Staff Rx: Fired during the pandemic

Editor's note: Staff Rx appears monthly in RDH magazine. View Watterson's past columns here.

Dear Dianne,

The office where I have worked for several years was forced to shut down because of the pandemic. When the restrictions were lifted, the owner called me to say he would not be needing my services any longer. He didn’t give any specific reason, only saying that he was making some changes. The other hygienist in the practice was not fired. She has only been there for a year. I’ve never been reprimanded, and I rarely ever miss work. I’ve always taken pride in my work ethic and ability to connect with patients. 

I should also mention that I contracted COVID-19 and was mildly ill for about two weeks. My latest test came back negative. So, I don’t know if he fired me because I became infected or for some other reason.

Losing my job has been devastating financially and emotionally. Although I’ve been able to weather the shutdown by receiving unemployment, my employer did not give me any severance pay. My question to you is this: Is firing me like this legal? Do I have any recourse at all? 

Devastated RDH

Dear Devastated,

First, let me say how sorry I am that you lost your job, particularly during this highly stressful time. It’s bad enough that you contracted COVID-19, but then to lose your job must have felt like a knock-out punch. 

Employers who fire employees without any explanation place themselves at much higher risk of an unjust termination lawsuit. The fired employee can only speculate or might rely on office gossip and could come to the conclusion that the firing was discriminatory. This is a typical scenario leading to a lawsuit against the former employer. 

Currently, all states and the District of Columbia are “at-will” states. This means employees can be terminated for any or no reason, as long as the reason is not discriminatory, and employees are free to leave a position at any time. Here is list of discriminatory reasons where firing is illegal:

• Age (40 or older)
• Race
• Sexual orientation
• Gender
• Religion
• Disability
• Pregnancy
• Retaliation

While the at-will doctrine may seem very clear and give employers an advantage in the employment relationship, there are three exceptions that courts have recognized to prevent unjust terminations. Those exceptions are: 1) public policy, 2) implied contract, and 3) covenant of good faith and fair dealing. 

The public policy exception states “an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the State. For example, in most States, an employer cannot terminate an employee for filing a workers’ compensation claim after being injured on the job, or for refusing to break the law at the request of the employer.”¹ This idea could also apply to a dentist employer who does not provide the recommended protective items to keep patients and employees safe during the pandemic. At present, 42 states plus the District of Columbia recognize the public policy exception.

An implied contract exception “can be created through employer representations of continued employment, in the form of either oral assurances or expectations created by employer handbooks, policies, or other written assurances.”¹ When an employer makes verbal or written statements about job security, an implied contract is formed. Employee handbooks sometimes have wording that implies contracts, such as an employee may be disciplined or terminated for “just cause.” Courts have held that such wording is an implied contract. Currently, 36 states plus the District of Columbia recognize the implied contract exception. 

The covenant of good faith and fair dealing exception suggests that a covenant of good faith and fair dealing exists in every employment relationship. “It has been interpreted to mean either that employer personnel decisions are subject to a ‘just cause’ standard or that terminations made in bad faith or motivated by malice are prohibited.”¹ At present, 11 states recognize the covenant of good faith and fair dealing. For a list of states and positions on these exceptions, visit bit.ly/atwillstates.

Severance pay, or an amount of money given to an employee when the employment ends, is not required by the Fair Labor Standards Act (FLSA). Providing severance pay is considered a gesture of goodwill on the part of the employer. However, FLSA mandates that employers must pay any accrued vacation time. 

In some employment situations, an employee is forced to resign because the employer has made or allowed unbearable working conditions and created a hostile work environment. This is called “constructive discharge.” Examples of unbearable working conditions include discrimination or harassment, mistreatment, or receiving a negative change in pay or job duties for reasons that aren’t work related. In most cases, the hostile work environment must violate federal laws prohibiting sexual harassment or discrimination based on age, national origin, pregnancy, race, religion, sex/gender, and disability.² Two other situations that create a hostile work environment include retaliation against whistleblowers and negligence by an employer who doesn’t take appropriate steps to accommodate a disabled employee. Both situations can also be grounds for constructive discharge complaints.^3,4

In response to the effects of the pandemic on the workplace, some new laws have been enacted. The Families First Coronavirus Response Act (FFCRA) was enacted on April 1, 2020 and is in effect until Dec. 31, 2020. It states that employers with 500 or fewer employees must provide paid sick leave and expanded family and medical leave. However, exceptions have been made for employers with fewer than 50 employees. So, unless you work for a dental service organization with more than 50 employees, the FFCRA will probably not apply to your workplace. For more on the FFCRA, visit bit.ly/FFCRA_QA.

Dentistry has been particularly hard hit by COVID-19, and every dental office is being forced to make sweeping changes to protect patients and employees. Some of these changes involve staffing. The practice owner might have to make uncomfortable staffing decisions, including downsizing, especially if the staff percentage of overhead was inordinately high. One of my former clients told me recently that he would be operating in the red for many months after being shut down for three months. He has no idea if or when he will be back to prepandemic numbers concerning production and revenue, and is having to borrow money to pay his staff. 

The challenge for you now is to put this awful situation behind you and start moving forward. I believe you are confident in your abilities, and you will find a new dental home where you will be appreciated. I expect dental hygiene positions will be plentiful, since the pandemic has caused many hygienists to retire or change careers. Finally, if you feel that you have been unjustly fired, please seek assistance from your local Equal Employment Opportunity Commission office and/or an attorney who specializes in employment law. 

All the best,

Dianne

References

1. Muhl CA. The employment-at-will doctrine: three major exceptions. Monthly Labor Review. US Bureau of Labor Statistics. January 2001. Accessed July 22, 2020. https://www.bls.gov/opub/mlr/2001/01/art1full.pdf
2. Discrimination by Type. U.S. Equal Employment Opportunity Commission. Accessed July 28, 2020. https://www.eeoc.gov/discrimination-type
3. Prohibited Employment Policies/Practices. U.S. Equal Employment Opportunity Commission. Accessed July 22, 2020. https://www.eeoc.gov/prohibited-employment-policiespractices
4. The Whistleblower Protection Program. Occupational Safety and Health Administration. Accessed July 22, 2020. https://www.whistleblowers.gov/

DIANNE GLASSCOE WATTERSON, MBA, RDH, is a consultant, speaker, and author. She helps good practices become better through practical analysis and teleconsulting. Visit her website at wattersonspeaks.com. For consulting or speaking inquiries, contact Watterson at [email protected] or call (336) 472-3515.