Medical Staffing Rights of Physicans in California
Decision concerning medical staff membership and privileges are made through a process of hospital peer review. One of the purposes of the peer review process, that must be in place at a hospital, is to protect competent doctors/physicians from being barred from medical practice for arbitrary or discriminatory reasons. Peer review must be conducted fairly, because when it isn’t, it results in the unwarranted loss of a qualified physician’s right to use a hospital’s facilities and deprives the physician of a property interest directly connected to his livelihood.
Generally, the law requires hospital to provide an affected physician subject to discipline a notice and and the opportunity for a hearing, when a peer review committee has recommended a “final proposed action”. The hearing must be held “before a trier of fact” that, as determined by the peer review body, is either “an arbitrator or arbitrators selected by a process, mutually acceptable to the licentiate and the peer review body” or “a panel of unbiased individuals… which shall included, where feasible, a doctor practicing the same specialty as the physician subject to the disciplinary action.”
During the hearing, both parties have the right to call, examine and cross examine witnesses, as well as present and rebut evidence. Upon the completion of the hearing, the parties have the right to a written decision of the trier of fact, including the findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached.
An Employee with a Disability is Not Entitled to Indefinite Leave Under ADA
Much of the employment law litigation recently has been focused on the issue of the employer’s obligation to provide medical leave or extended medical leave to disabled employees. This is in part due to the inherent uncertainty in the employers’ obligations with regard to providing medical and disability leave.
On one hand, the law says that medical leave or extension to previously granted medical leave is one type of accommodation that an employer might be obligated to provide to a qualifying disabled employee. However, this obligation generally apply only in those cases where it is likely that the employee will be able to return to work to her job at the end of leave. (Criado v IBM Corporation). On the other hand, the law says that the employer doesn’t have to provide an indefinitely leave (Jensen v Wells Fargo Bank).
The above rules naturally raise important questions – what does “likely to return” mean, and how “likely” does it have to be to trigger the employer’s obligation to provide medical leave or extended disability leave? How does the employer know whether the leave will be “indefinite”?
If you are an employee facing a situation where you expect to have your previously granted medical leave extended, and you want to retain your job or have an option of pursuing a claim against your employer, it is critical that you discuss your situation with a local employment attorney who can help you put your employer on proper notice of your disability and need for leave, so that there is no question as to whether your leave will be indefinite and whether you are likely to return to work.
It’s important to run your medical documents by your attorney to make sure that the leave forms that your doctor fills out are sufficient. Remember, your doctor is focusing on what you need medically and not on how to protect your job, so he is neither obligation nor necessarily knowledgeable in how to write a medical / disability leave form that will comply with the ADA/FEHA/FMLA notice requirements.
For more information about disability, please visit our San Francisco Disability Discrimination Lawyer site.
New Minimum Wage Law Goes Into Effect in California
The governor will soon be signing the new California state minimum wage law bill that will raise the current statewide $8/hour minimum wage to $9/hour as of July 1, 2016, and to $10/hour as of January 1, 2016. Specific areas and municipalities in California may still have their own higher minimum wage, adjusted to the local costs of living, such as the City and County of San Francisco, where the local minimum wage has traditionally been at least 20% higher than the state minimum wage.
Like previously, this increase in minimum wage will have both positive and negative impact on the California workforce. On one hand, the low wage earners’ income will increase by over 10%. On the other hand, some employers will have to reduce their hiring due to this additional expense on wages and/or increase the prices of the products/services they sell.
Managers Are Personally Liable for Violation of Medical Leave Laws
California Government Code section 12945.2 provides that it should be an unlawful practice for any employer… to refuse to granted a request by any employee to take up to 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this law shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or comparable position upon the termination of the leave.
An employer for the purposes of this law is defined as either (1) any person who directly employes 50 or more persons to perform services for a wage or salary or (2) the state, and any political or civil subdivision of the state and cities.
California Code of Regulations provides that “in addition to the retaliation prohibited by Gov. Code 12940(f), and section 7287.8 of the regulations, it shall be unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual, except as otherwise provided…. because that individual has exercised his rights to CFRA leave. Thus, managers who decide to violation CFRA medical leave laws can be personally liable for those violations.
