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890: HR Nightmares Dentists Face (And the Ones They Can Sleep Easy About) – Alan Twigg

HR challenges come with running a business. But not every challenge is a nightmare. In this episode of Practical Solutions Day, Kirk Behrendt brings back Alan Twigg, co-owner of Bent Ericksen & Associates, to reveal the most common HR nightmares to worry about and the ones that aren't as bad as they seem. To learn how to prevent and overcome the worst HR nightmares, listen to Episode 890 of The Best Practices Show!

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Main Takeaways:

  • Unemployment is not a big deal.
  • Scary letters are usually just settlement attempts.
  • Understand what a state labor board investigation entails.
  • Do your due diligence with leave of absence. Don't let it run on.
  • In civil cases, the standard of proof is 50/50. Anything can tip the scale.
  • Document, document, document! It is your golden ticket out of situations.

Quotes:

“The key thing to keep in mind is that [unemployment is] an insurance program that everyone pays into. Now, when there is a claim and when that claim is approved — meaning, the former employee is going to get money — the first thing people need to really understand is that money does not come out of your bank account. It does not come out of your pocket. That money comes out of this big state fund. So, just know that if you think, ‘Oh, this employee is going to get all this money from me,’ or even some employees think, ‘I'm going to file for unemployment. I'm going to get his money,’ it's not coming out of your bank account. It's coming out of the state fund that you and everyone else is paying into. So, there's no need to freak out.” (6:55—7:39) -Alan

“People will say, ‘Well, if they get unemployment, if I get a few of these, then aren't I going to have this thing where my unemployment rates are going to go up?’ And the answer to that is maybe. It would depend on how many people file for unemployment, how many people get unemployment, and how much that happens in your particular practice. If you only have one a year, it’s not a big deal. But if you're constantly turning people over and they're filing for unemployment, they're getting it, you're getting ten of those a month, then yeah, your rates may go up. Now, you hear that, and you may think, ‘Oh my gosh, rates are going to go up,’ and you think about your malpractice premiums and all these other things that go up, and up, and up. Unemployment does have a cap. Every state has a cap. For example, we did a calculation. I believe it was for Ohio. We had a client in Ohio that was really concerned about their rates going up. They had a little bit of turnover, and we calculated what it would be if they went to the absolute maximum rate for unemployment for them. It was about $100 a year extra per employee. That was it.” (7:46—8:53) -Alan

“The bottom line with unemployment that we always say is unemployment is not a big deal . . . There's no need to freak out. There's no need to go total nuclear war on trying to protest every single thing there is, appeal hearings, file stuff. I mean, you can if you want. If folks feel really strongly about it, if you're really bored and you have nothing else to do with your time, go for it. We just don't think it's a big deal.” (9:03—9:37) -Alan

“Here's another thing to keep in mind about unemployment. Unemployment can be that first little battle with a former employee. So, someone leaves your practice. They leave on bad terms. Maybe you, as the dentist, are a little disgruntled. The employee left, and they're a little disgruntled. Then, they file for unemployment. You think, ‘All right, it's game on. I am not going to let this person get anything,’ and you fight, and you fight, and you fight. Well, that might be the end of it. Or the former employee might say, ‘Oh, you want to fight? I'll bring the fight to you.’ Then, they say, ‘Oh, you know what? Okay. Well, I didn't get the unemployment but let me see what else I can do.’ We've seen issues where it starts with unemployment, and then it goes into something much more serious. It goes into a state labor board investigation, a wage and hour claim, maybe even a lawsuit. There are times when we might even say if it's an employee that was disgruntled, you weren't really happy with them, if you kind of let this go — and you'll still respond accurately. It's not like you're going to lie and sugarcoat the situation. You may still tell exactly what happened. But let's say the person does get unemployment and you think, ‘Okay, phew. That's it. I don't have to pay this. It comes out of the general fund.’ And maybe this former employee walks away thinking, ‘Ha! I got him! I got unemployment from him! I told him! Yeah! I won!’ Then, you never hear from this person ever again, and it doesn't cost you a dime. That, I think, is a wonderful outcome.” (9:38—11:16) -Alan

“Let's talk about some of these things that I mentioned a second ago that are kind of a big deal. One of them would be a true lawsuit. Or let's not even start with a lawsuit. Let's start with a scary letter. Someone leaves your practice, and sometime later you get that scary letter from some attorney saying, ‘I'm representing Sarah. Sarah worked in your office, and you are a terrible employer, and we're going to sue you for hundreds of thousands of dollars.’ Those scary letters are just a tactic. It's a tactic that is an attempt to get a settlement because, of course, lawyers don't want to go to trial because it's expensive and it takes time. What they want is a quick settlement. So, you get this scary letter that says you fired Sarah because she's a minority, or because she was pregnant, or because she had a disability, and that violates all these laws. Therefore, we have a case. Get ready. Of course, what they want is for you to freak out and call your lawyer and have your lawyer start some negotiations, and they get $20,000, $30,000, $50,000 out of it, in the settlement. Now, we have talked to labor attorneys who represent employees. Those labor attorneys have said that if they are going after an employer and that employer has their ducks in a row from an HR standpoint, that lawyer does not take the case. And by ducks in a row, we mean all the basic things that no one wants to deal with, like a policy manual, and the employee signed an acknowledgement that they read the manual, and job descriptions, and performance evaluations, and written documentation said, ‘This employee is not performing. If they do not improve, termination.’ If they have all of that in place, most attorneys, when they're approached by a former employee, say, ‘Thanks, but no thanks. You've got a losing case. It's not looking good.’” (12:09—14:11) -Alan

