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Employee Handbook Sections to Overhaul in 2023

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Employees Handbook
Advisory Insights Podcast
Employee Handbook Sections to Overhaul in 2023
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Employees Handbook

Employee Handbook Sections to Overhaul in 2023 (Advisory Insights Podcast, Episode 23)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed which sections in your employee handbook to overhaul in 2023. He stressed addressing changing technology, making changes to account for alternate work arrangements, modifying sick leave policies, and more.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Hello everyone, and welcome to Advisory Insights. Stuart Oberman here as your host. All right, folks, it’s 2023. HR is in the house. Now is the time. I want to go over a couple of things. Today’s topic, Employee Handbook Sections to Overhaul in 2023.

Stuart Oberman: [00:00:40] We have some clients that have not overhauled their employee manuals for ten years. Now, it’s time to rethink the entire process, especially in today’s world, in today’s economy. Look, what’s happening is we have the workers of today. The new workers are clashing with the old employer policies and procedures. And what’s happening is that the employers are losing.

Stuart Oberman: [00:01:05] So, I want to run through a couple of things that seem to be sticking out as sort of a poke in the ribs, if you will, as to where things are going and what needs to be looked at and changed.

Stuart Oberman: [00:01:17] Number one, I know a lot of our clients have very, very strict appearance rules. So, if you have a particular rule or policy that you are wanting to enforce, folks, you’ve got to get it in writing. And another thing you got to take a look at in today’s world is the new reality as far as appearance goes.

Stuart Oberman: [00:01:43] One particular thing I want to bring up is you have to look at legislation and where things are at today. So, let me give you an example.

Stuart Oberman: [00:01:50] The Crown Act, for example, bans race-based hair discrimination in the workplace. So, the CROWN Act or similar legislation has been enacted – get this – 19 states. And a bill is currently pending before Congress. Who knows what will happen as far as Federal legislation goes? And it’s set at the Senate level to regulate hair and appearance. So, you better jump on the bandwagon now. Adjust things that you need to adjust knowing what we know as far as hair discrimination. The next thing you know, we’re going to work on tattoos and everything else.

Stuart Oberman: [00:02:31] So, look, at the end of the day, what people do with their bodies is up to them. If you’re going to have a policy and procedure, be ready for some pushback on it, be ready to explain why you need it, and be ready to review federal and state law as it comes down the pike.

Stuart Oberman: [00:02:47] Let’s take a look at number two, the work arrangements. Folks, we’re in a different world. We’re in a hybrid workplace. Our communications have changed. Our performance has changed. Everything about what we do on the work side has changed. So, what does that mean? That means your HR teams have to provide opportunity, tools, guidelines, and make it easier. Do you have a remote policy? Do you have a nondisclosure policy? Are your employees working with sensitive data along with the same computer that they’re using for their kid’s recreation facility and baseball teams? So, you’ve got to look at all these things.

Stuart Oberman: [00:03:28] Now, another area – huge – technology. So, policies have to outline technology and how a company’s handbook should be remote workplace. Does your technology require multifactor authentication for employees to use their own devices? Your data, your confidential data that could literally sink you as a company is now on your employees cellphones. What do you do if the cellphone is lost? What do you do if the cellphone is hacked? What do you do if data is lost? What is the policy and procedure for that? Does your company provide the cellphones? Does your employer or employee have an automatic shutdown and wipe out on their cellphones if you lose it?

Stuart Oberman: [00:04:25] So, I think you’ve got to address safety and technology concerns along with security now as the technology grows and as the workplace becomes blended between work, play, and family.

Stuart Oberman: [00:04:41] One of the things we’re looking at now is sick leave. And there’s a lot of discussion regarding this. States now are mandating certain leave policies. Certain companies are now being subject to jurisdictional issues that they never thought they would be before. The localities are now handling sick leaves. So, you really have got to take a look at where your states are, what’s on a local basis, what’s the trends.

Stuart Oberman: [00:05:11] You know, if you’re in Georgia or if you’re in North Carolina or if you’re in Massachusetts, what’s coming down the pike as far as from Cleveland, Ohio, or from California, or from Texas, where are these things coming from? Because everything trends and you’ve got to know the trends.

