Employment discrimination lawsuits have doubled in the past 10 years, due largely to provisions of the 1991 Civil Rights Act that give juries a say in financial settlements. Among the headlines: Publix supermarkets got slapped with an $82.5 million class-action sex discrimination settlement and Coca Cola paid nearly $192.5 million in 2000 to settle a class action.
We could cite many examples, but the point is that juries are ready and eager to shower aggrieved litigious former employees with millions of dollars at your business' expense.
"Plaintiffs don't win a huge percentage of lawsuits, but that percentage goes up a lot if there is a jury trial," says Michael D. Malfitano, attorney at Florida-based Constangy, Brooks & Smith, LLP (CBS). "After 1991, when jury trials came into play, the percentage of plaintiffs' wins increased and the dollar amounts increased."
"Most jurors are working people with family members who may have had problems with employers at some point," Malfitano says. "So there is a natural empathy with the working person who is the plaintiff."
The good news is that because of their relatively small size and close working relationships, physician practices are less likely than larger healthcare entities, such as hospitals and nursing homes, to find themselves in an employment suit, he says.
So what can you do to reduce your potential liability? Malfitano and his colleague, CBS attorney Cherie L. Silberman, have identified three pre-employment mistakes, errors committed during the recruiting and hiring process:
1. Failure to conduct an adequate background check on potential employees. Did you conduct a criminal background check, contact the references, ask about previous convictions, but not arrests, and check his or her driver's license?
2. Inconsistent recruiting and hiring practices. Are you thorough in the hiring process with some employees but not others? "When employers don't apply policies consistently, it looks to a juror like they may be discriminating," Silberman says.
3. Inappropriate interview questions and comments. This is a real minefield. Although you want to be thorough in your hiring process, you also have to be careful about what questions you ask. For example, you can ask about criminal convictions, but not arrests. You cannot ask about the status of military discharge, and questions about education must be thoroughly screened. Avoid questions related to religious or social issues, as well as those related to physical or mental health.
"Where employers get in trouble is where it may not seem so harmful, say in casual chatter," Silberman says. "[For example], if someone says they're moving into town and you ask if it's so they can be closer to their husband. The intent doesn't matter."
This article was adapted from one that originally appeared in the November 2009 issue of The Doctor's Office, a HealthLeaders Media publication.
House leaders will hold a rare Saturday vote on the expansion of the U.S. healthcare system. Democrats are still locking down support among a handful of holdouts, with the biggest bloc dissatisfied with the measure's handling of abortion. In other news, a bill that Republicans expect to offer as an alternative to the Democratic package received its assessment from congressional budget analysts, who concluded that the proposal would barely dent the ranks of the uninsured.
Americans' opinion of the healthcare proposals now before Congress is similar to public sentiment about the Clinton health reform initiatives in 1994, according to an analysis published online in the New England Journal of Medicine. Americans believe the healthcare system needs to be fixed and they like many of the ideas Democrats are proposing, the report found. But they believe the specific proposals taking shape would not benefit them personally, and they fear they could result in more expensive and lower-quality care.
Two state and city public health officials briefing Congress said they don't expect to have enough pandemic-flu vaccine to meet the needs of their high-priority population groups until well into December, and possibly not until January. The officials said that their predictions are a result of vaccine shortages throughout the fall but that they amount to little more than guesses. Federal health officials at the briefing refused to endorse the timetable, although they acknowledged that the current wave of H1N1 influenza may be mostly over by the time the vaccine is abundant, the Washington Post reports.
Chicago-based Rush University Medical Center is declaring the end of the first phase of a $1 billion campus renovation with the opening this month of its orthopedic building. The $75 million, 220,000-square-foot building is one of the largest orthopedics facilities in the Midwest and is a key component of the renovation project, according to the hospital. The five-story structure, slated to open Nov. 16, will offer comprehensive outpatient care.
Texas House members are mounting an effort to delay new limits on physician-owned hospitals. The House's healthcare legislation would ban new physician-owned hospitals and prevent existing ones from growing. But Rep. Sheila Jackson Lee, D-Houston, is pushing two amendments to soften the restrictions, including a grandfather clause for more than 100 doctor-owned hospitals under development. The restriction is championed by Rep. Pete Stark, a California Democrat who says physician-owned hospitals cherry-pick wealthy patients to the detriment of nonprofit, acute care hospitals.