Articles By Fred

There is a NEED FOR EMPLOYERS to have appropriate protection in maintaining customer relationships after an employee leaves. In general, courts recognize this. The two basic types of restrictive covenants are "noncompete," which precludes a former employee from working in the same business as the employer for a certain period of time, and "nonsolicitation," which restricts the former employee from soliciting customers of his or her former employer or from providing services to those customers.

All this said, only reasonable restraints will be enforced. Typically, restrictions must be no broader than the employer’s legitimately protectable business interests. Those covenants not to compete that are overly broad, overreaching, or lack necessary consideration are not enforceable. Normally, the burden is on the party that wishes to enforce the covenant to demonstrate that the restraint is no greater than necessary to protect the employer’s legitimate interest, and that such interest is not outweighed by any hardship to the employee or any likely injury to the public.

Since early English common law, there has been a strong judicial disfavor toward a bond or covenant that prevents employees from pursuing their profession or trade after termination of employment. Historically, covenants not to compete were viewed as restraints of trade and were invalid. Eventually, reasonableness came to the rescue.

Covenants given in connection with the sale of a business are viewed with greater favor because courts recognize the need to protect business goodwill.

An additional factor to be considered is the likelihood of injury to the public if the restraint is allowed. For example, an oral surgeon (employee) may be restricted from practicing oral surgery in the geographic area surrounding the employer’s practice, but the oral surgeon (employee) may still provide hospital-based services as a public service in the ER where he or she has privileges, even though it is within the geographic area, when the services are not directly connected with the employer’s oral surgery practice.

General thoughts and considerations

A covenant not to compete is only enforceable if it is reasonable in intent and there is a legitimate business reason to enforce it, such as protecting customers or confidential information. To determine if a covenant not to compete is enforceable, three aspects must be considered:

1. SCOPE. The covenant must be very precise as to what the people involved can and cannot do.
2. GEOGRAPHY. The geographic area must be reasonable, and what must be studied is where the employer’s patient base comes from and where the employee works.
3. TIME. This portion of a covenant is litigated often due to its being the most misunderstood. In essence, the covenant must be in force only long enough to get a replacement employee up and running. However, the replacement employee could in fact be the owner where the business cannot sustain an extra employee for whatever reason. Circumstances often dictate the time period. It likely will be different for an employee (shorter) than for a seller (longer).

Nonsolicitation

In cases where a contract has a nonsolicitation clause, the clause must be reasonable and must clarify "What is solicitation?" If people want to seek out a health-care provider of their choice, then a contract with a nonsolicitation clause cannot limit these people’s desire to seek care with whomever they wish. A good illustration is a grade school dance. On one side of the gym are the boys, and on the other side are the girls. One asks the other to dance. Who is soliciting? The person who initiated the contact is soliciting.

A final aspect of covenants is proving damages. Using the example of a patient who wishes to seek out a previous employee for dental care and does not wish to return to the employer’s practice, for whatever reason, what are the damages to the employer if the patient wasn’t going to return anyway?

In closing, restrictive covenants through employment and business purchases or sales are a complex legal matter and must be handled with care. Consult a good attorney who works closely with dentists.

Restrictive Covenants As seen in Dental Economics Magazine

“Employees Behaving Badly: Give us your best advice on how to deal with them!”

We’ve all heard the horror stories; some are NOT urban legend!

Some more frequent stories of “Employees Behaving Badly”, unfortunately, involve social networking. How about learning that an employee:

• Constantly texting friends and family during office hours
• Updating “facebook” while on the clock
• Chatting long-distance on Friday, the “admin day”, while no one else is around (supposed to be working on filling hygiene, confirming patients for the next Monday, contacting an insurance company to speed payment on claims, etc.)
• Surfing the internet during work hours

The more egregious typically involve theft and embezzlement; most often an employee is caught:

• Absconding funds from the office
• Writing false prescriptions for personal consumption
• Stealing product (bleaching gels, electronic toothbrushes)

Taking half the money received from a vendor for re-cycled precious metals (gold) and distributing the balance to the rest of the team (in an obvious effort to secure naive accomplices)

Dealing with “Employees Behaving Badly” begins with setting up an environment with good personnel management systems that proactively defuses improprieties before they happen. When they do happen, it’s important to take action right away.

