An Employee Accused Your Healthcare Practice of Wrongdoing? Here’s What Not to Do
When an employee alleges that your patient care or business practices are improper, your reaction can make the situation much worse. Learn how to avoid charges of retaliation.
In any workplace, there’s often one employee who makes waves. Sometimes, it’s a response to a situation that displeases them. Sometimes, it’s just a personality trait. In a heavily regulated industry such as healthcare, those waves can take a potentially devastating form: accusations of substandard care, non-compliance, or fraud. How do you respond?
As a busy practice owner or manager, it’s tempting to brand the accuser as disruptive, insubordinate, or “not a team player.” It’s also very easy to let those feelings guide your behavior towards that employee, leaving you vulnerable to additional complaints of retaliation.
What Does It Mean to Retaliate?
Retaliation occurs when an employer punishes an employee for engaging in an activity protected by the law. This can include raising concerns about discrimination or harassment. In the healthcare industry, this often involves false claims or efforts to protect patients. There are three basic elements in proving retaliation:
- the employee engages in an activity protected by the law
- the employee suffers an adverse action by their employer
- there is a causal connection between the employee’s protected activity and the adverse action by the employer.
As you read the definition, you’re likely thinking, “I would never retaliate against my staff. I’m fair-minded and decent, and I treat people as they deserve. Plus, my practice is completely above-board.” But keep in mind that even nice people in well-run organizations engage in behavior that the courts consider retaliation.
Retaliation isn’t always intentional — sometimes, an employer’s conduct is “retaliatory” without their realizing that they’re violating the law. Also, many employers don’t realize that it’s possible to engage in improper retaliation even if the employee’s complaint is fabricated or false. It’s thus imperative to avoid even the whiff of retaliatory employment practices, which might include:
- Salary reduction
- Job or shift reassignment
Does this mean that you, as an employer, cannot take any of the above actions? Of course not; it just means they must be undertaken with caution and attentiveness to the law! Laws exist to protect employees from retaliation — especially if the employee is a whistleblower. In healthcare, the government is particularly concerned with protecting employees who uncover false claims, billing issues, or patient care issues.
Sources of Litigation and Complaints
When employers retaliate, they make themselves liable to litigation or complaints filed with the government. Employees have the opportunity to bring complaints to the Equal Employment Opportunity Commission (EEOC) or the state’s fair employment agency.
An employee may also bring a retaliation lawsuit in court, where they’ll seek monetary damages to make themselves “whole” again after being injured by your conduct. The damages will depend on the evidence introduced, the severity of the retaliation, and many other factors that a judge will evaluate. As is often the case with lawsuits, it may end up settling before you reach the trial, but it will still be excruciatingly expensive and stressful.
Litigation creates many issues for an employer. Generally, there are two incidences of litigation, the first being the actual issue itself, i.e., false claims, and the second being the retaliation. As litigation ensues, there is more opportunity for the employer to retaliate in some way. Subsequently, an employer should use internal investigations to monitor their actions.
Litigation and complaints to state and federal agencies can be costly for any employer, especially in healthcare when the issue involves billing or patient safety.
How Can a Practice Protect Itself?
- Document employee misconduct or deficiencies, whether they occur in the context of patient care, recordkeeping, or workplace conduct.
- Ensure your practice’s severance agreement contains a confidentiality clause/waiver of claims.
- Maintain (and regularly update!) an employee handbook that outlines your disciplinary process in detail. If you decide to terminate or discipline someone, be sure to follow your own rules.
- Be sure you have the right insurance with adequate coverage levels to defend against a retaliation claim.
Above all, if an employee blows the whistle on misconduct, investigate it! Your practice’s attorney can guide you through an internal investigation, update your policies, and help you to report or prevent any illegal conduct (based on the situation). Address the root cause, or risk the health of your practice.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.