Stuart Oberman: [00:05:31] Next one – I’ve talked about this over and over and over again – marijuana use and testing. So, the law hasn’t changed. Marijuana is still illegal on the federal law. But what’s happening is, is that the states are adding protection for workers use of marijuana. Folks, I can’t make this up.

Stuart Oberman: [00:05:53] So, example in California, for instance, employers cannot discriminate against employees for legal marijuana use outside of work. Now, what do you do if on the way to work, an employee is toking on the way to work and they’re not a health safety welfare hazard to other employees? How do you address that? You know, they’re inebriated, but they’re in no danger to other employees.

Stuart Oberman: [00:06:25] So, you’ve got to understand what the trends are. So, you’ve got to get out in front of this. You’ve got to have descriptions as to what’s acceptable, what’s not acceptable. You’ve got to have safety concerns. The use of marijuana is not a carte blanche on the workplace. There are restrictions. There are protocols that employers can follow. And we have to get ahead of this, because I always say what happens in the West comes East. It’s just a matter of what direction it comes.

Stuart Oberman: [00:06:59] So, again, these are a couple of things that we want to take a look at. We’ve got communication issues. We’ve got technology issues. We’ve got employee handbook issues. We have appearance issues, work arrangements. We have remote responsibilities now that employers have to really be aware of. So, I don’t think any of this is earth shattering. There’s been a lot of commentary on these issues.

Stuart Oberman: [00:07:25] But, again, we keep seeing the same problems over and over and over, which is in summary, (1) employers are not addressing appearance; (2) employers are not revising the work arrangement, policies, procedures; (3) employers are not getting ahead of technology; (4) employers are not modifying their sick leave; and (5) marijuana usage, employers are not adjusting what they need to do.

Stuart Oberman: [00:08:00] Folks, there’s a lot of things that really, really we need to look out for 2023. We’re going to have some more discussion on this. If you have any questions, please let me know, Stuart Oberman, Oberman Law Firm, stuart, S-T-U-A-R-T, @obermanlaw.com, phone number 404-630 – excuse me – 770-886-2400. Again, 770-886-2400. Please stay tuned for other issues of Advisory Insights. Have a fantastic day.

Outro: [00:08:36] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Considerations When Expanding Globally

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Considerations When Expanding Globally
Advisory Insights Podcast
Considerations When Expanding Globally
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Considerations When Expanding Globally

Considerations When Expanding Globally (Advisory Insights Podcast, Episode 22)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed some of the challenges businesses face when expanding globally, including compliance with various laws and regulations. He stressed the importance of getting expert legal counsel to advise on these matters.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone to Advisory Insights. Stuart Oberman here as your host. I want to talk a little bit about going global. So, as a law firm, we are very, very fortunate. We have clients that are growing globally. We have clients that are coming across border into the United States. And it’s got its own twists and turns. So, I want to drill down a little bit on considerations when expanding globally.

Stuart Oberman: [00:00:53] So, look, as we enter 2023, as we go into it, companies are anticipating and increasing international business activity. That’s just the way it is, whether it’s products, whether it’s services. Everything now, it seems, is going cross-border, whether it’s across the pond to Europe or to our friends up north to Canada. So, a lot of our clients think that going globally is necessary in order to maintain long term growth.

Stuart Oberman: [00:01:25] And a lot of those markets are Western Europe and China. But I will tell you, the emerging markets are Mexico, Brazil, and India. So, I think that you’ve got to take a look at some of those opportunities. Now, I will tell you, once you get into those countries and once those countries come into us, on the expansion side, you’ve got mandated compliance that is very different.

Stuart Oberman: [00:01:58] But I want to talk about our clients going globally. So, you’ve got absolute mandated regulatory compliance that is required. For every different country, you’re going to have a different regulation. You look at Canada, you’ve got providences. A lot of providences are absolutely separate. They’ve got their own rules, regulations, they’ve got their own regulatory boards. So, you’ve got to know this.

