One of the more common unjust discharge employment lawsuits is based on one of the many “whistleblower” statutes that protect employees from retaliation when they report violations of regulations or other laws.  Dental offices are no exception and are even more prone to this type of legal complaint, considering the strict regulations for dentists under statutes such as OSHA or regarding insurance billing fraud.

So, how do you deal with a disgruntled or difficult employee who deals with these statutes daily, and may file a lawsuit under one of these whistleblower statutes?  They may file suit for damages for actions they say were taken against them for complaining about regulatory violations they say they witnessed.  There may not even be much, if any evidence of violations, but that wouldn’t stop an employee from saying that there were and that they complained about them.  An employee may even try to say that they weren’t doing their work as a protest for not wanting to violate any regulations.    Whether that kind of legal action under a whistleblower statute would succeed or not doesn’t affect the costs of having to defend this kind of lawsuit, deal with negative publicity, or deal with Board of Registration in Dentistry investigations.

What can an employer-dentist do to prevent these kinds of suits from happening?  First, records of meeting statutes and regulations must be accurately documented, and detailed as to who is responsible for doing the work to make sure they are met.  Policies and procedures for employee responsibilities concerning all regulations that are dealt with daily must be in place in a handbook that employees know about and have signed a document stating they understand them.  Also, there must be a complaint process in place so that if employees have questions or concerns about possible regulation violations, they are responsible for notifying a particular supervisor immediately.   Documentation of any complaints is essential, as well as the practice’s response to them.

If the employee has other problems with the practice, such as performance, tardiness, leaving early, or not doing certain parts of their job, make sure the supervisor talks to that employee and the conversation is documented.  The employee should sign something acknowledging that they have been spoken to about the problem.  If there is discipline or a warning given to an employee, there must be a record of why it was done and that it was not done because of the employee’s complaints about violations of regulations.

Employees may not want to sign an acknowledgment that what they were doing violated practice policy or performance related.  In that case, a non-signature can be a negative factor if the employee later says that the real reason for the discipline or warning was that they didn’t want to violate regulations in their work or that they witnessed others violating some regulation such as lack of repeated lack of proper sanitizing procedure.   Make sure that the other employees know what the real reason was for the discipline or warning.  Co-employees can be damaging witnesses against an employer, mainly if they leave the practice by the time the suit is underway and are called on to testify for or against another employee.

Challenging unemployment compensation when an employee is dismissed is not a good thing to do if there is even a possibility that a retaliation lawsuit might be started.  If there is misconduct or are rules violations that the practice insists make the termination required, and they don’t want to pay unemployment compensation as a result, make sure that is clear in an exit interview, documented, and acknowledged by the employee if at all possible.  Other employees should also be made aware that this is the real reason for the termination.
Whistleblower statutes can cover several areas, and new areas involving information security may be added as part of the weapons employees have to use against employers they feel have unjustly terminated them.  However, patient privacy statutes such as HIPAA do not have a retaliation provision, and employees also can be held responsible for their actions under HIPAA.

Proper planning and office policies can be vital to preventing your office from having to confront a whistleblower, especially when there is little indication that the practice is violating any statute.

Brian Hatch
Hatch Legal Group
8 North Main Street, Suite 403
Attleboro, MA 02703
HatchLegalGroup.com
brianhatch@hatchlawoffices.com
508-222-6400