We Still Don’t Get It! Avoiding the Top 10 Human Resource Management Pitfallsin EMS

When the phone rings at our law office, we know we have trouble when the first words out of the mouth of the EMS manager on the other end of the line are, “Our state is still an employment-at-will state, isn’t it?” In our law practice, which represents EMS, ambulance and fire service organizations exclusively across the United States, these words set off red flags. That’s because we know that the EMS manager has already fired an employee and is not calling for advice on how to deal with the “problem” staff member. He’s calling to have us affirm the decision and tell him it’s legal, because now he is having second thoughts. The manager hopes that we will quickly approve of how the situation was handled, and that all the agency’s legal bases are now covered and he can sleep at night knowing the risk of a lawsuit is low. Unfortunately, there is almost always more behind those words, and we often end up helping the ambulance service do damage control to minimize the legal risk of a bad or poorly executed decision.

The risk of an employment-related lawsuit has gone up exponentially in recent years. Federal courts have seen a 2,100% increase in employment litigation cases in the last 20 years. The Civil Rights Act of 1991 and revisions to state employment laws have given employees the right to punitive damages in many of these cases, as well as the right to a jury trial. Juries tend to be sympathetic to the plaintiff/employee in these cases. Volunteer members of EMS organizations are also suing their services now more than ever when the bylaws aren’t followed or their rights have been trampled. This all means that in the context of risk management for 2005 and beyond, EMS managers need to pay more attention than ever before to the people issues in their organizations.

In our practice, about one-third of our work involves counseling and defending EMS and fire service organizations in employment law and workplace-related issues and incidents. We have found that in many cases, the EMS managers involved in the decision-making are not adequately equipped to deal with the situation, or they simply don’t understand the law. And employees and volunteers in the organization are gaining an increased understanding of the law and their rights, since so many EMS/fire stations have Internet access. There are many websites that describe the law in easy-to-understand ways. Some websites, including the federal government’s “e-Laws” system (www.dol.gov), literally walk the person through their situation and provide feedback as to whether the employer may have violated the law.

For these and many other sound reasons—-like working to keep employees and volunteers satisfied with the organization in an era of EMS staff shortages—-managers need to be highly attuned to key risk areas. Over the past five years, we have identified what we call the Top 10 human resource (HR) management risks and pitfalls, based on the calls we receive and the cases we’ve handled from our clients and other EMS organizations. Here’s the list, along with a few tips you can use to safely travel the road to employment and labor law compliance.complex staff and personnel issues. The empathy that must be exhibited when treating patients by putting yourself in the patient’s shoes needs to carry over to empathy in dealing with problem staff members.

Further, many EMS managers with supervisory authority have not been fully prepared to deal with these issues. Many lack formal education in human resource management or don’t have access to in-house and external management training or seminars. These managers can quickly get their organizations in trouble by mishandling the people problems and not understanding the proper and legal approach to dealing with staff.

Practice Tip: You don’t need a bachelor’s degree in management to be an effective EMS people manager or to keep your organization out of legal trouble (though it doesn’t hurt to have one). There are external seminars and training programs available that can help you. Even though these seminars may not be specifically targeted to EMS managers, the principles taught in these programs are universal.

Do you have your own internal management continuing-education program? If not, it’s easy to start one. Each manager can be assigned an HR topic to cover and present at a monthly or quarterly meeting (e.g., a briefing on overtime issues, or proper corrective counseling). The manager does the research and seeks outside advice in preparing the presentation. A healthy discussion can follow the brief 15- or 30-minute presentation.

2. Not Keeping the Bad Apples Out: Poor Selection Procedures

A large organization was having a terrible problem with illegal drug use. The turnover rate was high, and management was at its wit’s end about what to do, since so much of their time was consumed by managing the crisis of the day. This service did not have an effective recruitment and selection process. They basically took any warm body with a certification card, conducted no pre-employment testing and did little in the way of new staff orientation. As one way to help solve the problem, we suggested they implement a pre-employment drug-testing program and place a large sign at the door to the business office counter stating: “We test for illegal drugs. If you use illegal drugs, don’t bother to apply here!”

Within six months, the drug problem dropped to almost nothing. Management chuckled whenever they saw someone walk up to the entrance, see the sign, then turn around and walk away. On those occasions, applicants were literally “self-screened” before the company invested any time or energy in the person.

