Welcome back to another edition of HR Basecamp Roundup! This week, we tackle some interesting and common issues that come up in workplaces more often than you think. If you haven’t joined our HR Basecamp Facebook group yet, be sure to join so you can participate in these discussions in real time!
Podcasts and Resources in this Roundup:
Is it legal to terminate an employee over the phone in California? The employee I want to terminate is on vacation and I’d really prefer to separate before they come back into the office. My plan is to email them any required documents and direct deposit their last paycheck.
The legal side of things: Legally, you can terminate someone with whatever communication method you want, but that doesn’t mean it’s a good idea. Face to face will always be our top recommendation, especially in a state like California. Why? Well, as we’re sure you all know, California has pretty strict employment laws, especially when it comes to wages. One of these laws requires you to provide the final paycheck at the time of termination. It’s easy enough to hand the employee a check when you’re separating in person. Over the phone? Not so much.
Even without a strict final paycheck law (which isn’t limited to California, by the way), terminating over the phone (or email, or text, etc.) isn’t ideal. Termination conversations are inherently unpredictable and risky, and a phone conversation can actually be harder to control.
Now for the human approach: When you terminate someone in person you are able to have a plan. You know when you’re doing it, where the meeting will happen, who will be there, what you’re going to say, how you’re handling the person collecting their things and leaving the office, and how you’ll be informing your team.
When you try to accomplish this with a phone call, you lose all of that control. If you call your employee during their vacation, you have no idea if they’re going to pick up. So you likely end up with a game of phone tag. If they miss a call from you, or if you text them to ask for a time to talk, there’s a good chance they start messaging the rest of your team to find out what’s going on. This means the employee you’re trying to terminate may figure out what’s going on ahead of time, have their guard up, and/or be riling up the rest of your team.
Once you’re on the phone, it may turn out to be an inconvenient time for you and/or the employee you’re speaking with. They could be in the middle of lunch with their family, or they may call you back when you’re in the checkout line at the grocery store. And if the phone call happens after work hours, you can fully expect that she will have given her side of the story to your entire team before you’re able to talk to them yourself.
We’ve seen some managers fall into the thinking that there’s no difference in terminating remotely if you do it over a video call. Many of those managers have found themselves the subject of negative Internet discussions due to the employee surreptitiously turning on their “record” button.
There are a lot of other things that may happen, but long story short a phone conversation is not avoiding the drama or discomfort of having them terminated while in the office. It can actually make things much more complicated. And, while you may feel like you’re more comfortable not having to meet face-to-face, your terminated employee is going to feel disrespected. This can have ramifications to your practice and your team depending on what they do with that reaction.
If you have made a decision to terminate while your employee is on vacation, it really is best to wait until the next morning they report to work and handle it then. But, if you’re in a situation where face-to-face simply isn’t possible or you are concerned about the employee being on your property, reach out to an HR Expert to help make sure your bases are covered.
Helpful Tool: Termination Checklist
Extra credit listening: Episode 611: What Happens When Employers Get Recorded Firing an Employee?
Podcasts and Resources in this Roundup:
- Member Exclusive: HIPAA Breach Training Video
Is it legal to terminate an employee over the phone in California? The employee I want to terminate is on vacation and I’d really prefer to separate before they come back into the office. My plan is to email them any required documents and direct deposit their last paycheck.
The legal side of things: Legally, you can terminate someone with whatever communication method you want, but that doesn’t mean it’s a good idea. Face to face will always be our top recommendation, especially in a state like California. Why? Well, as we’re sure you all know, California has pretty strict employment laws, especially when it comes to wages. One of these laws requires you to provide the final paycheck at the time of termination. It’s easy enough to hand the employee a check when you’re separating in person. Over the phone? Not so much.
Even without a strict final paycheck law (which isn’t limited to California, by the way), terminating over the phone (or email, or text, etc.) isn’t ideal. Termination conversations are inherently unpredictable and risky, and a phone conversation can actually be harder to control.
Now for the human approach: When you terminate someone in person you are able to have a plan. You know when you’re doing it, where the meeting will happen, who will be there, what you’re going to say, how you’re handling the person collecting their things and leaving the office, and how you’ll be informing your team.
