STAYING CLEAR OF WHISTLEBLOWER PROTECTION PROBLEMS IN YOUR BUSINESS

OSHA is becoming very active in the day to day operations of a business, especially in the enforcement of employees’ rights. An area that is surfacing in the business is OSHA’s enforcement of the whistleblower statute. It may not be well-known, but OSHA oversees whistleblower protection investigations not only for its own jurisdiction, but for 12 other regulatory areas.

If an employee in a practice reports a violation of Federal law (OSHA, Labor, etc.), the employee report and the violation of federal law (e.g., an OSHA complaint) is protected from retaliation by the business owner. An innocent personnel action taken by a business owner may be seen as a whistleblower retaliation by OSHA.

The following actions by a practice owner may be considered retaliatory action, and be a violation of Federal law:

❒ Firing or laying off an employee

❒ Assigning employee to undesirable shifts

❒ Blacklisting the employeedocumentation

❒ Demoting the employee

❒ Denying the overtime or promotion to the employee

❒ Disciplining the employee

❒ Denial of benefits to the employee

❒ Intimidation by the practice owner

❒ Reassigning work to the employee

❒ Reducing pay or hours of the employee

It is strongly recommended that before any personnel matters are handled by a business owner or office manager, it is always prudent to seek professional guidance in order to avoid violation of state or federal law.

 
Stuart J. Oberman, Esq. handles a wide range of legal issues for businesses including transitions and sales, real estate transactions, lease agreements, employment law and entity formation.

For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

Tips for Cyber Security in Your Veterinary Practice: PART II

With the risk of a cyber security breach increasing on a daily basis, below are some tips that will help a practice owner maintain the security that they need in order to protect safeguard data.

Plan for the Unexpected

? Unless your confidential data is totally disconnected from the internet, you must install a firewall to protect against intrusions from outside sources.

? Software firewalls, from somewhere like Indeni, are included with some popular operating systems, providing protection at the installation stage.

? Alternatively, separate firewall software is widely available from computer security developers.

? Large practices that use a Local Area Network (LAN) should consider a hardware firewall.

? A hardware firewall sits between LAN and the Internet, providing centralized management of firewall settings.

Install and Maintain Anti-virus Software

? Use an anti-virus product that provides continuously updated protection against viruses, malware, and other code that can attack your computers through web downloads, CDs, email, and flash drives.

? Keep anti-virus software up-to-date.

? Most anti-virus software automatically generates reminders about these updates, and many are configurable to allow for automated updating.

 
Stuart J. Oberman, Esq. handles a wide range of legal issues for the veterinary profession including employment law, cyber security, practice sales, real estate transactions, lease agreements, OSHA compliance, veterinary board complaints, and entity formation.

For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.comIf you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

Tips for Cyber Security in Your Veterinary Practice: PART I

With the risk of a cyber-security breach increasing on a daily basis, below are some tips that will help a practice owner maintain the security that they need in order to protect patient information.

Use Strong Passwords and Change Them Regularly

Selecting Passwords

Choose a password that is not easily guessed. Below are some examples of strong password characteristics:

❒ At least eight characters in length (the longer the better).

❒ A combination of upper case and lower case letters, one number, and at least one special character, such as a punctuation mark.

Strong passwords should not include personal information, such as:

❒ Birthdate

❒ Names of self, family members, or pets

❒ Social Security Number

❒ Anything that is on your social networking sites or could otherwise be easily discovered by others.

Updating Passwords

Configure your systems so that passwords must be changed on a regular basis.

Resetting Passwords

To discourage staff from writing down their passwords, develop a password reset process to provide quick assistance in case of forgotten passwords. This process could involve:

❒ Allowing two different staff members to be authorized to reset passwords

❒ Selecting a product that has built-in password reset capabilities.

Limit Network Access

❒ Prohibit staff from installing software without prior approval.

❒ When a wireless router is used, set it up to operate only in encrypted mode.

❒ Prohibit casual network access by visitors.

❒ Check to make sure file sharing, instant messaging, and other peer-to-peer applications have not been installed without explicit review and approval.

Control Physical Access

❒ Limit the chances that devices (e.g., laptops, handhelds, desktops, servers, thumb drives, CCs, backup tapes) may be tampered with, lost, or stolen.

