This week, on the Dr. Marketing Tips podcast, Corey sits down with attorney Ashley M. Schachter of BakerHostetler to run through common questions from medical practice owners and administrators regarding labor, wages, and employment law. 

Check out the full interview with Corey and Ashley in this extended episode. If you have a question that is not addressed here, DM us on Twitter @drmarketingtips, and we’ll do our best to get it answered for you.

Tune in to discover: 

• Nationwide trends in labor legislation and litigation
• The legalities around employee termination and changing the rate of pay
• How to deal with both internal and external complaints of inappropriate behavior or harassment
• Why it makes sense to include anti-harassment and respect in workplace training programs
• The legal low-down about overtime pay and offering meal and coffee breaks
• How to start developing an internal policy around medical marijuana

Transcript Notes

Speaker 1: Dr. Marketing Tips, paging Dr. Marketing Tips. Dr. Marketing Tips, you’re needed in the marketing department.

Speaker 2: Welcome to the Dr. Marketing Tips Podcast, your prescription to the answers you seek to grow your medical practice easier, better and faster. This show is all about connecting practice administrators and medical marketing professionals with peers working in practices, learning from experiences, making mistakes, and sharing successes. Let’s get started.

Corey: Hello, and welcome to the Dr. Marketing Tips Podcast. I’m Corey, one of your hosts. And with me today is a very special guest to talk about wages, labor laws in your practice. Ashley Schachter at Baker Hostetler. Ashley, thanks for joining us today.

Ashley Schachte…: Thank you so much, Corey. Happy to be here.

Corey: We’re excited to have you. So Ashley focuses her practice on labor and employment law, representing clients on a wide scope of labor and employment law issues including employment litigation before administrative agencies and state and federal courts. So for today’s episode, we’re going to run through some questions submitted by listeners regarding wages and labor laws. Ashley, are you ready to dive in?

Ashley Schachte…: Yeah. Let’s get started.

Corey: Awesome. So first question. What are some of the trends that you’re kind of seeing nationwide, and then also in the state of Florida when it comes to wages and labor laws?

Ashley Schachte…: Yeah. So kind of a two part answer, I guess. First, there’s trends that we’re seeing as far as the legislation out there, and then trends as far as litigation, what kind of lawsuits are actually getting filed. So as far as new legislation, we’re definitely seeing a trend towards, and I’m sure our listeners may have seen this in the media, the $15 minimum wage, increasing minimum wage throughout the country. The federal minimum wage has been stagnant for a really long time, so we’re seeing a lot of states and even localities, cities, counties, that are enacting ordinances that are generally gradually hiking the minimum wage on an annual basis, heading towards that $15 mark, so that’s definitely a trend we’re seeing and something that we’re counseling a lot of our employer clients through.

Ashley Schachte…: Another one that we’re starting to see is something called predictive work week scheduling laws. So what that is, is laws, typically they’re local, that would require an employer to give an employee a good faith estimate of what their schedule is going to be upon hire. And then there are requirements that employer pay what is called predictive pay, if they do things like canceling a shift, or cutting hours. Any of our listeners that may have ever worked in retail or restaurants may be well familiar with the idea that companies will see that the dining room is empty, or it’s a slow day, and they’ll cut hours kind of off the cuff. And that can certainly have an impact on workers as far as their take home income. So the thought is that these ordinances will at least compensate employees with some type of predictive pay, whether it be at their regular rate or half rate, hour … I’m sorry. A half of their regular rate so that they at least get some compensation and don’t feel as much of the brunt of those changes.

Ashley Schachte…: So those are probably two of the bigger changes that we’re seeing on a wage an hour side. And then from a litigation standpoint, we’re still seeing a lot of cases around mis-classification or workers. And what I mean by that is, for example, somebody that as an employer, we are saying, “You are exempt under the fair labor standards act,” which is the federal law that governs wage and hour. And because you’re exempt, you’re not entitled to things like overtime. If you get that wrong, and the person is not really exempt, and they don’t meet the tests that are imposed under the law for the type of duties that they have to be doing, or the salary, minium salary that they have to be paid, then the employee can bring a lawsuit to recover things like any unpaid overtime for hours worked over 40, so we see that a lot.

