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How can I ensure I will not be brought to court for letting go a problem employee?

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Confronting problem employees can be very stressful; however, failing to address an employee's inappropriate behavior jeopardizes patient safety, interferes with staff morale, and increases liability for both you and the hospital. Even when you have extensive documentation that an employee is incompetent or endangers patient safety, the decision to terminate an employee carries legal risks. Therefore, to avoid liability in a wrongful termination lawsuit, you must be able to show the court that your decision to terminate the employee was based on legitimate, objective data.

Here are a few ways to help accomplish this.

Remain consistent and take fair disciplinary actions: You cannot pick and choose which employees to discipline. If you regularly allow some employees to engage in certain behaviors and then fire other employees for the same conduct, you are setting yourself up for a lawsuit. To be honest and fair, first ensure that your employees know the disciplinary policies you enforce on your unit. By approaching employee discipline in an open and consistent manner, your hard working, competent employees know they won't be fired on a whim.

Employee evaluation: The yearly employee evaluation is your first line of defense in identifying and addressing competency issues with your nursing staff. When consistently implemented by the nurse manager, a sound evaluation system identifies issues before they negatively affect patient care. Also, by implementing the following steps, nurse managers can increase the effectiveness of employee evaluations:

  • Continually observe and document performance: An effective employee evaluation tells the entire story by documenting the nurse's performance for a year. This means you must observe and record each nurse's performance throughout the year—not just in the few weeks before the employees' evaluation.
  • Prepare and deliver the performance evaluation carefully: Prepare each yearly performance evaluation as if it were a legal document. Support your documentation with concrete examples of how the employee did, or did not, meet a specific responsibility. When meeting with employees to discuss evaluations, always be respectful.
  • Follow up when competency issues are identified: If the performance evaluation identifies that a nurse does not possess the skills to operate within the standard of care, you must retrain the employee. After retraining has occurred, evaluate the nurse's job performance to determine whether skill levels have risen to meet acceptable standards. If they have, document this information, and return the employee to his or her duties. If they have not, continue the remediation process established in your employee policies and procedures.

If, after you completed all steps of the remediation process, the employee still cannot meet an objective, accepted standard, then the employee must be removed from patient care. For some positions, this means the employee must be terminated from employment.

Dinah Brothers, RN, JD

(March 2010)