“A special-needs trust is a family’s most important tool in making plans to pay for care. Key government benefits like Medi-Cal and SSI are restricted when a person with special needs has assets of more than $2,000. But special-needs trusts are a bucket into which family members and others can deposit an unlimited amount of money for a range of eligible expenses for their family member, like clothes, furniture, a car or education. The government doesn’t count such a special-needs trust as part of their assets.” – Steven Yoder, Comstocks
“An employment, having no specified term, may be terminated at the will of either party on notice to the other.” (Labor Code sec. 2922.) This statute establishes that California is an “at-will” state, meaning that “employment may be ended by either party at any time without cause, for any [legal reason] or no reason, and subject to no procedure except the statutory requirement of notice,” as said by our state Supreme Court in Guz v. Bechtel National, Inc. in 2000.
Labor Code section 2924 operates as the flip-side to the at-will presumption. It says an employment “for a specified term” may be terminated only for cause, i.e., “any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.”
These two antithetical statues took center stage in Zhou v. Ruess, which was decided in September 2016 by the Third District Court of Appeal. Dr. Zhou executed a letter of intent (“Letter”) to work for Redding Pathologists (“RP”). Unfortunately for RP, the Letter was silent as to the “at-will” status of Dr. Zhou’s employment. Therefore, when RP terminated Dr. Zhou in June 2009, expensive litigation ensued with Zhou arguing that she was employed for a specified term and her employment could only be terminated for good cause, which she contended was lacking.
Saving the day for RP was its employee handbook / personnel manual (“Handbook”). Dr. Zhou signed an acknowledgment of receipt of the Handbook, and the Handbook expressly stated that employment with RP was at-will. In assessing Dr. Zhou’s employment status, the court of appeal determined that the Letter did not contain all the terms of the parties’ agreement; mainly, her employment status. Therefore, it allowed evidence of the Handbook and conversations between RP and Dr. Zhou about her at-will status. Based on this evidence, the court eventually upheld the trial court’s finding that Dr. Zhou was an at-will employee.
RP won this battle, but it no doubt paid an attorney a LOT of money to go through a trial and an appeal to secure victory. So, here’s the lesson to employers: be careful with do-it-yourself employment offers and contracts to applicants, and make sure you have an appropriate agreement that addresses the material terms, including the employment status of the prospective employee (at-will or for a specified term). And, if your employees are employed at-will, reiterate that status in your employee handbook or in an at-will employment agreement.
A new and exciting COA membership benefit will be available to all COA member doctors of optometry starting July 1, 2016. We are pleased to add a FREE legal resource service as an added value to the many benefits you already receive as a COA member. The benefit entitles COA member optometrists up to one-half hour (30 minutes) of telephone and research work per month with an attorney at no cost.
The COA Legal Services Resource Program will offer services that will assist members in areas of the law related the practice of optometry. Services offered are:
Business tax issues
Business owner succession planning
Cal/OSHA/Prop 65 issues
Practice ownership and organizational structure
Regulatory and administrative law
California State Board of Optometry rules and enforcement issues
How will the program work?
Contact one of the designated attorneys from Wilke, Fleury, Hoffelt, Gould & Birney, LLP (see below), provide them with your COA member number, and receive a free consultation for up to one-half hour per month. This benefit will not accumulate from month-to-month.
All services are confidential. Any agreement for contracted services, beyond the COA free benefit, is between the individual optometrist and the attorney.
Meet the attorneys
For issues pertaining to employment and practice succession, contact:
Stephen Marmaduke. Mr. Marmaduke has practiced law in California for over 35 years. One of his primary focuses is the representation of health care providers in the area of professional employment.
For all other legal matters, contact:
William A. (Bill) Gould, Jr. Mr. Gould has been with the Wilke Fleury since 1964 and has served as COA’s general counsel for more than 50 years. His practice emphasizes health care law (including the laws affecting doctors of optometry), litigation and administrative law. During his time representing COA, he has handled all COA litigation, including the Eyeglasses I and Eyeglasses II lawsuits, and lawsuits against the Medical Board of California and others.
Daniel Baxter: A partner with Wilke Fleury since 2007, Mr. Baxter’s practice focus includes business litigation and as general counsel to clients ranging from non-profit organizations to small businesses.
Beginning July 1, access your COA legal resource services member benefit by:
Call Wilke Fleury at 916-441-2430
Provide your COA member number.
Ask for the attorney who best meets your issue from the above list.
About the Law Firm of Wilke, Fleury, Hoffelt, Gould & Birney, LLP
For more than 90 years, Wilke Fleury has served businesses, governmental entities and individuals by providing comprehensive legal services with the highest standards of integrity and efficiency. The firm as gained a national reputation in the health care arena, and has served as legal counsel to COA for more than 50 years.
California employers have to post election notices advising employees of their ability to take time off to vote when employees do not have enough time to vote outside of their working hours. Election notices need to be posted 10 days before any statewide election.
This is the week for California employers to post their election notices since the California presidential primary election is June 7. Most employers should post the election notice by Friday, May 27, 2016. For more information about the election notice, watch our Video Blog:
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:
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!
Veterinarians are exposed to liability threats each time they encounter a potentially dangerous animal in a clinical setting. Fortunately, you have several weapons at your disposal to minimize your risk.
Written Warnings and Notifications
The first line of defense against liability is the use of written warnings and notifications. This encompasses warnings issued to staff members and pet owners, as well as compliance with statutory notification requirements, which are requirements imposed by California law. Examples of statutory notification requirements include:
Duty to inform law enforcement when you believe an animal has been a victim of abuse.
Duty to inform law enforcement when you believe an animal has been injured or killed in a staged fight.
Duty to report injuries occurring at rodeos.
Duty to report suspicions of a rabid animal or rabid animal bite.
In some cases, referrals of dangerous animals can help protect against liabilities.
Prescription medication can sometimes help with known behavioral problems. However, it is important to provide the animal’s owner with complete, detailed instructions any time medication is prescribed.
Since you cannot possibly neutralize every threat of liability, strive to keep appropriate insurance policies in place to protect your practice. The type and amount of coverage you need will depend on the nature of your practice, your specialty and other factors. When selecting an insurance policy, remember to consider your own personal comfort or discomfort with risk, as well as the value of your business and personal property.