Solid selection procedures can do wonders in weeding out the bad apples, saving organizations much grief and cost. By only bringing into the organization quality staff members, management’s job is much easier, and it’s easier to develop a workplace that everyone in the organization can feel good about. There is far less legal risk when you keep out the bad apples in the first place, instead of dealing with them once they are hired.

Practice Tip: Start with the basics. Develop a legally sound employment/membership application that asks the right questions about the applicant’s driving record, criminal history, training and education, and past educational and EMS experience. Have the applicant sign a disclaimer that protects the organization when conducting reference checks and pre-employment testing. Check criminal and driv­ing history, along with the Medicare exclusion list, and evaluate that history carefully. Verify licenses and EMS certifications with the issuing body. Ask applicants to explain any negative history. If they deny having any bad history and you find out that they do, consider the fact that the person was not up front with you before you make your decision. Implement a post-offer drug testing program, making all offers of employment or membership contingent on successfully passing a drug test. Get legal advice and work with a professional lab that is expert in implementing these programs.

3. Inadequate Staff Handbooks, Policies and Position Descriptions

What do employees or volunteers expect from the EMS agency, and what does the agency expect from staff members? These expectations need to be spelled out. An up-to-date position description is the first step, detailing all the particulars of the duties, especially “essential functions” of the position and “mental and physical requirements.” These descriptions must be in writing to be compliant with discrimination laws.

Comprehensive and up-to-date staff handbooks and policies can also help match the staff member’s and the agency’s expectations. The ultimate HR goal is to have a staff that is a good fit for the organization. Many policies are required by law. For example, policies on pay practices describing how overtime is paid, when the pay period starts and ends, and how and when paychecks are issued are essential. These handbooks can be a valuable defense in a lawsuit, and need to be followed by managers and staff members alike.

Practice Tip: Review your current handbooks and policies. Be careful not to mix up operational policies (like when the trucks must be washed) with personnel policies that relate to the staff member’s interaction with the organization. Ensure that you have adequate flexibility for any needed corrective counseling and discipline, and that the policies are not worded in a way that excessively locks you into a particular course of action. Obtain a legal review of the handbooks and policies to ensure your statements are compliant with the law, preserve management rights and emphasize procedural fairness for the staff member.

4. Improper Calculation of Overtime and Other Pay Issues

We see many errors in overtime calculation. The classic errors are failing to pay overtime after the employee works 40 hours in a workweek (which is the rule for most organizations) and errors in calculating the regular rate that must be used to determine overtime pay. This regular rate is not the employee’s base rate, but a rate that includes pay from all hours that are worked.

For example, if an employee works a 40-hour week at $15 an hour, with a $20 shift differential for each of three eight-hour night shifts worked in that week, the total compensation is $15 x 40 hours=$600 plus the $60 shift differential, or $660 for 40 hours actually worked. The “regular rate” for overtime purposes is actually $16.50 an hour, obtained by taking the $660 total compensation for the week and dividing it by the 40 hours actually worked. Now, if the employee works four hours overtime in that week, the overtime pay of 1.5 times the “regular rate” (which is $16.50 x 1.5, or $24.75 per hour) for those hours would be $24.75 x four hours, which equals $99 in overtime pay. Total pay for the week would be $759.

Other pay issues we see on a frequent basis are improper deductions for sleep time, misapplication of the special overtime rules for public agency fire/EMS departments (the so called “7-K” exemption that allows those agencies to reduce overtime expenses), and improper payment for on-call hours. We also see many problems with volunteer incentive programs (VIPs) and payments made to volunteers that mistakenly convert them into bona fide employees. Other issues we see are misclassification of employees as exempt from overtime, and failure to follow the law when making payroll deductions or in issuing final paychecks.

Practice Tip: Conduct a “wage and hour” practice audit. Look at all your pay practices and evaluate if they are in compliance with the federal Fair Labor Standards Act, as well as state law. Pay practices in EMS are unlike traditional jobs, with a wide range of shifts and schedules needed to cover the service 24-7. This makes wage and hour law compliance more complicated and mandates a periodic internal review. Recently enacted regulations dealing with exemptions from overtime, as well as recent changes in government enforcement policy, further emphasize the importance of obtaining the expertise needed to conduct a proper review.