Ashley Schachte…: One of the exemptions that is commonly misapplied is the administrative exemption. We’ll see a lot of employers just say, “It’s an administrative position, or it’s record keeping. It’s data entry,” and the analysis for them kind of ends there. And they put somebody as exempt who really shouldn’t be. And they may not have met all of the required duties for that exemption. And so then the worker will bring a lawsuit for unpaid wages, so that’s a common one. And then another common one that is particularly difficult to defend is what we call an off the clock case. And what that is, is a worker bringing a lawsuit saying, “You told me I had to work while not being clocked in. Or you manipulated my time records so that I wouldn’t go over 40 hours and you wouldn’t have to pay me overtime.”

Ashley Schachte…: Or sometimes in this more technology driven world, we’re seeing things like you required me to respond to emails and text messages while I was not clocked in. I am not exempt under the FLSA. I’m entitled to overtime. And when you add in all that extra time that I was working on my device off the clock, I’m entitled to a substantial amount of damages. So those are probably the two most common pitfalls that we see for employers that result in litigation. And I would say that’s pretty consistent nationwide and in the state of Florida that we see lawsuits on those subjects.

Corey: Yeah. I’m sure some of our listeners are taking some notes and going, “Uh oh.”

Ashley Schachte…: Yeah. You always want to check with your attorney regarding those exemptions.

Corey: Yeah. Absolutely. So great answer. And then speaking of the listeners, I do want to say that if you are interested in anything that Ashley is saying, we are going to have a full transcription on the website, so don’t feel like you actually have to take those notes. We’ll have everything available for you, so you don’t have to scribble everything down. So again, great answer. So yeah, let’s keep going. Let’s jump on to this next question from Cynthia from Texas. And she says, “Sometimes my surgeon will run long. And if we’re at the end of the week and surgery runs over, does this count as overtime?”

Ashley Schachte…: Yeah. So Cynthia, I appreciate the question. I wish I could ask you a couple followup questions. Seems like that’s always, us attorneys, we have a million questions for you when you come to us. But my first question is: Overtime for who? I’m not sure if she’s referring to the surgeon of if she’s referring to somebody that’s in with the surgeon, who’s helping him or her, or administrative folks. But to the extent she’s talking about the surgeon, the surgeon’s not entitled to overtime. I think that should be clear.

Ashley Schachte…: But as a surgeon, he’s a professional. He’s exempt, so it’s not going to have any impact on his take home pay. But if there’s other workers that are assisting him in surgery, then their entitlement to overtime is going to depend on two things. One, whether they’re exempt or not under the FLSA. And by that I mean: Are they generally salaried? Or are they entitled to overtime? They’re an hourly worker. And then the second thing is how many hours they worked in that given week. So under the fair labor standards act, everything is done on a week by week basis, including a person’s entitlement to overtime. So the inquiry is always: What happened in that given workweek? And are they already at 40 hours? Everything over 40 hours, they’re going to be entitled to time and a half pay. And by that I mean time and a half is one and a half times their regular rate of pay.

Ashley Schachte…: So it’s possible that you could have your surgeon running over, but the folks that are in there assisting him are not exempt, they’re generally entitled to overtime pay, but they’re not going over that 40 hour mark. So he could run over and it doesn’t have any effect on their getting overtime. If they are already at 39 hours when they walk in the door to do surgery, and the surgery runs six hours or something like that, then yes, they would be entitled to overtime for any hours worked over 40.

Corey: Right. And I think, and again, I don’t know either, but I think she would’ve been referring to anyone that’s actually on the team that helps. So again, great answer. Let’s move on to Ravi from Florida. And he says, “What notice must be provided before an employee is terminated or laid off in Florida?”

Ashley Schachte…: Yeah. So I think this one is something that trips up a lot of people as far as: When can you fire somebody in Florida? What do you have to do? I think there’s sometimes a misconception that in every state, there’s only a certain number of things that people can be terminated for. And so the general rule, unless there’s contrary state legislation, and Florida follows the general rule, is that all employment is at will unless there’s an employment contract. And so at will employment means that the employee can quit the job at any time with or without notice for any reason. And it also means that the employer can terminate the employee at any time with or without notice for any reason. One little asterisk there, so long as it’s not an unlawful reason.

