The Fair Employment and Housing Act (“FEHA”) makes it an unlawful employment practice to discriminate, harass, or retaliate against employees based on a protected class. FEHA also requires that employers take all reasonable steps to prevent and remedy illegal discrimination and harassment in the workplace. The FEHA regulations were recently amended, effective April 1, 2016, and clarify that taking all reasonable steps includes an affirmative duty to develop a written harassment, discrimination, and retaliation prevention policy that lists the protected classes. Some of the protected classes need little explanation (race, religious creed, national origin), but others, like “sex,” “gender,” “gender identity,” and “gender expression,” are not so straight-forward.
There is a difference between sex, which is determined at birth (e.g., male or female), and gender, which is an individual’s sense of self, but the distinction is blurred by the legal definition of the terms under FEHA. FEHA defines “sex” to include pregnancy, childbirth, breastfeeding, and medical conditions relating to those conditions. FEHA also defines “sex” to include “gender,” including “gender identity” and “gender expression.” Consequently, discrimination based on gender, gender identity or gender expression would also constitute discrimination based on sex. On the other hand, discrimination based on sex may or may not also constitute discrimination based on gender, gender identity, or gender expression.
Gender identity and gender expression are different, too. Under FEHA “gender identity” means “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.” “Gender expression” means “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” In other words, an employee’s gender expression may or may not match the employee’s gender identity. For example, an employee whose birth sex is male and identifies as female may present at work as female or as male. How that employee presents at work (as male or as female) does not affect the employee’s gender identity as female.
The new regulations also define “transgender,” which means “a person whose gender identity differs from the person’s sex at birth.” The employee in the example, therefore, would be a transgender employee because the employee’s gender identity (female) is different from the employee’s birth sex (male). Additionally, keep in mind that sexual orientation (e.g., heterosexuality, homosexuality and bisexuality), which is another protected class under FEHA, is not connected to an employee’s gender. This means that employees whose gender differs from their birth sex may be heterosexual, homosexual, or bisexual just like employees whose gender identity is the same as their birth sex.
At a minimum, employers should ensure that they have written harassment, discrimination, and retaliation prevention policies. Employers should also educate their employees about the differences between the various protected classes, such as sex, gender, gender identity, and gender expression. In addition to written harassment, discrimination, and retaliation prevention policies, employers might also consider stand-alone gender policies that answer common questions concerning gender non-conforming employees, and that provide guidance concerning the procedures to change names on employment records, the pronouns to use to refer to employees, the use of restrooms, employee privacy, dress codes and health benefits. Employers may also consider workplace transition plans to guide them when employees transition from one gender to another in the workplace.
This is not legal advice. Please click here to review our Disclaimer.
To help get the year started on the right foot, we would like to share with you the attached 2016 Employment Law calendar. We hope you find the information helpful as you face various employment issues in 2016.
Please take note that the California minimum wage increased to $10 an hour, effective January 1, 2016, so you will want to reevaluate the salaries of your exempt employees in light of the increased State minimum wage. Keep in mind that some cities and counties may have adopted higher minimum wages than the State minimum, so you may also need to adjust pay rates accordingly to comply with the requirements of the city and/or county in which your employees are actually working.
Click on the link below to download your copy of the 2016 Labor & Employment Calendar!
A number of employment-related bills came out of the 2015 California Legislative session. The following bills represent just a few summary highlights from the session.
Fair Pay Act
SB 358
The California Chamber of Commerce supported Senate Bill 358 (Senator Hannah-Beth Jackson), a bill to promote gender wage equity. The Fair Pay Act addresses two main issues – salary disclosure and how determinations of gender pay disparities are viewed.
Pursuant to the Act, employees cannot be punished for either revealing or discussing wages with other employees. The more significant change relates to the components used to determine whether a pay differential between employees of the “opposite sex” is justified or if it constitutes gender wage discrimination. While wage differentials based on seniority, merit or production remain acceptable, the “bona fide factor other than sex” exception has been tightened. The law now requires a comparison of persons doing “substantially similar” work, which means that different job titles and different work sites are less relevant in the evaluation of wage differentials. This will require many employers to reevaluate how they determine compensation throughout their company.