Stuart Oberman: [00:02:23] So, I want to take a look at a couple of considerations going global expansion, corporate governance. One is that, in a lot of jurisdictions, you have to have a physical presence. You have to have a registered agent. You have to have, in some cases, actual subsidiaries. And in some jurisdictions, you have to look at the regulatory compliance and tax considerations.

Stuart Oberman: [00:02:52] So, if you have an expansion that requires in a foreign jurisdiction forming a subsidiary, you’ve got to look in multiple corporate structures for that. Are they going to have shareholders? Are they going to have members? Are they going to comply with certain regulatory matters as far as registration goes? How’s the names?

Stuart Oberman: [00:03:19] Another area you have to look at is regulatory compliance. Folks, you know, some jurisdictions absolutely require import and export licenses. Do you know what that is? And that includes technology and products. So, are you exporting your technology into another country? What’s the compliance? Are you importing into another country products? What is the taxes? What are the tax stamps? So, depending on your service, your product, your facility, you’re going to have regulatory compliance issues and they are very, very complex.

Stuart Oberman: [00:04:03] Now, of course, we all know there’s tax considerations. So, some laws, depending on jurisdiction, are very, very strict, some are very high, some are very favorable tax structures. You have to know what your tax structure is, what your tax liability is before you start getting into the export of services and products. You have to retain counsel. You have to retain a CPA, if you will, that is well-versed on those particular regulations. What are the direct taxation rules? What are the antideferral rules? If you don’t know what antideferral rules are, you have to take a step back and understand that.

Stuart Oberman: [00:04:56] Now, I want to take a look at employment, area number four. In a foreign country, there are some cases where you have to enter into and adhere to strict collective bargaining requirements. Some require work permits for non-local nationals. What are your requirements if you have members of the company that are from the states, if you will, going into China, into Western Europe, into Mexico, Brazil, India? What are the local national requirements? You have to understand what the benefits are if you are hiring personnel from that particular country. What are the mandated benefits? Folks, there’s mandated benefits that are different in Canada, in Europe, Asia, South America.

Stuart Oberman: [00:05:49] Now, one of the biggest concerns that you should always have in any kind of expansion globally is trade secrets, privacy and non-compete agreements. What are you going to do if, all of a sudden, your models, your technology, your outsourcing is being stripped of its privacy? And all of a sudden you’ve got duplicates flooding the market. What are you going to do? How are you going to deal with it? Are you going to lose money? Just think of the counterfeit luxury brands that come into the states. Well, what’s going to happen if you’re over there and your brand, your product is hijacked? And then, you’ve got duplicates. You’ve got counterfeit. What do you do?

Stuart Oberman: [00:06:45] I also want to look at a couple things regarding global equity. So, certain security laws in certain countries may have very strict corporate equity distribution models. Some are unique. Some involve fund remittance limits. Some involve reporting. Some involve repatriate of funds and requirements. Do you know what those requirements are? Do you know the structure for the corporate equity distributions? You have to understand the accounting mechanisms for that as far as the tax benefits and the replacement or awarding of equity to the employees.

Stuart Oberman: [00:07:25] Again, I want to drill down a little bit on data privacy, intellectual property technology, and information law. So, again, each country is going to have different privacy, data transfer, customer employee notification laws, data monitoring, payment obligations. What happens if they are found to be liable for your stripping of ideas, they’re counterfeiting?

Stuart Oberman: [00:07:52] So, not only do you have state and federal law, if you will, going into different global jurisdictions, but you’ve got local laws regarding the enforcement and validation of intellectual property assignments. How are you going to transfer various company policies, procedures, and assignments to different entities that you create in a different country? Do you have those particular trade secrets protections in order? Are you training your staff, your team members, your office, or your directors who are located in that country and are national to that particular jurisdiction and country? Have you trained them? Are you training them?

Stuart Oberman: [00:08:40] And then, from an accounting standpoint, what are the tax or replacement benefits for, again, awarding equity to employees? Is that confidential? What about relevant technology regarding newly formed subsidiaries? How are you training your people? What are the restrictions on third party technology due to territorial restrictions? Do you know what those are?

