Did I wrongfully terminate my employee?

November 22, 2019
David J. Goldberg, M.D., J.D.

Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.

Dermatology Times, Dermatology Times, January 2020 (Vol. 41, No. 1), Volume 41, Issue 1

David J. Goldberg, M.D., discusses what constitutes wrongful termination in this Legal Eagle article.

Dr. Derm has a 50-year-old staff person who has worked with him for 20 years. He knows her family and has spent time socially with both she and her family. She is under contract and can be terminated within 90 days for almost any non-discriminatory reason and immediately for “cause.” Reasons of termination for cause include conviction of a crime, which is a common termination clause in almost all employment agreements.

RELATED: How to navigate FMLA in your practice

Three months ago, the employee was arrested for brutally beating up her husband after finding out about his adulterous relationship with another woman. She threw a wine glass at him and shards of glass cut his neck in numerous places, resulting in extensive bleeding. She also threw a frying pan at him, resulting in numerous other cuts and bruises and a broken nose. He nearly lost consciousness. The employee was immediately arrested, although she argued that her behavior was justified. The story ran in the local newspapers. The photos online were frightening. And, social media lit up with the employee’s actions. In every mention of the story, Dr. Derm was noted as being the employer. Consequently, he was very concerned about the negative impact on his practice as he received word that patients were frightened and multiple appointments were cancelled. Dr. Derm immediately terminated the employee, feeling justified by the impact her actions had on his reputation. The employee is now waiting for trial and has filed a lawsuit against Dr. Derm for wrongful termination.

Did he wrongfully terminate the employee?

In the wake of several years of highly publicized domestic abuse scandals, many employers are asking the same question: Can we fire an employee who has committed domestic violence? There is no clear, correct response. However, there are several factors dermatologists should consider before taking any adverse employment actions against employees involved in domestic violence disputes. The first is: Has the employee been convicted?

There’s a big difference between being arrested/charged/accused and actually being convicted. Without a conviction, a physician could open himself to a wrongful termination suit if he or his employee was simply accused of or charged with domestic violence. The tricky part here, of course, is that most employers don’t undertake background checks on existing employees. Dr. Derm only knew about his current employee because of the local press coverage.

The next question is whether employing the individual carries a current workplace risk - regardless of the publicity. Dr. Derm could open himself up to a wrongful termination suit if he can’t tie the domestic violence incident directly to a specific workplace risk. Termination of the employee becomes more difficult if the offender is a good performer, co-workers don’t feel at risk, and the employee’s spouse does not work in the office. Patients cancelling appointments is not enough to terminate the employee.

RELATED: A patient’s social media posts ruined my reputation

The situation might be different if the abuser is in the public spotlight, for example, as a face of the dermatology practice. If that were the case, it becomes safer to let the employee go, particularly if the person is working under an agreement that includes strict prohibitions on offensive behavior. At that point, since the person’s actions are likely eroding your brand, it becomes easier to apply the “workplace risk test.” That is questionable with Dr. Derm’s situation where an unknown employee has been accused of the crime.

This situation also would be different if a person convicted of domestic violence is in a position as a role model for other employees. Keeping this person at an administrative level, could then erode the reputation of the office. That could be grounds for making the argument that the person poses a threat to your business.

In the end, despite the poor publicity this incident has brought to Dr. Derms’s practice and the potential for some financial loss if she stays employed, he would have been wise not to terminate her until - and if - she is convicted of domestic abuse. ƒ

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