As a veterinarian with a complex practice, you can be subject to a number of different employment laws. Failure to follow these laws can result in expensive, traumatic incidents that have the power to destroy the practice you have worked so hard to build. To prevent these problems, you should take the time to familiarize yourself with the various employment-related legal issues that may affect your practice. Some of these laws include:
Discrimination – Federal and state laws prohibit you from discriminating on the basis of age, sex, disability, national origin, religion, race or other such characteristics. For example, it is illegal to exclude someone from consideration for a promotion because he or she is older than another candidate.
Sexual Harassment – Sexual harassment laws protect workers from unwanted advances, bullying and coercion of a sexual nature. These laws encompass a wide variety of incidents, from disparaging remarks about an individual’s sex in general to requests for sexual favors.
Whistleblower Claims – Multiple laws protect employees from retaliation when they report fraud or dangerous work conditions in good faith. For example, if an employee suspects fraud and reports his or her suspicions, you cannot take action against that employee.
Leave Laws – When an employee is absent, several leave laws may govern the employer’s actions, including the Americans with Disabilities Act, the California Family Rights Act and/or the Family Medical Leave Act. Different laws may apply depending on the nature of the absence.
Disability – Under the Americans with Disabilities Act, employers must identify employees with disabilities and make reasonable accommodations for these individuals.
Meal and Rest Periods – In California, unpaid meal periods must be at least 30 minutes long, and paid rest periods must be at least ten minutes long.
Worker’s Compensation – When employees are injured on-the-job, they can file workers compensation claims. Employers are unable to retaliate against employees who file these claims.
Independent Contractors – Employers aren’t required to satisfy as many legal requirements when dealing with independent contractors. However, attempting to classify employees as independent contractors when they don’t meet the qualifications is never a good idea.
Covenant Not to Compete – In general, California doesn’t allow non-compete agreements except in limited circumstances. While you can expect loyalty from employees during the term of their employment with your veterinary practice, you won’t be able to enforce any non-compete covenants after employment has been terminated.
Electronics, Technology and Social Media – Laws pertaining to social media, technology and related issues can be complicated, and further developments are expected in this area. However, employers should have clear policies with regard to technology that detail the rights and responsibilities of employees.
Veterinarians have a number of duties to satisfy in order to comply with the requirements of the law. Some of these duties include:
Providing Competent Care to the Patient
As a veterinarian, you have a responsibility to provide quality, competent care to every patient you encounter. This responsibility applies to every task you perform as you care for patients, including:
Selecting a treatment
Performing procedures/Administering treatments
In order to discharge this duty, you must act competently at all times. Examples of negligence with regard to this duty include:
Failing to perform a thorough exam.
Misreading the results of diagnostic tests.
Selecting an inappropriate treatment.
Performing a treatment without consent.
Recording health-related information inaccurately
Veterinarians are responsible for their own actions, as well as the actions of their staff members. In fact, under a legal theory known as “respondeat superior,” you can even be held legally liable when your employees are negligent.
For example, assume an inexperienced and unsupervised employee is instructed to administer medication to a patient in Room 1 but accidentally administers the medication to a patient in Room 2. In this case, both patients may suffer side effects, and you can be held responsible for any and all of the consequences. Thus, it is essential to supervise staff members responsibly at all times.
Maintain Safe Business Operations and Facilities
As a veterinarian, you are both a clinician and a business owner. Thus, you are vulnerable to all of the same liabilities as other business owners, including on-site injuries sustained by clients, staff members and visitors. For example, if a visitor to the facility falls on a wet floor, trips over an animal’s carrier or is attacked by an improperly restrained animal, you may be held responsible for any resulting injuries.
To protect yourself and your practice, it is important to:
Develop procedures and protocols for keeping the premises safe.
Teach staff members to identify and resolve threats to safety when they occur.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of sex. The U. S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing Title VII’s prohibition of employment discrimination on the basis of sex, and it recently determined that prohibited sex discrimination under Title VII includes discrimination based on “sexual orientation.”
In Complainant v. Foxx, E.E.O.C. Appeal No. 0120133080 (July 16, 2015), the employee alleged that he was not promoted because he was a gay man. The EEOC determined that the employee successfully stated a claim for sex discrimination under Title VII. In its ruling, the EEOC determined that sexual orientation discrimination is a form of sex discrimination for three reasons. First, because “sexual orientation” cannot be defined without referring to sex, sexual orientation discrimination is sex discrimination “because it necessarily entails treating an employee less favorably because of the employee’s sex.” Second, sexual orientation discrimination constitutes sex discrimination because it is a form of associational discrimination-treating an employee differently because the employee associates with a person of the same sex. Finally, sexual orientation discrimination is sex discrimination since it is based on gender stereotypes. The idea that a man should only be attracted to women and vice versa is the ultimate gender stereotype.
Federal courts generally defer to EEOC decisions, but do not have to follow them. A number of federal courts of appeal, before the EEOC’s decision, determined that Title VII does not encompass discrimination based on sexual orientation. Regardless of whether federal courts follow the EEOC’s decision, employment discrimination based on sexual orientation is specifically prohibited under California’s Fair Employment and Housing Act. The EEOC’s recent decision presents an opportunity for employers – especially employers who operate in other states besides California – to review their discrimination policies and practices to ensure compliance with the state and federal discrimination laws in each state where they operate, particularly with respect to sex and gender discrimination (e.g., gender, gender identity, gender expression, and sexual orientation).
DID YOU KNOW…
Employers who fail to provide meal and rest periods are required to pay premium pay (an additional hour of pay) for each workday that their employees miss meal or rest periods. Their employees are automatically entitled to premium pay without having to request it, and the employer’s failure to pay such premium pay may constitute an unfair business practice. Safeway, Inc. v. Superior Court of Los Angeles County, 238 Cal.App.4th 1138 (2015) (upholding class certification for violation of Unfair Competition Law based on employer’s failure to pay premium pay when due).