Stuart Oberman: [00:09:09] Folks, these are just a mirror of some things you can run into. You’ve got corporate governance, regulatory compliance, tax considerations, employment matters, global equity distributions, data privacy, intellectual property, technology, information law. Those are the things you have to have a really, really expert grasp on before you’re ready to expand.

Stuart Oberman: [00:09:35] Folks, again, I can’t stress enough if you’re going to expand globally, you have to understand those ramifications and you’ve got to get appropriate legal counsel to outline those things.

Stuart Oberman: [00:09:47] Folks, thanks again for joining us on Advisory Insights. Stuart Oberman here. If you have any questions, give us a call, 770-886-2400, or send me an email, stuart@obermanlaw.com. Thanks a lot. Have a fantastic day.

Outro: [00:10:07] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

2023 HIPAA Updates

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2023 HIPAA Updates
Advisory Insights Podcast
2023 HIPAA Updates
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2023 HIPAA Updates

2023 HIPAA Updates (Advisory Insights Podcast, Episode 21)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed HIPAA updates coming in 2023, avoiding HIPAA violations, and the increased penalties for violators. He explained that patients’ access to their health care records will be more direct and timelier. Practices should know, however, that there is a potential for increased exposure if records are not properly secured.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone. Stuart Oberman here, your host for Advisory Insights. All right. We know that 2023 is right around the corner. Folks, I’m going to tell you, for my health care clients – and we have, as a firm, a lot of health care clients – our clients are not prepared for the new HIPAA changes. I want to run through a couple of these. I could spend three days talking about this particular topic, but I just want to hit the highlights and give our clients a view as to what’s expected and potential exposure.

Stuart Oberman: [00:00:57] So, from our area, we see a lot of violations. I want to walk through some what we call reoccurring violations. In plain English, it happens way too much. Where are some exposure? One, lost or stolen cellphones or tablets provide an extensive amount of sensitive data in our health care practices. Our doctors, they get information on their cellphones, they get information on their tablets, they get information that is easily extracted. What are you doing to secure that data on your cellphone or your tablet?

Stuart Oberman: [00:01:43] Number two, our medical providers do not train their staff. I’m going to go out on a limb to say 80 to 90 percent of all of our health care offices across the board do not properly, thoroughly provide training to their employees.

Stuart Oberman: [00:02:06] Number three – a common violation that keeps reoccurring, reoccurring, reoccurring – data breaches. Now, what happens is, on those breaches, a lot of times doctors don’t know what to do as far as the violations go. Who do they report it to? Do they report it to the government, to the FTC? Do they have to do a credit reviewer check? Do they have to set up a 1-800 number? Do they have breached notification rules? No, they don’t.

Stuart Oberman: [00:02:39] So, I just ran through three very quick topics and violations that could literally, literally shut down a practice if an investigation occurs. Now, I want to take a look at some other things. I want to take a look at some key changes in 2023. Key changes, first, more direct and timely patient access to electronic health care records.

Stuart Oberman: [00:03:08] There has been a dramatic increase in the time that patients can obtain their data from providers. Do you even know what that time period is? If you do not know what that time period is and you do not know the violations, then I would urge you to either give us a call, take a look at our website, take a look at some of our articles, because that is a huge, huge issue.

Stuart Oberman: [00:03:39] Folks, I’ll guarantee you, you deny patient access to their medical records within a timely manner, you will be getting a very nice I love you letter from the government, which is about 17 pages, and they will crawl up every nook and cranny in your office.

Stuart Oberman: [00:04:01] Now, one thing we have to look at is what is the increase in penalties. Yes, they increased the penalties. Now, they look at what’s involved in guidance, technical assistance. They’re looking at correction action plans.

Stuart Oberman: [00:04:17] You know, what happens is that a lot of these aren’t intentional. Our doctors just rely on the wrong people year after year who have no idea what they’re doing. Unfortunately, they’re not properly trained, so you really can’t blame them. You know, whether it’s office managers, compliance officers – well, let me back up on that. Every medical office should have a compliance officer.

