You're an employed doctor? You've got rights!

Laws shield you from discrimination, guard your pension,grant you family leave--even protect your status as an employee.

By Susan Harrington Preston, Senior Associate Editor

Think an employer will treat you well because you're a doctor? You couldbe in for a surprise.

Consider family physician Rose Dunn (not her real name). Dunn says thatin 1998, after returning from maternity leave, she developed inflammatoryarthritis and respiratory problems that severely compromised her abilityto practice.

"I was doing things like working till noon and then going off fora lung biopsy," says Dunn. "It got to the point where I couldn'teven walk the distance between exam rooms."

Compounding matters, the group she worked for had instituted productivity-basedcompensation while Dunn was on leave. Administrators pressured her to workfaster.

Dunn's health worsened. Her rheumatologist told her to take a coupleof weeks off and prescribed a steroid medication. Dunn rested for five days.Although the medication gave her mood swings, she felt much better. Backat work part time, her productivity rose dramatically.

That wasn't enough for management. "An administrator told me towork more days, because my average productivity was so bad when you includedthe time I worked when I was ill," she says. "I don't usuallyhave a short fuse, but I just exploded. I said, 'How can you do this? Iwas sick!' His answer was basically, 'So?' "

Unfair and unfeeling employers have little part in medical lore--at leastnot for doctors out of residency. That's why, many physicians aren't familiarwith the federal laws that have been hammered out over the years to protectemployees from just such difficulties as Dunn's. That's bound to changeas more doctors opt for a paycheck.

Not all labor laws apply to physicians. You can forget overtime pay,for instance--the law specifically excludes professionals.

But the laws that do apply can be a godsend. Even if your employer considersyou an independent contractor, your work conditions may make you a de factoemployee, rendering you eligible for legal protection (see page 000). Moreover,most states have their own versions of federal labor laws, and if stateand federal versions differ, the one more favorable to the employee usuallyapplies.

Here are the labor laws most likely to pertain to physician employees:

Americans with Disabilities Act.

This law covers employees who've been diagnosed with a condition that"substantially limits" them from performing a "major lifeactivity," such as seeing, hearing, speaking, working, or walking.The law applies to businesses with 15 or more employees.

Rose Dunn's case was just about tailor-made for ADA protection. She wasunable to walk well enough to get through a day's work. The definition ofa disability is fairly broad, so if Dunn's mood swings or temper troublesfrom the steroid were ongoing, they too might have qualified her under theADA. (On the other hand, if she were an illegal drug user and her employer'sactions were based on that, the ADA wouldn't have protected her.)

Dunn's group was responsible for providing "reasonable accommodation"for her disabilities. What's reasonable? That's subjective, of course, andDunn and her group would have had to negotiate a specific solution, suchas a lower productivity target, shorter office hours, or release from callduties.

The ADA doesn't preserve an employee's job if she can't perform it withreasonable accommodation, which may include modifying equipment, restructuringthe job, or reassigning her to a vacant position. If there's no positionthe employee can handle, the employer can legally lay her off.

Family and Medical Leave Act of 1993.

Without taking a steroid, Dunn was unable to work. With it, she sufferedmood swings. Even if those conditions meant Dunn couldn't perform her job,she'd be covered under this law.

The FMLA is probably best known for providing time off for new parents.However, the law also requires firms of 50 or more employees to provide12 weeks of unpaid leave during a given year, in addition to sick leaveand vacation, to employees disabled by illness. The law also applies ifan immediate family member is sick enough for the employee to need timeoff. The 12-month period can start on any day of the year, as long as thesame standard applies to all employees.

If Dunn had taken an FMLA absence, the practice could have kept her fromreturning to her job or a comparable one only for well-defined reasons--say,if her job had been cut because of business conditions, or if she couldn'twork even with reasonable accommodation. At that point, she'd have to goon long-term disability.

Fortunately for Dunn, events turned in her favor. She found another job.Before she gave notice, another FP who'd heard about the offer phoned Dunn'semployer to apply for Dunn's old job.

Group officials decided that Dunn's performance wasn't so bad after all.Within a day, Dunn's employer agreed that Dunn could share her job withanother doctor--an arrangement the employer had rejected before.

Now, Dunn has the same job, but her schedule is more manageable. "Thingsare much better," she says.

COBRA

Monica Holden (not her real name), a New York City-based internist whoworked for a large multispecialty group, had to go on disability after acar accident. Her story shows not only how the employment laws known asCOBRA and ERISA can benefit physicians, but how helpful the federal governmentcan be in enforcing those laws.