In California, four primary laws govern veterinarians’ interactions with their employees: Title VII of the Civil Rights Act of 1964, federal wage and hour laws, state wage and hour laws and California’s Fair Employment and Housing Act.
Title VII of the Civil Rights Act of 1964
This section of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, age, sex, religion, national origin or color. This law applies to all aspects of employment, including hiring, firing, recruitment, benefits, pay, promotions, layoffs, assignments, use of company facilities and more. If a prospective, current or former employee believes he or she has been a victim of discrimination, he or she can file a complaint against your veterinary practice with the Equal Employment Opportunity Commission. If the complaint cannot be resolved, it may lead to a lawsuit.
Federal Wage and Hour Laws
Under the Fair Labor Standards Act, the minimum wage you can pay an employee in the United States is $7.25 per hour. In addition, when an employee works more than 40 hours in a single week, federal law requires you to pay a wage equal to at least 1.5 times the employee’s usual rate.
State Wage and Hour Laws
The state of California mandates a minimum wage of $9.00, which is higher than the federally-mandated minimum wage. As a result of this law, veterinarians in California must pay their employees at least $9.00 for every hour worked. As of January 1, 2016, the minimum wage in California will increase to $10.00. Likewise, California requires overtime pay equal to at least 1.5 times the employee’s regular hourly rate for every hour worked in excess of 40 per week or 8 per day. The minimum amount of overtime pay increases to double the employee’s regular rate for hours worked in excess of 12 in a single day.
Fair Employment and Housing Act
The Fair Employment and Housing Act’s requirements for veterinarians are similar to those of the Title VII of the Civil Rights Act of 1964. However, in addition to all of the protections provided by the Civil Rights Act, the Fair Employment and Housing Act also prohibits employers from discriminating against current or prospective employees because of sexual orientation, gender, gender expression, gender identity, pregnancy, breastfeeding, military of veteran status, medical conditions, marital status, ancestry, disability or genetic information.
The Veterinary Medical Board’s “Cite and Fine” Program was first implemented in 1990 to aid in the processing of complaints made against veterinarians. “Cite and Fine” issues can be the result of a number of problems, ranging from inadequate recordkeeping to violations in another state. These issues can not only cost your practice money, but they can also lead to more serious disciplinary actions in some cases. For these reasons, strive to protect yourself from “cite and fine” issues as much as possible. To protect your practice, follow these tips:
Keep detailed records.
Failing to keep adequate records on every patient is a common cause of “cite and fine” incidents. Not only can inadequate recordkeeping result in a citation on its own, but it can also complicate other cases that rely on complete records for evidence.
Prevent problems associated with inadequate recordkeeping by creating detailed, complete records for every patient you treat. Establish clear record keeping procedures, educate your staff with regard to these procedures, and make sure that everyone follows these systems at all times and that you and your team amend and refresh them as necessary (for instance, when your office changes locations or gets new computers).
Maintain adequate insurance coverage.
Even with preventative measures in place, you may still encounter VMB complaints. Protect your practice from financial loss by maintaining an appropriate insurance policy. The exact type and amount of insurance you will need depends on the nature of your practice, your specialty and your level of exposure, so it is wise to consult an insurance agent for guidance before you select a policy.
Consult an attorney when necessary.
When an incident occurs or a claim is filed, consult a qualified attorney early in the process. Attempting to deal with these issues on your own may lead to unnecessary financial loss, damage to your reputation and other such consequences. On the other hand, an attorney who has experience dealing with VMB cases can help you gather the evidence you need to defend yourself against the accusations and minimize the likelihood of a citation or more significant disciplinary action.
Health care service plans licensed under the Knox-Keene Health Care Service Plan Act of 1975, as amended, (the “Knox-Keene Act”) are categorized as either full-service or specialized health care service plans. A full-service license is issued to an entity that provides, at minimum, six basic health care services (e.g., physician services, inpatient hospital services, home health services, etc.). Examples of full-service health care service plans include Kaiser and HealthNet. A specialized license is issued to an entity that provides health care services in a single area such as dental, vision, or mental health. One such example is Vision Service Plan (VSP)
Although, it isn’t clear from the Knox-Keene Act or the regulations issued by the Department of Managed Health Care (the “DMHC”), a subcategory exists: a restricted (full-service or specialized) Knox-Keene license. A restricted licensee is “restricted” to provider contracting, and is not permitted to contract directly with employer groups and individuals. This means that the licensee does not create its own products nor does it participate in marketing. Instead, the entity subcontracts with other health care service plans or contracts directly with government payors, such as Centers for Medicare & Medicaid Services or CMS, in which products have already been developed.
Naturally, certain supplemental information to the application (called an “exhibit”) does not apply to the restricted licensee and is not required in the licensee’s filing. This includes exhibits related to marketing and group and individual contracts. The exhibit requirements further deviate depending on the type of product offered: Medicare, Medi-Cal (Medicaid), or commercial.
Generally, the application process for a restricted license still requires a fairly thorough review of network adequacy, quality of care processes, grievance procedures, and so forth. This is the case for both Medi-Cal and commercial offerings because the regulation of Medi-Cal (Medicaid) and commercial products is widely left to the states. Since the regulation of Medicare is a function of the federal government (CMS), the DMHC is limited in its review of Medicare products. As a result, the DMHC will spend most of its time reviewing the applicant’s financial viability as opposed to a more encompassing review that would include network adequacy and quality of care processes.
Of course, to some degree, the exhibits that the DMHC would require in any given filing may change based on the current state of the law. To the extent that you may have any questions, feel free to contact myself or my colleague, Michael G. Polis.