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HR Compliance for Dentists: Three Costly Assumptions by Paul Edwards

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by Paul Edwards


If you're like most dental employers, you try to be fair and to do what is best for your practice and your employees.

After all, endangering your practice and its profits is not part of your business model. Unfortunately, your best may not automatically put you into HR compliance with your state and federal employment laws.

So what if I told you that most dental practices are making one or more costly assumptions that are endangering their practice's growth and financial viability? You would probably tell me, "I'll deal with that threat if and when it starts affecting me."

Metaphorically, that's like me sitting in your chair and believing I don't have a cavity because I refuse to admit I do. The issue exists, whether I want to admit it or not, and the sooner it's fixed, the happier and healthier I'll be. The same is true of your HR compliance practices.

Here are three of the riskiest assumptions practice owners make, and what they could cost your business, whether you run a large practice or a small practice.

1. I live in an at-will state, so I can fire any employee any time.
There's a sense of freedom that goes along with knowing you're an at-will employer in an at-will state, right? Except it's not that simple.

While employment at will does mean that you can terminate employment at any time, for any legal reason or for no reason, and with or without notice, there are reasons for which you cannot fire an employee.

Additionally, it takes knowledge and caution to preserve your ability to terminate safely when you need to. Failure to consider the following points could result in wrongful termination, retaliation or discrimination claims against you—no matter how frivolous.
  • Have you damaged your own at-will status? Incorrect wording in offer letters, employment contracts, and even your employee handbook can all harm or destroy your at-will status by implying that a contract was formed or that there is a likelihood of continued employment. Employees often win cases where their employers told them they could only be fired for good cause. Even statements like, "You'll always have a place here, as long as you keep up the great work," have been held to mean that continued employment was promised.
  • Is your documentation in order? Terminations should have a paper trail and not come as a surprise to you or the employee. You should have dated notes from any time you requested improvement, and copies of any and all written corrective actions or final notices, signed by the employee as acknowledgment (not agreement).
  • Do extra risk factors apply? No termination should be made until you have evaluated whether your employee falls within any protected classes (national origin, ethnicity, race, gender, age, disability, pregnancy, and several more), or has participated in protected concerted activities (complaining about working conditions, making a workers' compensation claim, etc.), which are legal employee rights.
Here's something to consider. Last year, nearly 90,000 Equal Employment Opportunity Commission (EEOC) complaints were filed, tens of thousands of employment lawsuits were threatened, and billions of dollars were paid out in settlements and awards to plaintiffs and their attorneys. Much of this burden was perpetrated on the back of small independent business owners. And nearly all of this took place in at-will states.

2. "My employees should not be discussing or complaining about work or their coworkers on social media."
To many dentists and managers, this sounds like a reasonable policy. After all, you don't want your employees stirring tiny upsets into big problems, let alone harming the reputation of your business by posting material that may or may not be factual. The problem is, the wording in these types of policies falls under very close scrutiny from an out-of-control federal agency known as: "Voldemort." Well, close enough. They are so scary I am almost afraid to say their name. They are judge, jury, and executioner. They are the National Labor Relations Board (NLRB).

Per the National Labor Relations Act (NLRA), which is the legislation enforced by the aforementioned board, all employees (except supervisors) have the legal right to discuss wages, hours, benefits, and all other working conditions without fear of retaliation from employers. They also have the right to organize and act in an attempt to better those working conditions. These protected behaviors are known as protected concerted activity (PCA). What exactly is protected concerted activity?

It's any communication or activity amongst employees discussing work-related conditions or benefits. This means that even an employee who is, say, accusing a member of management of having an affair with the owner, without substantiation, is considered to be participating in protected concerted activity.

Examples of PCA
  • Discussion of wages or benefits
  • Complaints about safety issues or hazardous working conditions
  • Requests for raises, more benefits, or a different schedule—especially if the requests come from more than one employee
  • Social media posts about long hours, low wages, or the work environment
  • Complaints about wage cuts—even if anonymous
The NLRA is probably best known for protecting the rights of employees to form and join unions. However, it actually applies to all types of businesses. As an employer, you cannot prohibit PCA, nor have any language in your employee handbook that chills your employees' NLRA-protected rights.

