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
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
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
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
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,
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.