Stuart Oberman: [00:04:43] So, under the new 2023 HIPAA changes, there’s been an increase in penalties. Are you even aware that there’s now a Tier 1, a Tier 2, a Tier 3, and a Tier 4? So, what’s Tier one? Lack of knowledge, “I just didn’t know.” I’ll be honest, that is hard to sell. Reasonable cause and not willful intent, “Look, I knew that I probably needed to do it, but I didn’t mean not to do it.” Willful neglect, “Basically, I don’t really care. I’ve got 30 days to correct it.”

Stuart Oberman: [00:05:24] Now, you get into willful neglect and you not corrected within 30 days, folks, the fines and fees become astronomical once you get into those particular tiers. Again, do you even know the Tier 1, Tier 2, Tier 3, Tier 4 structure? And have you even told your staff of that?

Stuart Oberman: [00:05:46] So, let’s take a look at do’s and don’ts. How do you avoid HIPAA violations and penalties? Now, HIPAA is also criminal penalties. Yep, criminal penalties. Let’s look at what we need to do. Conduct regular audits, spot check potential violations. If you’re not auditing your files – and I’ve been saying this for years on the speaking circuit – at least 15 or 25 a month, which won’t take you long, you have some potential exposure that you don’t want to have, obviously.

Stuart Oberman: [00:06:32] Let’s look at do. Regular employee training. Folks, you cannot train your employees enough on HIPAA. So, I’m going to have an article coming out that I was quoted in and had the pleasure of being a part of the Academy of General Dentistry. And it’s going to be a topic regarding cybersecurity. And in preparing for that, I did an awful lot of research. And I will tell you, it is shocking as to how many breaches there are and how unprepared the doctor is, the team is, the compliance officer is.

Stuart Oberman: [00:07:17] Next, set clear policies and procedures to all employees. Do they know what that is? Do you have a checklist? Do you have an up to date checklist? Are you still using the one from 1996? It’s a different world. Establish in your office a privacy officer. And you’ve got to be careful with this. If you’re a small office, you’re appointing a compliance officer who’s going to answer on your behalf, and you’re going to expect them to cover you with HIPAA issues.

Stuart Oberman: [00:07:52] My suggestion, if you have a small office, you are the compliance officer. If you get bigger, you have a compliance officer, you got to train them. Now, they could be part of your HR – I don’t necessarily like that. I want separation there. But if you have to do it, you’ve got to be both trained.

Stuart Oberman: [00:08:19] Don’ts. Goodness gracious to don’ts. Do not ever disclose or share login credentials. That is an absolute recipe for disaster. Two do not – maybe one of the biggest things – do not leave portable devices or documents unattended anywhere in your office, in public. Look, again, our cellphones are now our offices – our tablets, our laptops. If you go on HHS website and you look at how many fines are due to lost tablets, lost hardware, it’s amazing. Never, ever, ever take flash drives out of your office. Do not do that.

Stuart Oberman: [00:09:11] Folks, I could talk about HIPAA for 20 days here, but I just want to go through, again, some things that we just talked about, HIPAA 2023 updates. Listen to this podcast. Understand where you’re weak at. Fill the gaps. If you’re strong in areas, build on it. If you’re weak, fill it out.

Stuart Oberman: [00:09:32] Folks, thank you as always for joining Advisor Insights. Stuart Oberman. If you have any questions, please give us a call at 770-886-2400, or email, stuart, S-T-U-A-R-T, @obermanlaw.com. Have a fantastic day. Thank you everyone.

Outro: [00:09:53] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Best Practices for Employee Offer Letters

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Best Practices for Employee Offer Letters
Advisory Insights Podcast
Best Practices for Employee Offer Letters
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Best Practices for Employee Offer Letters

Best Practices for Employee Offer Letters (Advisory Insights Podcast, Episode 20)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discusses why offer letters for employees are so vital and best practices for offer letters. He emphasizes that offer letters can make or break a company, and advises employers to document salary, benefits, performance reviews, and special conditions in their offer letters.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone to Advisory Insights, Stuart Oberman. Folks, we’re going to drill it down today. So, in the Great Resignation, in the Great Boomerang, in the great process of I’m going to hang around for the job for a while and see what it does, I’m gonna lay low, assuming that you had an interview that was squeaky clean – as we mentioned on some other podcasts – assume that you did everything correct, you loved your candidate, now you’re going to offer them the job. This is where it gets sort of tricky.