“With these HR things, whether it's a lawsuit or a state labor board thing, these are all civil court cases, not criminal. In criminal cases, if you remember your Law & Order episodes or Matlock, you're innocent until proven guilty. So, you have this massive burden that the prosecution has to overcome to prove that you were an evil person. Well, you don't have that with civil cases. Civil cases start out that each person is 50/50. It could very easily go either way, so all it takes is one little thing — no documentation, or the optics of the thing. You fired someone who is pregnant, she's sitting there crying, and you're this big, bad dentist with your Mercedes. Those kinds of things — just that alone can tip the scales even though you truly did nothing wrong, and you were not an actual bad person, and they can't prove that you were a bad person. It's important to keep that in mind because I hear that often where people think, ‘Well, but that's not why I did what I did. I did it because they were a bad dental assistant.’ I'm like, ‘I hear you, and it's he said, she said.’ Those cases are hard. If you go fighting it all the way, tooth and nail, it's he said, she said. And it can really easily go either way.” (17:06—18:30) -Alan

“Another big one that's important for folks to keep in mind is some sort of a labor board investigation. Those are usually going to come from your state labor board. A state labor board investigation is messy because you can sometimes get rid of those with a settlement. But in most cases, you've got to go through a whole discovery process, at a minimum. The state is going to want you to dig up all kinds of records and documentation, provide files, payroll records, potentially. You've got to dig all that stuff up and work with your attorney to send it all in. Then, that may lead to hearings. It may lead to phone hearings. It may lead to someone from the state coming into your practice and doing some sort of on-site investigation. It's incredibly time-consuming, it takes forever, and it's really stressful. And one of the really terrible things about those is, let's say it touches on anything wage and hour. So, overtime, or not paying for CE properly, or lunches, rest breaks, anything like that that's wage and hour, those cases typically get a lot bigger than just the one employee. What they start investigating is all of your current and all of your former employees, going back three years. It can vary a little bit on that timing, but it is not isolated to just that one employee and their one claim. It can very easily go back three years on all current and all former employees. And what happens if it's, say, unpaid overtime, is then it turns into having to do the back pay, and wages, and everything for that overtime, plus typically a bunch of penalties as well. So, that's another example of something that you don't want to deal with, and you don't want to have.” (18:32—20:36) -Alan

“These HR parts and pieces, getting them in place, yeah, it takes a little bit of time and may take a little bit of money. But once they're in place, maintaining this stuff over time is super easy. There are a lot of great options out there, training options, finding someone that you can trust and delegate some of this to. There are a lot of ways that you can do this without it taking all of your time and energy.” (22:31—22:57) -Alan

“I think where people do run into the most challenges is not having the documentation or not having a clear understanding of what's going on. So, another example that we see all the time is somebody goes out on, say, maternity leave, or maybe it's a leave of absence because their spouse is having some health problems, or something like that. As a dentist, as a boss, we want to be compassionate. We want to be understanding. This is a really great employee. It's a tight labor market. You want to keep them, so you almost give them an open-ended ticket. It's like, ‘Yeah, go do what you need to do. Take care of what you need to do. We'll be here when you're ready to come back.’ That's all fine in the beginning. But then, what can happen is it drags on, and the person says, ‘Oh, yeah. I'll be back in a month.’ Then, they don't come back, and then you don't hear from them. Then, the communication is spotty. Or then, you hear from a family member that says they're dealing with something. Those kinds of things, whether it's pregnancy or a leave of absence, in general, we see a lot of people really get in trouble on that one because there's no documentation. There's no leave of absence request form. There's no medical certification from their treating physician. And it's those kinds of things that lead to, unfortunately, a really tough decision down the road where you may have to terminate this person's employment and you have to jump through a bunch of hoops to try to build some documentation in and backfill it. Then, when you do finally make the decision, it is risky because you might be terminating someone who is pregnant, or has just given birth, or someone who maybe you're in a state employee threshold where the employee's spouse's medical condition is covered under some sort of paid family leave or family medical leave protection. Now, you're in risky territory with that. That is just one of those examples whereby doing a little bit of due diligence on the front end, a little bit of paperwork, just basic formalities — it doesn't negate all of your compassion and all of your understanding. You can still be open-ended with some of that, but you just want to have that documentation in place.” (23:30—26:05) -Alan

Snippets:

0:00 Introduction.

2:25 Alan’s background.

4:10 Why this is an important topic.

5:22 Unemployment isn't that big of a deal.

12:05 Scary letters are just settlement attempts.

16:29 In a civil case, it’s 50/50.

18:32 The messiness of a labor board investigation.

23:01 The importance of documentation.

26:32 Final thoughts.

28:15 About Bent Ericksen.

Alan Twigg Bio:

Alan Twigg is the co-owner of Bent Ericksen & Associates. For over 10 years, he has guided thousands of clients and consultants through the ever-changing world of HR and employment compliance. He is a speaker, consultant, and author who is passionate about bringing education and peace of mind to such a confusing topic.

As a strong proponent of symbiotic employer-employee relations, Alan is passionate about teamwork and positive work cultures, with an emphasis on long-term personnel retention and employment compliance, where his solutions-oriented outlook excels. 
ACT Dental Team

ACT Dental Team

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