Speaker 1: You're listening to Your Practice Made Perfect, support protection and advice for practicing medical professionals, brought to you by SVMIC.


Brian: Hello, thanks for joining us. My name is Brian Fortenberry and on this week's episode of our podcast, we're going to delve into another issue out there that we have an expert on to help us through. We're going to be talking about some employment law and office management issues. And joining us today to discuss this and break it down is Chris McCarty, Chris, thanks for being with us.


Chris: I really appreciate you having me, thank you.


Brian: Absolutely. Chris, before we get started in on our topic today, why don't you tell our people out there a little bit about yourself, about your background, and what you currently do.


Chris: Sure. My name's Chris McCarty, I'm a lawyer here in Knoxville, Tennessee. I work at a firm called Lewis, Thomason, King, Krieg & Waldrop, but most people just call us Lewis, Thomason. We're across the state of Tennessee in Knoxville, Nashville, and Memphis. Practice in the areas of employment law and cybersecurity and I'm glad to be here.


Brian: Well, thank you so much for taking the time out of your busy day to just spend a few minutes with us to discuss these topics and these issues. First, let's start, Chris, when we talk employment law and office management, can you give us a 30,000-foot overview of what we're talking about, what we're looking at and what issues kind of fall underneath that?


Chris: Sure. I think what I'm really looking at, there is a lot of times, whether the doctor, the physician is owning their own practice or owning their own practice with other physicians, or whether that person, now, is as an employee that runs a practice for a hospital or a large medical group, the thing that I need a lot of those physicians to think about, and I know a lot of them do, but some of them don't, is that they are still bound. That the medical profession is no different than a bank. It's no different than a retail store when it comes down to this: that all the employment laws and all the employment protections that the federal laws and state laws provide to your employees, still apply.


Brian: Right.


Chris: So when you're acting not as a physician, but as a manager, I need you to know those things and respect those as well, and nowhere not to step.


Brian: So any type of practice like that is a two-pronged approach. There's the delivering of medical services and medical care, but it's still, at its base, a business and all the aspects that come along with that as well, correct?


Chris: Absolutely. And, obviously, I want those physicians to focus the most on medical care, and that's what we all want them to do as a society and just as human beings. But when they're wearing that boss hat, when they're wearing that manager hat, I need them to know that sometimes there's rules and some laws that are a bit tricky and to make sure that they're following those. And if they don't know them, make sure they're calling the right people to give them some help.


Brian: That's a great point. And to that point, what are some of the HR issues that you see with physicians and medical practices? What are some of the big ones and how do they handle it?


Chris: I'd say the biggest one, and I hope I don't offend too many people here, but I tend to be candid. When I deal with medical practices or large medical groups that I represent, it's sort of getting physicians, when they're acting as boss or acting as manager, to get out of that residency culture syndrome, is what I call it.


Brian: Right.


Chris: We all know ... And I know some of that's overblown and I'm the first to admit it, but the way that residency works and the way that sometimes physicians are brought up in those residency programs is very much a negative reinforcement, pretty tough, cut to the chase. And you can't always do that with your receptionist. You can't always do that with your nurses. You can't always do that with your PAs. Because again, there are laws that protect employees from certain types of activity, whether it's harassment, discrimination, bullying, a hostile work environment... You got to respect those things, and just because you're in a medical office doesn't mean that the rules don't apply.


Brian: Sure. And you know I would think, certainly, if you're a physician and you're really focused on the healthcare setting and rendering of medical services, maybe you should have a person in place that would be really good at more geared toward the business side of things to really help you navigate those waters. Is that safe to say?


Chris: Yeah, absolutely. And I think you see that over and over again. When I see the physicians offices that are working really well, it's because they have a good grasp of the business side and because they've hired, a lot of times, an outside office manager to do that. And obviously, you're going to have that anyway, if you're working for a large group, if you're working for a chain.


Chris: But if you're working for yourself, make sure your office manager is not just somebody that's versed in medicine; although that's important. But they've got to be versed in HR, they've got to be versed in finance, and you've got to have those things. Because, again, what you're still running is a business, and the laws do apply.


Brian: Yeah and, I mean, you got employment laws, you have all of the workplace laws that come along with that. Where do people go to get that kind of information if they don't have it? Say there is a physician out there, and this is one of the things he's going to do, and he certainly just ... Maybe as a solo physician that doesn't have the ability to hire anybody at this point, and he's kind of a one-stop-shop, and he's having to do all of it. Where would you lead him toward; or her, in this case?


