Casey Duhart, JD is the Chief Labor & Employment Counsel for Acadia Healthcare Company. She provides legal advice and counsel regarding allegations of discrimination, harassment, retaliation and wrongful discharge claims brought under federal and state employment laws and regulations.
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Erik Sunset: [00:00:00] All right. Hello and welcome back. I’m Erik Sunset, your host of the DocBuddy Journal. Here at DocBuddy, we deliver healthcare solutions that take the pain and cost out of broken workflows. Today, we’re joined by Casey Duhart. Casey is the Chief Labor and Employment Counsel for Acadia Healthcare Company.
Erik Sunset: She’s based in Tennessee, and she provides legal advice and counsel regarding allegations of discrimination, harassment, retaliation, and wrongful discharge claims brought under federal and state employment laws and regulations. Casey, Casey, thanks so much for joining us.
Casey Duhart: Thanks for having me. I appreciate it.
Erik Sunset: Oh, it’s our pleasure. You’re going to be a great guest for the show. I can already tell. And one other upcoming speaking engagement you’ve got beyond the DocBuddy journal is you’re actually going to speak at the ASCA 2024 annual conference taking place next month in Orlando. You
Casey Duhart: think it’s a perfect time of year and a perfect place to have a
Casey Duhart: conference.
Erik Sunset: they picked a great venue too. The Gaylord’s a fun hotel. Lots of, lots to see and do there. And it’s always kind of fun to be in the bubble [00:01:00] at a Gaylord. You’ve got one in your backyard, if I’m not mistaken up there.
Casey Duhart: We sure do. Yes,
Erik Sunset: So obviously you bring a lot of expertise to the table around employment law and staffing your slot.
Erik Sunset: Your speaking slot is around managing human resources like a pro. What can you share that won’t spoil your talk?
Casey Duhart: first of all, if anyone, you know, comes to the conference and they want to sit in on the session when you leave the session, you’re gonna be like, I’m in the wrong industry. I need to go to law school and become an employment attorney because this is so much fun. I say all that to say sometimes people look at An attorney coming in and speak to them as something that’s going to be boring and drab. That’s not going to be the case. We’re going to have a great time and we’re going to talk about Employment Law Basics 101. There’s always a why behind the what of not just treating employees like we should be valuing and treating employees, but why we have to do so according to [00:02:00] federal and state law. And I think sometimes when you understand, Oh, What title seven is about. And oh, why? I can’t really fire that person while they’re out on medical leave. And oh, why? I shouldn’t misclassify someone as being a salaried exempt person when they really should be hourly non exempt. Like when you put all of that together, it helps you to make the right decisions. for your employees, which helps to make your workplace run a lot smoother. So when you come out to the conference, if you come to my session, you’re going to learn about those employment basics one on one, and I will also be around to answer questions that you may have that you may be like, I don’t want to pay an attorney 500 an hour to answer this question when I can just go right to Casey while she’s there.
Casey Duhart: So that’s kind of a little snippet about what my session is going to be
Casey Duhart: about.
Erik Sunset: Oh, that’s fantastic and you’ve got a gift because you look at it, you look at it on paper and you may say, Oh, this is just a bunch more laws I have to follow and be aware of. And I got to deal with all these details. But I think if you look at it the right way, you can flip that on its head. [00:03:00] It’s something to truly be excited about.
Casey Duhart: It is, and it’s exciting. It’s fun, and it helps you see the bigger picture when it comes to the workplace. And some of, when I go to the conference, this isn’t my first time speaking at the Ask a Conference. There are like, there will be a line of folks afterwards asking questions because some of them don’t have. a human resources department, or they may have someone who’s doing like having a million different functions or wearing different hats and human resources just happens to be one of them. So they don’t have the time to really do a deep dive until knowing about these kinds of laws. And this is an excellent way to try to get that information to make better decisions for the particular surgery centers.
Erik Sunset: I know you’re right about that. I would imagine a lot of ASCs across the country don’t have that specialized knowledge base, you know, internal to the center. They may be relying on their, their PEO. They may have external counsel. They talk to you once a year, you know, when they see a problem or they’re presented with a problem.
Erik Sunset: So [00:04:00] having said that, What are, you know, like what’s kind of new in the world of ASC labor laws? What should people be aware of? Where are folks getting tripped up and what, what do you see? What’s on your radar?
Casey Duhart: Wow. I see so much. So first of all, I work for a behavioral healthcare company, so I’m in healthcare. I was at a law firm for a while, transitioned over into being in house counsel. We have roughly 250 facilities throughout the United States that primarily delivers mental healthcare to people, whether that’s eating disorders, methadone clinics, rehabilitation centers, residential facilities, all of that. So I work in healthcare. A lot of the issues that I see are not just only situated to the healthcare industry, but also across other industries, hospitality, automotive technology, the type of issues that are really popping up. Number one, I see a lot of wage and hour issues. When I mean by wage and hour, some people just, we’re, we’re in a tight, okay, [00:05:00] we’re in a space where gas costs a lot of money, right?
Casey Duhart: Per gallon, where a loaf of bread costs a lot of money. Things cost a lot of money and some employers are trying to save money. And one way they do that is they’re like, Hey, let’s just go ahead on and make this person a salaried you know, exempt person. So we don’t have to pay them overtime. Now, can you pay someone a salary?