Ashley Schachte…: So he can’t terminate somebody because of their sex, or their religion, or their national origin, any of those protected categories. But as long as it’s not something like that, you can terminate at will for any reason in Florida. That being said, I would say that when you are terminating someone, you want to follow some sort of consistent practice as far as notice. There may be some scenarios. In general, I tell my clients you want to reserve the right to terminate immediately if the situation warrants it. So if somebody is being violent, or they’re found to be stealing, or they’re engaged in some sort of really egregious behavior, you want to reserve the right, even if you generally do a progressive discipline, to terminate immediately. And you can put that in a handbook if you have one.

Ashley Schachte…: But in general, if it is something where notice would be appropriate, try to give the same amount of notice to all of your employees as best you can. And that’s kind of a recurring theme that may come up in other answers too, is whenever we have a practice of what we do as an employer, we want to try to be consistent. And that is for just fundamental kind of fairness reasons, and so there’s not a showing of favoritism or anything like that. But it’s also because you don’t want to expose yourself to potential claims such as, well, John got terminated, and you gave him two weeks notice, and he’s a white male. And I got terminated, and I’m an African American female, and you gave me one day to get out.

Ashley Schachte…: So you don’t want to have things that are applied differentially like that because you can open yourself up to discrimination claims and other issues like that. But technically, the answer is in Florida, there’s no specific requirement for what kind of notice you give. It doesn’t have to be in writing. It can be in person. Doesn’t have to be any specific set amount of time or anything like that, so you can determine what practice works best for your business and just try to apply it consistently unless, as I mentioned, there’s some sort of pressing reason why we’ve got to immediately terminate or something like that.

Corey: You briefly mentioned there, handbooks. And we didn’t get a question from a listener on this, but I was just thinking. What is the kind of best practice or general rule of thumb for reviewing a handbook? I know that a lot of times when employees come in, they have to sign something that says that they’ve reviewed it. And then it gets filed away, and that’s kind of that. Do you think it makes sense for practices to open that up every now and then and just kind of run through that one more time? Or is just the once okay?

Ashley Schachte…: With the employees, or as far as revising it year to year?

Corey: With the employees themselves.

Ashley Schachte…: I think that there might be some policies that make sense to highlight on an annual or every other year basis. I don’t know that it’s necessary to go through the entirety of the handbook with employees. But for example, we suggest doing things like anti harassment training and sort of a respect in the workplace training, every year, every other year, something like that, just to kind of brush up employees. And when you do that, you can have them sign something that indicates that they attended that training, and that can be placed in their file, which is helpful if there’s ever a lawsuit or anything like that. You can show that we’ve made a good faith attempt to educate our employees on those issues.

Ashley Schachte…: And then as far as, I know you didn’t exactly ask this, but just as far as reviewing the handbook ourselves as the employer, generally I would say kind of the same thing. Every year, every other year, we want to take a look at the handbook and make sure that it is up to date with whatever the current status of the law is in each of the states in which you’re operating.

Corey: Yeah. Absolutely. And then actually speaking of harassment, that kind of transitions into the next question we got. And this is from anonymous, also in Florida. But they said that, “There’s an older physician at our practice that’s somewhat inappropriate with some of the females on the team. Surprisingly, in this me too climate so far, there hasn’t been a formal complaint. We just sort of say, ‘That’s the way he is.’ So what should I be prepared for when a complaint does come in? And what’s the process there?”

Corey: Hey, guys. Corey here, cohost of the Dr. Marketing Tips Podcast. And I wanted to interrupt this episode just for a minute to tell you about Insight Training Solutions. So Insight Training Solutions is an ongoing employee engagement and training platform for your medical practice, meaning employees can log on and take these medical practice specific trainings whenever and wherever they are. And each training is meant to increase employee engagement, improve practice reputation and develop some patient service mindsets, if we’re being honest, something that we all know some of the employees may lack, not calling anybody out by name.

Corey: But one of the cool things about Insight Training Solutions is they’re always developing new content. And they just released 10 Steps to a Phenomenal Patient Experience, where you’ll learn how to create a phenomenal patient experience, strengthen job security, and discover customer service secrets for your entire team. So this course is in addition to the other ones they already have, which include communication across generations and how to understand today’s multi generational workforce and how to develop overall patient experience. This is another course, The New Approach to Customer Service. We’ve also got Eight Ways to Wow Patients. And you can sign up for a free trial to see what everything is about at insighttrainingsolutions.io. That’s insighttrainingsolutions.io. Or just Google Insight Training Solutions. You’ll be glad you did.

