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The bottom line is that residents are actually both employees and students. Like
other employees, they receive an employment agreement/contract, receive a pay-
check and benefits, contribute to retirement accounts, and, in many cases, even track
their time. But they are also students, applying to accredited academic programs,
enrolled in programs with a curriculum they must meet, and seeking to achieve an
academic credential at the end of the educational period. This nuance is fundamen-
tal to approaching resident problems and issues and for program directors and insti-
tutions to be able to take appropriate actions that are defensible in a court of law.
Therefore, prior to approaching the “how to” of dealing with problems that arise
with residents, it is important for a program director to understand the legal context
of both academic and employment law.
The ACGME. While there are no laws that require employers to have written
policies or for employees to have written contracts, the ACGME requires institu-
tions to provide written agreements for employment and to have policies that govern
the many aspects of the resident’s working environment [ 19 ]. In most institutions,
employment-based lawyers with little academic/educational law experience advise
GME programs to create policies that are very employment centric. Generally
speaking, many policies try to be as detailed as possible, which creates a situation
where the more you write, the worse the policy becomes. Good working policies
provide a framework and allow for discretion and interpretation based on the fram-
ing principles.
Regardless of the employment and academic law principles and subsequent
application described in this chapter, if a hospital and/or residency program does not
follow their written policies, they will be at risk in any subsequent legal reviews and
actions. At the heart of employment law are the requirements that employers do not
discriminate (against those in protected statuses), follow their written policies, and
comply with their written contracts.
Employment Law Employment laws derive from three primary sources: common
law, federal statutes, and state statutes. In addition, many local jurisdictions, such
as cities or counties, regulate different aspects of employment. Thus, precise rules
governing employment for any particular hospital depends on the location of the
hospital. However, common law governs the fundamental nature of the employ-
ment relationship. Although residents are almost always hired pursuant to written
contracts or agreements, for a definite term, it is important to understand the nature
of at-will employment, in order to understand the ways in which resident employ-
ment is different from other forms of employment. An at-will employment rela-
tionship is one with no specified term. Where no term is specified, either party may
terminate the relationship at any time, for any lawful reason, or no reason, with or
without notice.
K. Broquet and J.S. Padmore