Read more about: Jizell K. Lopez

By Michael G. Polis and Rawan N. Khalili

The No Surprises Act (the “Act”)[1], signed into law on December 27, 2020 by the U.S. Congress, took effect on January 1, 2022. The Act was passed with the goal of addressing “surprise medical bills” for patients who unknowingly obtain medical services from providers outside of their network. The Act provides significant protections for patients, however, providers ought to be aware of the impacts of the Act on their practice. This article will summarize Section 112 of the Act, which establishes the “Good Faith Estimate”[2] requirements for providers.

What is a Good Faith Estimate?

The Good Faith Estimate (“GFE”) requires providers to make “Good Faith” estimates of services available to self-insured patients. Practitioners are required to provide reliable and accurate cost estimates for self-insured individuals, which must include all “co-providers,” (i.e. anesthesiologist-anesthetist, facility fee, and other fees related to the medical procedure).

Providers have some flexibility with the estimate, and while it’s not necessarily completely binding, a patient can dispute the bill if it’s at least $400 over the GFE.

The Good Faith Estimate includes the following:

A GFE is a timely written notice that is signed by the patient.  According to guidance from the U.S. Department of Health and Human Services (“HHS”):

• A good faith estimate must be provided within 3 business days upon request.
• Information regarding scheduled items and services must be furnished within:
  • 1 business day of scheduling an item or service to be provided in at least 3 business days;
  • 3 business days of scheduling an item or service to be provided in at least 10 business days

If the patient is a minor, the GFE should be signed by a legal guardian or whoever is obligated to pay for the service. The GFE should also include an itemized list of items or services that are reasonably expected to be furnished or provided to the patient related to the procedure.

A revised GFE must be provided if the facility or practitioner becomes aware of changes to the scope of the services provided. If the scope has changed, the prior GFE shall be revoked and a new GFE be provided before the procedure is undertaken.

Unexpected items or services provided during a Procedure.

[1] Enacted as part of the Consolidated Appropriations Act 2021 (CAA-21)) (Pub. L. 116-260, 134 Stat. 1182 (2020)): [1] 42 U.S.C. § 300gg-136

The “unexpected” item or service must be truly unforeseen, sudden, or unanticipated.  The rule of thumb is to provide “worst case” scenarios in the GFE.  If “worst case” scenarios are not included in the GFE, the service that was not included in the GFE may be disputed. The likelihood of success is low in a dispute between a patient and seasoned practitioner related to whether the GFE included anticipated reasonable fees and costs in a fee dispute.  That being said, it’s best to have the GFE include all “expected” costs related to the services provided. While the Act suggests providing the estimate at least three business days before the scheduling of services, it is best practice to have the practitioner’s office staff discuss and review the GFE (or a revised GFE) with the patient several days before the scheduled procedure.

Notice of the No Surprises Act

Along with the Health Insurance Portability and Accountability Act (“HIPAA”) policies, practitioners should post “No Surprises Act” and “Good Faith Estimate” notices on their website and in office. Provider offices should also be prepared to provide oral notices of a patient’s ability to receive a GFE. Should a patient require the notice in accessible formats and in different languages, provider offices should be prepared to make those available.

Additionally, providers should post the separate required notice about surprise billing for out-of-network services. HHS has drafted model language to use for both these notices.

For questions or more information about your right to a Good Faith Estimate, visit www.cms.gov/nosurprises or call 1-800-985-3059.

Mustafa R. Karim was featured in this Primerus article. To read more, follow the link below: https://www.primerus.com/article/persistence-pays-young-california-lawyer

Read more about: Daniel L. Egan

Wilke Fleury is extremely proud to have five attorneys recognized in The Best Lawyers in America and three attorneys recognized in the Best Lawyers: Ones to Watch in America! Best Lawyers has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and distinction in the United States. Congratulations to this talented group!

Read more about: Suzanne M. Nicholson

By: Mena M. Arsalai, Kimberly V. Martinez, and Alexandra J. Porter

In a significant development marking a pivotal moment in California’s healthcare landscape, the Office of Health Care Affordability (“OHCA”) has broadened its regulatory oversight of healthcare transactions.  The California Office of Administrative Law recently approved OHCA’s regulations under which “health care entities” are required to notify OHCA of “material change transactions” at least 90 days before closing for transactions finalized on or after April 1, 2024 (the “CMIR Regulations”).