Chris: The first thing I would tell them to do is find a good company that is not only consulting in accounting payroll but is also consulting in HR. And there are a lot of companies out there; there are a lot of accounting firms, now, for example, that are going to provide not only payroll services, not only finance services, but they're also going to provide you HR consulting, and that's something that's crucial. If you don't yet have a big enough payroll to afford bringing somebody on in-house, certainly make sure you're using somebody that's an expert in that field to help you do that and contract that stuff out.


A lot of times that contract is going to be affordable because the level of work is going to compare to the level of the size of your practice. So as your practice grows, the contract might grow; but it's going to be really valuable, because they're going to keep you out of trouble, they're going to keep you out of lawsuits, and sometimes they're going to keep you out of jail when it comes to the tax man.


Brian: Yeah, well, that's very important. And the other thing is, you're having to deal with all of the laws and, like you say, all the tax issues and all of those types of things. But then if you have employees, you're going to have to deal on a daily basis with issues that come up with employees; just like any other business would do, and that can be hard, that can be tricky. You can hear phrases like 'hostile work environment' and things like that. What does that actually mean, and how do you handle those situations and focus on rendering care to patients?


Chris: Sure. So a hostile work environment is a phrase that people just use over and over nowadays. I can't tell you the number of times that a client will forward me an email that they've gotten from an employee that's accusing them of a hostile work environment. It's a very serious phrase, it's a very important phrase, but it's a misunderstood phrase.


What it basically means is that somebody, usually a manager, usually somebody in the supervisory role, is creating an objectively–that's an important word, lawyers get really focused on words, but that's an important one–an objectively hostile work environment. And what I mean by objectively is that a reasonable person–and here, what we're thinking of in the worst case scenario–is 12 jurors in the jury box are going to say that if they looked at that, that what's happening there is hostile, an environment that somebody wouldn't want to work in, that would stress them, that would cause them anxiety, that would make them uncomfortable beyond any reason.


So, it's not if you got the overly sensitive employee that thinks everything is hostile. That's not really triggering the law. What triggers the law is that if anybody took a step back, objectively, and looked at it, they'd say "Well, that's just not right. You shouldn't be having to deal with that at work."


Brian: Right. That kind of goes back to what you were saying earlier, too, about that residency thing. So, if you're treating your employees like residents, then you may find yourself using that term hostile work environment, correct?


Chris: Yeah, absolutely. And I think the thing you have to think about there is, there are all kinds of protected classes under the law. And, again, we have to be very candid about when we look at the numbers and typically what people are in what jobs. Certainly, before I say this, I'm not saying that all nurses are female or that all doctors are male. I'm not saying that at all.


Brian: Absolutely.


Chris: And I think things have changed in that degree in a positive way in society. It's great. But I think if we still look at things, there still are a large majority of nurses that are female. And let's say you're a male doctor. You cannot treat females differently than you treat males.


Brian: True.


Chris: And the outside perspective is that every time you're yelling, you're yelling at a nurse and 80 percent of your nursing staff is female, here's the bad news. It's going to look to most observers like you're being hostile towards females, and that's against the law. So just kind of being aware of things like that and knowing that that is out of bounds, not just legally, but from just kind of a human perspective.


Brian: Absolutely. And another aspect is that we have more of a population today of disabled employees that are able to work.


Chris: Sure.


Brian: You have to have certain things in place to be able to accommodate that for good reason. By law, how can practices handle that part of their practice if they have, maybe, a disabled employee?


Chris: Yeah, so that deals with the Americans With Disabilities Act. And I always tell people when I'm talking about my employment law practice that is the single hardest law to deal with because it's complicated. Okay, I mean, what's happened is the definition of disability under that law has expanded a lot in the last 20 years. To where now most people, and always say this and I'm joking, but I'm half not joking. You know, If you give me your medical records in five minutes, I can prove you're disabled under federal law.


Brian: Yeah, yeah.


Chris: And that's going to go for most of your employees. And what the law says is that, like you just mentioned, we have to accommodate those employees if a reasonable accommodation would allow them to still perform their job. You know, sometimes that's very easy stuff. I'll give you a story.