When you try to accomplish this with a phone call, you lose all of that control. If you call your employee during their vacation, you have no idea if they’re going to pick up. So you likely end up with a game of phone tag. If they miss a call from you, or if you text them to ask for a time to talk, there’s a good chance they start messaging the rest of your team to find out what’s going on. This means the employee you’re trying to terminate may figure out what’s going on ahead of time, have their guard up, and/or be riling up the rest of your team.
Once you’re on the phone, it may turn out to be an inconvenient time for you and/or the employee you’re speaking with. They could be in the middle of lunch with their family, or they may call you back when you’re in the checkout line at the grocery store. And if the phone call happens after work hours, you can fully expect that she will have given her side of the story to your entire team before you’re able to talk to them yourself.
We’ve seen some managers fall into the thinking that there’s no difference in terminating remotely if you do it over a video call. Many of those managers have found themselves the subject of negative Internet discussions due to the employee surreptitiously turning on their “record” button.
There are a lot of other things that may happen, but long story short a phone conversation is not avoiding the drama or discomfort of having them terminated while in the office. It can actually make things much more complicated. And, while you may feel like you’re more comfortable not having to meet face-to-face, your terminated employee is going to feel disrespected. This can have ramifications to your practice and your team depending on what they do with that reaction.
If you have made a decision to terminate while your employee is on vacation, it really is best to wait until the next morning they report to work and handle it then. But, if you’re in a situation where face-to-face simply isn’t possible or you are concerned about the employee being on your property, reach out to an HR Expert to help make sure your bases are covered.
Helpful Tool: Termination Checklist
Extra credit listening: Episode 611: What Happens When Employers Get Recorded Firing an Employee?
I have a handful of part-time employees that are asking whether they will be paid for the Thanksgiving holiday (I’m closing Thursday and Friday). Even though all part-time employees are eligible for holiday pay, is it okay to only give it to employees who would have been scheduled to work on the days we are closed?
The legal side of things: First things first: you’re not legally obligated to provide any holiday pay. We see a lot of employers stress about this because an employee comes to them claiming to have read a law somewhere that says they’re required to be paid. That’s simply not true for private employers. There are only a handful of laws that relate to holiday pay and they only apply in very limited circumstances.
This means you get to choose the policy that works best for your business. That includes limiting holiday pay benefits to days the employee would have actually been scheduled to work.
Now for the human approach: What you’re suggesting is perfectly acceptable and quite common. Most employers don’t want to provide holiday pay on days when the employee wouldn’t have been at work - that’s essentially an extra day of pay! However, just because it’s common doesn’t mean it won’t be met with pushback, especially if you haven’t followed this method before. Be prepared for your employees to ask questions, and make sure you have concise answers ready to explain how this benefit will work.
This includes having a written policy. Whatever holiday pay policy you choose should be clearly outlined in your employee handbook. That’s essential for you to be able to enforce the policy and it’s your most helpful tool when employees ask about their benefits. If you don’t have a policy that addresses the specifics of holiday pay, it makes it a lot harder to show that you’re being consistent and it can open the door for employees to claim you’re picking and choosing who gets the more generous benefit.
Finally, we recommend sending out a holiday schedule at the beginning of the year so everyone knows to expect. Here’s what to do:
The legal side of things: First things first: you’re not legally obligated to provide any holiday pay. We see a lot of employers stress about this because an employee comes to them claiming to have read a law somewhere that says they’re required to be paid. That’s simply not true for private employers. There are only a handful of laws that relate to holiday pay and they only apply in very limited circumstances.
This means you get to choose the policy that works best for your business. That includes limiting holiday pay benefits to days the employee would have actually been scheduled to work.
Now for the human approach: What you’re suggesting is perfectly acceptable and quite common. Most employers don’t want to provide holiday pay on days when the employee wouldn’t have been at work - that’s essentially an extra day of pay! However, just because it’s common doesn’t mean it won’t be met with pushback, especially if you haven’t followed this method before. Be prepared for your employees to ask questions, and make sure you have concise answers ready to explain how this benefit will work.