❒ Document and enforce policies limiting physical access to devices and information.

❒ Keep machines in locked rooms.

❒ Manage keys to facilities.

❒ Restrict removal of devices from a secure area.

 

 

 

Stuart J. Oberman, Esq. handles a wide range of legal issues for the veterinary profession including employment law, cyber security, practice sales, real estate transactions, lease agreements, OSHA compliance, veterinary board complaints, and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com
If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

Tips for Cyber Security in Your Chiropractic Practice

With the risk of a cyber-security breach increasing on a daily basis, below are some tips that will help a practice owner maintain the security that they need in order to protect patient information.

Establish a Security Culture

❒ Build a security-minded organizational culture so that good habits and practices become automatic.

❒ Conduct information security education and training frequently.

❒ A practice owner should be the security leader in the practice and set a good example in attitude and action.

❒ Instill taking responsibility for information security as one of your practice’s core values.

Protect Mobile Devices

❒ Ensure your mobile devices are equipped with strong authentication and access controls.

❒ Ensure laptops have password protection

❒ Enable password protection on handheld devices (if available). Take extra physical control precautions over the device if password protection is not provided.

❒ Protect wireless transmissions from intrusion.

❒ Do not transmit unencrypted Protected Health Information (PHI) across public networks (e.g., Internet, Wi-Fi).

❒ Where it is absolutely necessary to commit PHI to a mobile device or remove a device from a secure area, encrypt the data.

❒ Do not use mobile devices that cannot support encryption.

❒ Develop and enforce policies specifying the circumstances under which devices may be removed from the facility.

❒ Take extra care to prevent unauthorized view of the PHI displayed on a mobile device.\

 
Hopefully, this information will provide some simple security tips in order to prevent a violation and/or security breach which can devastate a practice.

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the chiropractic profession, including: employment law, cyber security breaches, practice sales, real estate transactions, lease agreements, OSHA compliance, chiropractic board complaints, and professional corporations.

For questions or comments regarding this article  please call (770) 554-1400 or visit www.obermanlaw.com
If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

VICARIOUS LIABILITY OF DENTAL STAFF MEMBERS

In today’s legal environment, a owner of a dental practice may be vicariously liable for the errors and omissions of staff members. As a general rule, the risks are clinical in nature, however, a substantial amount of errors or omissions occur as a result of miscommunication. In matters of alleged patient miscommunication, a patient alleges that they were told the wrong clinical information, or were never told the correct clinical information at all.

Although, claims arising from a dentist’s vicarious liability for the clinical error or omission of a staff member may not be very common, dental malpractice claims arise from a patient’s dissatisfaction with staff member interaction. A dental practice owner can manage the risks of staff members by hiring qualified individuals, who can project the desired image of the practice, are well trained, and communicate in a clear manner.
 

Receptionist

 

Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.
For questions or comments regarding this article
please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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Social Media and the Veterinary Practice

The online world is growing. Facebook now boasts a “population” larger than the United States. Thousands of veterinarians are currently taking advantage of social media (e.g. Facebook, Twitter, Youtube, LinkedIn, &c.) and smartphones. It is important to take a brief look at some important issues and areas of concern for veterinary professionals using or considering the use of social media to build and promote their public, patient, and employee relationships.

 
Public Relations
The advantages of a strong social media presence are clear. Information may be shared with colleagues to sustain camaraderie, with patients to strengthen vet-patient relationships, and with the public to bolster your reputation.
It is vitally important to consult with your legal advisers early and often when bringing your professional presence to an online forum.

 

Patient Relations

If content on your social media page is also medical in nature, depending on the forum, the Health Information Portability and Accounting Act (HIPAA) may be implicated.
Members of the veterinary profession should adhere to the following guidelines:

(a) Veterinarians should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online.
(b) When using the Internet for social networking,veterinarians should use privacy settings to safeguard personal information and content to the extent possible.
(c) If veterinarians interact with patients on the Internet, they must maintain appropriate boundaries of the patient-vet relationship.
(d) To maintain appropriate professional boundaries veterinarians should consider separating personal and professional content online.
(e) Vets must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, and may have consequences for their professional careers (particularly for veterinarians-in-training and veterinary students), and can undermine public trust in the veterinary profession.