The onus will be on the employer to show there is a bona fide business necessity reason, other than sex, for paying a person of the opposite sex differently for substantially similar work. The employee then has the ability to void the employer’s justification if the employee can show that an alternative business practice exists where a sex-based wage differential would not exist.
Time off
AB 304
The California mandatory paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) went into effect on January 1, 2015. Accrual under the law was delayed, and did not begin until July 1, 2015. AB 304 (Gonzalez) was an urgency measure amending the sick leave law and changing various requirements, including accrual methods. The amendment provides clarification regarding which workers are covered, how the paid time off is accrued, and protections for employers that already provided paid sick leave before January 1, 2015.
AB 987
Employers generally must make reasonable accommodations for the religious beliefs and/or any disability of their employees pursuant to the Fair Employment and Housing Act (FEHA). AB 987 (Levine) codifies that employers may not discriminate or retaliate against employees for making a request for an accommodation due to religion or disability, even if the request is not granted.
SB 579
SB 579 (Jackson) requires that employers with 25 or more employees (at the same location) allow an employee time off (up to 8 hours in any calendar month) to find, enroll or re-enroll their child in school or day care, or to participate in activities of the school or day care, or to deal with a child care or school emergency.
Wage and Hour
AB 970
AB 970 (Nazarian) expands the Labor Commissioner’s authority by authorizing the Labor Commissioner to investigate and, upon a request from the local entity, to enforce local laws regarding overtime hours or minimum wage provisions (e.g., city minimum wage ordinances setting the minimum wage for workers in that city higher than the State minimum wage) and to issue citations and penalties for violations, except when the local entity has already issued a citation for the same violation.
AB 1506
Employee wage statements must contain certain information under California law. Statements that fail to include all the required information have subjected employers to increasingly frequent lawsuits by employees under the Private Attorney General Act (PAGA). PAGA permits employees to pursue such violations on behalf of the State. AB 1506 (R. Hernandez) amends PAGA to allow employers to correct wage statements that do not contain the inclusive dates of the pay period and/or the name and address of the employer, which are statutorily required to appear on the wage statements. In order to fix the omission(s), employers must provide three years’ worth of fully-compliant wage statements for each pay period.
SB 327
SB 327 (E. Hernandez) responds to a recent appellate court decision and clarifies that health care employee meal period waiver provisions in existing Industrial Welfare Commission wage orders have been valid and enforceable since October 1, 2000 (e.g., health care employees can waive 1 of their 2 meal periods when their shifts are longer than 12 hours).
AB 622
E-Verify is an internet-based system for employers to check the employment authorization status of their employees. AB 622 (R. Hernandez) prohibits employers from using E-Verify in a manner inconsistent with federal law and creates financial civil penalties for employers who maliciously use E-Verify against their workforce.
Shannon Smith-Crowley is an attorney and has been a registered lobbyist in California for over 15 years. On behalf of her clients, Shannon attained a series of legislative successes. She helped develop California law that requires maternity coverage in all health insurance policies, well before the enactment of similar provisions in the Affordable Care Act. She worked on bills creating California’s public umbilical cord blood banking program, which provides unique material for lifesaving stem cell transplants and groundbreaking biomedical research. She contributed to bills allowing HIV+ men to safely create families using Assisted Reproductive Technologies. Most recently she played a pivotal role in developing the Modern Family Act, protecting the rights of intended parents, donors and surrogates.
With all the recent Powerball Lotto excitement the question some potential billionaires are astutely asking is what the tax implications are when they win their fortunes.
While lotto winners reap considerable rewards, the federal government is also a big winner. With a current top tax bracket of 39.6% the federal government’s take is not insubstantial. However, where lottery winners err is that only 25% of the jackpot is withheld for taxes on the initial payout. Many incorrectly assume that the 25% withholding is the extent of the federal income tax liability, but that is only a partial payment. Another 14.6% may be due when the winner’s income tax return is filed!
