Terminating Employees Based on Social Media Posts – You Asked, We Answered! HR AMA with CEDR and Paul Edwards (January 2024)

Hello AADOM Tribe! Welcome back to the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO & Founder, and Heather Colicchio, founder and president of AADOM. Anytime you feel like a little extra perspective, or help might be nice throughout the year, keep sending your toughest HR questions to Paul and CEDR’s team of HR professionals. Our team will pick from the submitted dozens and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here…Click to open link in a new tab…!

Thanks for all the questions you’ve been submitting and those coming in 2024! Once a month, Paul and CEDR’s team of experts weigh in and answer three of your HR questions for HR Tuesday’s article and live webcast.

For the in-depth, expanded, and detailed answers…
Listen to HR Tuesdays live, mark your calendar for the second Tuesday of each month, or go here to check out the archived recordings.

This month, we cover:

1. Hiring an experienced Dental Assistant who does not turn out to be a culture fit and may need to be let go.
2. The Dental Hygienist wants to be paid as an independent contractor, and the temp agency says it’s ok.
3. An employee in a private Facebook group for her profession is posting very negative things about her “work.”

All of your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, trying to find the best human way to solve the core problem. We will fit the two together during our answers and help you devise some great resolutions.

HR Tuesday needs your questions, so please send us your toughest ones! Our team will pick from the dozens of great questions you all submit and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here!

Let’s get started… Here are some of your best submissions this month.

This month’s HR questions:

1. “I recently hired a dental assistant who came over from another practice. I am struggling with this person because they were at their last practice for a long time and seem to have a hard time getting on board with our culture and our way of doing things. While they are typically pretty good at their job, they often have a negative effect on the team and introduce a lot of dysfunction. Is it worth keeping a good assistant if they cannot get on board?”
2. “We have had a hard time hiring Hygienists. We often find ourselves needing to bring on temporary help, but that can be almost as hard to find as a permanent hire. I recently discovered that some of the temp agencies in my area have some hygienists on their roster. They also offer the option to pay the hygienists as a contractor. I think this is a good solution for our labor shortage problem. What issues, if any, have you seen when using Temp Agencies?”
3. “Our Doctor found out, through another dental assistant, that one of our dental assistants is posting things about my office in a dental assistant Facebook group. The doctor wants me to let her go, and when I reminded him about the NLRA stuff you guys trained us in during the customization of our handbook, he said he would talk to his brother, who is an attorney. His brother returned and told us to just use our at-will status and not give her any reasons for letting her go. The problem is that the employee who told the Doctor about the post is also a blabbermouth, so the employee knows she is in trouble. Can I fire her for this since if someone looked her up, they’d know she’s at my practice, and it makes us look bad? Can I just tell her that she is being let go because she’s an at-will employee and not give a reason?”

Let’s get to the HR answers:

Question: “I recently hired a dental assistant who came over from another practice. I am struggling with this person because they were at their last practice for a long time and seem to have a hard time getting on board with our culture and our way of doing things. While they are typically pretty good at their job, they often have a negative effect on the team and introduce a lot of dysfunction. Is it worth keeping a good assistant if they cannot get on board?”

The Legal Perspective: The main issue is the employee’s poor cultural fit. Engaging in meaningful discussions to enhance their performance and document your efforts to address and resolve issues objectively is crucial.

Now for the Human Approach: Assessing a candidate’s ability to be a productive team member is as vital as their technical skills. If they’re not integrating well into your culture, consider these questions: Are they capable? Do they understand expectations? Have I communicated effectively for course correction, and are they self-correcting?

If you’ve answered the first three positively but negatively to the last, it may be time to part ways. Phrases like “causing dysfunction” and “not getting on board” indicate a significant cultural misfit. Unless you’re prepared to invest considerable effort in changing this person (a challenging task), it might be best to make a tough decision.

Be sure to document these conversations, whether with corrective action or a confidential note in their HR Vault, even if it’s a first-time verbal reminder. You will want documentation to show the steps you took to try to coach them if you need to take further action, up to and including termination.

Remember, HR TUESDAY DEPENDS ON THE AADOM TRIBE, ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here!

Question: “We have had a hard time hiring Hygienists. We often find ourselves needing to bring on temporary help, but that can be almost as hard to find as a permanent hire. I recently discovered that some of the temp agencies in my area have some hygienists on their roster. They also offer the option to pay the hygienists as a contractor. I think this is a good solution for our labor shortage problem. What issues, if any, have you seen when using Temp Agencies?”

The Legal Perspective: It’s crucial to avoid classifying hygienists as independent contractors. The IRS and DOL consider this a misclassification, leading to significant legal and financial consequences for you as the employer. You’re responsible for this misclassification, even if the temp agency suggests it’s permissible. This could involve back payments for taxes, overtime, and other liabilities due to the lack of proper work records.

Recent federal guidance clearly states that hygienists should be classified as employees, not contractors. This is a critical point to consider for compliance and avoiding legal issues. We keep seeing articles being written that disregard very clear and recently published guidance from the Feds, which reiterates, once again, that hygienists are employees. Period.

Now for the Human Approach: Temp agencies can be a great source when looking for hygienists. However, treating a hygienist as an independent contractor is illegal and not advised. Paul actually has an entire podcast episode on this on his show What the Hell Just Happened?!, a show where he and CEDR’s HR Experts dive into popular HR problems in the workplace (and some other hilarious topics). Listen to it here!

Question: “Our Doctor found out, through another dental assistant, that one of our dental assistants is posting things about my office in a dental assistant Facebook group. The doctor wants me to let her go, and when I reminded him about the NLRA stuff you guys trained us in during the customization of our handbook, he said he would talk to his brother, who is an attorney. His brother returned and told us just to use our at-will status and not give her any reasons for letting her go. The problem is that the employee who told the Doctor about the post is also a blabbermouth, so the employee knows she is in trouble. Can I fire her for this since if someone looked her up, they’d know she’s at my practice, and it makes us look bad? Can I just tell her that she is being let go because she’s an at-will employee and not give a reason?”

The Legal Perspective: Firstly, it’s not advisable to terminate an employee without a reason, especially when the reason is potentially unlawful. Labeling an unlawful termination as a “no reason” dismissal could lead to significant legal problems. If the employee’s posts are about things like pay or working conditions, which are protected under the NLRA, then terminating them for “bad-mouthing” the practice would also be legally problematic but again, giving them the “no reason” reason is not good either.

The appropriate response depends on the content of the social media posts, which can be complex. It’s crucial to be well-informed about the limitations set by the National Labor Relations Act in such scenarios.

Now for the Human Approach: It’s disheartening to hear about negative social media posts by employees. To help you address this, we recommend including a social media policy in your employee handbook that outlines acceptable online behaviors without infringing on NLRA rights.

However, if an employee does post about their work, it’s essential to consult qualified external advisors before taking action. Clear policies in your handbook, which every employee should read, can help you handle but likely not prevent such issues.

Our guidance on this is often as follows: There are likely underlying issues that can be focused on that have to do with actual job performance. As such, you need to let the social media post issue go as best you can, focus on the other issues, and develop a plan for going forward.

Whenever you hire someone, they should be reading over your handbook and these policies. Having them clearly outlined can avoid a lot of problems before they happen.

HAVE A QUESTION FOR PAUL? Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here!