5. Ineffective Sexual Harassment and Discrimination Policies

We continue to see many blatant violations of the laws against sex discrimination in the form of sexual harassment. EMS agencies, in some cases, have not established a culture that discourages improper and unlawful conduct. Sexual harassment cases are not only costly in terms of jury awards and settlements; they can be a major embarrassment for the EMS agency and can ruin the career of the manager or staff member.

Practice Tip: The law requires that employers (and volunteer agencies in most cases) have a working program that prevents unlawful harassment, identifies it when it occurs, and immediately stops it and prevents it from occurring in the future. This mandates that every EMS agency have a clear-cut policy on harassment and an effective process for investigating complaints and dealing with them. The policy should be communicated to everyone, posted at stations and on the agency’s website, and annual training should be conducted. For a complimentary model policy, e-mail us at swirth@pwwemslaw.com or dwolfberg@pwwemslaw.com.

6. Improper Workplace Investigations and Discipline and Termination Procedures

Our late partner and industry giant Jim Page was a strong proponent of due process for staff members in any investigation of alleged improper conduct. Providing due process to a staff member helps ensure that management decisions are not only legal, but that they are fair and reasonable. Due process means that, at a minimum, the staff member should know the content of the allegations, and be given an opportunity to be heard and to explain the conduct, typically before an adverse action is taken. Too often, we have seen EMS managers who have made arbitrary decisions without fully investigating the situation or before giving the accused a chance to be heard. Many times the alleged perpetrator (the accused staff member) is not even interviewed during the investigation! This violates the fundamental foundation of due process, which may lead to a bad decision and potential legal liability.

A common source of a lawsuit is when the EMS agency retaliates against a staff member for exercising the legal right to file a complaint under the law. Retaliation claims are becoming increasingly common. Most federal and state employment laws contain anti-retaliation provisions. These laws protect staff members who file formal complaints, as well as those who testify on their behalf. As long as these individuals act in good faith, they are protected—whether or not they are actually right about the alleged unlawful discrimination.

Practice Tip: EMS managers must be trained on how to properly conduct a workplace investigation. These investigations must be prompt, thorough and objective. The EMS agency should have a policy against retaliation for exercising legal rights, and managers need to be sensitized to the approach that the staff member is innocent until proven guilty. This is one key reason that staff members should generally not be terminated on the spot. One alternative—a suspension pending investigation—allows for a proper investigation and less chance that the emotions of the moment will cloud the final decision.

Progressive disciplinary policies (verbal warning, written warning, suspension and then termination) should be in place, with exceptions to skip steps in the event of serious misconduct or issues that may put the health and safety of the public or other staff members at risk. Staff members should receive regular performance feedback both verbally and in writing. Tying pay increases to positive performance may also help prevent disciplinary issues from getting out of hand.

7. Mishandling Return-to-Work Issues

The EMS environment is not easy on the back, and field staff are prone to back and other injuries simply based on the nature of the work. But some EMS managers have a tendency to write off the staff member or discriminate against them based on the injury or disability. There are many legal protections for employees under state Workers’ Compensation laws and federal and state discrimination laws, like the Americans with Disabilities Act.

Most discrimination laws don’t protect an employee from discrimination when the disability is temporary, but the law can be violated when the staff member is regarded as having an impairment or has a record of an impairment. The classic EMS case here is to deny an employee returning to work solely on the basis that the employee filed a Workers’ Compensation claim, or that you think the back injury has disabled the employee, even when he has been cleared for return to his original job.

Practice Tip: Establish clear-cut policies on leaves of absence and how they are handled. The policy should cover leaves due to work-related injury, as well as personal injury or illness. Consider establishing light-duty programs to help employees get back into the workforce, but make sure that you don’t just allow light duty for employees with work-related injuries. If you have a light-duty program, it must be made available to all employees on an equal basis, including when the return to work is from a non-work-related injury or illness. If the agency employs more than 50 people, the federal Family and Medical Leave Act gives employees rights to unpaid leave of up to 12 weeks a year, and your policy must comport with the strict requirements of the FMLA.

