Overview of Potential Employer Violations (Dental Law Radio, Episode 8)
Does your employee manual have a cell phone use policy? What about a social media policy? Do you realize that an increasing number of employees and employment candidates are secretly recording conversations with employers? If your answer to any of these questions is “no,” then you’d better listen to this episode as host Stuart Oberman addressed potential employer violations in these questions and more. Dental Law Radio is underwritten and presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®.
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. Today’s topic, employer violations, one of the biggest areas that we see problems with in our dental practices day in and day out is employer violations. And what’s happening is employees are getting smart. With the advent of the Internet, they are well aware of compliance issues, what our dental practice owners are and are not allowed to do and where are the pitfalls. And what’s happening is this is evolving so quickly that I just want to run through some basic, basic things that from an employment law standpoint, where do our owners need to be as far as common problems?
Stuart Oberman: [00:01:19] So, one of the most obvious things that we’re seeing is that potential employment candidates are now recording conversations during interviews. So, what’s happening is, is that you have to be very, very, very careful and trained as to the questions you are asking people you are now hiring. I don’t care whether it is a hygienist, your front desk, your office manager, your chief operating officer, your technology person, it doesn’t matter. So, when you interview potential candidates, you have to have a list of questions that you know are in compliance with state and federal law, specifically with federal law. You also should be prepared that you have to have a list of questions that you cannot ask and you cannot go down.
Stuart Oberman: [00:02:27] So, an issue comes up, well, what happens if a candidate opens that door? I always say that if you have to ask whether or not it is correct or not, or I should ask that question or not, it probably is not a question you want to answer, because there’s nothing worse than having a candidate come back to you and say, “Well, you know, I didn’t get the job. I certainly appreciate your time. But the questions that you’re asking me are now in violation of state and federal law. And I think you should be reported.” How are you going to respond to that?
Stuart Oberman: [00:03:05] Also, this is sort of jumping off topic, but what you have to be careful of is that employees, existing employees, are now recording your conversations one on one, whether it’s in staff meetings, whether it’s in huddles, whether it is in disciplinary matters. You have to be very, very careful what you say, how you say it, and who is witnessing what you are saying. I would stress out, always have a particular person in there with you, whether it’d be your office manager or consultant, whoever you choose, to be in the interview with you. And I would be very careful who you’re training to do your interviews.
Stuart Oberman: [00:03:52] So, one thing that we were seeing a little bit of scrutiny of, also, we’ve got a little bit of guidance from the National Labor Relations Board, is that not allowing employees to discuss their pay with co-workers. This is a hot topic because everyone wants to know what everyone else is paid. Obviously, if you are a small company, and you’re overpaying one employee and underpaying another, and all of a sudden, employees find out what their pay structure is, that becomes sort of a mutiny, if you will. And then, the worse part is, is that if you are knowingly has something in writing regarding this particular matter.
Stuart Oberman: [00:04:30] So, there is ways to curtail certain conduct, certain speech, if you will. But if you have a blanket policy in your employee manual that says you are prohibited from discussing pay with your fellow employees, and if you do, you’re going to be fired, I would urge you to have your counsel take a look at that, because that may be in violation of state and federal law and maybe outside the guidance of the National Labor Relations Board. So, you have to be very, very careful.
Stuart Oberman: [00:04:59] So, on a side note, again, going off topic for a second, one of our clients actually owns a couple of dental practices, and they purchased a system of employee manuals that are about five volumes. Well, after I picked myself off the floor when I heard that, there is no way in the world that a dental practice or multiple dental practices are going to, in any way, comply with five volumes of internal regulations. I will tell you this. If you have that many employee manuals, I would shred every manual, and I would get something smaller, condensed, that is thorough, because if you got that kind of manual, that kind of broad compliance that you are complying with, I think you’re asking yourself for trouble.
Stuart Oberman: [00:05:59] Another area is failing to pay overtime. Big, big issues are coming out now. Fair Labor Standards Act. The federal government is part of Labor issuing guidance on this and has has done so in January. There’s a big push now to scrutinize employee versus contractor. This is go back to the IRS rules, I think, from 1987, I believe, where they sent out 20 guidelines, time, place and manner. So, you’ve got to take a look at what’s going on.
Stuart Oberman: [00:06:29] Also, you’ve got to take a look at whether or not you are still conducting working interviews, which are an absolute no-no. If you have a candidate is actually working through a working interview and they’re injured, or you do not to renew their contract, if you will, after a couple of days, or a couple of weeks, or a couple of months of working, you probably have the Department of Labor issues where they’re going to be eligible for unemployment. So, you’ve got to really take a look at that.
Stuart Oberman: [00:07:00] Again, you got to take a look at your end of the contract, you got to take a look how you’re paying your associates, how you’re paying your how hygienists. Are they 1099s? W2s? I think most of CPAs are going to say err on the side of caution, put them under W2. If they are under a 1099, I would urge you to pay their entity and not them directly. We’ve had auditors that have basically said to us in audits that if we are paying an entity and not an individual on a 1099, we wouldn’t be sitting here.