Casey Duhart: Yeah, you sure can. However, it’s a two part test. The first test under federal law is that you have to make sure that you’re paying them this certain salary threshold. They have to make sure you’re getting, they’re getting paid something that’s, you know, it changes every pending who the president is. But there’s a threshold how much they have to get paid.
Casey Duhart: That’s the first test. The second test is they have to actually be doing job duties that will make them be exempt. If they are just like a scheduling coordinator, where they are just putting patients in scheduling them, they may not fall under a particular job [00:06:00] duty exemption that will allow them to be a salaried exempt person. So although that Surgery center or that employer may be saving money by putting folks on a salary to not paying them overtime. It can kind of bite them in the butt in the end of when someone says, yo, I’m being misclassified. What they’ll have to do is go back to a two or three year look back period and tally up how, like what hours they worked and how many hours should have been calculated for overtime. They have to pay that money back to that person. And if it gets to the point where that particular claim is delivered to the Department of Labor, the Department of Labor investigates it. Not only Will that employer have to pay what’s owed, but as like a slap on the wrist for like bad, bad, bad job, you shouldn’t have done that.
Casey Duhart: They’ll also do liquidated damages. Well, they’ll double it. So if someone is old 3, 000, you’ll have to pay them 6, 000 and you can’t retaliate against them. They still got to [00:07:00] stay employed there. So sometimes knowing. When to put someone as an exempt employee is really important. So I understand people try to focus on trying to save money, but I’m seeing a lot of lawsuits of misclassification of folks when they really should be hourly non exempt. But folks are just putting them in a salary exempt. That’s one way.
Erik Sunset: that in that instance, obviously employers need to be following their federal and state laws. Certainly don’t want to give any false pretense to this, but I would imagine that that’s misclassification. Suit or complaints isn’t in a vacuum. You’re going to have an employee that’s dissatisfied with some other aspect of their employment and they say, Hey, or maybe go to attorney and the attorney says, Hey, you have another issue here, not only this.
Erik Sunset: So you’re getting a double whammy by not doing it the right way to start. Right.
Casey Duhart: You must have heard some of my other speeches because I’ve said that before, where that’s really how it pops up where I’ve seen it. Someone gets terminated for slapping a patient, right? Like you’ve [00:08:00] slapped a patient like, yo, the termination was justified. But they’re like, no, they didn’t terminate me because I slapped someone.
Casey Duhart: They terminated me because I’m a black woman. So they go marching to an attorney’s office and this is why they terminated me. And the attorney may be like, okay. You know, well, you did slap someone. So that could be a justifiable termination. But let me look at your pay records. And especially in the state of California.
Casey Duhart: Oh, and gee, if you get one penny wrong, like one penny wrong on a pay statement, there goes a plethora of other penalties that get associated with it. So although that attorney may be like, you don’t have a case for discrimination, but you do have a case for wage and hour violation. That’s normally how that stuff pops up.
Erik Sunset: Better just to do it the right way from the outset, avoid all of that pain.
Casey Duhart: One thing that I’m finding out too, I I’ve seen it at my own company. Some people really think they’re doing right by saying like, Hey, on the flip side of just trying to save money, maybe like, Hey, it’d be so much easier if [00:09:00] we would pay this person a salary. So we don’t, you know, they can make sure that they know every week what they’re getting paid. And it would be above 18 an hour threshold is if we put them a salary. They could be making probably 25, 26 an hour once you calculate it. And they may really think they’re doing a great job by, you know, no good deed goes unpunished. But then on retrospect, it’s like, yeah, I understand you were trying to do that, but they didn’t fit the job duties exemption to be classified as that.
Casey Duhart: So sometimes it’s just like, An honest mistake that happens, but the law don’t care if it’s a mistake. You still got to pay it
Casey Duhart: back.
Erik Sunset: No whether it’s contract law or looking at federal and state laws, what does it say? What does the law say? Not what do you think it says? So obviously the, the pro tip here is if you’re unsure, talk to somebody that knows. To
Casey Duhart: Right. Most sure. Most sure. So that was wage an hour. Another thing that I’m seeing pop up a lot. Normally people will file a charge of discrimination with the EEOC or whatever state agencies there, or they [00:10:00] may bypass that protocol if they want to. If they want to file in state court, some states say, Hey, you don’t have to go through this administrative process. You can just file your lawsuit in state court. What I’ve been seeing, especially at my company, is that there are folks who are going to the NLRB. The NLRB is a national relations, national Labor Relations board, and some folks think that, oh, the NLRB, that’s just for companies that are unionized. No, no, no, no, no, no, no.
Casey Duhart: The NLRB also handles matters for employers, for employees who are not unionized. The whole purpose of the NLRA, which is the National Labor Relations Act, is to protect employees from being squandered, from speaking out in the workplace. So you may have an employee that is disgruntled, and then it’d be like, well, you know, Man, my manager is just a blankety blankety blankety blank, and then they put that out on social media, and you know, social [00:11:00] media spreads like wildfire where that message may get back to the manager, and the manager is like, you’re disparaging me, you’re fired. That is actually a violation of the NLRA because if the employee is speaking out about issues with the workplace, even if they may use some choice words, It’s protected speech. It’s protected activity. And what I see is that instead of an employee starting to, hey, going to the the EEOC or their state agency, they’re going to the NLRB because it also depends upon who they are.
