What dentists should know about employment laws – Interview with Christopher Achkar
We interviewed Christopher Achkar from Achkar Law to discuss what dentists need to know regarding employment laws and contracts and what they can do to make sure they protect themselves and their practice, questions and answers below:
Can I record my employees without telling them?
Chris: Generally, yes. But you should let your employees know in advance for both quality control and safety reasons. There are also privacy concerns; employees expect some measure of privacy in the workplace.
If an employee expresses discomfort with being recorded, it’s important to get to the root of the issue. Why are they uncomfortable with being recorded? Is there an issue with their performance that they don’t want you to see? Discuss this with them, but don’t record them in secret.
Should I document conversations with my employees?
Chris: Always. If and when litigation does happen, written documentation is some of the most solid proof lawyers look for. It’s not that advantageous to get other employees to testify against the employee in question, because they tend to side with the employer out of fear of losing their job.
Documented evidence is important, whether the employee has signed the documents or not. Put the date, when, why, and what you’re going to measure next time– these are performance improvement plans to get yourself out of lack of performance or toxicity. You should document every time you have an employee review or a meeting.
Some documentation happens unintentionally over texts, social media, and messaging apps. This sort of documentation is a double-edged sword. It could prove that you’re being reasonable and trying your best to work with someone. But, if the employee is looking for you to say something wrong, they can also take these words out of context and use them against you.
What should dentists document regarding their staff?
Chris: My advice changes depending on who I’m speaking with. From an employer perspective, I don’t encourage using WhatsApp or any other form of written communication. I prefer communication to take place in person, and for notes to be taken. There are multiple reasons for this. One of the best reasons it’s easier to interpret words and intentions in person. But they must be put down in a document. Try to get the employee’s signature on the document, whether or not it includes a performance improvement plan. If they refuse to sign the document, you can write down that they refused to sign it, but that it took place on a certain date. As long as there is something we can point to that indicates the date and explains what happened, it can save you a lot of money if it goes to litigation.
It’s good practice to have the documents so that even the employees know that you are holding down the fort in an administrative sense.
What are the dangers for dentists who don’t have employee contracts?
Chris: One common misconception dentists have is that they can fire someone within the first three months without cause. That’s not true unless there’s a contract that allows for a probation period, and states that an employee can be terminated within that period without being given anything. A probation period is a creature of the contract. If people look up the Employment Standards Act, they’ll find that there is no probation period. There is, instead, a period within which an employer can terminate someone and not pay them anything. But that is only if a contract limits entitlements to the Employment Standards Act.
Otherwise, if you terminate an employee without a contract, it’s fair game for the employee to claim that they’re entitled to a lot of money.
What are the most important elements of an employment contract?
Chris: Downloading a contract without reviewing it with a lawyer is like buying a car that looks good on the outside without bothering to see if it even has an engine!
One of the most important terms in an employment agreement is the termination clause. You may think that you’ve put everything you want in an employment agreement and that you’ve done a terrific job, but without an enforceable termination clause, the length of time someone works for you becomes a factor in deciding their entitlements.
A termination clause limits how much you have to pay an employee upon termination. Without a termination clause, an employee will cost you more money the longer they stay. And I don’t mean only upon termination, but also constructive dismissal obligations.
If an employment agreement does not include a termination clause that minimizes entitlements upon termination to the Employment Standards Act, employers don’t automatically have to pay the Employment Standards Act. So one misconception people have is that “I hired someone and I’ve worked with them for two years and I’m going to fire them now and pay them for two weeks because that’s what the Employment Standards Act says.”
But if they don’t have an enforceable contract, that person’s entitlements are far more than the two weeks. If they go to the Ministry of Labor, the entitlements are two weeks because the Ministry of Labor only enforces it to the point that the employment standards allow for it, not more than that. So, employees generally go to lawyers because they can get money exceeding employment standards.
In short, termination clauses are a catch-all. So whether an employee makes false allegations, or an employer decides to terminate someone, having an enforceable termination clause minimizes the amount of money that needs to be paid.
So, let’s say an employee alleges something that’s not true. Fine, let’s now look into the termination clause. Well, guess what? The termination clause says the employer only has to pay the employee X amount. So the false allegations make no difference. The termination clause allows the employer to limit entitlements to the Employment Standards Act and not exceed that rate.
Do dentists need contracts for part-time employees?
Chris: No one should be allowed at any employer’s facilities to start working without having first signed an employment contract.
If an employee starts working one day, then signs the agreement the next day, the agreement is unenforceable. So there must be an agreement given to every single employee before they start working, whether they’re part-time employees or contractors. Without a contract, someone could go to a lawyer or the Ministry of Labor and allege something like, “I worked overtime hours and wasn’t paid for them.”
Even if the employer classifies the employee as a contractor and they paid an invoice that clearly states the hours worked, the employer still has to justify any overtime hours that the employee claims to have worked.
So, whether the employer paid an invoice or not makes no difference without an enforceable contract. The degree of control that you have with your employee or a contract is worth putting in writing before anyone starts working to prevent these kinds of problems.
How do I get existing dental staff to sign a contract?
Chris: To motivate employees to sign a contract, you can always introduce the new contract with the caveat that you have to give them an added benefit along with the new agreement. This benefit will be given if and when they sign the new agreement. You don’t want employees to start working again until the agreement is signed.
It would be a mistake to tell them: “Look, this week I will pay you under the new rate. Just sign the agreement and give it to me at the end of the week.” Then suddenly, you’re paying them a higher rate under the old contract, and there’s no motivation for them to sign the new agreement. There’s no consideration to make the new agreement enforceable even when signed because that employee got that benefit before they even signed it.
