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Flying Under the Radar of Federal Law
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Flying Under the Radar of Federal Law

by Jeffrey L. Roth, JD

Many veterinary practices operate as small businesses. As such, not all federal laws apply to each veterinary practice. When considering what laws apply to a practice, the first question to ask is, "How many employees are in the practice?" Many federal laws do not apply to small businesses, including veterinary practices, unless they employ a requisite number of employees.
One recent example is the so-called "Red Flags Rule," contained in a recent amendment to the Fair Credit Reporting Act by the Federal Trade Commission (FTC). This rule deals with prevention of identity theft. The rule has been law for some time, but the FTC has indicated it would not enforce the rule until November 1, 2009. However, H.R. 2345 has been introduced in the House Committee on Financial Services to exempt healthcare providers with 20 or less employees, including veterinary practices, from this rule. This bill has not yet come to a vote in either the House or the Senate, but if it passes, practices with 20 or less employees need not comply. It is unlikely that it will pass before the enforcement deadline.

The chart below contains a list of significant laws, and applicable employee thresholds.

Law

Subject Matter

Employee Threshold

Fair Labor Standards Act

Minimum wage and overtime

1+

Immigration Reform and Control Act

Form I-9, required employment documentation for all employees

 

Employee Retirement Income Security Act (ERISA)

Employment benefit plans

 

National Labor Relations Act

Right to join or not join a union, concerted activity

 

Occupational Safety and Health Act of 1970

Employee safety and health

 

Civil Rights Act of 1964, Title VII

Prohibits discrimination on the basis on race, color, national origin, and sex

15+

Americans with Disabilities Act (ADA)

Disability discrimination

 

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Health care continuation benefits

20+

Age Discrimination in Employment Act (ADEA) and Alabama Code ยง 25-1-20 to 25

Age discrimination

 

Family Medical Leave Act (FMLA)

Leave without pay for serious health condition of self or family member

50+


Assume that a former employee makes a claim for employment discrimination against your practice under Title VII of the Civil Rights Act of 1964 for sex discrimination. If a practice employs only 12 employees, the practice cannot be held liable under that law. I am not suggesting that such potential discrimination is acceptable, but knowing that a meritless claim will fail under these circumstances is helpful. Also, even though federal law may not apply to such a circumstance, there might be some valid state law claims. However, in Alabama, unlike many other states, there are no state law causes of action for many such employment-related issues, except in rare circumstances. One exception is age discrimination, as indicated in the chart above, and another is a state law cause of action for battery or assault as a result of sexual harassment in the workplace.

 

Whenever a practice receives a claim from an employee, a third party, or a governmental agency relating to potential noncompliance with legal requirements, the first thing the practice should do is check to be sure the law applies to the practice in the first place. This is always the first line of defense in any such claim. Keep these employee thresholds in mind to help avoid potential liability, or even the need to answer the substance of a claim brought under a law not applicable to your practice. Knowing these thresholds can help practitioners address such claims in summary fashion without a significant expenditure of time or resources.

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