Casey Duhart: What president’s administration is, and you know, is, is enacted. And with this particular presidential administration, the NLRB is totally, totally employee friendly and they will put up a fight and there is not much negotiating room. And so when they go to the NLRB as an employer, it’s kind of like, What am I going to do here if there’s not much negotiating room here? And so I’m seeing a lot of employees going that direction. So just be careful when it comes to [00:12:00] employees speaking out in the workplace, whether it’s on social media, text messages, talking to another employee, you know, instead of squandering them. Find out why they’re unhappy. Talk to them. It may uncover some things that you’re like, Oh, wow, I didn’t even know this is going on in the workplace or that they felt they feel like this. And so having those conversations with that employee may stop them from filing some type of charge with another administrative agency and just talking to them could possibly resolve the problem
Erik Sunset: point we, we made earlier, I would imagine that you, you hit that tipping point as an employee, there is going to be more than one thing going on you know, as human nature, we’ll put up with a lot, and then you hit that breaking point, everybody’s breaking points a little bit different. But then as an employer, you, you’re going, Oh my gosh, this, that, and the other is happening in addition to your.
Erik Sunset: Upset social media posts, which I, you know, I know better than to retaliate against that communicating with employees [00:13:00] seems like a really key area of managing human resources like a pro.
Casey Duhart: very, very much so.
Erik Sunset: Well, and to that point also around somebody makes a, an upset social media post and you go and you just fired them. They’re terminated. That seems bad. It is bad in just a simple employment law perspective, but in the world of ASCs, hiring and retaining staff has really never been tougher. My, my current refrain on this is go to Becker’s ASC any day of the week.
Erik Sunset: Go check out the news. There’s almost certainly something on the front page around employee turnover, around shortages, or around surgery staffers that can’t do procedures because they don’t have the staffing. How can Casey, how can the right policies and procedures help you to either enhance staff retention so that you’re not losing people that you don’t need to be or to even be able to make the hires that you need?
Casey Duhart: Right. That’s a great question. [00:14:00] I will start off by saying the right policies. I think every employer, every employment establishment should have Policies at an employee, employee handbook. All right. If you have those policies and employment handbook, make sure that it’s updated. You don’t want to have an employee.
Casey Duhart: I saw one employment handbook that was completed on a typewriter. This is how old it was. It was like back in the nineties and I’m like, yo, this was like 2021 and they wanted me to take a look at it. I’m like this ancient document. Like we just need to shred it and start over from scratch. Like we’re not using this hieroglyphic manuscript.
Erik Sunset: Surely there have been no laws passed between now and the 90s that would matter to employment.
Casey Duhart: Bye!
Erik Sunset: Not one.
Casey Duhart: like the ADA, a whole bunch of stuff. So make sure that you’re updating those policies and employee handbook. But more importantly than just making sure that you have those things in place, because you can have a library of [00:15:00] information, but it’s not helpful unless it’s being utilized, right? So make sure that if you’re having those policies in your employment handbook, that you’re actually abiding by what is in your policies and your employee handbook, because. If you have a particular policy and you are not abiding by that policy, then if something were to happen and that employee was to be terminated, and then they, let’s say they file a lawsuit and there’s depositions and the lawyer says, you know, is this policy ABC?
Casey Duhart: Yes, it is. Did you abide by policy ABC when it came to this employee? No, I did not. Does it make you look good? Right? So, first of all, make sure that if you have the policies and the procedures in place that you’re abiding by them. Also, what gets a lot of staff members upset and get them out the door is when they feel that those particular policies are applied differently. to other people. Women may feel like, Oh, they’re holding me to this policy, but they’re [00:16:00] not holding a man to a policy. Or a Hispanic person may feel like, Oh, they’re holding me to this policy. They’re not holding a Caucasian to this policy. Like there are all like someone who is an atheist may say, Oh, they’re holding me to this policy, but they’re not holding that Baptist to that policy. You have to make sure that you are holding those policies uniformly across the board so that people do not. feel as if they’re being discriminated against. Case in point, if you’re like, Hey, if you have three, no call, no shows, you’re terminated. If that is in your policy, right? And then you have a particular black employee who comes on the scene and they have three, no call, no shows, and you terminate them. Are you abiding by the policy? Yeah, that’s what the policy says. But then what if you have a white employee who comes on board and they have five no call no shows and they still don’t get terminated? Although you applied the policy correctly for that one person, you didn’t do it uniformly across the board. So when that employee, you know, goes and [00:17:00] not only files a lawsuit, but when word spreads because, you know, some of these surgery centers are small gossip travels quickly, like, oh, they’re discriminated against, you know, certain classifications or protected categories of people because so and so didn’t get terminated, then, hey, and I’ve heard managers say, well, so and so is a great employee.
Casey Duhart: They had issues. You know, we were being lenient. No, you can’t do that. You have to make sure that you apply them evenly across the board. A lot of times when people have issues with staff retention. Yeah, it could be that that particular surgery center or that employer is paying 15 an hour and the competitor down the street is paying 20 an hour. If you don’t have the budget to up it to 20 an hour. Okay, there’s only so much you can do to keep people right. But if there are things that you can do to keep people. But like I said, having policies in the place making people feel valued, making people feel respected. They will have a loyalty to try to stay with you.