Once a material change notice (“MCN”) is filed, OHCA has 60 days to decide whether to (i) conduct a cost and market impact review (“CMIR”) of the proposed transaction or (ii) waive such review.  OHCA is required to conduct a CMIR if the proposed transaction poses a risk of significant impact on market competition, the state’s ability to meet cost targets, or costs for purchasers and consumers.

The first MCN filing was deemed completed on April 12, 2024.  While this filing offered a first look at how OHCA will manage its CMIR process, the contemplated transaction in the filing did not relate to the sale of a business.  Rather, as described in the notice, the submitter entered  into the  transaction solely as an accommodation to the landlord and its new operator/tenant.  “Submitter is not ‘selling’ its business, but is agreeing to transfer the business operations to the new operation when the new operator obtains its license to operate the Facility.”  Based on the facts of this notice, OHCA ultimately decided to waive the CMIR.

OHCA recently entertained its second MCN filing[1].  Unlike the first filing, this transaction contemplated the sale of a business, Invitae Corporation, a biotechnology company that provides genetic testing services.  Invitae Corporation filed for Chapter 11 bankruptcy, and the bankruptcy court approved the sale of Invitae Corporation’s assets to Laboratory Corporation of America Holdings, a national provider of clinical laboratory services. The  second MCN filing was deemed completed on June 5, 2024.

This latest MCN filing  described the transaction as “an asset sale, through which LabCorp Genetics, Inc., a newly formed entity, will acquire certain assets of Invitae Corporation in accordance with the negotiated Asset Purchase Agreement and certain requirements under the bankruptcy code.”  The goal of the transaction was described as “for Invitae to sell its assets to pay its creditors and settle its executory debts, while maintaining patient access to Invitae’s services.”

OHCA concluded its review by waiving the CMIR.  A few of the details in this notice that may have helped OHCA reach this conclusion include the following:

• Invitae Corporation stated in the notice that the licensed laboratories in California were not involved in the contemplated transaction. 
• The location of all services would not be changing post-transaction.
• The services provided would not be changing post-transaction.
• The patient population served would not be changing post-transaction.
• Laboratory Corporation of America Holdings committed to retaining at least 95% of Invitae Corporation’s employees under compensation and benefit conditions at least as favorable as those prior to the closing.
• Invitae Corporation contended that the contemplated transaction would promote competition and that without it, Invitae Corporation faces the prospect of complete cessation and liquidation, reducing options for patients and healthcare professionals and leading to job losses.

Each MCN filing is significant because it provides guidance on how OHCA will interpret and enforce the relatively new CMIR Regulations.  California healthcare entities will benefit from closely reviewing each MCN filing and as more filings are made, we will gain a better understanding of the process.

[1] https://hcai.ca.gov/affordability/ohca/assess-market-consolidation/material-change-transaction-notices-mcn-and-cost-and-market-impact-review-cmir/

Wilke Fleury is extremely proud that several of its incredible attorneys have been selected as 2024 Northern California Super Lawyers or Rising Stars!  Super Lawyers rates attorneys in each state using a patented selection process and publishes a yearly magazine issue that produces award-winning features on selected attorneys. Congratulations to this talented group: 

2024 Super Lawyers:

2024 Rising Stars:

• Islam M. Ahmad

• Mena M. Arsalai

• Kathryne E. Baldwin

• Aaron R. Claxton

• Jason G. Eldred

• Jizell K. Lopez

• Jose L. Parra

Check out the full profile on Trevor by following this link: https://online.fliphtml5.com/yzguw/lraj/#p=10

By: Jizell K. Lopez

On September 30, 2023, Governor Gavin Newsom signed California Senate Bill 553 (“SB 553”) into law. Among other things, SB 553 added section 6401.9 to the California Labor Code, which requires that virtually all employers, implement a workplace violence prevention plan by no later than July 1, 2024.

The California Occupational Safety and Health Act of 1973 (“Cal-OSHA”) already imposes many safety-related obligations on employers, including the requirement that they establish, implement, and maintain an effective injury and illness prevention program (“IIPP”). SB 553, which is the first law of its kind in the nation, now requires that employers in non-healthcare settings take additional steps to address the specific threat of workplace violence. As mentioned above, this new law covers virtually all employers. However there are some exceptions, including: places of employments with fewer than 10 employees—these locations must not be accessible to the public; teleworking employees; healthcare facilities already covered by Cal/OSHA’s Workplace Violence in Healthcare Standards; law enforcement agencies; and certain public entity employers. 