When veterinary professionals provide a social media forum for patient feedback, they risk running afoul of HIPAA rules and regulations. Prior to building a social media presence, it is important to develop policies and procedures designed to guide appropriate use of the relevant forum. A few key points follow:

 

Under the Health Information Technology for Economic and Clinic Health Act (HITECH Act), there are substantial penalties and fines that may be assessed for HIPAA violations that occur during social media exchanges. Under the HITECH Act, fines range from $100.00 to $100,000.00.
Be clear with a disclaimer that patient information is personal and should never be shared via the Internet. Inform participants that any posting that appears to be a violation of this policy will be removed.

 

Employee Relations

 
It is important to keep your employees from becoming lax about privacy rules when it comes to social media.
Education is always the first line of defense when it comes to privacy and security safeguards. Make sure all employees are trained and up to date about the privacy and security rules and be sure to disseminate a written company policy outlining permissible and impermissible actions. Make social media training a part of your HIPAA compliance program.
Social media is a powerful tool for expanding a veterinary practice, but be aware of the potential complications. Always consult your legal adviser before branching out into online forums.

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the veterinary profession including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, veterinary board complaints, employment law, and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

What Every Business Owner Should Know About the Termination of Employees

Unfortunately, employee termination is often a necessary part of running a successful business. Recent statistics show that the federal government collected $350,000,000.00 in fines in one calendar year for employment law violations and that the average settlement payment to a disgruntled employee in a wrongful termination suit was $25,000.00.
Business owners should familiarize themselves with the applicable laws and consult an attorney prior to any employee termination. This will reduce exposure to time consuming and costly litigation and allow business owners to continue doing what they do best: running and managing their business.

Generally, employees without an employment contract are considered at will. Employees at will can be fired by an employer at any time, for any reason or for no reason at all with no resulting liability. Conversely, these “at will” employees are free to end their employment at any time and for any reason.
To prevent subjecting yourself and your business to litigation regarding an employee termination, it is crucial that employers accurately and objectively document each employees performance issue that arises in the course of the employment. Employers should keep a personnel file on every employee and maintain documents concerning employee issues, problems, and discipline.
The failure to property document employee issues, problems, and discipline may subject the owner of a business to unexpected liability.

 

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the business community including business transitions, sales, real estate transactions, lease agreements, employment law and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit  www.obermanlaw.com
If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

VETERINARY ADVERTISING

Veterinarians have a right to promote their practices through advertisements. However, there are ethical advertising standards each veterinarian must follow.

Principles of Veterinary Medical Ethics of the AVMA:

“Advertising by veterinarians is ethical when there are no false, deceptive, or misleading statements or claims. A false, deceptive, or misleading statement or claim is one which communicates false information or is intended, through a material omission, to leave a false impression.” [AVMA Ethics Guidelines]

Honest, nondeceptive advertisements help owners make informed decisions regarding their pet’s care.

For an advertisement to be truthful, there must be evidence to back up each assertion. An advertisement is nondeceptive if it is not likely to mislead a reasonable consumer and does not omit any necessary information for the consumer to make an informed decision. Further, all material information must be disclosed in a manner that a reasonable consumer could understand.

Obviously, truthful advertising is important to both the American Veterinary Medical Association and to the Federal Trade Commission. All states have laws prohibiting false and deceptive advertising. Although every veterinarian must comply with the Federal Trade Commission, each veterinarian should be aware of their state’s laws regarding advertising.

Veterinarians should make a point to understand the law through veterinary associations and, if necessary, with the help of legal counsel. Advertisements are a great resource for veterinary practitioners. As long as veterinarians comply with state and federal law, advertising may go a long way in building mutual trust.

 

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the veterinary profession including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, veterinary board complaints, employment law, and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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Cyber Breaches in Businesses – The New Frontier

Cyber security in a business is becoming more and more complicated. In fact, most businesses have little or no cyber security measures.

Hackers like to target small businesses because they know that a small business owner typically does not have the resources for more sophisticated (and more expensive) security defenses.
How can a business owner secure patient data in a digital world?