Casey Duhart: Even if somebody’s offering, you know, a two or 3 [00:18:00] incremental increase elsewhere. And also on the point of being valued and respected, when it comes to my desk of dealing with employment issues, no mind you, we have 23, 000 employees at our, at our place of business, who I have to deal with issues every day. This is one thing I always tell our human resources people. If we have to terminate somebody, you have to understand. They’re losing their source of income. They have to go home and tell their family, I lost my job today. We don’t know people’s financial situations. They could be living paycheck to paycheck. They may have to go home and sit down with their significant other or with their children to try to figure out. How are they going to put food on the table next week? How are they going to pay their rent for the next month? How are they going to make their mortgage payment? Like how are they going to get gas in their car?
Casey Duhart: So you better be darn right. If you’re going to make an employment decision that [00:19:00] adversely affects someone, that you are not just doing it legally by federal and state law or any city regulation, but you’re doing it morally. As well. And that right there, I always tell people that is like the driving point to human, to managing human resources like a pro is making sure that you’re dealing with people, not just FTEs or number, but real human people.
Casey Duhart: So treat them as such value them as such people know when they’re valued, people know when, when, when you care for them. And so make sure that When you have these policies and procedures in place, you’re applying them uniformly across the board so that people can also know like, Hey, we have stuff in place that if I have an issue, I can go to my manager.
Casey Duhart: I can go to my supervisor. I can go to my human resources person. I can vent. I can talk to them. And even if I’m wrong, they’ll investigate it. They’ll get back to me and they’ll take my concern Seriously. [00:20:00] And that’s one thing that helps with staff retention is when people feel valued, they’ll feel, they feel heard, they feel respected, they’ll have a sense of loyalty and they’ll want to stay and ride out the waves.
Erik Sunset: You just said is something that I don’t think is lost on, on many, I think most understand it, but putting it into practice and sort of integrating it in to how you operate your business. What you just said, people are more than a number on a spreadsheet. They’re not an FTE. They’re an employee. They’re not a salary expense, a benefit expense.
Erik Sunset: You know, they’re a person. If you’re able to integrate that into the, the sad end, Terminations, you’re going to be aware of that on the positive end, happy staff, good patient outcomes, everybody’s bought into the culture and to your point about chasing that 2 and 3 an hour raise. If you have to do it, you have to do it and that employee is going to go find that 2 or 3 an hour raise or like we said before we started to record, go become an employee of [00:21:00] the hospital, totally different workplace, totally different culture.
Erik Sunset: This isn’t a small operation anymore. You’re a cog in a machine. And if that’s, what’s important to the employee, I imagine they’re just going to go when they get the
Casey Duhart: Right.
Erik Sunset: but
Casey Duhart: And when, oh, I’m sorry, go ahead.
Erik Sunset: I was going to say on the, on the retention and the culture aspects driven by sound policies driven by the, what’s the word I’m looking for here, the application policies to all equally, regardless of any circumstance.
Erik Sunset: You know, that retention is going to become easier. Is that what you see?
Casey Duhart: Yeah. That’s, that’s exactly what I see. Out of the 250 facilities that I say we have, there are some that I call my problem children where there’s just a lot of issues that always pop up with certain facilities. And sometimes you have to do a deep dive and look a little bit deeper as to why are there so many disgruntled people coming out of this one space?
Casey Duhart: What’s going on? And when you do a deeper dive, you’re like, [00:22:00] Yeah, if I was working there, I’d probably feel the same way, too. So that may require a change and leadership to be like, Those who are leaders right now, they’re not the right leadership for this particular facility. We’ve got to make some choices from the top end to be able to help everybody that’s in this area right here.
Erik Sunset: Yeah, it does. It flows from the top, even in organizations that are really flat where the CEO isn’t necessarily up here and frontline workers down here, but where it’s, you know, really crunched down where it’s super flat, good lines of communication. We’re getting a little bit into organizational psychology here, which I like, I think that’s really interesting, but it all does flow from the top.
Erik Sunset: The, the application of policies and culture comes from the top, no matter how flat your organization is.
Casey Duhart: Very true.
Erik Sunset: Well, we, we touched on it a little bit with our compensation talk here, when we’re looking at surgery centers or we’re looking at healthcare as a whole, how do you get compensation right? Because there’s always somebody that can pay more, you know, what, what all [00:23:00] goes into that? Because that’s a big piece of retention.
Erik Sunset: Obviously,
Casey Duhart: Yeah. I would say, of course, market analysis, making sure that you’re staying up to date on the market trends to see what competitors are paying. What’s the cost of living in the area where you’re at? And making sure I think the biggest one, excuse me, is making sure that that you are not being discriminatory in how you are paying your employees. With the Equal Pay Act the federal law is taking it very seriously when it comes to making sure that women and men and people across just different protected categories. When I say protected categories, I don’t want to say any, like, legalese. Y’all know what I’m talking about. Protected categories are those who, like, your sex, your gender, your race, religion, whether you’re, like, Disabled, what your disability status is, your age, all of those are protected categories. So making [00:24:00] sure that you’re not playing onesie twosie when it comes to compensation so that if you’re called on the carpet, you don’t ever want to be put in a spot where like your female staff is being paid 17 an hour, but your male staff is being paid 21 an hour. There can be differentials in pay, but you have to make sure that you have really good evidence and support to back up why you’re making those decisions and not just based upon, you know, oh, Well, the men work harder because they have to lift patients and the females don’t like, like you don’t want to go that, that, that part. So making sure that you’re doing your market analysis, staying up to date on current trends in that particular community. Cause I’m quite sure I live in Nashville. What healthcare worker may be getting paid in Nashville may be different from what someone’s getting paid in Tuscaloosa. No, no, no offense.
