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Tip of the week: Keep your facility safe from employment litigation

Contemporary Long-Term Care Weekly, September 11, 2008

A couple of years ago, a young woman filled out an application at a skilled nursing facility (SNF) to try to land a job as a certified nursing assistant (CNA). The facility, as is common in many SNFs, was in great need of CNAs. Desperation to fill some of those spots showed when 20 minutes after passing in the application,the potential CNA got a phone call from the facility offering her a job.

That's an incredibly risky way to pad your nursing home team, said John E. Lyncheski Esq., fellow at Cohen & Grigsby, PC, in Bonita Springs, FL. Lyncheski gave a presentation titled "Hiring right-firing right: Tips for avoiding employee claims" during the annual American College of Health Care Administrators(ACHCA) conference in April.

"No hire is better than a bad hire," he said.

Do a thorough check

Although it may fill some immediate needs, on-the-spot hiring is not a lucrative long-term strategy, said Lyncheski. Making reference, criminal, medical, and drug checks before delivering an offer can keep your residents and staff members safer, and keep your facility out of litigious situations.

For example, your hiring team may decide not to waste time on reference checks for a CNA candidate because the person interviewed so well. But what if that CNA comes on board and is found abusing a resident one month later and the family is planning to sue the facility?Might you have avoided a bad hire by calling his or her references?

It's possible, said Lyncheski." A lot of people will say, 'I'm not going to do reference checks, because the candidate has obviously given me someone who's going to say good things about him or her,' " he said.

But that's not always the case. Sometimes, former employers will give interviewing facilities a subtle heads-up. For example, if you ask the reference why the candidate left his or her position, and the former employer says the administration felt it was in both parties' best interest,that might raise a red flag about your candidate.

Get creative with your interviews

Interviewing methods have changed over the years so that employers and job seekers can learn more about each other and hopefully make the right fit. "You need to ask yourself, do I want this person on my team?" said Lyncheski.

To find the answer to that question, he says, don't ask obvious questions, such as:

Are you a team player?

Will you work overtime?

Are you a patient person?

Instead, give candidates scenarios and ask them how they would handle those particular circumstances, said Lyncheski. "You can find out a lot about people's work ethic, attention to detail, and dedication to their jobs by asking how they would handle challenging situations." Also, don't forget that the hiring manager isn't the only person whose opinion counts. A lot of facilities obtain feedback from current employees about potential hires these days.

For example, when a candidate arrives for his or her interview, leave that person in the waiting room with the receptionist for an extra couple of minutes. Later, ask the receptionist what he or she thought of the person. "I was up against one other woman for a CNA job. We both had the same qualifications, but the facility went with me because the receptionist remarked about how friendly I was and the other woman wasn't," said an ACHCA conference attendee.

Other staff members you may want input from are those in the department where the new person would work. "It's a small world, and often people find they run across the same colleagues in different jobs," Lyncheski said. "And if you are walking a potential hire down the hall, introducing her to other CNAs, and your employees are waving their hands and mouthing 'No!' as you walk away, you might think twice about hiring that person."

When good intentions go badly

Even with the most thorough interview methods, a bad fit can still slip by you. When problems can't be fixed and you must let an employee go, make sure to use careful practices to avoid a heated situation.

"Employees are incredibly aware of their rights under the employment laws. Every employee has a lawyer," Lyncheski said. "In today's litigious environment, every negative employment decision has the potential to become an expensive, liability-laden lawsuit."

This means your facility must avoid employee claims through the entire employment spectrum-from interview to firing.

Unless a situation arises that merits immediate removal of an employee, do your best to work with the person to rectify the problem and use firing as a last resort. Perform thorough investigations of claims against employees before making decisions about their future at the facility. Lyncheski suggested making the following part of your investigation:

Know what the claims are against the employee and exactly what you are investigating

Figure out who is appropriate to interview

Get statements from anyone involved, including staff members, family, and residents

Consult your human resources department to ensure that you are following facility policies regarding investigations of employees If you need to let employees go, follow these tips from Lyncheski:

Send troubled employees signals that their positions are in jeopardy. Don't surprise them.

Don't refuse to give them a reason for their termination. The reason doesn't have to be long and detailed,either. For example, if a CNA was fired for repeatedly violating dignity rights of residents, tell the person that he or she was not following facility policies regarding resident care.

Define and document the reasoning for your facility's records. Don't doctor any of the information.

Remove fired employees from the premises promptly,only using an escort when absolutely necessary.

Lock fired employees out of your facility's computer access. If your facility finds itself in a legal confrontation, regardless of your best efforts to the contrary, consult your attorney for assistance and know when to settle and when to fight, Lyncheski said.

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