Keeping the lab out of court If there’s one thing the clinical laboratory can’t affordthese days, it’s a lawsuit–especially one that’s preventable.
Being alert to legal landmines is an essential skill for anyone whohires or fires. As aggrieved employees win increasingly largesettlements, administrators want assurance that their management teamwon’t embroil the institution in litigation due to ignorance orunwillingness to minimize risk. Recruitment methods, hiring practices,and discharge procedures present the most hazards. Let’s reviewthe dos and don’ts. If your institution has an affirmative action policy, you mustfollow it in making personnel decisions. Even if no formal policyexists, virtually all health care employers fall under one or moreantidiscrimination laws. Remember to post all openings in thedepartment, and advertise them in an area with the greatest exposure tominority communities. Complying with publication rules isn’t enough.
The content ofads also poses the risk of actual or implied discrimination. Let’ssay you wrote the following ad: “Position open for medical technologist, must be MT(ASCP),college graduate, and have five years’ experience. Requireson-call and every other Saturday work. Must have telephone in residenceand own trans-portation. We are an equal opportunity employer.
‘ What’s wrong with this ad? First, unless you can prove thatthe job requires ASCP or any other recognized certification, it’ssafer 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, thatonly one certification is acceptable. The requirement is not illegal,but it is difficult to justify as a BFOQ (bona fide occupationalqualification) –and a legal challenge will cost dearly even if you win. Omit the college degree requirement as well, unless it relatesdirectly to job performance. Some applicants may have been certifiedbefore a college degree was required–and if they’re over 40, theycould charge the lab with age discrimination. If any present employeesin the same position lack degrees, the requirement is even harder tojustify. Likewise, “five years’ experience’ could landthe lab in trouble if the position description doesn’t justify thisdemand or if current staff members perform the job with less. Since the job includes on-call work, it might seem reasonable torequire a home telephone and personal transportation.
Wrong! Thiscould be taken as an economic discriminator and, by extension, a bar tocertain minorities. You can require a driver’s license if drivingis a BFOQ, and you can require that applicants be available for contactfor on-call duty. Next problem? “Every other Saturday.’ This could bechallenged as a form of religious discrimination, since some religionsabsolutely bar work on Saturday.
Unless you can prove it would cause aclear business hardship, don’t reject applicants simply becausethey can’t work Saturdays. These are some of the liabilities that can slip into recruitmentnotices. Have your personnel department write ads from awell-constructed position description. Then you can accept thescreening applications and begin interviewing.
This stage has its own risks. By now, most institutions have”legalized’ their application forms. But some still ask forthese 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 askfor information on convictions. Some courts have ruled, however, thatan applicant needn’t furnish it after a few years unless the job isclearly related to security or safeguarding money. Marital status and number of children. Citizenship.
General health or on-the-job in-juries. You can ask if anyphysical 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 screeningapplication. 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 onthe application doesn’t mean you’re free to ask it in person.
Nonetheless, I’m constantly amazed at what people report beingasked in interviews. Female applicants are still quizzed as to whetherthey plan to marry or have children, or if they have a reliable babysitter. Applicants are asked if they were in college during the KoreanWar, or how their spouses feel about their taking the job. These areillegal 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 theimportance of accurate position descriptions and workplace policiesconcerning questions like rotation on all shifts and weekend work. If aqualified applicant cannot work on Saturday for religious reasons, thenthe employer must try to accommodate the situation. Position descriptions themselves can pose problems, especially inthis delicate area of qualifications. Job requirements andqualifications should be the minimum needed for performance of duties.Don’t require specific education, credentials, or experience asnice extras. Could you justify those extras in court? What you omit from a position description can be just as risky aswhat you leave in.
If you fail to mention the need for interpersonalskills, for example, or any duties with standards of performance in thisarea, you might find it very difficult to discipline or fire an employeefor poor performance in dealing with people. Job hazards or special working conditions are often neglected. Alllab employees should have, as part of their position description, astatement acknowledging that they may be exposed to infectious materialsand dangerous chemicals. This is especially important for clericalstaff and aides. Finally, discard the infamous “clause 13′ of manyold-fashioned position descriptions, the one that tacks on “any andall other duties that may be required.’ You can’t safely firesomeone under such a clause, since you can’t set standards ofperformance for unspecified duties. If you must have a phrase forcontingencies, try “and may be asked to assume the duties of otherpositions in the laboratory.
‘ This lets you apply the standards ofthe position in question. Discrimination isn’t the only legal hazard of employeeselection. Courts have begun to rule that certain words used ininterviews, in writing to successful applicants, or in personnelpolicies and handbooks can lead to a charge of implied contract in atermination dispute. Many of these “red flag’ words are quitecommon: Probation period implies automatic full employment if conditionsare met. Instead, use words like introductory, orientation, evaluation,or training period.
Permanent employee implies a lifetime contract, at least to alitigious 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 payperiod.’ Just cause, unless carefully outlined in the personnel policyhandbook, can expose the lab to a suit for arbirary discharge. In onerecent case, an employee was asked to resign because of poorperformance. He later claimed wrongful discharge because, when hired,he had been told he’d be with the company “as long as he didhis 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 everystage of the hiring process. Not every risk area is illegal, but acourtroom battle is an expensive way to prove you are right. Inaddition, as decisions accumulate, what once was legal often becomesillegal. The references that follow will help in preparing realistic andrisk-free position descriptions, and in avoiding legal pitfalls ofhiring and firing.1-4 All serve to remind us that when it comes torunning a fair and legal lab, good personnel management is the surestway to be safe, not sorry.
1. Umiker, W.O. “Interviewing Skills for LaboratorySupervisors.’ Oradell, N.J., Medical Economics Books, 1984.
2. Umiker, W.O., and Yohe, S.M. “Performance Standards forLaboratory Personnel.’ Oradell, N.J.
, Medical Economics Books,1984. 3. ASMT Competence Assurance Program, “Levels ofPractice.’ Houston, American Society for Medical Technology. 4. ASMT Competence Assurance Program, “Model Peer ReviewCriteria (Laboratory Standards of Practice).’ Houston, AmericanSociety for Medical Technology.