After the accident, Holden's injuries kept her from working for six months.Back on the job and using pain medication, she couldn't do even routineear examinations without hurting her wrist, arm, neck, and back. After severalweeks, she went on long-term disability.

Holden had a legal right to continue health and dental insurance basedon her employer's plans under the Consolidated Omnibus Budget ReconciliationAct of 1986. She also had the right to ask the government to help her ifshe was having trouble getting the benefits that the law provided.

COBRA entitles terminated employees to buy group health and dental benefitsfor 18 months, with an extension to 29 months for termination due to totaldisability. COBRA applies to firms with 20 or more employees and to terminationsfor any reason other than gross misconduct. (The law applies in other situations,too, such as when a work-hour cutback affects health coverage.)

The employee usually pays the premiums for COBRA coverage, but COBRAlimits what the insurer can charge and allows the employee to choose whichhealth benefits to continue. Holden needed dental insurance, and to decidethe level of coverage, she needed rate schedules from her employer.

Even more important, she needed the employer's certificate of COBRA eligibility,because the law required her to sign up for COBRA coverage within 60 daysof going on long-term disability. Despite many requests by telephone andcertified letter, she couldn't get the paperwork from her employer.

In the meantime, Holden was being billed for dental care as if she hadno insurance, adding a layer of paperwork to the frustration she felt fromhaving to prod her intransigent employer for COBRA documents.

After paying a root-canal bill, she filed a case against her employerin small-claims court to recover the money. At this point, Holden also calledupon the New York office of the Department of Labor for guidance--and learnedthat another law, ERISA, could help her get COBRA benefits.

ERISA

Doctors know about the Employee Retirement Income Security Act of 1974because it limits patients' ability to sue HMOs. It also sets financialstandards for employee pension plans, but that's not all: It says employershave to tell employees about the full range of benefits available to them,and then come through with what they promised. Together, the DOL and theIRS enforce ERISA, and they can levy substantial fines.

Holden's former em-ployer was quick to act after the New York DOL officecontacted it on her behalf. Holden never had to proceed with her small-claimscase for root-canal work; within a month, the company reimbursed her andsent her the proper COBRA forms.

Title VII.

Gender, race, color, religion, national origin--to discriminate againstany employee or job applicant on these bases is to break the law laid downin Title VII of the Civil Rights Act of 1964. Title VII also forms the foundationof sexual harassment law* and bans discrimination based on age or disability.But two other laws--the ADA and the Age Discrimination in Employment Act,which we'll discuss shortly--focus specifically on age and disability issues.

What constitutes discrimination? Being unfairly passed over for promotion.Being turned down for a job if the doctor who's hired is less qualifiedthan you are. Being restricted to a particular schedule--such as when anemployer insists that a female doctor work during daylight hours for safety,liability, or other reasons, even though she'd prefer to work nights.

If you win a suit filed under this law, you can get not only back payand attorney's fees, but possibly compensation for pain and suffering. Youcan also get punitive damages. How much depends partly on the employer'ssize, but the maximum is $300,000.

The federal Equal Employment Opportunity Commission, which enforces TitleVII and other antidiscrimination laws, handles such complaints. You mustfile with the EEOC within 180 days of the most recent alleged discriminatoryincident. If state or local laws address employment discrimination, theEEOC suggests that you go first to the agencies enforcing those laws. Ifyou do, the EEOC deadline is extended to 300 days. Be sure you file withthe EEOC before bringing a lawsuit, adds Joseph Cleary, an EEOC lawyer inWashington, DC: "A court won't accept the case if you don't."

Age Discrimination in Employment Act of 1967.

Suppose you took a part-time job with a 25-doctor group after retirement.One morning, you're told your services are no longer needed. Three weekslater, a young physician fills your old job.

Can you claim discrimination? You bet--under the Age Discrimination EmploymentAct, which applies to firms with 20 or more employees and defines workersover age 39 as a protected class. Age discrimination may be involved evenif your replacement is only a few years younger than you, merely looks oracts younger than you, or if the employer has a history of laying off olderworkers.

No matter what your age is, the law won't help you if you're fired forpoor performance. And you do have to convince the courts that age was thereason you were replaced. A company organization chart was adequate evidencein one case decided in 1998. An older worker was told his job had been eliminated,but in the chart, which was compiled after his dismissal, the position wasstill there--with a younger person in it.

