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Employee Misclassifications: A Warning to Employers

Bianca S. WattsBy:  Bianca Watts

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.

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)

Employment Agencies and the Affordable Care Act


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.

Class Action Waivers Might Not be Enforceable When the Federal Arbitration Act Does Not Apply


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).

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.

Discrimination, Harassment and Other Common Legal Issues That Veterinarians Face


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 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.


How Veterinarians Can Strategically Manage Complaints and Lawsuits

DAN-BAXTER-BIO-BIG1 by Daniel L. Baxter

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.

The California Veterinarian’s Guide to Understanding Discrimination in the Workplace


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.


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.

Employees are protected from retaliation for reporting theft, even if the theft is an entirely private matter


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.


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).

Duty to Warn of Animals’ Dangerous Propensities

DAN BAXTER BIO BIG by Daniel L. Baxter

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.

ADA, FEHA and Employee Break Laws Explained for Veterinarians



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.

Failure to Conduct an Appropriate HIPAA Risk Analysis Can Cost You!

HIPAA Blog photo

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!

The Resolution Agreement can be found at:

TONY EATON BIO BIG By Anthony R. Eaton

Dealing with Liability Threats to Your Veterinary Practice

DAN-BAXTER-BIO-BIG1 by Daniel L. Baxter

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.
  • Referrals

    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.

Overview of Employment-Related Legal Issues Faced by Veterinarians


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.

Explanation of Legal Duties for California Veterinarians

DAN-BAXTER-BIO-BIG1 by Daniel L. Baxter, Esq.

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:

  • Physical exam
  • Diagnostic testing
  • Selecting a treatment
  • Performing procedures/Administering treatments
  • Aftercare
  • Recordkeeping
  • 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
    • Supervise Staff

      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.

The EEOC Determines That Discrimination Based on Sexual Orientation Violates Title VII


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).


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).

Veterinary Medical Board (VMB) – Protecting Your Veterinary Practice from “Cite and Fine” Issues


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.