Fortunately, though, California is indeed the Golden State of for lotto winners. Lotto winnings from California lotteries are not taxable in California. So while winners in other states may face additional state income taxes on their winnings, California winners avoid the additional tax obligation.
Wilke Fleury is pleased to announce that Steve Marmaduke has been elected the firm’s Managing Partner beginning January 1, 2016. Steve joined Wilke Fleury in 1978 and has been a Partner since 1991. He served a prior term as Managing Partner at Wilke Fleury from 2001-2008 and is pleased to serve a second term at this exciting time in the firm’s history.
Thank you, Ron Lamb!!
Steve Marmaduke succeeds Ron Lamb, who held the role of Managing Partner from 2011 through 2015. Ron led the firm through several years of change and development, including 2015 when Ron and the Management Committee directed strategic planning with a renewed vision for the future.
Steve’s Service to Clients and the Community
Steve serves clients in matters ranging from corporate structure, M&A, joint ventures, regulatory and employment matters. His deep legal knowledge and experience, along with his strategic approach to resolving complicated issues, are just two reasons Steve is able to effectively serve both clients and the firm. In addition, Steve’s open communication style and great sense of humor often add much-needed levity when conflicts, challenges or obstacles present opportunities to change, adapt, or evolve.
Further, Steve is dedicated to serving the Sacramento community. Not only will Steve serve as Wilke Fleury’s Managing Partner beginning in 2016, but he will also begin a two-year term as President of Sacramento Children’s Home. Wilke Fleury is incredibly proud to support Steve and the great work of Sacramento Children’s Home.
Honor the Past, Focus on the Future
Steve will work closely with the firm’s Management Committee to continue to advance the firm’s focus on client development, strategic growth, and attorney excellence. The firm’s Management Committee consists of Steve Marmaduke, John Valencia, Dan Egan, and Tony Eaton. Steve has said that he is fortunate to work alongside a group of extraordinarily talented attorneys – all of whom are truly committed to honoring the firm’s long-standing history of providing excellent counsel and valuing individuality..
With Steve Marmaduke at the helm, Wilke Fleury is excited about the future, committed to the “next generation” of talented Sacramento lawyers, and continues to establish Wilke Fleury as the preeminent law firm in Sacramento.
Wilke Fleury is a thriving mid-sized general practice law firm located in California’s business and political epicenter, Sacramento. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families and individuals, making Wilke Fleury one of the region’s most respected and long standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.
The U.S. Department of Labor Wage and Hour Division (“WHD”) issued official guidance on how to determine whether a worker is an employee or an independent contractor under the federal Fair Labor Standards Act (“FLSA”). The WHD is the federal agency that administers and enforces the FLSA. A six-factor economic realities test is used to make this determination, including whether:
the work performed is an integral part of the employer’s business;
the worker’s managerial skill affects the worker’s opportunity for profit or loss;
the worker is retained on a permanent or indefinite basis;
the worker’s investment is relatively minor as compared to the employer’s investment;
the worker exercises business skills, judgment, and initiative in the work performed; and
the worker has control over meaningful aspects of the work performed.
Although each of these factors must be considered when making a classification determination, the guidance indicates that some factors are more weighty than others, including the “integral to the business” prong of the test. The guidance also combines the economic realities test with the WHD’s broad interpretation of employment, which includes persons who businesses “suffer or permit to work.” As indicated in the guidance, economic dependence indicates that the worker is suffered or permitted to work, and therefore, the worker is likely to be seen as an employee rather than an independent contractor. The WHD concluded that, in fact, “most workers are employees under the FLSA’s broad definitions.”
Ultimately, companies that use independent contractors should reexamine their relationships and employment practices with workers to determine whether they are appropriately classified. Of course, the WHD’s guidance only addresses worker classification under the FLSA. Different from the FLSA test, the multi-factor Borello economic realities test commonly used under California’s labor laws emphasizes the right to control rather than the economic dependence between the worker and the alleged employer. Business owners must be aware that different tests are used under other state and federal laws to determine whether workers have been misclassified, and the outcome may not be the same.