This means that an employee who is being retaliated or terminated in violation of CFRA, can file a lawsuit not only against the employer but also against the individual decision makers – managers that made the decision to terminate his employment.
Including individual managers in a lawsuit has three main advantages: 1. If the employer is a public entity, including individual defendants would allow plaintiff to plead a claim for punitive damages, that are otherwise not available against governmental offices; 2. Including individual defendants in a lawsuit will provide certain access to their personnel file, history of discipline for similar violations and other information that may be useful in proving a wrongful termination / retaliation case; and finally 3. In some cases, subpoenaing a defendant for deposition or to testify at trial is much easier than a non-party witness.
District Managers for Insurance Companies Are Generally Independent Contractors
Recently, a Second Appellate District Court affirmed the decision in Beaumont-Jacques v Farmers Group, Inc. that district managers for an insurance company, operating separately from the insurer is an independent contractor and not an employee.
In that case, after working for several years for the same insurance company, the claimant became one of Farmers’ district managers, and she signed the District Manager Appointment Agreement. The claimant later was recruiting and recommending persons to become agents solely for that insurer as part of her work. If Farmers accepted such a person, the claimant trained and motivated that agent to market only Farmers’ insurance policies. While she herself did not sell those products, she could represent Farmers but not other insurers. Claimant also had her own separate office, which she herself leased.
In analyzing whether the claimant was an employee or a contractor, the court reiterated that the main inquiry looks at the “control of details”, i.e., whether the principal has the right to control the manner and means of accomplishing the result desired. (S.G. Borello * Sons, Inc. v. Dept. of Industrial Relations (1989)).
In concluding that the claimant in this case was properly classified as an independent contractor, the court found that the claimant exercised meaningful discretion over her work, including recruiting agents for and when selected, training and motivated them to sell insurance policies, determining her own day-to-day hours, including her vacations; on most days, fixing the time for her arrival and departure at her office and elsewhere, including lunch and breaks; preparing reports for an attending meetings of the principal insurer; hiring and supervision of staff, i.e. those who worked at her office, while remitting payroll taxes for them as employees; performing other administrative tasks, including resolving problems; paying for her costs such as marketing, office lease, telephone service and office supplies; deducting those costs as a business expense in her personal tax returns; and, identifying herself as self-employed in those returns. Lastly, the agreement between the claimant and the principal insurer specifically provided there was no employer/employee relationship.
Professional License Defense (Pharmacists and Other Licensed Professionals)
To fulfill its function of protecting the public from incompetent and unethical practitioners, the Board of Pharmacy investigates pharmacists and pharmacy technicians and takes disciplinary action when appropriate. Disciplinary action is brought under the rules and procedures of the Administrative Procedures Act (Cal. Government Code 11340-11529) / Bus & Professions Code 4300(c). The executive officer of the Board files the disciplinary action against the licensee, but the Board itself is the ultimate decision maker in every disciplinary case.
The Board of Pharmacy may impose discipline against a licensee only when the licensee’s misconduct is substantially related to qualifications, functions, or duties of the license. The Board may be seeking to suspend or revoke the license, if the licensee commits any of the acts constituting grounds for discipline. The Board may also issue a letter of admonishment or a citation to a license. A letter of admonishment is not considered discipline, and its issuance does not prevent the Board from instituting disciplinary action against a licensee. Many of the grounds for discipline are set out in Business and Professions Code 4301 and 4306.5. These violations typically include supplying presciption drugs to yourself and to others without valid prescription, negligent failure to ensure adequate security and inventory control of drugs, refilling prescription without authorization, sale of drugs without valid prescription, and other drug related crimes. Under some circumstances, the Board of Pharmacy may automatically suspend a license before a disciplinary hearing even takes place.
At a disciplinary hearing, a licensee may present evidence of rehabilitiation and mitigation in order to reduce the discipline that will be potentially imposed. Like with just about any other professional license, a former licensee wishing to reinstate a revoked license may petition a Board of Pharmacy for reinstatement.