In the news – 02/23/2017

Provider pays $5.5 million in HIPAA settlement

A Florida healthcare provider has paid the government $5.5 million to settle potential Health Insurance Portability and Accountability Act violations after information on more than 115,000 patients was “impermissibly accessed” several years earlier, officials announced Thursday.

Memorial Healthcare Systems, which operates a nursing home, six hospitals and other healthcare facilities in South Florida, reported to the Department of Health and Human Services that patients’ protected information, including names, dates of birth and social security numbers, had been accessed by employees and “impermissibly disclosed to affiliated physician office staff.”  Full Article


SB: 3: Minimum Wage and Paid Sick Leave Expands for In-Home Supportive Services Workers

(1) Under existing law, the Healthy Workplaces, Healthy Families Act of 2014, an employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days, as specified. Existing law requires an employee to accrue paid sick days at the rate of not less than one hour per every 30 hours worked subject to specified use and accrual limitations. For the purposes of the act, an “employee” does not include a provider of in-home supportive services, as described.

This bill, on and after July 1, 2018, would entitle a provider of in-home supportive services who works in California for 30 or more days within a year from the commencement of employment to paid sick days, subject to specified full amount of leave time amounts and that rate of accrual. The bill would require the State Department of Social Services, in consultation with stakeholders, to convene a workgroup to implement paid sick leave for in-home supportive services providers and to issue guidance in that regard by December 1, 2017. The bill would authorize the department to implement that paid sick leave without complying with the Administrative Procedure Act.

(2) On and after July 1, 2014, existing law requires the minimum wage for all industries to be not less than $9 per hour. On and after January 1, 2016, existing law requires the minimum wage for all industries to be not less than $10 per hour.

This bill would require the minimum wage for all industries to not be less than specified amounts to be increased from January 1, 2017, to January 1, 2022, inclusive, for employers employing 26 or more employees and from January 1, 2018, to January 1, 2023, inclusive, for employers employing 25 or fewer employees, except when the scheduled increases are temporarily suspended by the Governor, based on certain determinations. The bill would also require the Director of Finance, after the last scheduled minimum wage increase, to annually adjust the minimum wage under a specified formula.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, the bill would require the Director of Finance to annually determine, based on certain factors, whether economic conditions can support a scheduled minimum wage increase and certify that determination to the Governor and the Legislature. The bill would also require the State Board of Equalization to publish specified retail sales and use tax information on its Internet Web site to be used by the Director of Finance in making that determination.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, in order to ensure that the General Fund can support the next scheduled minimum wage increase, the bill would also require the Director of Finance to annually determine and certify to the Governor and the Legislature whether the General Fund would be in a deficit in the current fiscal year, or in either of the following 2 fiscal years. Senate Bill No. 3


AB: 2337: Employment protections: victims of domestic violence, sexual assault, or stalking

Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified purposes related to addressing the domestic violence, sexual assault, or stalking. Existing law provides that any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Division of Labor Standards Enforcement within the Department of Industrial Relations. Existing law establishes the Labor Commissioner as the head of the Division of Labor Standards Enforcement.

This bill would require employers to inform each employee of his or her rights established under those laws by providing specific information in writing to new employees upon hire and to other employees upon request. The bill would also require the Labor Commissioner, on or before July 1, 2017, to develop a form an employer may elect to use to comply with these provisions and to post it on the commissioner’s Internet Web site. Employers would not be required to comply with the notice of rights requirement until the commissioner posts the form. Assembly Bill No. 2337


AB 1843: Applicants for Employment: Criminal History

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post trial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Existing law specifies that these provisions do not prohibit an employer at a health facility, as defined, from asking an applicant for a specific type of employment about arrests for certain crimes. Existing law makes it a crime to intentionally violate these provisions.

This bill would also prohibit an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. The bill, for the purposes of the prohibitions and exceptions described above, would provide that “conviction” excludes an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the jurisdiction of the juvenile court law, and would make related and conforming changes. The bill would prohibit an employer at a health facility from inquiring into specific events that occurred while the applicant was subject to juvenile court law, with a certain exception, and from inquiring into information concerning or related to an applicant’s juvenile offense history that has been sealed by the juvenile court. The bill would require an employer at a health facility seeking disclosure of juvenile offense history under that exception to provide the applicant with a list describing offenses for which disclosure is sought.