Ashley Schachte…: So this one makes me nervous for our listener. This is a difficult one. Usually, in other industries, if we have sort of a bad actor like this, somebody that’s constantly being a problem, I would tell them we need to look very quickly at discipline, or training, or even termination because if we know that this person is a problem, and we’re getting complaints, even if they’re informal about him, and we keep him on, and we say, “That’s just the way he is,” that’s not going to look very good if a lawsuit’s going to be filed. I think it’s something important for people to know that it’s really not a defense that, for example, somebody was raised in another era and they think that certain racial language is appropriate, or they think that certain sex based language is appropriate. That’s not really a defense. And the standard is still that we’ve got to make sure all of our employees are being treated with respect.

Ashley Schachte…: So my suggestion here, before we even get to the complaint process, is: Can we get this person into some sort of training? Can we have a conversation with him about what’s expected as far as workplace conduct and how to talk appropriately to females and other staff members in the workplace? I think that’s a conversation that needs to be had. I’d also encourage this employer to look at: Do they have a strong anti harassment policy in their handbook? Is that something that’s getting distributed to employees when they get hired? And then again, as we were kind of talking about before, are we doing any sort of annual or every other year training on those issues? Because as this person mentioned, this is definitely a hot topic area right now and something that employers are being held to a really high standard, so we want to make sure that we’re doing everything we can to prevent these kind of situations.

Ashley Schachte…: And then as far as the complaint, she asked, “What should I be prepared for when a complaint comes in?” Sorry, it could be a he too, it’s anonymous. This person asked about complaints. I’m not sure if they’re talking about internal complaints or external, so I’ll kind of answer both. If it’s a formal internal complaint, we want to make sure that we have some sort of process set up by which any complaint, we investigate. So I typically recommend that we put something in our handbook and we follow this procedure that any and all complaints are promptly investigated. We shouldn’t guarantee complete anonymity because you can’t do that and get to all the facts. But you can say that it’ll be handled as confidentially as possible.

Ashley Schachte…: That person that’s complaining should be interviewed. The physician or any other team member that is complained about should also be interviewed. And then any potential witnesses to the behavior should be talked to. And then at the end of that investigation, ideally you want to let the complaining party and the accused party know what was the conclusion of the investigation. And then if there is a reason for concern, and we think that something happened, then the next step is deciding: What’s the appropriate response? And that could be anything from, depending on the severity of the behavior, a written warning and training, all the way up to termination if it’s found to be sufficiently serious. So that’s kind of the process that we recommend for internal complaints.

Ashley Schachte…: And then another thing that trips up a lot of employers is: What happens if somebody comes to me and says, “I have a complaint, but I don’t want to make it a formal complaint yet. I’m just sort of informally venting about this person”? Our suggestion as a best practice is you’ve got to report that up to HR as a receiving supervisor. And you should encourage that person to report it to HR themselves because if we don’t address these problems, they can really just fester, and we want to avoid that at all costs, so that’s the internal side.

Ashley Schachte…: And then as far as external, if the person is bringing a sexual harassment complaint, before they can get to a court, they have to go through what’s called the administrative exhaustion process. So what that employee would do is they have to file what’s called a charge of discrimination with the EEOC, that’s the federal agency that enforces these laws, or the Florida state equivalent, which is the Florida Commission on Human Relations. And one of those agencies will investigate the complaint. That usually respond … I’m sorry. That usually involves the complaining party putting their complaint in writing. Then as the employer, we would have an opportunity to respond with what’s called a position statement, laying out what we dispute in their complaint, adding any other helpful facts.

Ashley Schachte…: And then there’s typically some opportunity for the parties to provide supporting documents. But one thing that a lot of employees and employers alike don’t realize is that process can take a very long time. So those agencies are really backlogged, and I’m seeing charges that will sit at, particularly the EEOC, for eight, 10 months, up to two years I’ve seen. So it can be a long time, and it can really drag out. So that is another reason why it’s helpful if, for example, we did an investigation to have some documentation about that because by the time it gets to litigation, a couple years could’ve gone by. And if we don’t have somebody’s notes on what happened and the results of the investigation, and kind of who said what, or maybe some witness statements, as you can imagine, it can get really difficult to determine exactly what happened if we’re talking two or three years ago, so that’s the first part of the external. And then the second part would be a lawsuit, so I hope that helps.