Hundreds of sensible-sounding policies have been deemed noncompliant because their language is considered overly broad ("no gossiping"), or overly restrictive ("all practice matters are confidential"), and therefore might be interpreted by an employee as a prohibition against PCA.

In recent years, the NLRB has been targeting employers for any and all of these violations. If employees are fired, suspended, or penalized for taking part in a protected concerted activity, the NLRB can take action and hold the employer liable for significant damages, lost pay, and other penalties.

Don't make the mistake of believing that the NLRB only targets big companies, or ones that receive national attention. We have seen the NLRB target employers with fewer than 15 employees, and they required nothing more than a suspicion or complaint to begin an investigation against the practice owner.

3. "My years-old employee handbook is protecting me."
Like most practice owners, you probably already have a set of employee policies you use to set office-wide standards, manage employees, and hold them accountable for professional behavior.

The problem occurs when you start thinking that creating this great set of policies is a one-time-and-it's-done sort of project.

More than 80 percent of employee handbooks found in dental practices have one or more of the following legal pitfalls hiding amongst their sensible-sounding rules and language:

  • Out-of-date policies. Hundreds of fine points of employment law change each year at the federal, state and local levels, several of which require updates to your policies in order to stay compliant.
  • Incorrect wording that is unenforceable or even illegal.
  • Missing policies. In the absence of a specific policy, your day-to-day management practices, even the mistakes, will be assumed to be policy. Since this often breeds inconsistency in management, this allows current/former employees to make a strong case in their own favor.
  • Common sense "fix-it" policies. These sound great, and are often written by the doctor/management to address a problem that has popped up recently. Trouble is, these policies were created without specialized compliance knowledge, so they're full of legal pitfalls.
  • Missing "safe harbor" and protective policies. These establish your good faith intentions as an employer to comply with all applicable laws and rectify any mistakes. They help protect you as an employer.
  • Missing "burden-shifting" language, where you can transfer some responsibility to your employees for making you aware of problems and giving you a chance to resolve grievances.
  • Policies written by attorneys who are not experts in employment law. Often, doctors will have their real-estate attorney, a friend or family-member attorney write their employee handbooks. Unfortunately, while your attorney is probably brilliant in his or her own specialty, that specialty isn't interpreting employment law for a dental practice. This person's primary focus is probably never going to be researching dangerous legal or HR trends, or letting you know when an update is required.
Other considerations
And, by the way, if you're using a policy manual that you downloaded, built from a plug-and-play template, or borrowed from a colleague, you've probably inherited a number of dangerous errors, along with a lot of other policies that don't apply or fit your state, your business size, or you as an employer. Please get your handbook checked for legal compliance, missing policies, and constant necessary updates, before you find you cannot rely on it when you suddenly must.

These three compliance assumptions barely scratch the surface of what you need to know about HR in your dental practice, but I want to leave you with one very valuable trick you can stuff up your sleeve.

Find a qualified expert you trust who can answer your questions and provide guidance when employee issues arise. They should also be proactive in notifying you when policy changes are needed, and in helping you to implement them correctly.

Remember, while you no doubt have malpractice insurance in place to help protect you against patient claims, when it comes to the risk posed by employees, you are relying on the strength and legal enforceability of your HR policies, the documented HR actions you have taken as an owner or manager, and the expertise and continuous availability of your HR resources. It's true that every little bit of protection is worth a lot of cure. It's just not as easy as it once was.

Each one of the dangers I've discussed in this article can be turned around and used as a defense you can put in place ahead of time—and you have got to stay ahead of this game.

Dr. Stephanie Aldrich graduated from Case Western University School of Dental Medicine in 1999. She received a fellowship from the Academy of General Dentistry in 2007. Her general practice, Akron Dental Concepts, is in Akron, Ohio. You can reach her at docaldrich@gmail.com.


Dentaltown Magazine
September 2025
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