8. Not Respecting Member and Employee Rights

Many EMS agencies have volunteer staff who have rights under the organization’s bylaws as a member. A typical right is the right to a trial or hearing in the event of suspension or expulsion. We have seen many cases where the leadership did not follow the bylaws when taking action against a member. Bylaws are the law of the volunteer membership organization and must be followed, or the member may succeed in obtaining an injunction in court to stop the action.

More EMS agencies are becoming unionized, which means that the collective bargaining agreement (CBA) becomes law when dealing with wages, benefits and other terms and conditions of employment. The CBA transforms the employment relationship from “at will” (where the employee can be fired for any nondiscriminatory reason, even no reason at all!) to “just cause” (the employee can only be fired when there is a good and legitimate reason). Often, the elements of what defines “just cause” are spelled out in the CBA, along with a defined grievance procedure. If management deviates from the CBA terms, or an employee is fired without “just cause,” the union can file a grievance, and an arbitrator will decide if there was a violation or if there was no just cause for the action.

Practice Tip: Know your organization’s laws. If you are a volunteer service, make sure your bylaws are current and include all elements required by your state nonprofit corporations law. Keep noncorporate stuff out of the bylaws, like operational policies and procedures. Make certain to follow the bylaws precisely when taking any adverse action against a member.

In the unionized agency, managers should know the CBA inside and out. Specific training of management on management rights and the proper steps for handling disciplinary action should be conducted. For EMS agencies that do not have a union, personnel handbooks and policies should be clearly described as guidelines for the company to follow, and state that management reserves discretion to deviate from them when necessary. This keeps the organization from getting locked into a specific course of action based on an outdated policy.

9. Inadequate Personnel Documentation to Support Decisions

EMS agencies spend a lot of time on patient care documentation and documentation to ensure adequate reimbursement, but often are lax when it comes to management documentation. Clear and accurate management documentation of critical incidents involving a staff member helps ensure an adequate paper trail to support management decisions in a lawsuit or government investigation or hearing. This documentation should also include positive critical incidents, as in the case where a staff member went above and beyond his/her normal duties to help the public, or to recognize a staff member’s significant accomplishment. Spending time recognizing the good incidents gives management a more balanced view of staff members and enhances job satisfaction.

Practice Tip: Learn how to maintain consistent and regular management documentation of both negative and positive incidents. The documentation of any staff incident should be organized in a systematic manner. It should include at a minimum: 1. A description of the behavior; 2. Recitation of the applicable policy or standard of conduct; 3. An explanation of how the behavior supports or violates the policy or standard; 4. A description of the action that is being taken as a result of that violation; 5. What can be done to correct the behavior (constructive counseling); and 6. A description of what may happen if the behavior happens again. The statements in Figure 1 summarize examples of management documentation of both good and bad staff-member conduct.

10. Don’t Delay Getting Legal Counsel

It’s the old adage: “You can pay us now or pay us later.” What some EMS managers don’t realize is that it is less expensive to get qualified legal counsel involved early in the situation, often before a final course of action is decided. Lawyers work best when they can prevent a lawsuit in the first place. Legal counseling with an EMS manager for 30 minutes on the phone about an impending action can help ensure that: 1. The action you are about to take is legal, 2. A formal complaint or lawsuit will be less likely to be filed, and 3. If one is filed, following legal advice may be an effective defense in the event the action is challenged.

Practice Tip: Legal counsel knowledgeable in labor and employment law should be involved in assisting the EMS agency in conducting a workplace-practices audit. The audit should review all key documents, such as applications for employment and policy handbooks, and actual personnel practices. Contacting legal counsel in cases where litigation could be likely (such as a sexual harassment complaint, suspension or termination of employment, or expulsion of a member) can help reduce your legal costs down the road. More important, it may help to ensure that you not only make a legal decision, but you also make the right decision when a staff member is involved in a workplace incident.

Summary

Making mistakes when dealing with staff in the myriad HR issues that EMS managers confront on a daily basis can lead to significant liability. HR mistakes can also have long-term impact on the health of the organization when staff members lose respect for their leaders and morale is decreased. Establishing a framework that includes solid management training, effective policies and procedures, and fairness in dealing with staff members will lead to legal decisions, positive morale and a sense of pride in the organization that everyone appreciates and talks about.