Starting July 1, 2024, covered employers must establish, implement, and maintain a Workplace Violence Prevention Plan and must meet four broad categories of obligations: (1) the creation of a workplace violence prevention plan; (2) the creation of a workplace violence incident log; (3) employee training requirements; and (4) recordkeeping requirements.   

Creating a Workplace Violence Prevention Plan

The intention of this violence prevention program is to provide a roadmap to both employees and employers to address actual and potential incidents of workplace violence. By July 1st, employees and employers should be able to identify and mitigate against workplace violence incidents or threats. Labor Code section 6401.9 defines “workplace violence” as any action of violence or threat (excluding lawful acts of self-defense and defense of others) that occurs at a worksite. The Labor Code further provides definitions for four types of “workplace violence” that employers must be able to recognize and identify in its incident log and train employees to recognize these specific types of workplace violence:

• “Type 1 Violence”—workplace violence committed by a person who has no legitimate business at the worksite, including violent acts by anyone who enters the workplace or approaches workers with the intent to commit a crime.
• “Type 2 Violence”—workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
• “Type 3 violence”— workplace violence against an employee by a present or former employee, supervisor, or manager.
• “Type 4 violence”— workplace violence committed in the workplace by a person who does not work there, but has or is known to have had a personal relationship with an employee.
• The Workplace Violence Prevention Plan must include the following:
• Names or job titles of individuals responsible for the plan;
• Procedures to obtain the active involvement of employees and employee representatives in developing and implementing the plan, including hazard identification and evaluation, training, and incident reporting;
• Methods the employer will use to coordinate implementation of the plan with other employers, when applicable, to ensure that those employers and employees understand their respective roles, as provided in the plan;
• Procedures for the employer to accept and respond to reports of workplace violence and to prohibit retaliation;
• Procedures to ensure that supervisory and non-supervisory employees comply with the plan;
• Procedures to communicate with employees regarding workplace violence matters, including how employees can report violent incidents, threats, or other workplace violence concerns, how employee concerns will be investigated, and how employees will be informed of investigation results and corrective actions;
• Procedures to respond to actual or potential workplace violence emergencies, including how employees will be alerted, evacuation and sheltering plans, and how to obtain staff and law enforcement assistance;
• Training procedures;
• Procedures to identify, evaluate, and correct workplace violence hazards, including periodic inspections;
• Procedures for post incident response and investigation; and
• Procedures to review the effectiveness of the plan itself, including potential revisions.

For convenience, Cal-OSHA has released a model Workplace Violence Prevention Program for employers to use. This can be found directly on Cal-OSHA’s website.

Violent Incident Log Requirements

Employers must document and maintain a log of all incidents of workplace violence, even if the incident did not result in an injury. The log record must be based on information solicited from the employees who experienced the workplace violence, witness statements, and investigation findings. Further, the log must be anonymous and must be periodically reviewed.

The log must include the following information:

• Incident date, time, location.
• Workplace violence “Type” (1, 2, 3, and/or 4).
• Detailed description of the incident.
• Classification of who committed the violence.
• The circumstances at the time of the incident.
• Where the incident occurred.
• Specific incident characteristics, such as physical attacks, weapon involvement, threats, sexual assault, animal incidents, or other events.
• What the consequences of the incident were, including any involvement of law enforcement.
• What steps were taken to protect employees from further threat or hazards.
• Who completed the log, including their name, job title, and the date completed.

Employee Training

Employers must also provide employee training regarding the hazards specific to that employer’s workplace by July 1, 2024 and annually thereafter. The training must address all of the following:

• The Company’s plan and how to access it at no cost.
• How to participate in development and implementation of the employer’s plan.
• The “definitions and requirements” in SB No. 553.
• How to report workplace violence incidents or concerns to the employer or law enforcement without fear of reprisal.
• Workplace violence hazards specific to the employees’ jobs, the corrective measures the employer has implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm.
• Details about the violence incident log, and how to obtain copies of records (described below).
• An opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan.

Recordkeeping Requirements

Finally, employers must also comply with certain recordkeeping obligations and retention periods as follows:

• Records of workplace violence hazard identification, evaluation, and correction: 5 years.
• Training records shall be created and maintained and include training dates, contents or a summary of the training sessions, names and qualifications of persons conducting the training, and names and job titles of all persons attending the training sessions: 1 year.
• Violent incident logs: 5 years.
• Records of workplace violence incident investigations: 5 years.
• Records must be available not only to Cal/OSHA but also to employees or their representatives upon request and free of charge, within 15 days of their request.