Corey: Yeah. I think that hopefully that’s more than enough information, and just sort of starting that line of communication and possibly the training and the discussions like you mentioned kind of at the top of the answer is enough for anonymous in Florida. But yeah, let’s transition to something that is a little bit lighter, but still definitely important. So this comes from Debbie and Florida, and she says that, “Sometimes my team misses or skips breaks when we’re behind, or we’re just kind of hustling throughout the day. So is there a violation or anything that we should be aware of that can come back to bite us?” And to provide some additional context here, what I think she’s saying is usually the team is okay with skipping breaks. But I think she’s worried that maybe one team member may just get a little disgruntled that he missed his 15, or his 30, or something like that. I think that’s what she’s asking.

Ashley Schachte…: Yeah. So one thing to be aware of that there isn’t a Florida or federal law that requires us to give meal or coffee breaks to employees if they are over 18. I’m assuming most of our listeners are not going to have workers under 18.

Corey: Right.

Ashley Schachte…: So if they’re under 18, you’ve got to give them a 30 minute break for every four hours. But that probably is not a requirement that many of our listeners are going to be dealing with. I just mention that as sort of the asterisk. So there isn’t technically a requirement that we provide breaks. I think potentially there’s sort of a morale issue if we are promising, for example, an hour lunch break, and people are continually unable to take that, so that’s something we want to be careful with there. And are we appropriately staffed so that people can get breaks throughout the day and stay efficient, stay fed, and to have a good working environment? So I think that’s sort of a practical and a morale consideration that we want to just be wary of.

Ashley Schachte…: And then the other thing that I would note is if we do provide short breaks, so like five to 20 minutes, that are sort of like a coffee break, or back in the day as they say, it might’ve been a smoke break, things like that, although the employee can do whatever they want with it. Those do need to be paid. So the Department of Labor, that’s kind of their stance on the short breaks, 20 minutes or less. They should be paid. They’re supposed to be breaks that just kind of allow the employee to decompress for a moment and ultimately increase efficiency in the workplace, so that’s sort of the thought behind why they should be paid.

Ashley Schachte…: Meal breaks, a bonafide meal break, that’s usually going to be something 30 minutes or more. The person should not be interrupted. They should be clocked out for that if they are a nonexempt worker. But in general, there’s not a rule or a law that they are running afoul of by especially voluntarily skipping breaks. There just might be a morale issue if people are feeling like they can’t take a break when they’ve been promised breaks.

Corey: Right, yeah. Absolutely. Let’s transition to … Let’s see. We’ve got Marie here from Georgia. And she said, “How often should we change rate of pay?” I thought this was an interesting question. She said, “We do it annually, but others are doing it more or less often. And what’s kind of the trend in the industry?” And I assume again that she’s asking this because it’s pretty difficult to attract and retain employees. And I think she’s wondering if other people are changing the rate of pay more often to help keep employees.

Ashley Schachte…: So in general, there’s no legal requirement as far as when those raises or things like that have to happen. Most companies across industries I see do it annually, like merit raises and things like that. As far as other companies changing it, I’m not aware of any trend of companies in the medical industry doing more than an annual raise just to sort of bolster their ability to recruit. But they may do an annual raise that is higher than it might’ve been in the past to try to get them to market, so to speak. So I think that’s just going to depend on: What is the market pay, and I see Marie’s in Georgia, for a specific position in Georgia? And do we want to bump up to go to market? And for that, I’d probably need some more specifics because I’m not sure exactly what position she’s talking about or what market they’re in. But as far as just how often to give a raise, I would say a year is very typical across all industries. And I haven’t seen a trend of going to semi annually or anything like that to attract workers.

Corey: Okay. So Cliff from Florida says, “I don’t have everyone on our team on direct deposit. Can I make it a rule where payment has to come via direct deposit?”

Ashley Schachte…: Yeah, we get this one a lot. So technically, no. In Florida, you can suggest it, but you can’t require it. You have to provide some sort of alternative method.

