Decoding An Employer’s Code of Conduct

Taken from a real physician employment agreement between a physician and a medical group: “At all times a physician shall conduct himself or herself in a professional manner that is in accordance with Employer’s Code of Conduct, mission vision and values.”

We are seeing this type of language in almost every provider employment agreement that we review. While we understand the need for employers, such hospitals and group practices, to require that employees follow a Code of Conduct for compliance reasons, we want to advise our readers and clients about how this type of language can become problematic from a legal perspective.

We can all agree that everyone should act professionally in the workplace. Acting professionally from a legal perspective includes but is not limited to speaking in a respectful tone, not physically touching co-workers, not making sarcastic remarks that can be interpreted negatively and not making sexist, racial or discriminating remarks.

The legal problem arises when a provider thinks that he or she is acting in good faith, but the employer subjectively interprets the provider’s conduct differently. For example, let’s say a physician is doing a procedure and needs an instrument but the person who is supposed to get the instrument is not moving quickly. The frustrated physician says, “I need it NOW.” On its face, the comment seems straightforward. However, if the receiver of the comment thinks the tone is loud and/or condescending, the receiver can say that it is not professional and report it as a potential “compliance” violation. This is where the rabbit hole opens.

“Compliance” allows for a broad array of subjective complaints about providers. Staff can report anything to the compliance department about provider conduct and the employer is legally required to investigate the complaint. A provider may have no idea that he or she violated the “code of conduct” until called upon to answer for his or her behavior, and this is presuming that a complete and thorough investigation is performed before a decision is made about disciplining the provider (or not).

In our work as attorneys, we frequently represent providers who are terminated from their job for “compliance” reasons. We also represent employers, so we have the opportunity to see both sides of the story. Most of the time, in our experience, the providers who are terminated for compliance reasons (e.g., bullying, tone) have no idea about their conduct until it is too late to repair the damage and we end up assisting them in negotiating separation agreements.

Here are some suggestions about how to comply with a code of conduct:

• Take it seriously. When a contract states what is at the top of this article, be aware of the requirement and perform accordingly.
• Request and read a copy of the Code of Conduct. Get a feel for the culture of the organization and the tolerance level for alleged violations.
• Pay attention to your tone. If you are angry, take a time out before you speak.
• If you feel that your personality could use some help in this area do not be afraid to seek education from on-line programs or even executive coaching.

For further information contact:
Melinda Malecki: [email protected]

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