Conclusion

California’s new Workplace Violence Prevention Program is a landmark initiative aimed at enhancing worker safety and reducing the risk of violence in the workplace. As the July 1, 2024, implementation date approaches, employers must prepare to comply with the new regulations by developing comprehensive and effective Workplace Prevention Plans. This proactive approach not only protects employees but also fosters a culture of safety and respect in California’s workplaces, setting a precedent for other states to follow.

By Shur Erdenekhuu

On January 1, 2024, the federally enacted Corporate Transparency Act (“CTA”) came into effect. The CTA requires certain entities to disclose information regarding their beneficial owners to the Financial Crimes Enforcement Network by the end of the year. These reporting requirements seek to prevent private use of shell entities as a tool to facilitate money laundering and other financial crimes.

As the deadline quickly approaches, closely held businesses should examine their reporting requirements.

Who is required to report?

Reporting companies are corporations, limited liability companies, limited liability partnerships, and other similar entities created by, or registered to do business under, “the filing of document with a secretary of state or similar office under the law of a State or Indian Tribe.”[1] This definition includes non-profit corporations and trusts that have secretary of state filings.

What companies qualify for exemption?

The CTA provides several exemptions which generally cover entities already subject to other federal reporting requirements.[2]

• Public companies that issue securities registered under the Securities Exchange Act.
• Any entity registered with the Securities Exchange Commission, such as brokers, exchange dealers, investment companies, investment advisors, and clearing agencies.
• Pooled investment vehicles that are operated or advised by an entity exempt from the CTA.
• Any company registered under the Commodity Exchange Act.
• Any government agency established under federal, state, or tribal laws.
• Registered public utility companies and designated market utility companies.
• Banks, federal and state credit unions, bank holding companies, and other money transmitting businesses registered with the Secretary of Treasury.
• Public accounting firms registered under the Sarbanes-Oxley Act.
• Insurance companies.
• Entities that (1) employ more than 20 full-time employees within the United States, (2) demonstrate more than $5,000,000 in aggregate gross receipts or sales in the previous year federal income tax return, and (3) has physical operating presence within the United States.
• Subsidiaries of other entities exempt from the CTA.
• Certain inactive entities.
• What must be reported?
• A reporting company, unless exempt, must provide (1) its full legal name, (2) any trade or “doing business as” names, (3) a complete current street address of its principal place of business, (4) its jurisdiction of formation, and (5) its taxpayer identification number.[3]
• A beneficial owner of a reporting company must provide his or her (1) full legal name, (2) date of birth, (3) current residential or business street address, and (4) copy of a current U.S. passport, state identification, driver’s license, or foreign passport if no other document is available.[4]
• Entities formed after January 1, 2024 must provide information about its “Company Applicant” – this is the same information required of beneficial owners.[5]
• Who is a beneficial owner?
• A beneficial owner is an individual who, directly or indirectly, owns or controls at least 25% of the ownership interests of the entity or exercises substantial control over the entity.[6] An individual exercises “substantial control” over a reporting company if the individual (1) serves as a senior officer of the entity, (2) has authority over the appointment or removal of any senior officer or a majority of the board, (3) directs, determines, or has substantial influence over important decisions made by the entity, such as decisions regarding the sale, lease, or transfer of any principal assets, the reorganization, dissolution, or merger of the entity, major expenditures or investments of the entity, the selection or termination of business lines or ventures, compensation schemes and incentive programs for senior officers, the entry into or termination of significant contracts, and amendments of any substantial governance documents.[7]
• This definition expressly excludes minor children, individuals acting as nominees, custodians or agents, employees who are not senior officers, and creditors of a reporting company.[8] The parent or legal guardian of a minor child will be required to disclose instead.[9]
• Who is a Company Applicant?
• A Company Applicants is an individual who files, or is primary responsible for the filing of, the document creating the reporting company.[10] This definition includes the business owner, the entity’s hired lawyer or agent acting on the client’s directions, and employees designated to file the formation documents. Although many may fall within the definition only a maximum of two individuals will be considered the Company Applicant.[11]
• Entities existing before January 1, 2024 are not required to designate a Company Applicant.
• When is the deadline to file?
• Entities formed before January 1, 2024 will have until January 1, 2025 to file the report. Entities formed between January 1, 2024 and December 31, 2024 will have 90 days from incorporation to file the report. Entities formed after January 1, 2025 will have 30 days from incorporation to file the report.
• Where will the disclosures be filed?
• Filing will be done through the Financial Crimes Enforcement Network’s website.
• Estate Planning Implications
• Reporting Company
• Entities formed for the purpose of estate planning are not exempt from reporting requirements if formation required the filing of a document with the secretary of state, or other similar government agency. Although trusts generally do not require secretary of state filings, estate plans formed under limited liability companies may trigger reporting requirements.
• Beneficial Ownership
• A revocable or irrevocable trust may be implicated if it has a beneficial ownership interest in a reporting company. In these situations, beneficial ownership reporting is required (1) by the trustee if the trustee has the authority to dispose of the trust assets, (2) by the beneficiary if the beneficiary is the sole permissible recipient of income and principal from the trust, or has the right to withdraw or cause distribution of substantially all the trust assets, and (3) by the grantor or settlor of a revocable trust.[12]
• Current Status
• On March 1, 2024, a federal district court in Alabama ruled that the CTA is unconstitutional, citing lack of Congressional authority. As part of the judgment, the court issued a limited injunction, preventing enforcement against the only case plaintiffs. At this time, the U.S. government has filed an appeal.
• In light of the ruling, the Financial Crimes Enforcement Network has announced that it will comply with the court’s order. Meaning, other than named plaintiffs in the court case, CTA enforcement will continue.
• If you have more questions regarding your CTA reporting requirements, contact a counselor today.