Corey: It’s a pain in the butt to write checks.

Ashley Schachte…: It is. But unfortunately, you can’t require direct deposit. I have seen some employers go the route of they’ll offer, if your business has this capability, like a debit card type of thing that has the pay for the pay period loaded onto it. But I don’t know that that’s less of a headache than just writing a check. So we can certainly strongly encourage it, but we can’t require it.

Corey: Okay. And last question here because we’re running a little bit short on time. So this comes from Lisa in Florida. And she says, “Medical marijuana was recently legalized in our state. Is there a blanket policy we can put in place for employees? We’ve had meetings and discussions in our developing a policy internally, but just looking for guidance on where to start.”

Ashley Schachte…: Yeah. So this is one I’ve been tracking because it’s just fascinating nationwide. Marijuana’s just being dealt with so differently across the nation. So Lisa, if she’s in Florida, she’s actually one of the lucky ones, assuming that their practice or business does cross state lines. But Florida, while we do have medical marijuana, there’s no employment protection for it. So I think that’s one thing that gets people confused a lot, is you’ll hear, well, for instance, Colorado has recreational marijuana, so anybody can just smoke marijuana whenever they want. Well, technically in Colorado, they’ve got a provision in their constitution that says employers don’t have to allow for the use of medical or recreational marijuana. So while it may be decriminalized, there’s no employment protection for it.

Ashley Schachte…: We’re starting to see some states will allow employment protections. We’re also starting to see a trend, I would say, of especially national employers or employers that are multi state, just kind of taking it off their drug testing panel because they don’t want to deal with the accommodation issues or the various differences in state laws. But in Florida, you are really picking what way you want to go as an employer. Because there’s no employment protections, you can do one of two things. You can have a, if you already have a drug free workplace policy, you are fine to keep doing that. You can test for marijuana in Florida. You can terminate somebody who tests positive. You can decline to hire somebody who tests positive, even if they have a medical marijuana card.

Ashley Schachte…: The other thing that you can do is you can decide that you’re basically going to treat it like alcohol and not ask questions about it unless an employee is exhibiting behaviors that show that they’re intoxicated on the job, or they’re under the influence, they can’t get their work done, those types of things. So those are kind of the two most prominent approaches that I have seen, is either we’re going away from being a totally drug free workplace and just sort of treating marijuana and alcohol very similarly. Or we are a drug free workplace and we’re going to stick with that. And you’re allowed to do that in Florida.

Ashley Schachte…: The thing I would just say and kind of talked about this earlier, is be consistent whatever you do. So if you have a drug free workplace, you don’t want to allow somebody to keep working even though they tested positive, and then another person tests positive and you terminate them. You want to make sure that we’re consistent in what we’re doing. But you do have some leeway in Florida to choose the approach that works best for your business, thinking about things like safety concerns. Obviously, if we’re in the medical field, there’s a level of precision that’s required and expected for that. So you may be in a position where leaning towards drug free just makes more sense for your business, and you’re allowed to do that in Florida.

Corey: Awesome. Well, again, thank you, Ashley, for being here. Thank you to the listeners for submitting awesome questions. And sorry we didn’t get to touch on all of them. But I think we did learn a lot from the time that we did have. And actually, if our listeners want to connect with you, how should they go about doing that?

Ashley Schachte…: Yeah. So my law firm again is Baker Hostetler. You can find us at www.bakerlaw.com. And you can also reach me via email if you’d like. Again, I’m Ashley Schachter, and my email is A-S-C-H-A-C-H-T-E-R. And that’s at bakerlaw.com.

Corey: Awesome. Thanks again for joining us. And thanks to everyone for listening to this episode of the Dr. Marketing Tips Podcast. And we’ll catch you on the next one.

Speaker 2: Thanks for listening to the drmarketingtips.com podcast. If there’s anything from today’s show you want to learn more about, check out drmarketingtips.com for our podcast resource center with all the notes, links and goodies we mention during the show. If you’re not already a subscriber to our show, please consider pressing the subscribe button on your podcast player, so you never miss one of our future episodes. And if you haven’t given us a rating or review yet on iTunes, please find a spare minute and help us reach and educate even more of our medical practice peers. Thanks again for listening, and we’ll catch you next time, doctor’s orders.

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