This includes having a written policy. Whatever holiday pay policy you choose should be clearly outlined in your employee handbook. That’s essential for you to be able to enforce the policy and it’s your most helpful tool when employees ask about their benefits. If you don’t have a policy that addresses the specifics of holiday pay, it makes it a lot harder to show that you’re being consistent and it can open the door for employees to claim you’re picking and choosing who gets the more generous benefit.
Finally, we recommend sending out a holiday schedule at the beginning of the year so everyone knows to expect. Here’s what to do:
- Review your Employee Handbook to confirm which holidays you’ve identified as being typically observed by your business.
- Look at the actual calendar to see where each of those holidays falls during your work week.
- Decide which days you will close for each holiday:
- You can give more time off than usual: Technically only Thursday is considered the Thanksgiving holiday, but many employers close Thursday and Friday.
- You can also forgo a holiday closure if you wish: If you normally close for New Year’s Day but it happens to fall on a weekend, you might choose not to close at all for that holiday.
- Make a list of the holiday closure schedule for the year, and use the HR Vault to share the list with your team
- Make sure your holidays are also blocked on your team/scheduling calendar
- Provide your list of holidays to your timekeeping administrator so that the holiday schedule is set up for the entire year ahead of time for payroll purposes.
I just found out that one of my front desk employees used the personal phone number in a patient’s file to ask them out on a date. The patient hasn’t mentioned it so I don’t know if they were bothered by it, but I want to address it with the employee anyway. Can I write them up for this?
The legal side of things: This is a HIPAA violation, plain and simple. Employees cannot use protected health information (such as contact info) for personal reasons. This means that in addition to addressing this with the employee, you’re required to investigate and document the incident according to HIPAA rules. Your HIPAA training resource should explain exactly what steps to take when there is a HIPAA breach. CEDR members can find a breach training video in the Training Center in backstageHR.
Now for the human approach: Regardless of whether the patient is bothered by the employee’s message or not, the employee abused their power and crossed a serious line. In this case, termination would be an appropriate response to their behavior. If you don’t want to terminate, you need to at minimum issue a final warning.
Whichever route you choose, you should have a private conversation with the employee about why this is an issue and what is going to come from it. Not only do they need to understand the HIPAA aspect, but also the impact this could have on the patient. The employee’s actions could be considered harassment, and there’s a chance the patient may feel uncomfortable coming to your practice for treatment. You should be prepared to explain to the patient what steps you’re taking to ensure their information is private and this doesn’t happen again.
You should also review your dating policy with the employee. Yes, you should have a dating policy in your handbook that addresses relationships with patients (and employees). While you ultimately cannot control what employees do outside of the office, you can (and should) monitor their in-office behavior, especially since this employee has already violated HIPAA rules.
Did you know you can get HIPAA training through CEDR? Learn more here.
Extra credit listening: Episode 504 : Looking for Love in All the Wrong Places
The legal side of things: This is a HIPAA violation, plain and simple. Employees cannot use protected health information (such as contact info) for personal reasons. This means that in addition to addressing this with the employee, you’re required to investigate and document the incident according to HIPAA rules. Your HIPAA training resource should explain exactly what steps to take when there is a HIPAA breach. CEDR members can find a breach training video in the Training Center in backstageHR.
Now for the human approach: Regardless of whether the patient is bothered by the employee’s message or not, the employee abused their power and crossed a serious line. In this case, termination would be an appropriate response to their behavior. If you don’t want to terminate, you need to at minimum issue a final warning.
Whichever route you choose, you should have a private conversation with the employee about why this is an issue and what is going to come from it. Not only do they need to understand the HIPAA aspect, but also the impact this could have on the patient. The employee’s actions could be considered harassment, and there’s a chance the patient may feel uncomfortable coming to your practice for treatment. You should be prepared to explain to the patient what steps you’re taking to ensure their information is private and this doesn’t happen again.
You should also review your dating policy with the employee. Yes, you should have a dating policy in your handbook that addresses relationships with patients (and employees). While you ultimately cannot control what employees do outside of the office, you can (and should) monitor their in-office behavior, especially since this employee has already violated HIPAA rules.
Did you know you can get HIPAA training through CEDR? Learn more here.
Extra credit listening: Episode 504 : Looking for Love in All the Wrong Places