No matter how many employees a person hires and fires over their career, it’s inevitable events will occur where people do something wrong which will without doubt result in conflict; it’s human nature. Managing poor behavior with corrective action and discipline, and controlling conflict in such a way that it creates an alliance rather than an obstacle, is the result of well-orchestrated people management techniques.

Often times, the education and experience of the worker and manager are different. For instance, the new employee may have had to “pull themselves up by the bootstraps” and has endured many obstacles in their personal and professional lives. This may have given them invaluable experience in the school of hard knocks and they most probably witnessed different management styles from previous employers along the way. On the other hand, a dentist acquiring their own practice and becoming a manager of people for the first time may not have pursued any formal business or personnel management training, and may not have learned the art of diplomacy. This imbalanced connection with a new employee and new manager may very well result in frustration, anxiety, and stress.

Building a great relationship with people on both sides is key to good management, and is ever more important in today’s changing times. A sluggish economy has forced layoffs and other cutbacks in businesses of all sizes, resulting in high stress, low morale, and concerns about job security. People have fewer options when they consider walking away from a current position. As a result, keeping a job has more to do with balancing technical and interpersonal skills.

During the late 1990’s, dentistry was experiencing wide spread growth and prosperity. In comparison, it’s more difficult to sustain growth and profit in dentistry today.

When a small business such as a dental office relies on outstanding people performance, management and people skills go a long way towards weathering the storm. One must avoid losing ones temper, not be defensive, and control their emotions in general in order to be constructive in dealing with workplace conflict and poor performance.

A manager must be able to get as much from his or her employee as possible; but no employee should be a doormat. Realistic expectations of job performance and behavior must be clarified up front. For example, a dentist would be wise to discuss with employees what will happen when a patient calls with an immediate and urgent dental need towards the end of the day. Instilling a “we will go the extra mile” principle clarifies the issue before it becomes a problem. It is wise to make clear that occasionally the office will stay open and a worker or two must stay late to tend to patients in need. Agreed, it is not the normal operating event, but it happens once in a while. Another example would be to make it clear that cel phone usage, for personal calls, texting, internet surfing, are not allowed during patient care hours; using a cel phone while clocked out during lunch, at the beginning of the day, and at the end of the day is permissible.

Keeping the practice’s big picture in mind is vital, too. Dentists must share with the team the vision they have of the office so that it becomes a component of day-to-day activities. For instance, “We will always put the patient’s comfort first” may be a valued business operating principle that can be used as a foundation for establishing patient services policy.

Good employees will try to handle all they can and resolve those things that are causing patient service problems on their own. Sometimes, the boss needs to step in to provide constructive criticism, most likely because the employee did not handle the situation properly and made a mistake. Reprimanding an employee for unacceptable behavior is hard at first, but the skills can be learned.

Suggestions for Reprimand

If an incident occurs where an employee misbehaves, violates a company policy, or otherwise causes a problem, follow these guidelines.

• Do not reprimand in front of other team members or patients
• Choose a time where a professional and private meeting can take place
• One witness to the reprimand, other than the guilty party, is sensible but not required
• Be specific about the event (date, time, policy violated, behavior, etc.)
• Ask, “Why did this happen?”
• Allow the employee to respond; there are always two sides to every story
• Determine if in fact the employee is in the wrong, or if the behavior was misconstrued
• If it turns out the employee was in the wrong, tell them why, and discuss how the event should not happen again in the future
• If appropriate, determine a disciplinary course of action – for example, sending the employee home for the rest of the day with pay for only hours worked.
• Be sure to include a written reprimand, signed by the employee and employer, in the employee’s personnel file. Consider these elements:
  • Employee name, date and time of incident
  • Explanation of what happened
  • Employee Statement
  • Employer Statement
  • Affirmation from the employee: “I re-affirm my commitment to adhere to the policies and standards of conduct for the company. I understand that a further infraction may be interpreted as a voluntary resignation from employment.”

Thinking of discharging an employee for bad behavior?

Although employers have good cause for discharging an employee, they do not keep adequate records to substantiate good cause for the discharge. This is a common problem throughout the dental community.