Stuart Oberman: [00:00:53] We’re going to take you through the topic for today, Best practices for employee offer letters. You’re probably thinking, “Well, I really don’t even offer my employees an offer letter.” That’s a big mistake. Every employee that you hire should have some type of offer letter. I don’t care what the industry you’re in, your employees need an offer letter.

Stuart Oberman: [00:01:19] Now, we’ve seen some disastrous offer letters. We’ve seen some good ones. I would walk through some basics. I mean, our offer letters that we offer our employees at the firm, obviously, are very long. Some may be very short. But I want to walk through some basics.

Stuart Oberman: [00:01:36] So, first and foremost, the key is that employee offer letters should never, ever, ever be considered an employee contract. If you have any doubt whether or not your offer letter is an employee contract, I would urge you to call your local council, whoever your general counsel is for the business. Ask them, “Does this have employment contract language in it? Am I going to get burned?” I want all language that creates an employment contract out. I want all that language out. At no time should your offer letters ever, ever, ever have language in there regarding employment contract.

Stuart Oberman: [00:02:23] Now, I want to walk through some basics. You know, for every job, there are so many variables for an employment contract. I get that, but I want an offer letter. What’s the guidelines? What are you doing upfront? What are the obligations of you? What are the obligations of your employee without even entering into an employment contract? There’s millions and millions of people that have jobs that don’t have contracts, but they should have offer letters which outlines certain things.

Stuart Oberman: [00:02:53] I want to know what your start date is, that should be in an offer letter. When you start, do you start two weeks? Is it tentative? Is it depending on whether or not your candidate has to get fired, laid off from the other job, or quit?

Stuart Oberman: [00:03:10] Contingencies – first and foremost, you’ve got to be careful with this one – are you requiring that employee to pass a drug test? Now, why do I say that? Because states are starting to limit drug tests.

Stuart Oberman: [00:03:24] Now, in our previous podcast, we talked about employees and employers that are dealing with the marijuana issue. That’s a huge topic right now. Are employers working around the marijuana issue? Some of them want to test for it, some of them want to go into panels. Drug tests, but you got to be careful. So, people in this podcast are listening not only in different countries but different parts of the region in the States, what does your local state say, what does the federal law say about drug tests?

Stuart Oberman: [00:03:57] Next, background test screening. We’re seeing a lot of pushback on this issue. You’ve got to make sure you understand what your Local and State Law is for this. Job title, “Well, I don’t really have a job title. We just come to work.” That’s not going to work in today’s world. They need a job title. What’s their title? And then, does it correspond with the employee manual? So, I have a job title, but I have no job description. So, really, the title is worthless because you’ve got no description as to what that guideline is. How are you tracking your employees and what their protocols are? Job titles, job descriptions in that employee manual.

Stuart Oberman: [00:04:39] I would tell you, the podcasts we’re doing and articles that we write as a firm, we can’t stress enough employee manuals. And it’s going to vary from industry, but if you don’t have an employee manual, folks, you’ve got to get one. Because, otherwise, you’re going to lose a lot of governmental arguments that relate to employment law and those kind of things.

Stuart Oberman: [00:05:00] So, salary, how are you paid? Are you exempt, non-exempt? Here’s a new one, are your salary non-exempt? Are you hourly non-exempt? How are you categorized? You need to know that. Is what you’re categorizing legal? What are your benefits? Health insurance, paid vacation. What does your employee manual say? PTO, leave. Folks, you’ve got to put your benefits down, 401(k)s matching, simple IRAs matching. What’s the protocols? What do you need to put in there?

Stuart Oberman: [00:05:40] Now, what we see a lot of times missing is performance reviews. How often are you going to do performance reviews once a year, once a quarter, every six months? Now, when a candidate starts, do you have a 90 day review period? Hopefully, the answer to that is, “Yes, I do.” If not, get one.

Stuart Oberman: [00:06:05] Now, the biggest question, employment at will. Every person you hire should be at will. Depending on the state, it will depend on how they define at will. But every, every, every offer letter needs to say at will.