 

1. Set up and enforce a strict computer and Internet use policy that restricts employees from reading and downloading personal email while using an office computer.

2. Hire an experienced IT company to set up a strict firewall on your office network. If your business uses wireless, have the IT company hide your wireless network from public view.

3. Train your employees on how viruses infect computers with common user habits such as forwarding personal email messages and downloading computer wallpapers.

4. Keep all anti-virus and anti-malware software updated along with computer operating systems.

5. Always create strong passwords of more than 8 characters that use mixed-case letters and include numbers and symbols.

6. Keep business and home computing separate. Don’t use a laptop at home for fun and then bring it into the office for use on the business network. Business computers should strictly be used for business.

 

 

With the proliferation of cyber breaches in businesses, data security is no longer an option.

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the business community including business transitions, sales, real estate transactions, lease agreements, employment law and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit  www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

 

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Work for Hire: Protecting Your Intellectual Property Rights

Many dentists hire independent consultants to develop their website or to perform marketing services to brand their dental office.  However, most dentists are unaware that without a written contract that includes certain specific provisions, the independent consultant may retain the ownership of the intellectual property created.  Because the consultant’s ownership of the intellectual property is not common knowledge, this can create problems for dental offices that do not adequately protect their rights.

 

Copyright law protects work from the time it is created.  The general rule under the Copyright Act states that a person who creates the work is the author of that work, unless the work is designated as “work made for hire.”

 

For example, if a dental office hires a graphic design company to create its’ company logo and a “work made for hire agreement” was not signed before the logo was created, the graphic design company may own all of the right, title and interest to the dental office’s logo.  The graphic design company would be free to license or sell the logo and dilute the market place with similar images.  The dental office would have no control over its own logo.

 

There is, however, an exception to this principle: “works made for hire”.  This doctrine allows for an employer to be considered the author of the work even if an employee created the work. If an employee creates intellectual property for an employer, the employer will own the exclusive rights to work created, if the work was created within the scope of the employee’s employment.  However, although work created by an employee is considered to be “work for hire” and is owned by the employer, the more cautious dental practice owner will still have their employees sign an employment agreement that transfers ownership of work, ideas and inventions to the employer.  Because many employees often work from home or at odd hours, it can be unclear if a concept or idea was created during the course of employment.

 

If an independent contractor is performing the services for a dental practice, the contractor is the lawful owner of the work unless the “works made for hire” requirements are met.  The “work made for hire” doctrine requires that three [3] conditions must be satisfied in order for the hiring business to own the original work.

 

  • First, prior to the commencement of the work, the parties must agree in writing that the work shall be considered “work for hire”.
  • Second, the work must have been “specially ordered” or “commissioned” by the hiring party.
  • Finally, the work must fall within at least one of the nine [9] statutorily mandated categories of commissioned works listed in the Copyright Act. A “work made for hire” is defined in the Copyright Act (15 U.S.C. § 101) as “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

 

These requirements necessitate that the parties have a written agreement in place with specific work-for-hire provisions. And since it is not always clear whether the work product falls into one of the nine [9] specified categories authorized by statute, a well-drafted independent contractor agreement should always include language assigning all of the intellectual property rights associated with the work created to the dental practice contracting for the work.

 

Since more and more dental offices hire independent contractors and consultants rather than hiring full-time or part-time employees, the question of ownership regarding intellectual property rights has created a substantial amount of litigation.  The consequences of failing to take the necessary steps in order to protect your dental office’s intellectual property rights can be very problematic, particularly if there is a dispute over payment or the quality of work with the independent contractor or consultant.

 

In today’s digital and knowledge based business world, dental offices are not always careful in protecting their “work made for hire”.  Intellectual property rights associated with work created by employees and independent contractors can be the source of expensive litigation if a dental office becomes successful.  Intellectual property is also an important subject of review during any due diligence period that may be conducted for the purposes of financing and selling a business.  As a matter of general practice, and especially when the intellectual property being created is crucial to the long-term growth of the practice, well-drafted employment and/or independent contractor agreements must be in place.

 

 

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Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.

 

For questions or comments regarding this article please call (770) 554-1400 or visit    www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

 

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