When one wishes to discharge an employee, follow a similar course of discussion as with the previously discussed reprimand. As soon as it is determined that the employee was in the wrong and it is clear employment must be terminated, dismiss the employee right away. Something simple, such as, “Based on the circumstances we’ve discussed, you’re employment ends right now.” Or, “You’re fired” works just fine.

It is very important at this point to record everything that has happened, including discussions, events, witnesses, dates, and times. Not only is this good management, events are well-documented and easy to reproduce just in case the employer must prepare to protest the payment of Unemployment Insurance Benefits. Ultimately, it is the doctor’s responsibility to provide supporting evidence to justify the discharge.

Here is a reminder list of some of the most overlooked information needed in the employee’s personnel file to justify dismissal from employment:

1. Keep records of all misconduct including dates, witnesses and specifically, what the employee did wrong.
2. Keep accurate records of all warnings both verbal and written, including when warned, who did the warning, and why the employee was warned.
3. Have an accurate statement of the final incident that caused the employee to be discharged including when, why and any witnesses to the event.
   Inaccurate and incomplete employee records are common reasons why employers do not receive favorable rulings when protesting an Unemployment Insurance claim made by a former employee.

At-Will Employment Review

Keep in mind that Arizona is a right-to-work state, where employment is at-will. Meaning, an employee may be dismissed, with or without notice, at the discretion of the owner/employer for any reason or no reason, at any time. Just the same, an employee may leave a place of business at any time, for no reason, or any reason. In either case, common business courtesy would suggest providing reasonable notice of termination or resignation, although this is not required.

The exception is when an employment contract states specifically in writing the terms of employment and dismissal protocols. This overrides at-will employment. Such a contract typically includes terms and conditions of how and when both parties will provide notice of termination or resignation.

Help the team understand what they can do better!

Here are some down-to-earth approaches that employers can impart to employees that will help resolve conflict and stress in the workplace:

1. Understand what the dentist wants: Develop a knack for interpreting how he or she will respond to situations; pay attention to feedback from him or her and address any concerns immediately.
2. Keep the doctor in the loop: Dentists don’t like surprises and embarrassment. When things are going well, a short message or conversation, would suffice. When a problem arises, don’t hide it; explain and offer solutions.
3. Don’t waste his or her time: Write down what you need, be ready to answer questions, and then leave if the reply isn’t immediately forthcoming. Follow up with a reminder memo, if necessary at a later date.
4. Be a rock: Show up early, meet deadlines and volunteer for work when you have free time.
5. Don’t take criticism personally: Keep an open mind, control your emotions and if appropriate, stand up for yourself, politely, but firmly.
6. Don’t play games: Don’t criticize or gossip about a co-worker, or anything for that matter, and mind your own business.
7. Know his or her quirks and accommodate them: Does the dentist prefer notes, formal memos, or straight up communication face-to-face?
8. Pitch ideas: Make sure they’re reasoned, solution-oriented and don’t add to the workload of others while somehow skipping yours.

It may never happen in your office, but Employees Behave Badly! If events take place, act swiftly and come to a sensible and fair solution. Establish reasonable personnel management systems that will ward off problems before they arise. The practice will become less stressful, and employees will serve you and your patients well.

“We have a patient who sometimes ‘misbehaves’ during visits by either playing practical jokes on the staff or making inappropriate sexual and politically incorrect comments. What are the steps we should take up to and including dismissal?”

As the employer, you are shouldered with the responsibility to provide a work environment that is safe and free of discrimination, intimidation, and hostility. If you witness behavior first-hand that is unacceptable from a patient, the best scenario is to approach the patient immediately and ask that this behavior not continue as you feel it is inappropriate. If a member of your team brings the behavior to your attention, then you must provide direction and take action to correct the problem. In today’s article, I’ll provide suggestions to handle this appropriately.

People have different thresholds of tolerance. What might seem a bit funny to one may be intolerable to another. What might seem acceptable to some may be offensive to others. For instance, a highly recognized sports magazine publishes a swimsuit edition each year where bikini clad women are photographed in exotic locations. The issue appeals to some men (and some women), yet is scorned by some women (and some men). If a patient were to bring this into the office and use it as a basis of conversation regarding sexuality, a person may be offended.

