June 13, 2013

For those unaware, our newest addition to the firm is former Administrative Law Judge Ruth Kraft, who is an accomplished labor and employment law expert.  Judge Kraft has been working with our healthcare department for several months now and will be available to assist with labor related issues upon request.  The below question was posed to Judge Kraft and she has graciously provided her answer for our benefit -


Dear Judge Ruth.

Our practice is thinking about hiring a new employee. However, after a brutal experience with the Unemployment Appeal Board, we are fearful that discharging someone for failure to meet my standards will cause the practice's experience rating to be charged.  Are we being paranoid or correct in this assessment?

Joanne, on behalf of Dr. T


No, this isn’t paranoia.  Discharging a worker, absent misconduct as determined by the Department of Labor and the Unemployment Appeal Board, can result in your account being charged.  However, your employee manual should provide for a probationary period (I recommend 90 days) and you have the right to discharge an at-will employee at any time, with or without cause.  If the worker is new to your practice, then your account will be charged for the first seven weeks of unemployment and, thereafter, the penultimate employer’s account will take the hit so the pain will not be severe.  Given the potential costs of the (un)Affordable Care Act and other burdens placed on employers, you may wish to defer hiring until the full implications of the statute have been clarified and you can make a truly informed decision.

Hope this helps.  If you have additional questions about this topic, feel free to contact me at (516) 747-6700 x. 326 or at RKraft@Kirschenbaumesq.com or Jennifer at (516) 747-6700 x. 302 or at Jennifer@Kirschenbaumesq.com.