One kind of ADEA case isn't as clear-cut, according to EEOC attorneyCleary. He explains that most federal courts allow a company to lay offhighly paid employees and keep lower-paid ones, even if higher pay correlateswith age--assuming that pay, rather than age, is the reason for the layoffs.

"The Supreme Court has made it really tough to win these cases,"says Cleary. "If you can get the case in front of a jury, you havea decent chance, but it's getting harder to get past early motions for dismissal."

Assuming your suit is successful, the remedies may include reinstatement,back pay, attorney's fees, and even "front pay"--money to tideyou over until you find a new job. If the employer flouted the law, partof the award may be doubled. You can't get money for pain and sufferingor mental anguish, however.

One final note: In exchange for, say, retirement or severance benefits,your employer may ask you to sign a waiver of your right to sue for discrimination.But if the employer doesn't follow specific ADEA guidelines--for example,advising you in writing to consult an attorney before signing--you may regainthe right to sue through the Older Workers Benefit Protection Act of 1990.

The EEOC filing deadlines for ADEA grievances are the same as those forTitle VII complaints--180 days if you don't first go to a state or localagency, and 300 days if you do. You can sue without waiting for the EEOC'sdecision, beginning 60 days after you file with the commission, though theEEOC must give you a "right to sue" letter. But if you miss theEEOC deadline, you're out of luck.

Equal Pay Act of 1963.

Once, "Help Wanted--Male" and "Help Wanted--Female"ads weren't unusual, but they ended with the implementation of this law,which prohibits employers from paying different wages to men and women ifthey're doing substantially the same work.

In contrast to Title VII, the Equal Pay Act covers only pay discriminationbased on gender, doesn't require intent on the employer's part, and doesn'tmake claimants wait two months after filing an EEOC complaint to sue.

What if you don't know what your colleagues are earning? If you've beendiscriminated against in promotions or work assignments, you can start witha Title VII complaint and file under the EPA once an investigation divulgespay data.

"Normally, you'd file under both the EPA and Title VII," saysEEOC attorney Dianna Johnston. Discrimination often involves more than disparatepay, she explains. "Often, there's a confluence of events, with womenbeing tracked into particular jobs, for instance. The EPA deals only withpay, so for those other questions, you'd also want to bring your case underTitle VII."

It's not easy to show that pay is unequal because of gender, since employerscan usually point to other factors. Your employer may argue, for instance,that your colleagues are performing more procedures than you are.

If you do win a case under the EPA, you can get back pay, up to two years'worth of the differential you should have earned. And if you show that youremployer acted willfully, you can get a third year's differential, plusdamages equaling your total back pay.

More protections for hard times. Other laws could apply to physiciansin special circumstances.

If your workplace is hazardous--say, the disposal of medical waste islax--government agencies may be able to order your employer to clean thingsup. Contact your regional OSHA office (under "Department of Labor"in the US Government section of the phone book), or check OSHA's Web site(www.osha.gov).

The Pregnancy Discrimination Act requires expectant employees to be extendedthe same considerations that apply to those who are sick or disabled. Thatincludes equal access to hiring and work assignments if the pregnant employeecan do the job. And she gets the same seniority, vacation, pay increases,and other benefits as any other temporarily disabled worker.

If you're laid off through no fault of your own, you can usually getweekly unemployment checks for up to 26 weeks. The pay, administered bythe state in which you worked, tops out at a modest $573 per week. You'reineligible, however, if you quit, were fired for misconduct, or, in moststates, worked only part time. Contact your state's unemployment officefor information.

The Health Insurance Portability and Accountability Act of 1996 ensuresthat if you change jobs, a pre-existing medical condition won't keep youfrom getting insurance under your new employer's group health plan. Thenew plan can, however, exclude you for a time; 12 months is typical. Formore information, check the Department of Labor's Web site, www.dol.gov.

Are you an independent contractor? Not necessarily

The labor laws described in this article generally don't apply unlessyou're an employee. Sounds simple, but it isn't always. Even if your contractsays you're self-employed, you'll qualify for protection if you can showthat you're a de facto employee. The determination often hinges on whetherthe employee/contractor has control over what he does and how he does it.

Other factors can come into play, however, as happened in a case involving33 physicians who worked in a Milwaukee urgent care clinic. The case arosewhen Wisconsin's department of labor, in the course of an audit, decidedthat the doctors were employees--not independent contractors--and that theclinic owed overdue state unemployment taxes.

In July 1998, a Wisconsin appellate court sided with the department oflabor, reasoning that the doctors performed the primary function of thebusiness--patient care. They didn't advertise themselves as separate entities:Only seven bought space in the Yellow Pages, and of those, six listed onlya phone number and a street address with their names. They didn't list theclinic's name.