Another example may be a person who comes to the office and recites a joke that has sexual or inappropriate implications. Some may be offended by this conduct; others find it amusing. There are venues for blue comedy or offhand remarks such as comedy clubs. However, a workplace is just that, a place to work and provide services. And again, as the employer, you must make certain that the workplace is safe and free of harassment, intimidation, and discrimination.

In particular to the question posed for this article, harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964. Work Environment harassment occurs when unwelcome comments or conduct based on sex or race interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment.

Anyone might commit this type of harassment such as a co-worker, or non-employee, such as a contractor, vendor, guest, or even a patient of record. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

Harassment in today’s day and age has become broad-based. Some examples include but are not limited to:

• telling sexual or lewd jokes;
• leering;
• touching in a way that makes the person uncomfortable such as patting, pinching, or intentional brushing against another’s body;
• making offensive remarks about looks, clothing, or body parts;
• use of racially derogatory words, phrases, or epithets;
• making disparaging remarks about an individual’s gender or race;
• negative comments about an employee’s religious beliefs (or lack of religious beliefs;
• negative comments regarding an employee’s age;
• sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images; and
• derogatory or intimidating references to a person’s mental or physical impairment.

When an event occurs that creates unease in the office, the first step to take is to act immediately. Bring the team together at the first possible moment where patient services are not interrupted. This may be right before a lunch break, or at the end of the day before anyone leaves the office to go home. Talk about what happened, and then review the office’s policy regarding what is considered harassment. Every person in the office should know what is considered inappropriate behavior.

It is advisable to have a strong, enforceable policy prohibiting harassment, sexual harassment, sexual discrimination, and inappropriate behavior. This policy should be contained in the office’s Employee or Personnel Policy Manual. A signed acknowledgement form stating the employee has read and understands the office’s policies should be included in each employee’s personnel file.

On some rare occasions, the guest or patient may not be entirely at fault. Try to discern if employee actions encouraged the misbehavior from the patient, without singling out team-members. If you have determined it was a team-member’s encouragement and dismissed it originally as just teasing, that was a mistake. The correct approach is to take the employee aside and discuss the issue in private. Come to an agreement on policy and how these situations are not tolerated. Agree to move forward in a positive light agreeing that events like these are avoided in the future.

To provide a bit of guidance regarding how an employee manual would stipulate the office’s policy on Sexual Harassment, consider the following:

Sexual Harassment:

The employer is committed to providing a work environment free of discrimina­tion. In keeping with this commitment, the employer maintains a strict policy prohibiting sexual harassment. This policy applies to all employer agents and employees, including management. Sexual harassment includes: flirtations, touching, propositions, verbal abuse of a sexual nature, graphic or suggestive comments about an individual’s dress or body or actual or perceived sexual orientation, the display of sexually suggestive objects or pictures, including nude photographs.

Sexual harassment also includes, but is not limited to unwanted sexual advances and requests for sexual favors where either (1) submission to such conduct is made an explicit or implicit term or condition of employment; (2) sub­mission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work perfor­mance or creating an intimidating, hostile, or offensive working environment. Employees who violate this policy are subject to disciplinary action, including dismissal.

Any incident of harassment, including work-related harassment between employees, patients, or any other persons, should be reported immediately to the employer and/or to the designated individual. Employees will be given the name and or title of the individual so selected. A prompt investiga­tion will be conducted as discreetly as possible. Obviously, no employee reporting any such harassment will be subject to any sort of retaliatory action. Any employee accused of prohibited conduct will have the opportunity to explain the conduct in question. In the case of our employees, if harassment is proven, the offender will be disciplined, up to and including termination. It is the responsibility of every employee to conscientiously follow this policy.

Conclusion

Inappropriate behavior between co-workers, employers & workers, vendors, and patients may happen. Discuss with your team how you will handle this issue. Establish a policy that is professional, sensible, and in line with your dental practice’s fundamental principles. Regardless of how patients conduct themselves, your team must know the office’s policies and behave in a responsible, professional manner within the work environment.

Next Month:
How to appropriately dismiss patients from the practice.

“I want to be sure I'm following the right"ethical" path when delegating tasks and duties to my team. What recommendations do you have to keep me on the straight and narrow?”

