HR questions for dentists: Tricky employment situations: How to best (and legally) handle them

HR experts Rebecca Boartfield and Tim Twigg, of Bent Ericksen & Associates, address some of the latest concerns they've received from dentists.

QUESTION: When we give an employee a write-up and they refuse to sign it, what do we need to do or say?  

ANSWER: There are several options that can be deployed if an employee refuses to sign a disciplinary write-up:  

1. Ask the employee who refuses to sign the document to write at the bottom, "I refuse to sign" and initial their written statement.
2. If the employee will not write that, the witness to your counseling meeting or you can write at the bottom of the document, "Employee refused to sign," and get the signature of the person who wrote the statement. You can go straight to this option if you do not want to try number one. 
3. Ask the employee to draft a rebuttal to the counseling to be included with your document in their personnel file. (In options one through three, you’re trying to get proof that the meeting occurred, and that the employee was put on notice that their performance and behavior concerns were addressed and need to be corrected.) 
4. Explain to the employee that not signing the document is insubordination and grounds for termination. If they continue to refuse to sign, terminate their employment. (We generally do not recommend this, but it’s an option.) 

Whether you get some type of acknowledgment or not, we recommend that you be clear with the employee regarding the following: 

• that a refusal to sign does not change the fact that they must meet the stated expectations immediately going forward; and
• that if expectations are not met, further disciplinary action up to and including their termination will occur. 

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QUESTION: We are preparing for a 90-day review with an employee.  We met with our consultant and feel there are some areas in which she still needs to improve. Our consultant advised us to extend her orientation and training period by an additional 60 days. Since this is the first time we’ve done this, we want to be sure we’re compliant. If we do this, are there any issues we should be aware of? Would access to all benefits (vacation, holiday pay, in-office dental benefits, etc.) be delayed?  

ANSWER: You may extend someone's orientation and training period. In order for you to make your best decision, here are some thoughts to consider.  

You may prevent only discretionary benefits from being available. For example, you can state that vacation will not begin to accrue, and holidays will not be paid. Any benefits that are required by federal/state/local law must be applied. For example, some areas require paid sick leave. If that’s the case, this benefit cannot be denied, assuming all other eligibility requirements are met. Furthermore, some benefits are discretionary but there are certain rules that must be followed regardless. For example, a medical benefits plan that allows someone to join after 90 days has to be followed, even if the orientation and training period is not completed or has been extended.   

Some employers are under the misconception that the orientation and training period, and any applicable extensions to it, mean something more in terms of employment, termination, and liability. For example, many think it prevents unemployment insurance benefits from being available if employment doesn’t work out, or that no legal challenges can occur if termination is within this time. Therefore, it's important to understand that an extension of the orientation and training means having the ability to prevent only some benefits from being applied; no other special exceptions exist.  

The extension will not impact any other part of the employment relationship. You can issue the review without extending the orientation and training period. You can still provide counseling and feedback. You can still address performance concerns and eventually even end up terminating their employment. The extension is not necessary to manage all these aspects of employment. If someone completes their orientation and training period, this does not mean their employment is permanent or protected or anything else. It means only that they might have some access to employment benefits.   

If you decide to extend the orientation and training period, be sure you establish this in writing, including clarifying which benefits will not kick in.

If you have HR questions you would like addressed, reach out to Bent Ericksen & Associates.

This article originally appeared in DE Weekend, the newsletter that will elevate your Sunday mornings with practical and innovative practice management and clinical content from experts across the field. Subscribe here.