How to Mitigate the Risk of Lawsuits

Intro: [00:00:02] Broadcasting from the Business RadioX Studios in Atlanta, it’s time for Dental Law Radio. Dental Law Radio is brought to you by Oberman Law Firm, a leading dental-centric law firm serving dental clients on a local, regional, and national basis. Now, here’s your host, Stuart Oberman.

Stuart Oberman: [00:00:27] Hello everyone and welcome to Dental Law Radio. So, today, is going to be an interesting topic. So, as a law firm in the dental space, if you will, we have clients in about 28 states, all the way from California, Maine to Florida, and we get this question over and over and over again. How do I mitigate my risks of lawsuits?

Stuart Oberman: [00:00:55] That’s a wide topic. You got all kinds of issues to look at. You’ve got State Department of Labor, you’ve got Federal Department of Labor, you’ve got IRS, you’ve got EEOC. You have lawyers breathing down your neck for certain regulatory matters because employees’ rights have been violated. So, you know, what is the risks of a lawsuit?

Stuart Oberman: [00:01:25] And I would say it’s probably a failure to have internal proper procedures in place. What does that mean? On a 10,000 foot view, do I have an employee manual? Do I have nondisclosure agreements? Do I have cell phone, internet, policies, social media policies? Am I in compliance with the National Labor Relations Board? Am I in compliance with my State and Federal law? There’s really a couple things that you really need to have. And we’re going to talk about this on subsequent podcasts, but I want to maybe drill down on some specifics regarding employee manual because these are critical.

Stuart Oberman: [00:02:14] Every practice should have an employee manual. “Well, I’ve got one, you know, John gave it to me when I bought his practice. And, yeah, it’s not bad. You know, it’s 29 pages. It’s a little old. But I wrote on it. And I think we got employees sign over good.” Or, “You know, I went on the internet and I bought one.” Great. Great. Well, how’s that working out for you?

Stuart Oberman: [00:02:43] So, if you have an employee manual that you’ve got from someone, trash it. If you bought a practice and you implemented the employee manual that you now scratch outs or had on a Word document that is 15 years old and you decided to put different names on it, scrap it, shred it, it’s garbage. You’re going to need an up to date employee manual that has a couple of things. If your employee manual in today’s world is less than 70, 80, 90 – I think our employee manual that we draft for dental doctors on dental sides is, probably, 100 some pages – job descriptions, acknowledgments, nondisclosure agreements, all that’s got to be included. Social media, cell phone, internet policies got to be included.

Stuart Oberman: [00:03:31] So, what are some of the things that we see really need to be within these employee manuals? Again, we’re just touching on some stuff. So, one of the things that in today’s world, in today’s media world, in today’s society, you have to have non-harassment provisions. There’s no question about it. If you do not have provisions regarding harassment, regarding sex, color, creed, origin, nationality, then you are opening yourself up to a huge, huge problem. Anti-discrimination statute language should be included in your employee manual. Again, these are basics in a world within which we live. Anti-retaliation, a previous podcast we talked about OSHA, HIPAA, whistleblower. What to do if you’re fired?

Stuart Oberman: [00:04:31] In your employee manual, do you have a process for probation? Do you have a process for reporting complaints? Do you have someone in your practice – I don’t care how big you are – that is a go-to person for complaints. If you’re a doctor, chances are they’re not going to want to report to you directly regarding any kind of internal issues. You need to have a point person designated in your practice that has the authority to take down the investigation. Do you have an anonymous reporting process? And, again, I don’t care whether you’re a 20 practice owner or one practice owner.

Stuart Oberman: [00:05:16] Next one, Family Medical Leave Act. How many employees do you have? Does it even apply? There are some instances that you will say I do not need a Family Medical Leave Act. And you have to sign a document to the government that says that you do not comply or do not have to comply with the Family Medical Leave Act, because they just don’t believe you. The Emergency Paid Sick Leave Act. The Emergency Family Act. Especially in today’s world under COVID, a Medical Leave Expansion Act under FFCRA if you’re under 500 employees.

Stuart Oberman: [00:05:58] I could probably talk about this topic for about three hours on this one particular area, what it takes to have an employee manual. But you’ve got to be very careful on this area. So, the next question is, “Well, you know, I got a manual and a company gave it to me and it’s five volumes.” I’m going to be really honest with you, if you can comply with a five volume employee manual, I need to come work for you. Because I have never seen that before. And we’ll look at manuals and it will be three, four, five volumes of employee manual. How in the world can you be in compliance on that side?

Stuart Oberman: [00:06:42] It’s very basic things that will keep you out of trouble. If you’re required under your massive war and peace novel of employee manuals, there’s no way. You got too much liability, you got too many holes that it is impossible for you to comply with. Keep it short. Keep it simple. Basic stuff. Basic information. And that is probably one of the biggest ways that will keep you out of the EEOC, Department of Labor, National Labor Relations Board, governmental investigations.

Stuart Oberman: [00:07:25] So, again, it’s the basic stuff. A lot of times our doctors will get way, way complex. They don’t need it. They’re being sold stuff they don’t need, which happens a lot. So, we need to be real careful with that. So, it’s the little things that will keep you out of trouble. It’s not, you know, recreating the world, but it’s simply one wheel at a time to get you there. So, again, that’s 10,000 foot view.

Stuart Oberman: [00:07:52] We see a lot on our side. We handle as a firm a lot of H.R. issues. We see what works. We see what doesn’t. It’s a moving target between state to state. It’s a moving target between employee to employee. And it’s a moving target in today’s regulatory matters. So, hopefully, you’ve taken away, you know, one thing that you need to look at to avoid H.R. issues, to avoid any kind of compliance issues, which is understanding basic employee manual, why you need it, why you don’t. We talked about HIPAA and OSHA before, so this is all part of that particular puzzle. So, again, quick topic today, just enough to give you a 10,000 foot view, as we say.

Stuart Oberman: [00:08:37] So, I want to thank everyone for joining us today on Dental Law Radio. If you have any questions, if you have any concerns, reach out to us. Give us a call, 770-554-1400. Or send an email, stuart, S-T-U-A-R-T, @obermanlaw.com. And we hope that you will join us on subsequent podcasts. And our goal is to keep you up to date in the industry, leading edge, cutting edge information. So, thank you everyone. Have a fantastic day. And we look forward to talking to you soon. Thank you.