Since I’m not an attorney, this article is not meant to provide legal advice on business ethics. And, since I am not a licensed dentist in Arizona, I don’t possess the clinical expertise to evaluate a person’s skill level when providing dental services. My experience as a practice management consultant and broker for dentists and dental practices has given me the opportunity to develop an extensive knowledge and understanding of the business of dentistry. As a result, I will provide recommendations that I have found reasonable, prudent, and successful in developing a standard of excellence in managing the business aspect of dental practices relating to delegation of duty.

As a matter of course, it’s important to be knowledgeable and understand the code regulating dentistry as it relates to unethical conduct. My first recommendation is to reference Arizona Revised Statues §32-1263 Grounds for disciplinary action; definition, for an explanation of the code. For the purpose of this article, I would like to point out the area that meant the most to me when I researched the stature:

§32-1263:
D. For the purposes of this section, “unethical conduct” means the following acts occurring in this state or elsewhere:
15. Engaging in any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

Since 1983, I have been extremely fortunate to work with exceptional dentists and team members in Arizona and across the country who embrace the principle imbedded in this statute. In order to accomplish realistic goals for the development of a successful dental practice, a foundation in principle must be laid. Basing these principles on the fundamental concept that what a person is doing must trace back to the thought of providing services that bring health, welfare, and safety to the patient and the public is vital to good business and practice management.

With this in mind, consider how a dentist may delegate duties to the team so that the practice grows and ensures that patients become healthy in a safe, professional, and comfortable environment.

Dentists have long wrestled with balancing the duties of a clinician with those of a manager. And as a dental practice grows, so do the tasks and responsibilities needed to sustain growth in such a competitive profession. Effective delegation can dramatically improve the efficiency of a practice by helping to build teamwork within the staff. And cooperation and teamwork can contribute to helping staff members to reach their full potential.

One of the reasons why people hesitate to delegate is that they believe they can do things better themselves. However, market forces such as managing the financial aspects of a dental practice, dealing with managed care, ensuring compliance with governmental infection control standards, leading a team of workers, ensuring the practice is following a code of ethical conduct, and sustaining growth in a competitive environment take dentists away from productive treatment time. These factors necessitate the proper distribution of responsibility in such a way that it is embraced and accepted by the staff.

But don’t confuse delegating with dumping. If an employee feels he or she is being dumped on, then that is probably because a task has been delegated without adequate authority to carry it out. It’s all in the way one delegates. Yes, there’s an element of risk in delegating authority. But if one doesn’t feel comfortable with that risk, it probably means that the task is being delegated to the wrong person. And if the right person to delegate to doesn’t exist, it’s time to hire better people.

Here are some tips on implementing distributed responsibility effectively:

a) Remember that the ultimate goal of delegation is neither to get rid of the work; nor is it just to keep employees busy. The ultimate goal is to increase the output of the team and the practice.

b) Don’t delegate the method delegate the task. Let the person you delegate to determine the method.

c) Make sure that the person delegated to “buys in” to the task, agrees to the time frame, and accepts the responsibility. If one is unwilling to delegate the responsibility, one shouldn’t bother delegating the task.

d) Make sure the person delegated to has input into what constitutes accomplishment. Goals should be measurable.

e) Once the task is assigned, keep your distance. It’s okay to ask for updates, but don’t snoop or pry. If you feel you must, you’ve delegated to the wrong person.

f) Require reporting, but not excessive reporting.

g) Follow up only on target dates, or when the project is finished, or when it should be finished.

h) Make sure the person delegated to is accountable for his or her success or failure. Applaud and reward success, discuss and document failure. If necessary, develop a plan together to improve performance.

i) Beware of over delegation to superstars. If one employee is relied upon too heavily, then there is a superstar shortage. And there may be a bigger superstar shortage if the overloaded superstar’s workload is not balanced.

Finally, do not confuse the “delegatee” with the “gofer”.

Gofers “go fer” because they have to.
Delegatees “go fer” because they want to.

In summary, the basis of effective delegation is trust. If one doesn’t trust, then one can’t delegate. Prepare a plan to carry out the work, implement the plan, and measure progress. Keep to the principle of ethics that is the foundation of management and conduct in the practice. Effective distribution of responsibility will yield leverage by allowing the dentist to become more productive with their time. Enjoy distributing responsibilities effectively and witness increased staff productivity, enhanced practice performance and increased profit.