Casey Duhart: Tuscaloosa Alabama. I’m just saying the cost of living may be a little bit different. So you want to make sure, you know, that you’re staying up to date with that. Also with compensation. Yeah, we have the federal minimum wage limit, 7. 25, but then there are many states that have their own. [00:25:00] minimum wage as well. And you got to go with whatever is the highest pay. So make sure you’re staying up to date with that. I already spoke about making sure that you are 100 percent certain of whether you’re paying your employees, should they be salaried exempt or should they be hourly paid? non exempt. It’s a very sticky issue that even the best get wrong.
Casey Duhart: So if you have questions about that, you need to reach out to outside counsel who can probably run an audit for you to make sure that people with their job descriptions are being classified correctly. Also, if you have staff who are hourly, but you still require them to be on call like they got a be accessible to their phone.
Casey Duhart: Like when they clock out, they got to be accessible to the phone in case something happens with the patient or you send them an email and they have to respond to the email after hours or respond to a text message after hours. You have to compensate them for that time. So make sure that you’re not like, Oh, I just sent her like a, [00:26:00] You know, two second text message.
Casey Duhart: It took her five minutes to get back with me. You don’t want to get into that whole riff of whether it’s the minimus time. You don’t want to get into all of that. Make sure that if they’re doing any work off the clock, that they are being compensated for that work. If they are hourly, non exempt employee,
Erik Sunset: and I’m not a, I’m not a lawyer, obviously, but in this off the clock work compensations, a part of it, you can get yourself into trouble there as an employer. I would imagine there’s some type of liability exposure you incur by asking for work off the clock as well. Is that right?
Casey Duhart: it could be one thing that I’ve seen issue when I was at the law firm. That happened where someone always wanted someone to do some work off the clock, right? But this person, it started requiring them to take certain materials home, so if they were asked to you know, question that they about a patient, they could just easily have certain documents together because of [00:27:00] that particular place.
Casey Duhart: It didn’t have an E. M. R. System. It was just like mostly a lot of paper stuff. And that broke HIPAA. You can’t just take patient information home with you. So you have a violation of HIPAA. You don’t want that because you got to report that in. It causes a whole lot of issues. So to the best of the ability, you know, if you can keep things, completed while on the clock than do it.
Casey Duhart: But off the clock, make sure that you know, the managers know not to bother the employee unless it’s an extreme emergency and don’t put the employee in a position where they have to take, you know, documents home related to patient information that could possibly be a violation of HIPAA. No,
Erik Sunset: not funny to our listeners, but don’t, don’t break any laws. Number one. Definitely don’t break federal laws if you can avoid it.
Erik Sunset: That’s that’s silly, but I
Casey Duhart: so where I work at, like I said, I manage a [00:28:00] lot of the employment litigation. And when I have to talk about budgets with the operators at these facilities, like your litigation budget is going to be this amount because we have to do X, Y, and Z in court. You know, and they get all huffy and I’m like, yo, don’t blame me.
Casey Duhart: If y’all didn’t break the law, we wouldn’t be in this position anyway. So stop doing illegal stuff, you know, kind of like, okay, ha ha ha Casey. I’m like, it’s not my fault, you know? So yeah, but you’re right. Don’t break the law and you won’t be in these particular situations.
Erik Sunset: want to go back to something you said around doing market analysis around compensation. You know, I would imagine a lot of surgery centers a lot of independent surgery centers. I can’t speak to the management company operated surgery centers, but I would imagine a lot of their HR needs are handled by a PEO.
Erik Sunset: Handles payroll, handles taxes for you. So they’re the, you’re a WT of the, the PEO rather than a surgery center. They can offer you a lot of support around employee handbooks. And I guess I’m, I’m long walk for a short drink of water that when it comes to employee [00:29:00] handbooks, the PEO may or may not be enough.
Erik Sunset: You probably should consult an attorney in your state, you know, the jurisdiction in which you operate. But then for market analysis, for somebody that’s at a surgery center and they’re going, man, I’d, I’d love to just make a hire. I can’t, I don’t have time for market analysis. I don’t have time for anything, but I’m going to interview this person and I’m going to throw a number at them.
Erik Sunset: And we’re going to see what would you recommend to that surgery center administrator or owner or operator? How do you get that number? How do you know what’s going on around you?
Casey Duhart: Right. I don’t think that it’s the wisest thing to just like pull a number out of the sky and hope to God that they take it. I think that although they may be in a crunch to hire because a lot of health care facilities are in a crunch to hire with a lot of staffing shortages. The best thing to do would probably be to just take five minutes to ask, like just ask if you’re hiring for a certain position, there’s three other things you can do.