Had a situation a few years ago where a person had cancer, and that caused them to have vocal cord surgery. Well, they really couldn't amplify for that, so they came to their employer and said: "Hey, I'm going to need to wear a microphone to perform some of my job duties to make sure that people can hear me." And that's an accommodation you're going to have to do; making sure you're spending $300 on a microphone. The federal law is gonna say, "Yeah, that's a reasonable accommodation request."


It can also be somebody coming in that says, "Hey, I have narcolepsy and I have a real hard time getting to work every day on time." You might have to accommodate that. I know it's not fun, I know you might say to yourself, "Well that's not the rules, that's not how we've always done it."


Brian: Sure.


Chris: But what the ADA says is, "You have to make exceptions to the rules if it accommodates a disability." And narcolepsy is a legitimate diagnosis and start time, when we really break it down sometimes, is more of a pattern than it is a necessity.


Brian: Well, and the truth is, as you said, those can be very tricky waters to have to navigate. I'm thinking, certainly in that type of situation, you're going to need an expert to really help you understand what your requirements are by the law. And that's when they need to reach out to an expert like yourself, correct?


Chris: Yeah, absolutely. That process is really tricky what you're required to do under the law. Let's say an employee comes to you and says they want an accommodation. Let's use the example that I just gave of narcolepsy. They might ask you for four or five different things. You don't necessarily have to grant all those, but you have to enter into, what it's literally called under the law is, 'The interactive process'.


You have to look at all those things, make sure you're examining them, analyzing them, trying to determine what's reasonable and what's not. And a lot of times, you definitely need to get some outside help on that. Because if you do it wrong and you terminate the person, or you don't handle it correctly, you could be facing a lawsuit under the ADA; you find yourself in federal court, which is a very expensive process.


Brian: Absolutely. And time-consuming and in a lot of other ways. You know, there's such a variety of issues that we don't even have really time to get to today when it comes to employment relationships and issues. One that I did want to kind of touch on is employees being salary versus hourly and the difference. Are there laws about when they can be salary or hourly and benefits and things like that?


Chris: Yeah, absolutely. And this is one that I see messed up in physicians offices and large employers everywhere. And the law that really matters there is one that goes back to FDR, and it's called the Fair Labor Standards Act. It's the law that governs overtime, and it's the law that governs minimum wage. I'm not going to talk about minimum wage. But when we talk about overtime, really what we're talking about there is if you are a FLSA non-exempt employee, which are people that we typically refer to as 'hourly',


Brian: Okay.


Chris: then if that person works over 40 hours in the week, they have to be paid time and a half. So, 1.5 times their hourly rate for any hours over 40. What we've done in society is we've labeled people that are exempt from the FLSA as 'salaried'. And that means we can just give them a set amount, period. We don't really track their hours, and if they worked 50 they get the same amount, if they worked 30 they get the same amount.


Brian: Right.


Chris: And that's fine under the law. But where people really mess up, and it happens a lot in all types of levels of employers, is that they assume you can give anybody a salary, and that is just dead wrong. You can only give certain types of employees a salary. And under that law, under federal law, you're really supposed to, by default, assume everyone's hourly. Then you use what's called the duties test. And I could do two podcasts on this.


But use what's called the duties test to determine, "Do they fall in the category that would allow me to give them a salary?" Examples would be executives. You can give them a salary. Professionals–so accountants, lawyers–you can give them a salary. Administrators–that is people that spend most of their time administering or being kind of supervisors over multiple employees.


Chris: But you can't just give your front desk receptionist a salary. That means that if that person works 50 hours, you better be tracking their hours, and you better be paying them time and a half. You can't just give the person that's maybe drawing blood as just a lab tech a salary. And if those people are on salary, you probably got a big problem on your hands. So, if you've never had an HR consultant or somebody take a look at who's getting a salary or who's not, you could be looking at some pretty significant risk out there.


Brian: And that goes to the point, Chris, of all of these things that we have discussed today is the reason to not just try to guess at what the answers are if you are unsure, but get professional help, either through someone to help you run your practice, or an outside consulting firm, or legal help or even contact a company like SVMIC that has departments within the company that can assist you in some of these areas, or at least point you to where you need to go.


Brian: Chris, I really appreciate all this information. I think it's going to be very valuable to our physicians and physician practices out there. Thanks again for joining us today.


Chris: Appreciate you having me, thanks again.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast.


The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state and state of change over time.