Q: Our veterinary technicians are on call over a 12-hour period once a quarter. If called in, employees must arrive at our practice within two hours. Once they complete their work, they aren’t called again during that quarter and are paid double time for their service, with a minimum of two hours’ wages. One technician complained about not being paid for the on-call time. Are we required to pay technicians who are not at work?
A: According to the U.S. Labor Department, on-call workers who must remain on an employer’s premises or are so close that they cannot use the wait time effectively for their own purposes are considered working while on call. However, the circumstances differ.
To determine the extent to which an on-call employee can effectively use their time personally, consider these factors:
- Geography: How far can an on-call employee stray from the job site? The more constraints, the more likely the on-call time is compensable.
- Response time: How quickly must an on-call employee be at work? Requiring a short turnaround is likely compensable.
- Uniqueness: How many employees are skilled in performing the needed work? If a pool of employees is available and they can trade on-call responsibility, less evidence exists that they are restricted personally.
In sum, the degree to which you restrict the on-call employee’s freedom will affect your pay obligations.
Consider, too, whether your technicians are waiting to be engaged or engaged to wait. The distinction lies in whether the employee is primarily in a state of readiness and waiting for assigned tasks (waiting to be engaged) or is prepared to switch focus if needed (engaged to wait).
If your practice defines an on-call employee as someone who may use the time freely and is not performing an assigned task, that employee is waiting to be engaged.
Regardless of whether on-call employees are engaged to wait or waiting to be engaged, your practice’s manual should require that they comply with the alcohol and substance abuse policy and are fit for work.
If an employee is engaged to wait, the time counts toward wage and overtime calculations because it’s for the practice’s benefit.
Besides the federal regulations, some state laws address on-call pay. So, check with your attorney or state.
Q: One of our customer service representatives has a negative attitude. She constantly complains about the workplace and our policies and procedures. As a practice manager, I want to terminate her for cause, but the practice owner is conflict-averse and would prefer to lay her off or terminate her without a reason. What should I do?
A: Deciding whether to fire someone with or without cause involves several considerations, including performance and behavior details, legal implications, and a practice’s policies and values. Consider these factors:
Severity
How serious are the infractions and poor performance? Did she fail to meet expectations one time or often? Did you receive client or employee complaints? Is the CSR failing to perform her assigned duties? Is she creating a negative work environment?
Policies
Is the employee violating hospital policies? Do you have a policy outlining the causes of termination?
For example, you could have a policy like this on maintaining a positive attitude:
“At [Practice Name], a positive attitude is essential to fostering a supportive and productive work environment. As part of our commitment to excellence, we expect all employees to maintain a positive attitude in the workplace. This means treating colleagues, clients and stakeholders respectfully and kindly, communicating constructively, and approaching challenges with a solution-oriented mindset. By embracing positivity, we can all contribute to a collaborative, motivating and successful atmosphere where everyone thrives. Your dedication to upholding this standard is vital to our collective success and the overall well-being of our team. Thank you for your commitment to making [Practice Name] a great place to work.
Documentation
Have you held multiple conversations with the employee and documented them? I ask my company’s clients this: “Will the employee be shocked to be terminated?” Typically, someone is not shocked if the firing occurs after multiple conversations. Those employees are less likely to be litigious.
Legal Risk
Which local, state and federal labor laws apply to the situation? What are the chances of a legal dispute? For example:
- Was the employee talking about the workplace in a way protected by Section 7 of the National Labor Relations Act? Two or more people teaming up to improve the terms and conditions of their employment is considered protected concerted activity.
- Could the employee think, assume or allege the firing is for another reason?
Team Impact
Consider how terminating an employee will affect other employees. For example, have co-workers lodged multiple complaints about your CSR? Has team morale nosedived? Is the employee a team favorite?
Answer questions such as those. Then, if you determine that termination is warranted due to severe or frequent policy infractions that are well-documented and pose minimal legal risk, go ahead and fire the employee for cause.
When you terminate without cause, an employee or court might control the narrative. A practice manager will have difficulty responding to a wrongful termination complaint by saying, “Yes, I did have a reason. I just didn’t say it before.”
Q: A former associate veterinarian was spotted wearing our hospital’s logo while in public with friends and posted social media photos showing it. Can I stop him from wearing our gear?
A: Unless the logo display tangibly damaged your hospital, you probably don’t have any legal recourse. You could ask the former associate to stop, but he has no obligation. You might have a claim if he posts untrue statements about the practice that causes you to lose clients. Otherwise, being out with friends and posting photos with a logo shirt isn’t actionable.
Instead, be proactive. Write a policy that requires an employee to return uniforms upon termination, assuming you purchased them. A sample policy could look like this:
Use of Company Logo After Termination
“Upon termination of employment, whether voluntary or involuntary, all employees must return any company property, including uniforms, badges and other items bearing the [Practice Name] logo. Former employees are strictly prohibited from wearing or using any items displaying the company logo after their employment has ended. Unauthorized use of the company logo might result in legal action to protect the company’s brand and intellectual property. Thank you for your cooperation in maintaining the integrity of our brand.”
SOLIDARITY
Section 7 of the National Labor Relations Act states, “Employees have the right to unionize, to join together to advance their interests as employees and to refrain from such activity.” Learn more at go.navc.com/3VaxhdD.