Casey Duhart: three or four other people who are already working there at the position, ask what their compensation is so that you can kind [00:30:00] of make a number that’s comparable to that. Because the last thing you want is to hire somebody at 30 an hour when you have people that have been working there for five, six years, and they’re still making 21, 22 an hour.
Casey Duhart: When they hear that, they are going to flip their lid, right? So number one, if you don’t have time to do a deep dive market analysis, right? Cause that does take time. Then just look at the compensation that’s currently there. If the role is already there to see if you can get something that’s comparable to that, because you don’t want to start any upheaval with those who are already there and dedicated to
Casey Duhart: work
Erik Sunset: and it gets you right back to your retention issues. And then you have a brand new hiring issue at the tail end of that. Yeah,
Casey Duhart: Right. And can I say something real quick? I don’t hope I’m not talking out of turn. Sign on bonuses. Can we talk about sign on bonuses right
Casey Duhart: quick? I’m not against sign on bonuses. I think they can be very helpful to bring people in the door. But one thing that I’ve seen since COVID when, you know, essential workers, we need all the healthcare people who [00:31:00] can get, we’re going to give 10, 000 sign ups bonus here and you get a sign on bonus, you get a sign on bonus. And people started getting smart and like, I can get hired, be with this company for 90 days, Quit with them, go somewhere else, and get another sign on bonus. And it was kind of like they were kind of working the system. So one thing that we had to enact in place was, if we’re gonna do a sign on bonus, you don’t get the whole thing, like your first paycheck.
Casey Duhart: right? We will break it up after the first 30 days you get this much after the next 60 days you get this much after the next 90 days you get this much. When you do that, it’s kind of like, yes, sign on bonus, but also retention kind of like they worked for it because what some employers want to do is we’ll give you a 5000 sign on bonus.
Casey Duhart: But if you leave us in a year, you’ve got to pay it back. There are some states where you can’t claw back a sign on bonus because it’s a wage. You just, you, you can’t do it. So then you get yourself in trouble when you’re sending out these legal letters saying, pay us back when it’s like, no, under state regulations, we don’t have, I don’t have to pay [00:32:00] you back.
Casey Duhart: So that’s why it’s always great. If you don’t know the state laws to go head on and just break that sign on bonus up and incremental, like every 30 day parts. So that if they do leave, they didn’t get all of it. They just got kind of like what they worked for. So just be cautious when it comes to the sign on bonuses.
Erik Sunset: That’s a, that’s a real pro tip. And you have to really look at incentives. You know, how does the incentive chain align between employer and employee? And then the knowledge of the law. Obviously my, my refrain has always been, if you’re not sure. Find an attorney who is going to be sure because you’re not, if you’re not a lawyer, you really don’t have a lot of business interpreting laws that can impact you either positively or negatively.
Casey Duhart: Right.
Erik Sunset: And you said the magic word, it’s a dog whistle COVID. We’re, we’re at the other end of it. I’m down here in Miami. We, we didn’t have a whole lot of turmoil around it. Hopefully our listeners didn’t have a whole lot of turmoil around it either. But there’s obviously a market shift from pre COVID during COVID, which is a total other animal, and [00:33:00] now I think we’re at the other side of it.
Erik Sunset: We’ll knock on, knock on wood. We don’t see a COVID 24 or anything like that. But around policy around policy and around law, what, what was the biggest change for facilities? And as a tail end of that, what should facilities being, be doing now that maybe they didn’t have to do before 2020.
Casey Duhart: I will say this, I don’t have a laundry list of, like, of what facilities should be doing now that’s different from then, right? Because I think that with all the regulations that were coming out in place. Even the lawyers, government officials, those in our, you know, Senate, House of Representatives, people, we were making stuff up as we went to try to just do the best that we could with what we, what we had. I think if anything, COVID empowered people, especially in the healthcare industry. It empowered them to be like, I need to speak up about my rights. Cause it got to the [00:34:00] point where they were working. Endless hours, you know, getting sick. And then it started to shift to where they weren’t really feeling valued and appreciated for what the, all the hard work that they were doing. And since COVID, I’ve seen an uptick. Unemployment related cases where people are like, I don’t have to take this. If I feel a certain way, I’m going to make my voice be known. I’m going to file X, Y and Z, whether it’s related to a facility not having the supplies that they need. And one thing that also is an uptick that I see now in our facilities in 2024. OSHA, OSHA. Okay. You know, OSHA is the federal law to make sure that workplaces are safe, safe environment for their employees. And there’s been an uptick in OSHA cases and remember OSHA is the federal law. Other states, they, some states have their own, like mini version of OSHA. Like for Tennessee, we have something called TOSHA, right?
Casey Duhart: The Tennessee OSHA. [00:35:00] And so what I’ve seen is that there are many people who feel comfortable now going to OSHA. I work in the behavioral healthcare industry. So there may be nurses that call OSHA and file a complaint to say, Hey, you know, this patient threatened me. I don’t feel this is a safe workplace.
