OSHA Investigations – Know the Process

The Occupational Safety and Health Administration (OSHA) dedicates itself to enforcing safety and health regulations in places of employment throughout the United States. OSHA typically conducts workplace investigations without notifying employers, and an unexpected knock on the door can leave employers overwhelmed. Knowing OSHA’s inspection process prepares employers in proceedings.
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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).

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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Responding to OSHA Requests

Initial informal phone calls are becoming more and more frequent from OSHA. First and foremost, you must have a plan in place, if you ever receive such a call from OSHA.

 

 

Letters from OSHA

Typically, when OSHA receives a non-formal complaint, its first investigative step is usually to send a letter to the owner of a practice.

 

 

Telephone Calls From OSHA

When investigating a non-formal complaint, OSHA may also call a practice, in addition to sending an investigatory letter. Responding to an OSHA telephone inquiry poses several unique risks for practice owners.

 

 

Developing an Office Protocol

To avoid potential and unintended problems, practice owners should create a risk management plan for responding to telephone calls from OSHA inspectors. Once formulated, the office protocol should be clearly explained to and followed by all office staff.

 

 

By formulating an office protocol in order to handle OSHA investigations, practice owners can take steps to adequately protect themselves during the investigation process. It is crucial that practice owners plan for OSHA investigation inquiries. In addition, it is also critical that all employees are aware of office protocol regarding OSHA inquiries, in order to avoid unintended consequences.

 

They're king players in the game of business

Stuart J. Oberman, Esq. handles a wide range of legal issues including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, 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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