Know all the laws and acts governing employer and employee working relationships

With all the new information concerning the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which is scheduled to be fully implemented by April 2005, you need to be aware of the confidentiality laws that govern your practice. One aspect of confidentiality law concerns employment law. There are federal and state guidelines that address employment and discrimination laws.

The common law governs the relationship between employers and employees in terms of tort and contract duties. These rules are a part of agency law and the relationship between the principal (employer) and agent (employee). In some instances, but not all, this law has been replaced by statutory enactments, principally on the federal level.

The working relationship between employer and employee is greatly affected by government regulations. The terms of employment between employer and employee is regulated by federal statute designed to promote employer management and employee welfare. Federal law also controls and prohibits discrimination in employment based on race, sex, religion, age, handicap, or national origin. In addition, Congress has mandated that employers provide their employees with a safe and healthy environment in which to work. All states have adopted workers’ compensation acts that provide compensation to employees who have been injured on the job.

As I mentioned above, a relationship that is closely related to your practice is employer-employee and principal-independent contractor. In the employer-employee relationship, also called the master-servant relationship, the employer has the right to control the employee’s physical conduct.

A person who engages an independent contractor to do a specific job does not have the right to control the independent contractor’s conduct in the performance of his or her contract. The contracted time to complete the job depends upon the employer’s time frame to complete the desired task(s), or job.

Keep in mind that the employer may still be held liable for the acts committed by an employee within the scope of employment. In contrast, an employer ordinarily is not liable for acts committed by an independent contractor, but there are instances when the employer can be held liable for the acts of the independent contractor. Know your laws governing hiring a person as an independent contractor.

Since labor law is not really applicable to your practice of chiropractic in an office setting, we will concentrate on employment and discrimination law. There are a number of federal statutes that prohibit discrimination in employment based on race, sex, religion, national origin, age, and handicap. The main framework of federal employment discrimination law is Title VII of the 1964 Civil Rights Act, but also the Equal Pay Act, Discrimination in Employment Act of 1973, the Rehabilitation Act of 1973, and many Executive Orders. In all cases, each state has enacted laws prohibiting the same discriminations as Federal Statutes.

Equal Pay Act. This act prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work. The act also forbids the employer from paying wages at a rate less than the rate at which he pays for equal work at the same establishment. Once the employee has demonstrated that the employer pays unequal wages for equal work to members of the opposite sex, the burden of proof shifts to the employer to prove that the pay difference is based on the following: 1) seniority system, 2) merit system, 3) a system that measures earnings by quantity or quality of production, and 4) any factor except sex.

Remedies may include recovery of back pay, enjoining the employer from further unlawful conduct, and/or sizeable fines.

Civil Rights Act of 1964. Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, sex, religion, or national origin in hiring, firing, compensating, promoting, and training of employees. Each of the following could constitute a violation prohibited by the act:

1) Employers utilizing a prescribed criteria in making an employment decision. Prima facie evidence would show if the employee was within a protected class, applied for an open position, was qualified for the position, and was denied the job; and if the employer continued to try to fill the position. Once these criteria are established, the burden of proof shifts to the employer to justify a nondiscriminatory reason for the person’s rejection for the job.

2) An employer engages in conduct that appears to be neutral or nondiscriminatory, but continues past discriminatory practices.

3) The employer adopts rules that are adverse to protected classes and not justified as being necessary to the business.

The enforcement agency is the Equal Employment Opportunity Commission (EEOC), which has the right to file legal actions and resolve action through mediation or other means prior to filing suit. The EEOC also investigates all charges of discrimination and issues guidelines and regulations concerning the enforcement policy of discrimination law.

This act provides three defenses: a bona fide seniority or merit system, an occupational qualification, or a professionally developed ability test. Remedies include enjoining the employer from engaging in unlawful conduct or behavior, affirmative action, and reinstatement of employees and back wages from a date not more than 2 years prior to the filing of the charge with the EEOC.

Age Discrimination in Employment Act of 1976. This act prohibits discrimination in hiring, firing, and compensating on the basis of age. Under Title VII, it addresses all these areas and ages, but it especially benefits individuals between the ages of 40–70. The defenses and remedies are the same as the Civil Rights Act of 1964.

Employee safety. In 1970, Congress enacted the Occupational Safety and Health Act (OSHA) to ensure that every worker has a safe and healthful working environment. This act established that OSHA develop standards, conduct inspections, monitor compliance, and institute and enforce actions against noncompliance.

OSHA requires that employers provide a work environment free from recognized hazards that can cause or likely cause death or serious physical harm to the employees. In addition, employers are required to comply with specific safety risks outlined by OSHA in their rules and regulations.

This act also prohibits any employer from discharging or discriminating against an employee who exercises his rights under this act. The enforcement of OSHA involves inspections and citations for the following:

•    Breach of general duty obligations;
•    Breach of specific safety and health standards; and
•    Failure to keep proper records, make reports or post notices required under this act.

When a violation is discovered, a written citation, proposed penalty, and corrective date are given to the employer. Citations may be contested and heard by an administrative judge at a hearing. The Occupational Safety and Health Review Commission can grant a review of an administrative law judge’s decision. If not, then the judge’s decision becomes final. The affected party may appeal the decision to the US Circuit Court of Appeals.

Penalties for violations are both civil and criminal and may be as high as $1,000 per violation per day. OSHA may shut down a business for violations that create dangers of death or serious injury.

Workers’ compensation. Most actions by injured employees against an employer are due to the employer’s failure to use reasonable care under the circumstances for the safety of the employee. In such actions, the employer has several well-established defenses available. They include defenses of the fellow servant rule, which states that an employer is not liable for injuries sustained by an employee caused by the negligence of a fellow employee. If an employer establishes that the negligence of an employee contributed to the injury sustained in the course of employment, in many jurisdictions the employee cannot recover damages from the employer.

Voluntary assumption of risk is another defense. An employer in most jurisdictions is not liable to the employee for harm or injury caused by unsafe working conditions if the employee, with knowledge of the facts and understanding of the risks involved, voluntary inters into or continues in the employment with the employer.

Keep in mind that all states have enacted workers’ compensation acts. These statutes create commissions or boards to determine whether an injured worker is entitled to receive compensation. The above defenses are not available in most jurisdictions to employers in proceeding under these statutes. The only requirement is that the employee be injured in the course of his employment.

Fair Labor and Standards Act. This act regulates the employment of child labor outside of agriculture. Under this act, children below age 14 are prohibited from being employed in nonfarm work. Children who are 14 and 15 years of age may be employed for a limited number of hours outside of school hours, under specific conditions and in nonhazardous occupations; 16- and 17-year-olds may work in any nonhazardous jobs. Persons 18 years and older may work in any job. This act imposes wage and hour requirements upon covered employers, and provides for a minimum hourly wage and overtime pay.

Keep in mind that HIPAA laws are involved in confidentiality and proper recordkeeping, and they address many of the areas discussed in this article. CP

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer and practices chiropractic in Orlando, Fla. He is a faculty member of Texas Chiropractic College and conducts a national expert witness certification course. He can be reached at (866) 225-5055, or via the Web site: www.medtechusa.net.

The information in this article is intended for informational purposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state for more specific information.