Casey Duhart: I need you to come out here and do an investigation. And OSHA does it. So I’ll say from COVID, if anything, people feel more empowered to really stand up for themselves and go file these lawsuits. They’re not going to file a lawsuit, file a charge. Get in contact with the government agency. Do something to make their voice heard if their workplace is not a safe environment. So just like, be careful of that. Even outside of, oh, you know, they don’t clean up blood within a certain amount of hours like they should. Even outside of that, if they just feel that their life is just not safe while they’re at work for, I don’t know, x, y, and z. They do. And it’s a free process. OSHA don’t charge you for filing a [00:36:00] complaint. They don’t. So that’s one thing I would say from COVID that I, that I’ve seen an uptick in that. And also people requesting this is kind of a sticky issue, but I’ll, I’ll say it anyway. From COVID, some people developed PTSD and anxiety. and other disabilities or impairments that affect the mental. And sometimes you can’t always see that.
Casey Duhart: It’s easy for someone to come to work with a sling on, right, or a cast, and we can make all these accommodations for them. But when they come in and say, Hey, I’m dealing, you know, with something that’s mental. Some people don’t take it seriously because it’s like, girl, you fine, go to work, but not taking the time out to really go through that same interactive process to understand if they need an accommodation for whatever mental impairment that they may be dealing with at the time. And not treating it as a disability as they should, a physical disability [00:37:00] under the Americans with Disabilities Act. So I think COVID as well, like there are people who I deal with who are still wanting to work remotely. Or if their position allows them to work remotely or like full time remote or maybe come into the office two, three days a week because they still feel this sense of anxiety or PTSD that came from that isolation period and COVID and everything that went from that. And I still see cases that are kind of flowing from that, even in 2024. So be careful of that when someone is coming to you expressing a mental impairment that you may not see, but something that they’re battling with. Don’t think they’re just trying to manipulate the system because you don’t know.
Erik Sunset: Right, right. That’s, that is a sticky issue. Tough to navigate that one. And I have a point of curiosity for you. The prior example, you have the nurse, it’s a normal day at the surgery center, generally a fine place to work, no outstanding issues, and you have that patient come in and threat them. They feel unsafe, [00:38:00] but it’s a well operated facility and just comes out of the blue.
Erik Sunset: Somebody’s having a really bad day. So they file the OSHA complaint. What’s the remedy? What, what can be done there?
Casey Duhart: So that’s a great question. The remit, so what OSHA will do is they’ll send the complaint to the employer and they will give the employer an opportunity to respond. When you respond, you, it’s maybe a one, two page response. And then also OSHA may ask for documents. So for dealing with workplace safety, what workplace safety policies do you have? What kind of procedures are standard operating procedures do you have if a disgruntled patient comes in? I deal in behavioral health care where we deal with patients who have, you know, mental incapacity sometimes. So there are certain techniques that we have to use to calm that patient down, to de escalate them. OSHA wants to see, How has everyone been trained in these de escalation techniques? Are there videos to see the [00:39:00] situation that happened? How many times has this happened? It could be a one time occurrence at that particular surgery center or facility where someone, like you said, was just having a really bad day and took it out on a nurse. If that’s the case and we show OSHA, like, Hey, we have everything in place that we need to, to de escalate the situation. That’s what we did. OSHA will leave it alone. But if it’s a situation where it’s happened, over and over and over again. And finally, somebody called OSHA. They’ll ask for incident reports. How many times has this happened with various patients within a span of one or two years? And if it shows that, hmm, this is kind of like a pattern and this employer is not taking their workplace safety environment seriously, OSHA will slap down some citations. When I say citations, number one, it could be monetary, the monetary penalties. There’s no spreadsheet to where you can like connect what the monetary penalty is. Oh, she just comes up with a number. It’s negotiable, but that [00:40:00] starting number OSHA comes up with. So you have monetary penalties. Then of course, there’s various tasks that you have to do by certain dates, by certain deadlines. You have to do that. And there’s a notice that you have to post for everybody in the workplace to see that you you know, violated something under OSHA and you have to do this, this, and this, to get it right.
Erik Sunset: So it sounds to me that if you’re, if you’re a center and even though you’re doing everything the right way, you need to have documentation of the incident. And obviously we’ll ask our listeners, if you have questions, consult your attorney or talk to Casey at ASCA. You can grab her in a minute, but it sounds like OSHA is looking for faults.
Erik Sunset: OSHA is looking for liability. And if you can’t Show a paper trail. Like we have incident reports. Here’s our policy. We train on the policy. Then you have a problem. Even if everything is going right.
Casey Duhart: Exactly. The one thing I always tell folks is remember, OSHA agencies, the court, whoever your [00:41:00] audience is, they’re going to look at you as being the sophisticated party. That’s what we call the sophisticated party. And you as a sophisticated party, if you don’t have your stuff together, if you don’t have those documents, it’s a losing battle.
Casey Duhart: It’s a losing case for them. I always say the longest memory is the shortest pencil. So make sure that you document everything that you can. So if you’re caught on the carpet as that sophisticated party, you have the evidence or the documentation in place to support whatever needs to be
Casey Duhart: supported,
Erik Sunset: Yeah. You, you say you did it show us that you did it.
Casey Duhart: right?
Erik Sunset: Yeah. That’s a hopefully a lesson you can learn in advance and not the hard way on that one.
Casey Duhart: Right.
Erik Sunset: Well, Casey, we’re, we’re kind of winding down our, our hour here. Love to ask my guests their thoughts on AI and healthcare. What do you got for us?
