by
William P. Prescott, E.M.B.A., J.D.
Wickens, Herzer, Panza, Cook & Batista Co.
35765 Chester Road • Avon, OH 44011-1262
Direct Dial 440/695-8067
Fax 440/695-8098
Cell 440/320-8984
Email: WPrescott@WickensLaw.com
Website: www.PrescottDentalLaw.com
Webcast 2
American Association of Orthodontists
March 18, 2014
1018797.pptx
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
and Wickens, Herzer, Panza, Cook & Batista Co.
Neither I nor any member of my family
have a financial arrangement or affiliation
with any corporate organization offering
financial support or grant monies for this
continuing education presentation, nor
do I have a financial interest in any
commercial product(s) or services I will
discuss in this presentation.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
and Wickens, Herzer, Panza, Cook & Batista Co.
2
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
3
See Supplement 1.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
4


Developing your business and strategic
plan — sounds corny, but important!
Getting your employees to do what you
want them to do.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
5

The first one is the most difficult.
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Monitor throughout the year.
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Prepare at the beginning of the last quarter.
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Share with your CPA and get input.

The correlation between your strategic plan
and financial statements.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
6
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
Interaction with you, the consultant and CPA.
Utilize meaningful financial statements to
allow you to judge staffing levels.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
7
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
8



Maintain separate financial statements.
Allocate overhead by location, including staff
time.
Office sharing arrangements with general
dentists — usually short-term.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
9

Critical in smaller practices.
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Reduces need for temporary employees.

Always a good idea.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
10
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Easy to get into/difficult to disengage.

Best to maintain two separate practices with joint
branding.

Billing issues.
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Buy-outs where practices are joined as one are
difficult.

Use an office sharing arrangement with joint staff
policies.

Staff may cover for each practice.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
11
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
Provides you with systems.
Maximizes practice effectiveness for all
systems.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
12
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Forty hours per week — time and a half.
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Compensatory time only in the same week.
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Exempt versus non-exempt employees.
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Pay hourly and use a time entry system.
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Rest breaks — 20 minutes; uninterrupted.
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Lunch breaks — uninterrupted.

Overtime — only when authorized.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
13
See Supplement 2.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
14
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
15

Useful in the management process and as a tool to avoid legal
liability.

Uncompleted or skipped appraisals can be a source of liability.
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Points to consider.
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
●
Appraisal must be job related.
●
Try to use objective criteria in evaluating job performance in
light of job description / job design.
●
Focus on measurable behavior.
Self-evaluation forms should be carefully designed and can be
helpful.
Separate performance appraisals from pay increases as you want
the employee to focus on the performance and pay attention to the
substance, not any increase in pay.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
16

Common employee claims.
●
Discrimination.
o
o
o
Harassment.
Accommodation based upon disability or
religion.
Different treatment of legally protected
categories.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
17
●
Breach of contract.
o
o
Promise in a job interview, offer letter or
verbal representation.
Follow the process in the employee
manual.
●
Whistle-blower.
●
Retaliation.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
18
●
Defamation.
o
o
Information provided to a prospective
employer of a former employee.
Date of hire, position, date of later
employment.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
19
●
Invasion of privacy.
o
Computer, locker, etc.
o
Balance employer's business interests.
o
Have a written policy.
o
●
Notice that employees should not expect
that computers, lockers, etc., will be
private.
Infliction of emotional distress.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
20
●
Categories of employee problems.
o
Absenteeism, attendance and tardiness.
o
Poor performance.
o
Misconduct.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
21
●
Employee discipline.
o
Goal is to improve performance.
o
Ensure all employees are consistently treated
in a fair and reasonable manner.
o
Use as a defense of a post-termination
claim.
o
Address the issue immediately.
o
Verbal warnings.
o
Performance improvement plans and last
chance agreements.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
22
●
Documentation.
o
Explain the problem and its affect upon the
practice.
o
Give the facts.
o
Provide future expectations.
o
o
Explore the consequences of the continuing
problem, e.g., possible termination.
Ensure that the employee receives the
documentation and acknowledges its receipt.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
23
●
Always monitor staffing levels / part of
strategic plan.
●
Raises should not be automatic.
o
o
Raises based upon work quality, longevity,
cost of living and/or profitability.
Bonuses — discretionary versus increased
profitability and collections.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
24

As federal and state laws all differ, some commentators recommend
eight years.

Records include:
●
Payroll records.
●
Employment taxes.
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Employee benefits.
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Background checks.
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Personnel files.
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Employment conduct.
●
Employee manuals.
●
Immigration documents.
●
Medical records.
●
Medical records, background checks and similar information should
be retained in separate files.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
25
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Vacations, time-off, sick leave, illness, emergencies,
jury duty — paid versus unpaid days.
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Paid versus unpaid maternity and paternity leaves.
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Disability leaves.
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Dealing with leaves of absence and holding open
positions.
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ADA — reasonable accommodations.
●
Federal law.
●
Mirror state laws.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
26
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Privacy laws.
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Age discrimination.
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Employment Act 29 U.S.C. §623.
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Age 40.
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Mirror state laws.
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Older workers' benefit protection act.
●
Ensures older workers aren't manipulated or
coerced into waiving their rights under the
ADEA.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
27

Money isn't everything.

Job security.

Appreciation may be more meaningful than
compensation and benefits.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
28
See Supplement 3.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
29
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Waiting for regulations.
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Medical reimbursement plans.
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Summary plan descriptions.
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Written plans.
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Grandfathered plans.

Future health insurance availability through
professional associations.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
30
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
Staff attendance at continuing education
courses — is the staff compensated?
Professional orthodontic services for family
members of staff — income!
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
31

Maintain policies.

Duty to inspect and take action.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
32
Workplace harassment, which has received increased media attention over the
last few years, is a topic which should be addressed by a written policy. Sexual
harassment and nonsexual harassment are prohibited workplace practices.
Policies prohibiting workplace harassment should include definitions and
examples of the prohibited conduct and the procedure to address complaints
and take corrective action.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
33
Harassment is verbal or physical conduct that denigrates or shows hostility or
aversion toward an individual because of his/her race, color, religion, gender,
national origin, age, disability, or that of his/her relatives, friends or associates
and that:
●
Has the purpose or effect of creating an intimidating, hostile or offensive
work environment;
●
Has the purpose or effect of unreasonably interfering with an individual’s
performance;
●
Otherwise adversely affects an individual’s employment opportunities.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
34
Sexual harassment is also unlawful and is defined as an
unwelcome sexual advance, request for sexual favors and/or
verbal or physical conduct of a sexual nature when:
●
Submission to sexual conduct is an explicit or implicit term or
condition of the individual's employment;
●
Submission to, or rejection of, sexual conduct by an individual
is the basis for any employment decision affecting that
individual;
●
Sexual advances, request for sexual favors, or other verbal or
physical conduct of a sexual nature have the purpose or effect
of unreasonably interfering with an individual's work
performance or create an intimidating, hostile or offensive
working environment.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
35


Are useful to clarify your expectations of employee
behavior in the workplace in an efficient, consistent
manner and to orient new employees.
Provide an objective aid to assess and document
employee job performance.
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
36
Copyright © 2014 William P. Prescott, E.M.B.A., J.D.,
of Wickens, Herzer, Panza, Cook & Batista Co.
37