DID YOU KNOW... An employee may not be able to prove age discrimination under the federal Age Discrimination in Employment Act if the only evidence of discrimination is an age difference of less than ten years. France v. Johnson (9th Cir. 2015) 795 F.3d 1170, 1174 (age difference of 10 years or more is presumptively substantial while a lesser age difference is presumptively insubstantial)
Section 4980H of the Internal Revenue Code (and accompanying regulations promulgated by the Internal Revenue Service) addresses the employer excise tax as it relates to the ACA. The IRS has stated that “employers may not avoid meeting the threshold through the use of staffing agencies.” For purposes of counting an “employee” under the excise tax calculation, the IRS has stated that an “employee” means a worker who is an employee of the employer under the common law test, which is often the case when an employer contracts with a staffing agency to provide temporary staff.
Calculating the Excise Tax Penalty
There are two prongs to the excise tax penalty.
First, a penalty is assessed if an employer fails to offer its full-time employees (including “common law employees”) and their dependents an opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan.
Second, a penalty is assessed if an employer offers minimum essential coverage to its full-time employees (including “common law employees”) and their dependents, but one or more of its full-time employees enrolls in an employer sponsored health plan for which an applicable premium tax credit or cost sharing reduction is allowed or paid (i.e., employer offered health coverage that was not minimally sufficient or was unaffordable).
Health Care Enrollment Process
An employer is required under the regulations to provide its employees with an “effective opportunity” to elect or decline to enroll in the coverage at least once during the plan year. An “effective opportunity” is based on all of the relevant facts and circumstances, including whether an employee is covered by an employment staffing agency that contracts with employer for staffing services.
Consequently, if a staffing agency makes an offer of coverage to an employee who is performing services for the employer, then the employer is treated as making the offer of coverage only if it pays a fee to the staffing firm that is higher than the fee it would have paid if the employee was not offered coverage by the staffing agency firm. The employer should request an invoice that identifies the employees assigned to the employer and the costs associated with those employees of the staffing agency that are covered by the staffing agency for health care. Therefore, the employer should confirm that the invoice it pays identifies:
each employee as part-time or full-time,
for those employees who are full-time, that the employee was offered health coverage by the staffing agency, and
the specific costs in the invoice that are associated with health care provided by the staffing agency and paid by employer, and
for those full-time employees who did not select health coverage, the reason for not selecting coverage (e.g., Medicare, Medicaid, Tricare, spouse coverage etc.).
The fee the employer pays to the staffing agency employees who select health coverage must be greater than the fee paid for by employees who were offered coverage, but declined. In essence, the fees paid by the employer to the staffing agency should identify a specific cost that is associated with health coverage provided by a staffing agency for those full-time employees assigned to the employer.
In addition to the employee, an employer is required to offer coverage to each full-time employee’s “dependent.” For purposes of the ACA, “dependents” are defined as the employee’s children under the age of 26. To clarify, “dependent” under the ACA does not include an employee’s spouse. Thus, an employer is not required to offer coverage to an employee’s spouse for purpose of compliance with the employer shared responsibility provisions.
Suggested Strategies for an Employer
The employer’s HR Department should carefully evaluate the staffing company’s credentials that it contracts with to support its operations. The staffing agency must have a plan in place to pay its full time employees’ health care that is both “affordable” and “covers essential health benefits.” In addition, the contract entered into between the parties and the monthly invoice must identify the amount associated with providing health coverage. For example, the invoice should state that the fee associated with health coverage is $1.00 per hour if that is the cost to the staffing agency to provide health coverage to a full-time employee.
Also, for those staffing agencies that the employer retains to complete tasks generally within 90 days or who traditionally work less than 30 hours per week (i.e., services provided while employees are on vacation such as a receptionist, secretaries, and assistants) should be distinguished from the staffing agencies that the employer uses for longer term assignments. While an employer may use multiple staffing agencies for various tasks, the focus need only be those staffing agencies the employer tends to use for longer and more detailed assignments that take longer than 30 hours per week over a 90-day period.