In addition, continued the court, the doctors carried no financial riskat the clinic; the clinic was their sole source of income; and the doctorsdidn't own the equipment they used. In the court's view, that added up toan employer-employee relationship.

Where to go for help

Antidiscrimination laws described in this article are enforced by theDepartment of Labor through the Equal Employment Opportunity Commission.For more information, go to the EEOC's Web site at www.eeoc.gov, or call the commission at 800-669-4000. And check your phone book forlocal or state agencies that enforce equal opportunity laws.

The simplest way to get more information on the Family and Medical LeaveAct, the Consolidated Omnibus Budget Reconciliation Act, or the Health InsurancePortability and Accountability Act is to check the DOL's Web site at www.dol.gov. Other options:

• FMLA. Contact the nearest DOL Wage and Hour Division office, which is part of the DOL's Employment Standards Administration. There's also a DOL Women's Bureau with 10 regional offices. If your phone book doesn't list the nearest Women's Bureau, call 800-827-5335. Or write to US Department of Labor, Women's Bureau, 200 Constitution Ave., Room S3002, Washington, DC 20210.
• COBRA, HIPAA. Contact the local US DOL Pension and Welfare Benefits Administration or your state's insurance commissioner. You can also write to the DOL's Division of Technical Assistance and Inquiries, Room N-5619, Pension and Welfare Benefits Administration, 200 Constitution Ave. NW, Washington, DC, 20210. The IRS can provide guidance, too.

Will your employer cramp your style?

When you become an employee, you give someone else the authority to makedecisions affecting your working life. "Most physician employment contractsstate that there won't be interference with medical decisions," saysDavid J. Lowe, a Pittsburgh contract lawyer. "But the physician maywell feel unstated pressure to refer to network hospitals and physicians.Physicians who do so are going to be looked on more favorably."

You're vulnerable in other ways. "When your contract term ends,the employer may not renew it," says Lowe. "Or the employer couldsay, 'Your practice isn't doing that well, so we're moving you to an officeacross town.' "

You can minimize an employer's control, however, with pre-emptive stepsat the contract stage. For example, your agreement could let you refusea relocation or at least give you the right to be consulted early on.

The following are issues to consider when you're negotiating an employmentagreement:

• Hospital affiliation. An employer is likely to require you to maintain privileges at specific hospitals, and it may bar you from using hospitals in a competing health system. If you don't like the hospitals you're restricted to, you'll need to have alternative hospitals included in the contract. Keep a wary eye for clauses that require you to use hospitalists. "I haven't seen any contracts involving hospitalists yet," notes Lowe. But as hospitalist use spreads, one might crop up in your contract.
• Moonlighting. Working elsewhere for extra pay is usually verboten for employees, especially those whose employers are competing for market share. Competition isn't the only reason, however.

"Usually what employers are concerned about is malpractice,"says Lowe. "There's often some statement that the employee will providehis own malpractice coverage for those circumstances, or that he'll paya certain percentage of his own malpractice premiums.

"If the employers do permit moonlighting," he adds, "They'llwant to know in advance exactly what you're doing and where you're doingit."

• Hiring. Many contracts allow you to veto the hiring of doctors who'll practice in your location, according to Lowe. Staffers are another matter. Ultimately, the employer can place certain staffers in your office whether you like it or not, unless you've forged an unusually strong contract.

"I usually suggest either control over employment decisions of staff,or at least significant input into the process," says Lowe. "Ifyou can't get language saying the physician must approve all staff hiring,you can usually get something that says the employer won't hire someonewithout consulting with you."

• Practice management. Your lilies are dying. Your wall plaster's cracked. Your receptionist chews her nails loudly while she's on the phone. What can you do? Perhaps nothing. Your contract won't likely go into the details of practice management. Instead, your clout with your employer is apt to depend on your clout in the marketplace.

"If a physician is considered a real asset to the organization--say,he sees a lot of patients or has a high profile in the community--he's goingto be taken more seriously when he complains," says Lowe.

"If you're just an average physician in your employer's eyes, andyou don't have something specific in your contract, you're not going tomake a lot of headway.

"Things change when you become an employee," concludes Lowe."You get more security, but you give up some control."

* See "Sexual harassment: Prevention is the best defense,"April 12, 1999, (available at www.memag.comarchived under "April 01").

. You're an employed doctor? You've got rights!.

Medical Economics

1999;19:75.