working conditions are often neglected. All lab employees should have, as part of their position description, a statement acknowledging that they may be exposed to infectious materials and dangerous chemicals. This is especially important for clerical staff and aides.
Finally, discard the infamous "clause 13' of many old-fashioned position descriptions, the one that tacks on "any and all other duties that may be required.' You can't safely fire someone under such a clause, since you can't set standards of performance for unspecified duties. If you must have a phrase for contingencies, try "and may be asked to assume the duties of other positions in the laboratory.' This lets you apply the standards of the position in question.
Discrimination isn't the only legal hazard of employee selection. Courts have begun to rule that certain words used in interviews, in writing to successful applicants, or in personnel policies and handbooks can lead to a charge of implied contract in a termination dispute. Many of these "red flag' words are quite common:
Probation period implies automatic full employment if conditions are met. Instead, use words like introductory, orientation, evaluation, or training period.
Permanent employee implies a lifetime contract, at least to a litigious employee. Specify regular full-time or part-time employee.
Annual salary implies a guaranteed full year's work or pay. Describe compensation in monthly terms or "from pay period to pay period.'
Just cause, unless carefully outlined in the personnel policy handbook, can expose the lab to a suit for arbirary discharge. In one recent case, an employee was asked to resign because of poor performance. He later claimed wrongful discharge because, when hired, he had been told he'd be with the company "as long as he did his job.' The personnel handbook reaffirmed this oral assurance, stating vaguely that firings must be "for just cause only.' The employee won the suit.
As a manager, you must keep these factors in mind through every stage of the hiring process. Not every risk area is illegal, but a courtroom battle is an expensive way to prove you are right. In addition, as decisions accumulate, what once was legal often becomes illegal.
The references that follow will help in preparing realistic and risk-free position descriptions, and in avoiding legal pitfalls of hiring and firing.1-4 All serve to remind us that when it comes to running a fair and legal lab, good personnel management is the surest way to be safe, not sorry.
1. Umiker, W.O. "Interviewing Skills for Laboratory Supervisors.' Oradell, N.J., Medical Economics Books, 1984.
2. Umiker, W.O., and Yohe, S.M. "Performance Standards for Laboratory Personnel.' Oradell, N.J., Medical Economics Books, 1984.
3. ASMT Competence Assurance Program, "Levels of Practice.' Houston, American Society for Medical Technology.
4. ASMT Competence Assurance Program, "Model Peer Review Criteria (Laboratory Standards of Practice).' Houston, American Society for Medical Technology.
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|Publication:||Medical Laboratory Observer|
|Date:||Dec 1, 1984|
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