The motivation doesn’t necessarily have to be a raise. It could be a $100 signing bonus. It could be a $50 signing bonus. It could be an added day of vacation for the whole year. It doesn’t need to be monetarily huge. It could be one to five extra cents an hour. It could be in the form of prolonged monetary payment in a change of rate.
How do I remove problem employees before buying a practice?
Chris: Before buying a practice, determine whether or not you plan to keep the employees.
If you don’t want to keep the employees, then you want the seller of the practice to terminate and pay entitlements to those employees before you buy the practice. There’s always a risk when taking on new employees, but you want to try and limit how many things can go wrong.
If you want to keep the employees, I advise the purchasers to have the current owner introduce the new contracts before selling the practice. These new contracts should limit entitlements to the minimum so that if the purchaser wants to terminate people, they only have to pay the minimum entitlements under the Employment Standards.
You can’t terminate people by simply handing over the minimum entitlement and saying “Goodbye.” The dentist must have a signed release before they give the employee money. This ensures that the employee doesn’t go to the Ministry of Labor or a lawyer and say: “Sure, they gave me some money. But I didn’t sign anything that stops me from speaking with anyone or filing a lawsuit.” Simply giving them money does not guarantee that they’ll go away.
Do you need to revise a contract if an employee gets a raise or a promotion?
Chris: A standard yearly raise does not require a new employment agreement. But a promotion would– as that means you’re moving someone into a new position or shifting their roles. You’ll want to outline the new pay properly to show that their new duties correlate with the new pay rate. You’ll also want to include termination clauses in the new agreement that limit entitlements.
Unfortunately, the law changes on termination clauses a lot. But we do know what the Supreme Court has said, and it’s going to be pretty tough to say no to certain things in a termination clause.
All that said, the risk is always there. So make sure that, once a year, you spend a couple of hundred dollars to make sure that the contract is updated. You don’t want to rock the boat every few months by introducing a new employment agreement. But periodically reviewing contracts helps to determine when to introduce a new agreement along with with a promotion to limit liabilities.
So no, an agreement is not necessary with every raise. But, if you make a significant change to an employee’s duties, or the pay increase is more than 5%, then you may want to draw up another agreement. Always gauge if you’re only giving a raise to someone as part of their regular salary and bonus, or if you’re shifting the role. If you are, it’s a good time to introduce the new duties in writing.
What should dentists consider before promoting an employee?
Chris: Often, employers think that because they have a previous agreement with an employee that was drafted by a lawyer, they can just change the number and add some language and it will reflect the new role. But this new agreement will not be enforceable if the employer doesn’t introduce it properly within a given timeframe of the salary change.
Now, a lot of the time these new agreements will have a probation clause. These probation clauses allow a period in which an employee can adjust to the new role, receive a little training, and see if they’re a right fit for the position.
Unfortunately, sometimes employees don’t try hard to succeed in a new role. If they get a nice promotion, they may think: “Now that I have more authority, I don’t have to be such a nice person.”
If the employee fails in the new role, the employer has to bring them back to the old role under the old agreement, a new agreement, or an agreement that is a blend of both. And sometimes, performance improvement plans are introduced to monitor and help the employee succeed in that new role.
What are some considerations I should make when bringing back employees laid off during covid?
Chris: It’s a tricky time for recalling employees. Some businesses may not be at capacity or only need an employee part-time. Sometimes, an employer may have to choose who to recall. Maybe you want to recall everyone and apply a 10% wage reduction, or maybe you need to lay someone off, or terminate one person and bring back the remainder of the staff.
Say you have a staff of four and only bring back three people. What if one out of those three people decides that their kids need to go to school and they can’t work anymore? How do you recall that fourth employee at that point? There are a lot of moving parts here.
The first thing I’d suggest is to keep an open line of communication with your employees. The more transparent you are with your plans, the more confidence employees will have in your ability to bring them back, even if you bypass some timelines that you were not supposed to pass. Employees are more forgiving when they feel that their employer is working with them to bring them back.
In theory, if you only bring back some employees, any one of the employees you didn’t recall can allege that they have been constructively dismissed. So, ideally, you either want to bring everyone back at the same time or not bring them at all.
Right now, some people are happy to come back to work, while others are scared. So, be mindful of health and safety issues in your practice. I know that dentists are more careful than most in terms of health and safety. But they need to outline to their employees the measures they’re taking to keep everyone healthy and safe.
If an employee says, “I don’t feel safe to return,” ask yourself, “Why does this person feel unsafe?” If the employee does not have a legitimate claim as to why they feel unsafe, then an employer is within their rights to potentially allege that this employee has abandoned their job.
If an employee is unresponsive, make sure that they haven’t simply missed your calls or emails. You don’t want someone to lose their job simply because of one call they didn’t answer. So, proceed carefully.
On the other hand, because people are happy to go back to work, they’re often happy to sign a new agreement. So now is a great time to clean up those problematic people. If they’re neglecting work without reason, this is the perfect time to let them go. And then one would have to figure out how to structure an offer and negotiations in a way that keeps their bottom line low in that regard.
Why do so many great dental practices fail?
Chris: It doesn’t matter if an employer is large or small. If one or two of the receptionists answer calls in a practice of only three or four people– that’s a big percentage of calls that each receptionist handles. It only takes one of the people answering the phones to do a bad job and end up losing a significant number of patients.
The law doesn’t separate the mom-and-pop shops and big telecom companies. An employer is an employer. So, unfortunately, it only takes one bad employee out of two or even one to trigger issues that can snowball out of control.
So what got you here is the entrepreneurial spirit that you started with, but that alone won’t get you to the next level. To get there, you need to make sure that your practice is standing on proper foundations. If your employees are holding you back, you have to address that before you can get to that next stage.