Doctors have been telling their patients for years that prevention — exercising, watching what you eat and getting enough sleep — is the key to good health. Unfortunately, this advice is often ignored or forgotten when it comes to employment policies and procedures. Therefore, in the spirit of the New Year, below are seven New Year’s Human Resource Resolutions that will help you avoid costly employment litigation.

No. 1: Review Your Application
Pull out your current application and take a look at it. Does it request information that is relevant to your employment needs and the type of employee you are seeking to fulfill those needs? In addition, if you intend to conduct any kind of background investigation, does it request information that is helpful to such inquiries and obtain all appropriate authorizations or releases? Also, are you using the application effectively by checking that the applicant has completed the application with accurate and responsive answers to each question, along with completed, signed copies of all forms? Generally, employers may reject applicants for not properly completing the employment application. Thus, you should include a statement on the application that failure to fill out the application completely and accurately may result in rejection or termination.

No. 2: Know What Is in Your Personnel File
The standard “personnel file” should contain all information that was used in the hiring process and in evaluating job performance: the employee’s résumé, job application, W-2 and tax withholding information, aptitude testing data, starting pay rate, job description, performance appraisals and pay adjustments. Records of paid and unpaid leave should also be maintained in the personnel file, including records of notifications made or given, disputes about leave and the circumstances necessitating leave.

Any information not specifically related to employee wage and hour status or job performance should be carefully scrutinized at the time of hiring and throughout the period of employment. If the document reveals any private fact about the employee, it should be placed in the “general confidential file” rather than the standard personnel file. Similarly, general medical information, drug and alcohol test results, and information related to disabilities should be placed in a separate “confidential medical file.” Access to the medical file should be strictly controlled.

No. 3: Use Employee Evaluations Effectively
You should remember that “one size fits all” does not apply. Evaluation forms should be created for each job category and focus on the skills necessary for successful job performance in that particular job classification. Performance evaluations should be conducted on a regular basis, preferably twice a year and by someone who is most familiar with the employee’s job duties. Finally, the form should allow for the employee’s comments and a plan of action for improvement, signed and acknowledged by the employee.

No. 4: Use Exit Interviews to Identify Potential Whistleblowers
An exit interview is a good tool for healthcare employers in identifying both potential whistleblowers and the problems that create whistleblowers in the first place. At a minimum, an exit interview should seek the identity of the outgoing worker’s new employer, his or her duties with that new employer, and the reasons why the employee is leaving (unhappy employees are more likely to become whistleblowers). If it is not practical to conduct a person-to-person exit interview, a questionnaire is a good alternative. Finally, and most importantly, employers should follow up on any information obtained during an exit interview.

No. 5: Compliance with the Deficit Reduction Act of 2005
A key provision of the Deficit Reduction Act of 2005 (DRA) — the “Employee Education Provision” — provides, in part, that any entity participating in Medicaid in the amount of at least $5,000,000 annually must establish written policies providing employees with education about false claims recovery and include a discussion of pertinent laws, employee rights, and policies for detecting and preventing fraud, waste and abuse.
So what should the written policies required by the DRA contain? At a minimum, the following:

• A detailed description of the False Claims Act (FCA), including its remedies and procedures;
• A detailed description of relevant states’ false claim laws, if applicable;
• Reference to the anti-retaliation provisions of the FCA and the employer’s policy that retaliation will not be tolerated;
• A cross-reference to the corporate compliance program; and
• A description of how to report improper conduct anonymously.

The DRA also requires that healthcare employers disseminate its DRA policy. This can be done through the employee handbook, e-mail, bulletin boards or an Intranet Web site.

No. 6: Make Sure Your Employment Verification Process is Up to Date
While all employers are prohibited from hiring undocumented workers, they are also liable for discriminating against an employee based on his or her citizenship status. Walking this Catch-22 tightrope is not easy, though not impossible if the following practical guidance is followed.

• The employer should not ask job applicants to complete the Form I-9 as part of the employment application because the form contains age, national origin and alien information that should be excluded from the hiring process.
• Form I-9s should not be kept in the employee’s personnel file.
• If an employer does not have a Form I-9 on file, you should request that the employee complete a new Form I-9. The new Form I-9 should be dated when completed—never post-dated. Employers should provide an explanatory annotation, dated and signed and attached to the new Form I-9, explaining why the Form I-9 was not completed on a timely basis.

Like most New Year’s resolutions, the seven listed above will be challenging to meet. If you stick to them, however, these resolutions, like all good human resources practices, can bolster the defense of any employment claim.



February 2008