Personal medical information, medical records patient information are highly sensitive and confidential documents that should be safeguarded against unnecessary disclosure without the patient’s consent at all costs. The information contained in a patient’s medical records is private, and may not be disclosed without permission, save a few exceptional circumstances.

What Laws Protect Patient Medical Information?

There are a number of federal laws in place that are designed to protect the privacy of patient medical records, such as the:

• Health Insurance Portability and Accountability Act (HIPPA) Privacy Rule (45 C.F.R. Section 160, and 164A and E),
• HIPPA Security Rule (45 C.F.R. Section 160, and 164A and C), and
• HIPPA Breach Notification Rule (45 CFR Sections 164.400-414).

California additionally offers protection for patient medical records through California Civil Code Sections 56-56.37, also referred to as the Confidentiality of Medical Information Act. Under California law, a patient’s personal medical information, i.e., any individually identifiable information that is kept in physical or electronic form, is protected from unauthorized disclosure by health care providers, health care insurance providers, pharmaceutical companies, and other entities with access to this sensitive information, unless a court order demands such disclosure.

Medical information can include information concerning a patient’s medical history, mental health history, their physical or mental condition, or any course of treatment they are on. Individually identifiable information can include information such as a patient’s name, contact information, Social Security number or any other information that can be combined with publicly available information in order to identify the patient.

Patient Consent To Disclosure

Many times, a patient is referred to a specialist who requires copies of the patient’s medical records. However, the patient’s current doctor is not allowed to provide the patient’s medical records to the specialist without first obtaining the consent of the patient. If a patient wants to consent to the disclosure of their personal medical information, the patient must give permission in writing.

The requirements for providing patient consent to the sharing, releasing or disclosure of confidential medical records are outlined in California Civil Code Sections 56.11, which requires that the patient’s consent must be:

In writing and signed by the patient, the patient’s legal representative, or the beneficiary or personal representative of the patient (if the patient is deceased).

• Specific as to the permissible uses of the disclosed information, including detailing any restrictions or limitations on the disclosure of the patient’s medical records.
• Clear as to who is authorized to release/disclose the medical information concerning the patient, and must be clear as to who is the authorized recipient of the released/disclosed medical information.
• Clear as to the duration that the authorization is valid for.

Remedies For Unauthorized Disclosure

When a patient’s medical information is illegally disclosed or obtained without permission, the patient has a cause of action under California law. When the patient can show that the unauthorized disclosure amounted to some economic loss or a personal injury to the patient, then the patient has grounds for a suit. If you believe your information was disclosed without your authorization in writing and you have been damaged, contact our firm right away to speak with an experienced Los Angeles business attorney who can determine your rights and options.

We also advise businesses on how to substantially limit their liability and ensure their business policies conform to both state and federal statutes on a daily basis. Contact us if you have been accused of disclosing a patient or employee’s medical information without permission, or are unsure if your business is in full compliance with HIPPA and current employment laws.

There has been a lot of political talk lately about the pay gap between male and female workers, and California is one of the more progressive states when it comes to tackling this issue. In October, Governor Jerry Brown took steps to help close that gap in California by signing S.B. 358, which will revise the existing version of the California Fair Pay Act, specifically Cal. Labor Code §1197.5.

The existing law prohibits an employer from paying male and female workers in the same establishment at different wage rates for equal work requiring equal skill, effort, and responsibility. Exceptions exist under the current law, for seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. At present, it is a misdemeanor offense to pay workers of opposite sex differently in violation of the law.

Taking effect on January 1, 2016, the law will be strengthened and will incorporate changes, such as:

• Employees are permitted to discuss their own wages, and the wages of others, openly. These changes are designed to promote pay transparency.
• Instead of prohibiting wage differentials between workers of the opposite sex in the same establishment, the new law will prohibit paying workers of the opposite sex differently for substantially similar work, taking into consideration skill, effort, and responsibility associated with the work.
• If there is a wage differential between workers of the opposite sex, the burden is on the employer to affirmatively demonstrate why the wage differential exists, based on seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. These factors must be applied reasonably, and must account for the whole differential. This new provision will place a higher burden on employers who are trying to justify a pay gap between similarly situated employees of different sex.
• Employers are prohibited from discharging, discriminating against, or retaliating against workers who seek action under the new provisions of the new law, and any employee who is discharged, discriminated against, or suffers retaliation by their employer for seeking action under the provisions of the new law will be eligible to recover lost wages (including interest and lost benefits), may seek reinstatement or other suitable equitable relief. This change makes it easier for employees to establish a prima facie case against their employer.
• Employers are required to retain records concerning employees’ wages and wage rates for a period of three years, as opposed to the current two years.

What Can Employers Do In Preparation For This Change?

The new law is meant to provide additional protections to employees by placing new burdens on employers. Worker’s rights are important, and it is important that business owners and employers be appraised of the new changes that will be taking effect in the new year concerning employee wages. Any business who has California employees will be subject to these new requirements.

Employers should get ready for this change by evaluating employees’ payment structure and assessing whether there is any potential for problems to arise. Employers have a few months before the law takes effect, in which they can take steps to correct or mitigate any potential employee pay issues. Analyzing any wage differentials and assessing whether any reasonable factors exist that warrants the differential in employee’s pay are just a couple of important steps an employer should be taking at this time. Employers can also advise management of the changes in the law, especially the provisions concerning workers’ new ability to openly discuss wages.

For more information on the ramifications of this legal update, or should you need advisement for any employment-related matter, contact Spotora and Associates, PC today and to speak with a senior level Los Angeles business attorney.

A recent breach or “hack” of Sony Corporation’s security safeguards has been widely in the news in recent weeks, however the real impact of this hack may not yet be completely realized. The breach of the company’s security safeguards has affected not only celebrities, but employees as well. Now, it seems that the thousands of leaked documents are in regards to breach of contract, health privacy, employment, and more. The private information of both celebrities and employees is at risk, but it seems to go much further according to recent news articles.

U.S. government officials feel certain that North Korea was behind the Sony hack. Whoever it was, it has certainly caused an uproar among celebrities, film makers, and the company’s own employees. In fact, intimate details about employees that never would have been made public now have. Some of the information that has been exposed due to the breach include employee social security numbers, disciplinary files, medical records, and according to one source, one of Sony’s senior executives breastfeeding diet. Not only frustrating, but embarrassing for some.

Once source claims that out of 17 employees in the U.S. who earn $1 million per year working for Sony, one is a woman. What may be upsetting to Hannah Minghella, a co-president of production at the company’s Columbia Pictures division, is that Michael DeLuca, her male counterpart, is making nearly one million dollars more for doing the same job.

Following the November 24th attack on Sony’s entertainment division, employees were advised not to connect to the company’s email system and corporate network, as it had become apparent its security system had been infiltrated. Although Sony took quick action and did everything in its power, the infiltration occurred regardless.

Sony is likely to face an untold number of lawsuits in the coming weeks and months, as much of the information leaked is reportedly in regards to salary negotiations, internal communications about specific employees, discussion of termination decisions, performance reviews, and other data that could support claims of discrimination, sexual harassment, unfair termination, and more.

As Los Angeles employment lawyers, we can only imagine the issues Sony has already and will face in the coming days and weeks. Our firm represents clients in a wide array of employee-related matters including harassment, wrongful termination, age, race, sexual preference, or religious discrimination, wage and hour law, ERISA, and more. While taking preventive measures initially in a business setting to protect against these types of claims, it is still common for employees to file claims against employers. Contact our skilled team of professionals for unsurpassed legal guidance and representation.

The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1.  a work prepared by an employee within the scope of his or her employment; or

2.  a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

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