Wilke Fleury LLP is delighted to announce the addition of its newest partner – Islam M. Ahmad. Mr. Ahmad is a talented addition to the firm’s leadership. He brings with him a wealth of experience, and is a forward-thinking leader who will be invaluable to the firm’s leadership. His practice focuses on real estate and business law with a specific focus on litigation and insurance coverage matters.

“We are incredibly excited to welcome Islam to the partnership. He is tireless in pursuit of our clients’ goals, and in doing so employs both creative legal tactics and common sense. He is an asset to our firm and his admission to the partnership is well-deserved,” said Steve Williamson, Managing Partner.

Wilke Fleury LLP is a thriving mid‐sized general practice law firm located in California’s capitol. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury LLP 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.

Wilke Fleury is excited to announce that it has promoted two associates to the position of Senior Counsel — Mena Arsalai and Jizell Lopez. Mena and Jizell have demonstrated professional excellence and contribute greatly to the firm’s multi-generational leadership.

“Promoting Mena and Jizell to Senior Counsel is a reflection of the skill and dedication they bring to the practice of law, and an acknowledgement of their value to the firm. They understand our clients’ needs and work incredibly hard to achieve their goals. We are fortunate to have them on our team, and I congratulate them both!” – Steve Williamson, Managing Partner.

Senior Counsel at Wilke Fleury have at least six years of experience delivering high-quality legal services, collaborate with partners on the development and management of key practice areas, and actively mentor junior lawyers.

Mena Arsalai‘s practice focuses on supporting health care providers in regulatory and transactional matters. She has experience in drafting purchase agreements and ancillary transaction documents, healthcare facility licensing, healthcare acquisitions, physician contracting, and compliance. Prior to joining Wilke Fleury, Mena was an associate attorney at a Sacramento-based boutique law firm specializing in health law, mergers and acquisitions, and securities law.

Jizell Lopez is a civil litigation defense attorney who primarily represents employers in federal and state court litigation and before administrative agencies regarding all manner of employment claims, including single-plaintiff lawsuits, class action lawsuits, and wage and hour representative lawsuits. Jizell’s practice includes regularly defending employers against allegations of harassment, discrimination, wrongful termination, retaliation, wage and hour non-compliance, and more. In addition to her litigation experience, Jizell regularly counsels employers regarding the full range of California employment law compliance and litigation prevention. A large part of her practice also includes negotiating and drafting employment agreements, separation and severance agreements, and working closely with employers to develop effective personnel policies. Prior to joining Wilke Fleury, Jizell has represented both employers and employees. This has allowed her to utilize unique perspectives when counseling and defending employers, particularly with the ever-changing nuances of California employment law. Jizell chose to focus her practice on labor and employment defense because even when employers have the best intentions, there are far too many instances that result in costly and time-consuming litigation that could have been prevented or mitigated.