Because this bill would modify the scope of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. Assembly Bill No. 1843


AB 908: Disability Compensation; Disability Insurance

Existing unemployment compensation disability law provides a formula for determining benefits available to qualifying disabled individuals. For an individual who has quarterly base wages of greater than $1,749.20, the weekly benefit is calculated by multiplying base wages by 55% and dividing the result by 13. For a benefit that is not a multiple of $1, existing law provides that the benefit shall be computed to the next higher multiple of $1. However, existing law provides that this amount may not exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount.

Under existing law, the family temporary disability insurance program provides up to 6 weeks of wage replacement benefits to workers who take time off work to care for specified persons, or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. Existing law defines “weekly benefit amount” for purposes of this program to mean the amount of benefits available to qualifying disabled individuals pursuant to unemployment compensation disability law.

This bill would revise the formula for determining benefits available pursuant to unemployment compensation disability law and for the family temporary disability insurance program, for periods of disability commencing after January 1, 2018, but before January 1, 2022, to provide a weekly benefit amount minimum of $50 and increase the wage replacement rate to specified percentages, but not to exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations pursuant to existing law.

Existing law deems an individual to be eligible for family temporary disability benefits if, among other things, the individual is unable to perform his or her regular or customary work for a 7-day waiting period during each disability benefit period. and prohibits payments for benefits during this waiting period.

This bill, on and after January 1, 2018, also would remove the 7-day waiting period for these benefits.

This bill, by authorizing an increase in the expenditure of money from the Unemployment Compensation Disability Fund, would make an appropriation.

This bill would require, by July 1, 2017, the Employment Development Department to report to the Assembly Committee on Insurance and Senate Committee on Labor and Industrial Relations specified information regarding the waiting period for disability benefits. The bill also would require, by March 1, 2021, the department to prepare a report to the Legislature and specified legislative committees on levels and trends regarding utilization, costs, and rates with respect to family leave and disability insurance.  Assembly Bill No. 908


AB 488: Employment Discrimination

“Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of “employee,” any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.”

“This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employer’s obtaining a special license, or hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the act’s provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.” Assembly Bill No. 488


Employment News – 10/20/2016

The Fair Labor Standards Act defines regular rate of pay to include all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include:

  • Expenses incurred on the employer’s behalf,
  • Premium payments for overtime work or true premium paid for work on Saturdays, Sundays and holidays,
  • Discretionary bonuses,
  • Gifts and payments in the nature of gifts on special occasions, and
  • Payments for occasional periods when no work is performed due to vacation, holidays, or illness.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


Employment News – 10/18/2016

The Fair Labor Standards Act (FLSA) requires that employees be paid one and one-half times their regular rate of pay for all hours worked over forty hours in a workweek. California’s Labor Code additionally requires overtime for all hours worked over eight hours in a day and on the seventh day worked in a workweek. To calculate an overtime rate, an employer must know what to include in an employee’s regular rate of pay.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – 04/12/16

Another View: State not prepared to handle mentally ill and aging population (by James Gomez, The Sacramento Bee) “The Sacramento Bee article, “Shifting population in California nursing homes creates ‘dangerous mix’ ” (Page 1A, April 3), identifies growing challenges for our state’s nursing homes, but it fails to focus on the root cause of what got us here. State and local policy on mental and behavioral health care, and its lack of dedicated services in this area, are key to this issue. California, by conservative estimates, is several thousand beds short of adequately serving those with mental illness or behavioral issues. The shortage of 24-hour care – and the beds required for that treatment – places a strain throughout the health care system, and specifically in long-term care and skilled nursing facilities.”  Entire Article


In the News – 04/11/16

The California End-of-Life Option Act: The opponents of the Act included the Coalition of Physicians & Other Healthcare Providers and organizations dedicated to the rights of people with disabilities. Faith-based organizations advocate that while protections for healthcare providers are present, it is the patient who remains without adequate protections. The Coalition wrote that the Act does not require a psychiatrist to evaluate a patient before he or she decides to end their life; does not require anyone to be present when the patient takes his/or her lethal prescription; and allows the patient, or designated agent, to pick up their lethal prescription at the local pharmacy. In addition, the opponents assert that the Act will have a devastating impact on the treatment of terminally ill and disabled patients because it will quickly become another treatment option, always being the cheapest. The Medical Oncologist Association of Southern California, Inc. believes that no matter how many parameters are placed around the practice, legalizing a form of suicide will have spill over effects in society at large.

Source for News notes: The California End-of-Life Option Act: To Participate or Not to Participate by Larry T. Pleiss, Shareholder at Wroten & Associates.