This month's Legal Eagle column explores the legality of terminating an employee for inappropriate conduct outside the workplace.
“Dr Derm” has a 30-year-old medical assistant who has worked with him for 5 years. She is under contract and can be terminated within 90 days for almost any nondiscriminatory reason and immediately for cause. Reasons oftermination for cause include conviction of a crime.
Three months ago, the medical assistant was arrested for brutally beating up her boyfriend with a frying pan. He had numerous cuts and bruises as well as a broken nose. He nearly lost consciousness. The story was all over the papers in the small town in which Dr Derm practices. The photos on the internet were frightening. Every time there was mention of the story, Dr Derm’s name was mentioned in terms of her employment. Dr Derm became very concerned about the negative impact such an employee would have on his practice. He terminated the employee within 48 hours of her arrest. The former employee is now waiting for trial and has filed a lawsuit against Dr Derm for wrongful termination.
Did Dr Derm wrongfully terminate this employee?
In the wake so many nationally reported domestic violence issues, many employers are asking the same question: Can we fire an employee who has been arrested for domestic violence? Much discussion has taken place about this issue, and the consensus is that there is no cut-and-dried correct response. There are, however, a number of factors that dermatologists should consider before taking any adverse employment actions against workers embroiled in domestic violence disputes.
The No. 1 question to ask is: Has the employee been convicted? There is a big difference between being arrested/charged/accused and being convicted. This is also true with most background screenings. So, one might want to avoid acting prior to a conviction, despite bad publicity.
Without a conviction, a physician could open themselves up to a wrongful termination suit if an employee was accused of or charged with domestic violence. The tricky part, of course, is that most employers do not run thorough background checks on existing employees. Dr Derm only knew about his current employee because of the local press coverage.
The next question that arises is this: Is the workplace at risk by having this employee on staff? In this case, what Dr Derm could open himself up to is a wrongful termination suit if he cannot directly tie the domestic violence incident back to a specific workplace risk. Termination of the employee becomes much more difficult if: the offender is a good performer, coworkers do not feel at risk, and the employee’s spouse does not work in the office.
The situation might be different if the abuser is in the public spotlight as a face of the dermatology practice in question. If that were the case, it becomes safer to let the employee go, particularly if the person is working under an agreement putting strict prohibitions on offensive behavior. At that point, because the person’s actions are likely eroding your brand, it becomes much easier to apply the “workplace risk test.” The spotlight workplace risk test is questionable with Dr Derm’s situation, because it was an unknown medical assistant accused of the crime.
This situation would be different if a person convicted of domestic violence is a senior employee that you expect other employees to look up to. Keeping this person at an administrative level could also erode the reputation of the office. In such a situation, it could be grounds for the argument that the person poses a threat to your business.
In the end—despite the poor publicity this incident has brought to Dr Derm’s practice—he would have been wise not to terminate his employee until and if she were convicted of domestic abuse.
David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.