Wilke Fleury is extremely proud of its incredibly talented attorneys! Congratulations to Steven Williamson, Islam Ahmad, Matthew Powell, Adriana Cervantes, Daniel Foster, Neal Lutterman, Aaron Claxton, George Guthrie, Trevor Stapleton, David Frenznick, Michael Polis, Daniel Egan, and Stephen Marmaduke, who are all featured in Sacramento Magazine’s 2023 List of Top Lawyers!

By Jizell Lopez

The worker classification of relief veterinarians has been a hot button issue for many years. Traditionally, relief veterinarians and veterinary practices have preferred the classic independent contractor arrangement. However, given recent changes in worker classification laws and the legal risks associated with misclassification, it is a good time for both relief veterinarians and veterinary practices to revisit their independent contractor agreements to determine whether currently classified independent contractors are, in fact, properly classified.    

As a brief background, on April 30, 2018, the California Supreme Court issued its opinion in Dynamex Operations West, Inc. v. Superior Court (“Dynamex”), adopting new standards for determining whether a California worker should be classified as an employee or an independent contractor for the purposes of wage orders adopted by California’s Industrial Welfare Commission. On January 1, 2020, California Governor Gavin Newsom signed AB 5, expanding the application of Dynamex and making it more difficult for California workers to qualify as independent contractors. While this new standard has upended many traditional independent contractor industries, the California legislature acknowledged that some industries should be exempt from the AB 5 standard and, instead, the traditional analytical standard (known as the “Borello” test) should apply. Thus, AB 5 may have codified the Dynamex ruling, but it also carved out several exceptions, including for veterinarians.

AB 5 requires the application of the “ABC Test” to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission’s wage orders. Under the ABC Test, a worker is considered an employee and not an independent contractor unless the hiring entity satisfies all three of the following conditions: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

By contrast, the Borello test relies on multiple factors, including whether the potential employer has all necessary control over the manner and means of accomplishing the result desired (although such control need not be direct, actually exercised, or detailed). This factor must be considered along with other factors, including but not limited to: (1) whether the worker performing the services considers themselves as being engaged in an occupation or business distinct from that of the employer; (2) whether the work is a regular or integral part of the employer’s business; (3) whether the employer or the worker supplies the instrumentalities, tools, and the place for the worker doing the work; (4) whether the worker has invested in the business; (5) whether the worker hires their own employees; (6) whether the employer has a right to fire at-will; and (7) whether or not the worker and the potential employer believe they are creating an employer-employee relationship. Under Borello, no single factor controls the determination. Instead, the test relies on 13 different factors requiring consideration of the totality of circumstances attending the relationship. Accordingly, relief veterinarian classification can be complex, and subject to a case-by-case determination.

Both the Borello multifactor test and the ABC Test create a rebuttable presumption that the worker is an employee, and the hiring entity thus bears the burden of establishing that the worker is an independent contractor. The ABC Test is designed to be more predictable than the multifactor approach used under Borello. While AB 5 itself may not have changed the classification test applicable to veterinarians, the analytical landscape has shifted, and there are practical implications to understand for relief veterinarians.

You may ask, what is the big deal? Particularly if the worker wants to be classified as an independent contractor and the parties have agreed to this classification, and little to no risk flows to the worker. The party that bears the risk is the employer. In the event the worker is in fact misclassified, the employer could face significant liability—even if both the employer and employee both agree to the classification. Employees are entitled to certain rights that independent contractors do not typically enjoy, such as overtime, benefits, meal and rest breaks, and more. Furthermore, federal and state agencies may look back to determine if employers correctly withheld taxes, disability, and other payments, and paid for workers’ compensation benefits.

In the veterinary industry, many practices rely on relief veterinarians and the classification of these relief veterinarians as independent contractors. This article does not conclude that all relief veterinarians must be employees. Instead, it is a reminder to review any and all independent contractor agreements and their performance to determine whether these veterinarians may be classified as independent contractors. With recent legislation  adversely impacting independent contractor designations in multiple industries, many current independent contractors have been given a moment to pause and ask whether they are in fact properly classified. Again, the penalties associated with misclassification can be high and can lead to significant employer liability.

The bottom line is that although AB 5 has been in effect for nearly three years, California veterinarians are still largely left guessing whether their classification is proper under the Borello standard. Given the trends discussed above, it will likely become increasingly difficult and risky to classify workers as independent contractors. Consequently, it is important for practitioners utilizing relief veterinarian assistance to revisit their relationships to determine whether an independent contractor classification is correct. In uncertain cases, consult qualified legal counsel!