Casey Duhart: You know, one thing that I will say, first of all, I don’t, I don’t want to know what the future [00:42:00] state of litigation is going to look like when it comes to AI. You know, if a healthcare facility relied upon AI to treat a patient and something goes awry, right. And even if the patient dies or the patient is left with, you know, I don’t know, deformities for life, you know, I don’t want to know what that litigation looks like. I am not on the AI train just because I’m just like old school. I’m not. The AI is like all the new rage right now. And the one thing I will say is when it comes to patient care, you can’t just. Take the care out of patient care and just rely on a I totally when it comes to your employees. I would rather have a person when I say touch me.
Casey Duhart: I’m not just talking about like physical touch, but touch me as someone who is taking care of my health than a robot. Can I be helpful in ruling out diagnoses and stuff like that? Yeah, probably. That’s above me. I don’t know. Doctor. I’m a doctor of laws, but I don’t know. Doctor of medicine, right? So I’m not gonna be the first one to knock it. But if we’re [00:43:00] talking about, you know, employees and trying to like, Hey, it’d be cheaper just to replace employees with these robots or this AI stuff like don’t put your common sense out the window when it comes to, you probably need to have certain employees in place for certain things. Like I said, I deal with behavior health care. It’d be really hard to rely on AI to help our patients with their mental issues that they go through. Sometimes it works best if you have a person that’s there in the room to help walk them through their issues and talk with them through it, like literally have a body in place. We’re all addicted to this.
Casey Duhart: Oh, sorry. That’s my kid. We’re all addicted to our phones. We’re addicted to devices. We’re addicted to everything tech wise. And sometimes patient care is a little bit better when there’s an actual person there and not just a device. But that’s all I’ll say on that one.
Erik Sunset: We, we see it, we see it very similarly. You you [00:44:00] can’t take the care out of patient care. At least not today, who knows what the future holds, but it’s very much a human centered business.
Casey Duhart: Yes.
Erik Sunset: And it is a business. Let’s not lose sight of that. We want to provide great outcomes, but the reason we’re talking about employment law and ways to avoid employment law snags is because you are running a business.
Erik Sunset: You got to keep the lights on to treat new patients, obviously.
Erik Sunset: Well Casey, we’ve covered a lot of ground, but I got to ask you, if you could just put one thing out into the ASC universe that you want every ASC owner, operator, employee, surgeon, surgical tech, anesthesiologist to know, what would it be?
Casey Duhart: was at a conference this week and the conference was for those who were operational leaders of our facilities. And I just deal with employee issues all day, all day long employee issues. I really don’t know what the CEOs and CFOs and divisional presidents deal with on a daily basis trying to run an organization. And [00:45:00] something that someone said. at the conference was so helpful. They said, you know, yes, we take care of patients, right? But just as much as we take care of patients, we should even more take care of the people who are taking care of our patients. Don’t forget about the people aspect. Don’t forget about your employees, those who are helping you make your money to run your surgery center so that you can have money in your pocket to drive your nice car. Don’t forget about the people who make your business. what it is. They are the foundation. If they ain’t happy, your patient care is not gonna be happy either. Right? So keep the main thing the main thing. Yes, take care of your patients, but take care of the people who take care of your patients.
Erik Sunset: What could I possibly say to follow that up?
Casey Duhart: Should I do a mic
Casey Duhart: drop?
Erik Sunset: Yeah, there you go. That’s it right there. That’s going to be the clip for our episode, I think. Well, as we as we wind down you mentioned that you’ve got a really cool Tik TOK account before we started to record [00:46:00] where, where can people find you online?
Casey Duhart: Yeah, so I had to actually look it up. It is at Casey the Employment Addy. A T T Y. At Casey the Employment Addy. That’s on TikTok. I’m not like a huge TikToker. I don’t have a huge fanbase. Following. So I’m not a social media influencers, but from time to time on my tick tock account, I will give like a one minute spiel on employment, something.
Casey Duhart: So maybe you can take it away or not. I also love to work out. I’m in the body building. I’m an amateur bodybuilder. So I may have like tips on there about like. I don’t know, working out, exercise. I don’t know. But most of it is like employment, employment related stuff. So just look me up on TikTok if you want to, and just watch videos.
Casey Duhart: You can comment. I don’t know what, what are those young kids say? Like, subscribe, share.
Erik Sunset: Oh, that’s funny. Cause I’m, I’m just about to go down that path myself. Oh, that’s cool. And I didn’t know you were an amateur bodybuilder. What’s your favorite lift?
Casey Duhart: Okay. So when I’m in the gym, so right now I’m, I’m doing, I’m a figure competitor where like, it’s all like muscularity [00:47:00] and stuff. So right now I love doing anything Upper body. I love shoulder presses, chest presses. I love doing Arnold’s. I love all of it. Upper body, lower bodies. Okay. I love squats and deadlifts.
Casey Duhart: Don’t get me wrong. My legs are like noodles and I’m finished with the gym, but that upper body lifting, lat pull downs, all that.
Erik Sunset: Love it. Love it. Well, Casey, thank you so much for your time today. This has been awesome to have you on the show.
Casey Duhart: Thank you. I’ve had a great time. I appreciate you having me on.
Erik Sunset: And on behalf of the entire DocBuddy team, thank you for listening. Be sure you’re subscribed on Apple podcasts and Spotify and YouTube as well, such as get the newest episodes of the DocBuddy journal until next time, I’m your host, Erik, and we’ll talk to you again soon.