In conclusion, the employer may avoid providing health coverage to its employees who are placed via a staffing agency if:
(1) the employee works less than 30 hours per week at the employer,
(2) the employee is temporary in that he or she works less than 90 days for the employer, and
(3) the staffing agency offers or pays health coverage for all of its staff, including staff assigned to the employer so long as such payment is noted in the invoice as an additional charge.
Last year we reported on the California Supreme Court’s decision that class action waivers in employment contracts are enforceable in California notwithstanding unconscionability or State public policy to the contrary when the Federal Arbitration Act (“FAA”) applies. [1] This past month, one of the California courts of appeal revisited the issue in a circumstance in which the FAA did not apply, and came to the contrary conclusion; determining that a court may refuse to enforce a class action waiver.
In Garrido v. Air Liquide Industrial U.S. LP, 2015 WL 6451011 (Cal. Ct. App., Oct. 26, 2015, B254490), the employee and employer entered into an employment agreement containing an arbitration clause that prohibited class arbitration. After the employee was fired, he filed a class action lawsuit alleging, among other claims, wage and hour violations of the California Labor Code. The employer moved to compel arbitration and to enforce the prohibition on class arbitration. The trial court denied the employer’s motion to compel arbitration, and the employer appealed. The court of appeal determined that the federal FAA did not apply, the California Arbitration Act (“CAA”) did, and a court may refuse to enforce class action waivers on grounds of unconscionability or public policy when the CAA applies. The court of appeal ultimately upheld invalidation of the class arbitration waiver because it posed a significant hurdle to the vindication of the employees’ statutory wage and hour rights.
Employers will want to determine whether their arbitration agreements are subject to the FAA, which could affect the enforceability of class action waivers in their arbitration agreements, like in Garrido, and reduce the benefit of arbitration to them. The applicability of the FAA may also affect the enforceability of the arbitration agreement itself. For example, if the FAA does not apply, then employees may still be able to bring lawsuits for the collection of due and unpaid wages in court, notwithstanding purported waivers of their individual claims in a private arbitration agreement. (Lab. Code § 229.)
________________________________________
[1] Iskanian v. CLS Transp. Los Angeles, LLC, 2014 WL 2808963 (June 23, 2014).
DID YOU KNOW…
Employers generally must pay their employees at least the State minimum wage (currently $9/hour). Depending on where the employees work, employers may need to pay a minimum wage that is higher than the State minimum. Sacramento recently passed an ordinance increasing its minimum wage to $12.50/hour by 2020.
Some of the most common employment-related legal issues faced by veterinarians include discrimination, harassment, whistle blower claims and leave laws. A more detailed discussion of each of these issues is included below.
Discrimination
Discrimination refers to the disparate treatment of employees or job candidates based on certain protected characteristics, such as age, gender, disability, religion or sexual orientation. As a veterinarian, accusations of discrimination may arise when you hire employees, terminate employees, assign duties to various employees or select employees for promotion. In all of these situations, you must be careful to consider how your actions will affect members of protected classes.
Sexual Harassment
Despite education and increased public awareness, sexual harassment claims persist. Sexual harassment claims can arise when employers, clients or coworkers are accused of harassing an employee. As an employer, it is your responsibility to maintain a safe, harassment-free environment for your employees.
Whistle Blower Claims
The law provides protection for employees who report unsafe working conditions or fraudulent activity to the appropriate authorities. Be aware that, regardless of whether a claim is accurate, you cannot retaliate against an employee who makes a report against your practice in good faith.
Leave Laws
When an employee is absent, leave laws govern your actions. In many cases, you won’t know the reason for the absence, and you may not know how long it will last. However, privacy laws prevent you from asking specific questions about the employee’s medical condition. Depending on the nature of the absence, the employee may be covered by the Family Medical Leave Act and/or California Family Rights Act, which allow up to 12 workweeks of leave per year for certain covered medical needs. The Americans with Disabilities Act may also cover some leaves.
