Fired terrible medical assistant claiming discrimination - EPLI Reminder / PLEA

Question:

Jennifer, 

As you know I am tremendously proud of the training we do here and the positive culture in my practice.   We did fire someone recently we tried to train but she did not fit the practice.  Now she is saying we fired her because she told us she has a medical condition.   I was not aware she has any medical condition and she did not ask for any accommodation at any time.   

Now what? 

Thank you for your advice in advance. 

Dr. K

Answer: 

First thing we do is report this to your Employment Practices Liability Insurance broker.   That is the insurance you SHOULD BE maintaining to protect against a claim of unlawful termination, hostile work environment, discrimination, harassment, etc from your employees.   Your employees are one of your biggest liability areas!  Always!   They love you until they don't!   Why is it imperative you have insurance?  Because the potential liability imposed by statute and the New York Court System for cases like this SMACKS IN THE FACE OF REASONABLE.   The employer may be found guilty, from the employee's perspective, of a wrongdoing that would give rise to damages that are calculated in an insane way, insane.    Back pay (time out of work), forward pay (how long they COULD TAKE to find a job - often awarded for 1-3 years ahead) PLUS the PLAINTIFF's  (EMPLOYEE's)  Attorney's fees, which, trust me, will be a LARGE NUMBER.   On top of that, if you do not have insurance coverage, you are also paying for YOUR DEFENSE COSTS.   The number to defend without insurance and the outrageous settlement numbers proposed by the Plaintiffs lawyers, all seemingly in cahoots, are appalling.   In fact, I have not seen a case with Jackson Lewis or Littler (devoted specialists in defense) resolve a case for under 6 figures.   How can this be?  This makes no sense?   What if the person was barely employed or fired during a probation period? How can a settlement be that much?   

Well, to give a crash course on litigation - the plaintiff, the employee here, is given deference on their fact pattern BY THE COURT all the way through discovery - which can take a long time - requires documents to be exchanged, tons of paperwork, depositions, time time time, which means MONEY and tons and tons of paperwork and conferences and more time (the employee is sitting at home on tik tok waiting for money their lawyer promised them is coming).  By the time we get to Summary Judgment, which is after a lot of time of everyone being heard through discovery, the defense lawyer can now make a long winded written motion to ask the judge to throw out the case.  If there is any scintina of he said, she said, or open questions, you may not win and will potentially have to go to trial.  These cases never go to trial, why?  Because then you are leaving your fate to a jury of "peers" to decide if you owe money to this employee, and the jury never finds for the employer.  At this stage the legal fees are already so high, the settlement numbers are much larger than had you settled early on.   Money, our currency, is not an equalizer and is valued at different rates per situation, as we are all well aware, and the value of your time and the fired employee's time are not actual factors here.   The effort you put in, the work you do, the benefit to society you bring to your patients and those you employ are not valued here.   To continue preaching, justice is not blind, and in the case of employment cases, it is deferential to the claimant and drastically skewed against the employer.  

Thesis - the current state of employee rights in New York State is a form of legal extortion - where the employee benefits, but the real winners are the lawyers.    Rant concluded for today. 

TO DO: Protect  yourself - carry insurance.  Speak to your broker today and confirm  you have coverage.   Email me if you need me to tag in to confirm you have adequate coverage. 

Go back and look at your employee records - write ups.  If you want to review how you are doing on documentation, we can have a discussion.   Employee assessments need to be done frequently.    Infractions must be documented well.    Let's make sure you are adequately protected from risks inside your own walls...