New Hire not working out, now what?

May 16, 2013

Question:

Jennifer,

I hired a new associate physician and the arrangement is just not working out.  He does not have a great bedside manner and has been late the past month.  What do I do now?  Can I ask him to not come back in?  We have a contract that says I have to give him 90 days notice but he's only been here a month.  Do I have to pay him for another 90 days?

Thanks,
Dr. L

Answer:

Dr. L, very sorry to hear.  You have indicated you have an employment agreement with the physician and that you are required to give 90 days notice of termination.  If that is the case, and the agreement does not provide for any probation period where the employee is "at will" status, then you may be stuck giving 90 days notice and at a minimum 90 days of agreed-upon compensation.  If compensation is productivity based, you are certainly not required to keep this doctor on the schedule and allow this individual to see your patients.  And, depending on the contract terms and circumstances, you may have grounds to fire for cause, effective immediately.  Terminating against the contract provisions would potentially open you to exposure for a breach of contract claim.  I cannot advise the potential of that happening or of the potential success the employee would have with such a claim, as you would like have a claim that the employee's conduct violated the agreement first.  However, as a business decision, it would be best to avoid seeing this matter devolve into litigation.

Unfortunately with every employment arrangement being fact and contract specific, as well as any termination, it is difficult to advise in an open forum. I recommend we speak offline and that you convey the particulars and we work out your next steps.  The goal - divest yourself of this employee quickly and without exposing the practice to any additional to monetary, compliance or liability exposure. 

I do have to add here that if I were commenting on this situation for the employee, I would recommend they seek recoupment of the 90 days of compensation owed under the contract, and they would likely do so as a "collection matter" typically handled on contingency - so tread lightly.