Regardless of how many precautions you take, you may still face accusations of negligence or malpractice during your veterinary career. Any time an incident that may result in a claim occurs, be sure to:
1. Contact your insurance agent.
If you are made aware of an incident that may lead to a lawsuit or VMB complaint, contact your insurance agent immediately to find out whether you need to file a report with your insurance carrier. Your insurance agent will also be able to help you build your defense against any claims or proceedings you face as a result of the incident. Furthermore, since many policies require timely notification, informing your insurance agent of the incident immediately will ensure that you don’t lose any benefits.
2. Call a qualified lawyer who has experience working with veterinarians.
Some veterinarians are tempted to handle legal matters on their own, especially in the case of VMB complaints. However, attempting to deal with complaints in an uninformed vacuum can lead to unanticipated problems and put you in a compromised position. You may even risk losing your practice if you try to fight these issues on your own. Consult a lawyer when faced with a challenging complaint or potential lawsuit. Even if the plaintiff offers what seems to be a satisfactory settlement, a qualified lawyer should review the deal and make sure your interests are adequately protected.
Discrimination in the workplace occurs when an employer treats a prospective or current employee differently because he or she is the member of a “class” protected by California state or federal law.
Discrimination Basics
In the past, discrimination laws typically pertained to disparate treatment based on an individual’s nationality, race, color, age, religion or sex. However, these laws have now expanded to include ancestry, disability, medical condition, genetic information, ethnicity, marital status, sexual orientation, military or veteran status, political office, gender identity and gender expression.
Enforcement
The laws that prohibit employment discrimination are enforced by various federal and California state agencies, including the Equal Employment Opportunity Commission, Department of Labor, Department of Industrial Relations and Department of Fair Employment and Housing. These agencies can bring actions on behalf of employees, so employees are able to file grievances against your practice with minimal investment or effort.
Preventing Claims
As an employer, remember that your duty to avoid discrimination begins as soon as the hiring process starts. In some cases, discrimination may be unintentional. For example, you may be tempted to choose a male applicant over a female because you believe that the male will have an easier time handling large animals. However, eliminating an applicant solely based on the applicant’s sex is considered discrimination.
California Labor Code section 1102.5 (Section 1102.5) protects employees in reporting information that they have reasonable cause to believe discloses a violation of the law, and prohibits employers from retaliating against such employees. The anti-retaliation prohibition applies even when the information reported by employees does not arise out of the employer’s business, and even if the information relates to private matters. As one employer recently learned, violating Section 1102.5 can be costly.
In Cardenas v. Fanaian, 2015 WL 5734835 (Cal. Ct. App., Oct. 1, 2015, F069305), a dental hygienist left her ring on the breakroom table. It was not on the table when she returned, and she eventually came to suspect that it had been stolen. The employee filed a police report, and the police came to the dental office on multiple occasions to investigate. After the second time that the police visited, the employer fired the employee because the situation was negatively affecting the workplace. The former employee sued for retaliation under Section 1102.5, and was awarded $117,768 in damages related to her termination, including lost earnings. The employer appealed, and argued that Section 1102.5 did not protect the employee because her report to the police was an entirely private matter (e.g., so that the employee could either get the ring back or file an insurance claim) unrelated to employer wrongdoing. The court of appeal rejected the employer’s argument, and determined that an employee is protected in reporting information concerning a violation of the law. Period. The court of appeal, therefore, upheld the award because theft is illegal, and the employee was terminated for reporting what she reasonably believed was a theft.
This decision is a reminder of the costly mistake of retaliating against employees who engage in activity protected under California law. Employers need to make sure that the grounds for taking any adverse employment actions against their employees are lawful, and should scrutinize the basis for their proposed conduct before implementing any course of action. This is particularly true when employees have made complaints near in time to any proposed adverse employment action.
DID YOU KNOW…
Employees can bring representative actions under the Private Attorneys General Act (“PAGA”) on behalf of themselves and current or former employees for violations of California Labor Code provisions that provide for civil penalties. When an aggrieved employee brings a PAGA claim, that claim cannot be divided into an individual claim and a representative claim because PAGA claims are representative actions, brought by the employee as the agent for the State. As a result, the employee cannot be compelled to arbitrate any portion of the PAGA claim. Williams v. Superior Court, 237 Cal.App.4th 642, 649 (2015).
