Introduction

Top 3 Employment Law Issues Facing Physical Therapy Clinics

Employee Misclassification/Wage and Hour Compliance

Anti-Discrimination Laws

Whistleblower and Retaliation Protections

Physical Therapy Marketing Bootcamp

Employment Law – Free Constangy Consultation

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My thanks to my son Matthew Steinberg and his firm Constangy, Brooks, Smith & Prophete LLP (Boston office) for contributing this article. Constangy specializes in workplace law with offices in Alabama, California, Colorado, Florida, Georgia, Massachusetts, Minnesota, Missouri, New Jersey, New York, North Carolina, South Carolina, Tennessee, Texas, and Virginia.

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We get asked all the time to help with recruiting PTs. Although that question may seem unrelated to our practice marketing services, it’s really not. That’s because good marketing creates capacity issues, which, in turn, lead to hiring and firing. In addition, implementing a PTRM system will change your staff’s routine. These changes are frequently met with resistance. For example, when implementing Internal Marketing Strategies, accountability for the patient follow-up process changes. If you’re not happy with how that’s going and need to make a staffing change, will you know the key “does” and “don’ts” for avoiding legal exposure?

Legal employment problems may sound like an unlikely occurrence, especially for small clinics, but according to recent liability insurance statistics from Hiscox, “US companies had at least a 10.5% chance of having an employment charge filed against them.” The rate is even higher in many states.

To help get you thinking about this important aspect of practice growth, here’s an article for PTs written for PTRM by a leading workplace law firm, Constangy, Brooks, Smith & Prophete LLP.

Physical therapists are on the front lines of healthcare.  Delivering a quality patient experience requires time, expertise, and, perhaps most importantly, retention of dedicated personnel.  Unfortunately, state and federal employment laws lay a number of legal traps for even the best-intentioned clinics.  Based on our experience representing a variety of healthcare institutions with labor and employment matters, we’ve identified three of the most common sources of employment law liability facing clinics today:

In addition, clinics must ensure that they are properly classifying their employees as “exempt” or “non-exempt” under federal and state law; all non-exempt employees must be paid at least the minimum wage for all hours worked plus time and one-half for all hours worked over 40.  Deciding whether an employee is exempt (and can therefore be paid a fixed salary regardless of hours worked) depends on the salary level and specific tasks performed by the employee and can be especially thorny for office staff, such as administrators and office managers.  Just one false step in this area can result in significant liability, including being on the hook for a former employee’s attorneys’ fees and multiple (double or treble) damages.

The healthcare workplace has become increasingly regulated by state and federal anti-retaliation and whistleblower protection laws. For example, PT clinics are prohibited from taking any adverse action against an employee who has lodged a complaint of unlawful discrimination. Clinic employees are also protected against retaliation by the federal False Claims Act (“FCA”). The FCA prohibits clinics from presenting false claims for reimbursement to a federal entity, like Health and Human Services (“HHS”), which administers Medicare and Medicaid. Employees who suspect fraud in Medicaid or Medicare billing can file a private lawsuit on behalf of the government seeking civil penalties, treble damages, and actual damages. In a successful FCA suit, the employee is entitled to a percentage of the government’s recovery. Employers are prohibited from retaliating against employees who make a claim under the FCA.

Just like regular check-ups with a primary care physician or regular exercise, all employers benefit from proactively assessing their compliance with state and federal employment law. New laws have been going onto the books at a torrid pace in recent years at the state level, whose regulators can be less than forgiving even for inadvertent oversights or honest mistakes.