Stuart Oberman: [00:07:33] One thing under this world of of social media, if you will, is that disciplining an employee for complaining about their work on social media. Can you curtail that speech? Yes. Is it a tricky path? Yes. Are you allowed to have regulations? Yes, but it is a very, very fine line as to what social media conduct you can curtail. First and foremost, every employee that you have, I don’t care how long they’ve been there, who they are, they need a nondisclosure agreement because what happens is, is that on the social media part, when you got an employee who leaves, or fired, or discharged, they’re going straight on social media. They’re going to talk about what you do, how you do it, all the good, the bad and the ugly in the practice. There’s not a thing you can do about it, potentially, if you don’t have a nondisclosure agreement.
Stuart Oberman: [00:08:28] So, there’s three things you really need – social media policy, cell phone policy, and internet policy. So, you can curtail certain conduct, you can curtail certain speech if it is detrimental to the practice. Again, you’ve got to be very, very careful what that compliance looks like. And in today’s world, you have to have a policy and procedures for anti-discrimination and anti-hostile working environment. That’s got to be in writing. That has to be outlines as to how that takes place, what the procedures are if it’s violated, whether it is a probationary matter, whether it is a regulatory matter, whether it is a immediate termination.
Stuart Oberman: [00:09:14] So, you’ve got to look at all those things as far as a hostile work environment. And that’s a moving target. So, I would urge you to take a look at your employee manuals, and that has to be in there.
Stuart Oberman: [00:09:28] So, let me tell you one other thing that I think that is becoming critical in today’s cell phone texting world. So, most employees, at some point in their employment career, will be texting you as a practice owner or supervisor, whoever may be listening to the podcast, something about the work, the workplace, what they’re doing, what other people are doing, and you’re going to have some confidential information on your employees cell phone and text messages about your practice.
Stuart Oberman: [00:10:08] So, my question to you is, what happens if that employee is fired or leaves? Where is that information going to go? If you are an employee and it’s on your cell phone, what happens if that employee is fired, and all of a sudden, you’ve got discussions on that particular employee cell phone regarding workers, pay, compliance issues? That’s going public. So, how do you prevent that? Again, non-disclosure agreements.
Stuart Oberman: [00:10:45] Also, one recommendation would be to have a cell phone information destruction policy that if that employee leaves, you, in writing from the employee, certify that they will destroy your information on their cell phone. So, there’s a push right now in technology and employment issues that an employer mandates an app that they create, is installed on an employee’s cell phone. And when that employee is discharged, fired, quits, resigns, whatever it is, that that program will destroy all the information regarding your practice on that employee cell phone.
Stuart Oberman: [00:11:37] I’m going to tell you from a practical standpoint, if I’m an employee, there’s no way you’re putting an app on my cell phone. It’s not going to happen. It’s just not going to happen. So, there needs to be some policy procedure in place that will certify the destruction, specifically with a non-disclosure agreement. Things are shifted by accident to third parties that are potentially detrimental to your practice.
Stuart Oberman: [00:12:07] So, those couple of things are a very, very brief overview to a very complex issue regarding employment law, but I think if you could take the six or seven things, apply them, take a look at what your policies are, take a look what’s your internal operations are, take a look at what you have employee manual-wise, do you have the nondisclosures? Do you have the cell phone, social media, Internet policies? Do you have the employee cell phone destruction data information? How do you have that? Do you have a policy and procedures in place that your employees have to return to you within 48 hours of their termination, quit, resignation, everything that they have that belongs to you? Because I will tell you, if it gets into wrong hands, there’s a lot of governmental regulations that come into play here, and there’s a lot of potential exposure.
Stuart Oberman: [00:12:58] Again, hot topics where we had an employer issues, employee, all this really come about in the last year or two as technology is becoming more and more used in a dental field, as employees are becoming more and more technology savvy, if you will, they understand what’s going on. So, our doctors are going to understand what’s going on now to be one step ahead of that.
Stuart Oberman: [00:13:19] So, again, simple steps, simple things. Take a look at it, take a look where you’re at, policy procedures, take a look at where you need to go implement it, talk to your counsel. If you haven’t talked to your counsel or advisors about this, I would strongly recommend that you do ASAP, because what happens is if you delay, time goes on and things never get better as time goes on. So, hopefully this has helped. And we’ll look forward to seeing you in our next podcast. Have a great day.
About Dental Law Radio
Hosted by Stuart Oberman, a nationally recognized authority in dental law, Dental Law Radio covers legal, business, and other operating issues and topics of vital concern to dentists and dental practice owners. The show is produced by the North Fulton studio of Business RadioX® and can be found on all the major podcast apps. The complete show archive is here.
Stuart Oberman, Oberman Law Firm
Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.
In addition, Mr. Oberman’s expertise in the health care industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.
As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.
In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.
Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.
Oberman Law Firm
Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.
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