In addition to all of their other responsibilities, veterinarians also have a duty to warn others of animals’ dangerous propensities. As a clinician, you owe this duty to:
Staff members
Animal owners
Third parties
Warning Staff
Ensuring that your staff members understand and account for the dangers of working with animals is one of the best ways to limit the liability of your practice. To protect your staff from injuries:
Develop clear procedures for identifying potentially-dangerous animals upon intake.
Educate staff with regard to these procedures.
Ensure that procedures are consistently followed.
For example, you may implement a policy that requires your staff to label the files of animals with a history of violent behavior and take extra precautions when treating these animals in the future (i.e. muzzles, physical restraints, sedation, etc).
Warning Animal Owners
When you have reason to believe that an animal poses any type of risk, notifying the owner can shield you from liability. For example, if you believe an animal to be especially violent or dangerous, you should warn the owner of this risk. Remember to be consistent when issuing these warnings. You should also document all notifications and warnings for future reference.
Warning Third Parties
In most cases, your duty to warn third parties of potential risks can be satisfied by simply warning the animal’s owner. Since the animal’s owner holds the primary responsibility for the animal’s behavior, he or she will be liable for any injuries or damage the animal causes – as long as you satisfied your obligation to warn of potential risks. However, if you do not warn the owner of a known risk, you may be held liable for these consequences.
For example, assume an animal attacks one of your technicians, but you don’t warn the animal’s owner of its propensity for violence. The animal attacks a third party the following week. In this case, you may be held legally responsible for the third party’s injuries.
Under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, veterinarian practices are required to identify and accommodate employees with disabilities as needed. These laws also prohibit you from discriminating against an employee on the basis of a disability. Covered disabilities include any mental or physical impairment that limits one or more of the employee’s major life activities. For example, if one of your technicians suffers from Type I diabetes, these laws may require you to schedule breaks for that employee at regular intervals so that he or she can check blood sugar levels.
Meal and Rest Periods
In California, workers with shifts lasting at least five hours are entitled to one unpaid meal period of at least 30 minutes. If the employee works more than ten hours in a single shift, he or she is entitled to a second meal period of at least 30 minutes. First or second meal periods may be waived by a mutual agreement between the employer and employee, if the shifts are no longer than six hours or 12 hours respectively.
During unpaid meal periods, your employees must be relieved of all duties. They must also be permitted to leave the office. If they must remain in the office during a meal period, they must be paid for their time. Employers in California are also required to offer one 10-minute break for every four hours worked. If you fail to offer your employees a meal break or a rest break when one is mandated, you owe the employee an extra hour’s worth of pay.
A $750,000 settlement recently paid by a large physician practice group highlights how important it is for organizations to regularly conduct proper HIPAA risk assessments.
The Cancer Care Group (based in Indiana) allegedly failed to protect electronic patient data (“ePHI”) as required by the Health Insurance Portability and Accountability Act’s (“HIPAA”) Security Rule. The Group’s compliance issues arose after an employee’s laptop bag containing unencrypted electronic patient data was reported stolen out of the employee’s car. According to the resolution agreement between the Group and the Office of Civil Rights (“OCR”), the Group failed to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of its ePHI. As a result, the Group did not implement appropriate and effective policies and procedures to govern the receipt and removal of computer hardware and electronic media containing ePHI into and out of the Group’s facility. This failure lead to the improper disclosure of ePHI related to approximately 55,000 individuals and an agreement to pay $750,000 to resolve the OCR’s allegations. The Group was also required to enter a three year Corrective Action Plan to come into compliance with HIPAA.
The takeaway for all organizations covered by HIPAA is that one of the most important aspects of an effective HIPAA compliance program is the implementation of regular risk assessments. These assessments must include a thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the organization or its business associates. By conducting these assessments, organizations can uncover and prevent breaches such as those alleged against the Cancer Care Group by implementing appropriate security measures. Such measures would certainly include ensuring that any electronic health information would not leave your facility unencrypted and sitting unattended in a parked car!
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