Stuart Oberman: [00:06:21] Next, special conditions, two very hot topics on the local, state, and national level, non-competes. Folks, we’re seeing a lot and a lot of pushback on these areas. We’re starting to see some trends regarding how much you make as an employee. Do you even apply to that non-compete? If you make over 100,000 or 120, you know, what profession are you in? Do you have restrictions on your non-competes? You’ve got to look at that, folks, especially if you are a cross-border company where you may have 20 employees that work in 20 different states.

Stuart Oberman: [00:07:00] You know, sometimes I’ll ask the question to our employers, what states are your employees in and what states do you need guidance on? And their answer is, it’s easier to tell you what states we’re not in than the states that we are in. So, again, what are we looking at? Non-solicitation, I don’t care what your title is or what your job description is if you’re an employee, folks, your employees need non-solicitation. If they leave, they’re taking their stuff, they’re taking their list, they’re taking their confidential information, they’re taking your letterhead, they’re taking everything they’re using because they’re going to the next level, they’re going to the next company, and they’re going to utilize whatever they learned from you or Skyped from you or lifted from you, whatever you want to call the term.

Stuart Oberman: [00:07:50] Folks, I tell you, that’s a quick podcast but it is so very important that, one, you interview your candidate in the proper way, and we’ve discussed that on previous podcasts. Two, that you know exactly what you can do as far as drug tests and background tests. Do you even allow those? Once you get past that step, I want you to do offer letters. Again, if you don’t have an offer letter that you need council to review, get one. I cannot stress that enough. You’ve got to have guidelines for your employees. Salary, benefits, performance reviews, special conditions, folks, they’re all critical. Sometimes they will make or break a company depending on who’s coming and who’s going.

Stuart Oberman: [00:08:39] Folks, that is all for today’s podcast. Offer letters, you got to have them, folks. You got to have them. Stuart Oberman, Advisory Insights. Thank you so much for joining us today. If you have any questions, please feel free to give us a call, Oberman Law Firm, 770-886-2400 or email me, stuart – that’s S-T-U-A-R-T – @obermanlaw.com. Folks, thanks so much. Thanks for listening. Have a fantastic day.

Outro: [00:09:10] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Should You Be Paying Employees for Travel Time?

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Should You Pay Employees for Travel Time?
Advisory Insights Podcast
Should You Be Paying Employees for Travel Time?
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Should You Pay Employees for Travel Time?

Should You Be Paying Employees for Travel Time? (Advisory Insights Podcast, Episode 19)

On this episode of Advisory Insights, Stuart Oberman of the Oberman Law Firm discusses the topic of employee travel time, particularly the 1947 Portal-to-Portal Act and how it addresses job to job travel. He advises employers to have a clear policy in place to avoid costly mistakes, and urges them to keep track of travel-related expenses and policy changes.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:02] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone to Advisory Insights. Stuart Oberman here. All right, folks, we’re going to drill down on some things that is a topic that, really, we didn’t see much during COVID. But now as everything is starting opening up, we’re going to talk about employees that travel. Today’s topic, Do employers have to pay for employee travel or commute time?

Stuart Oberman: [00:00:43] You’re probably thinking to yourself, “No, I do not.” But the question is you’re probably wrong, depending on your business. And two, do you even have a policy for that? And are you even paying overtime? So, I want to hit a couple of topics going down this particular road that I want everyone to take a look at, because at some point your employees do something somewhere for you, whether they’re traveling from their home, whether they’re going to their office. A lot of our clients go on conventions, how are you paying? How are you paying? Travel, no travel, gas, no gas, overtime, no overtime. So, these are things I want to look at.

Stuart Oberman: [00:01:21] First, I want to take a look at whether an employer has to pay its non-exempt employees overtime. Are they even eligible? That’s your first question. So then, we want to look in today’s podcast looking at work related travel. That will include time spent getting to and from office or job sites. What if you’re a construction company and you have people driving from the office to the job site? What about from home to the job site? What about from job site-home? Do you even have a regulation for that? Are they driving company vehicles? These are things you have to ask.

Stuart Oberman: [00:02:10] So, I want to look at really two fundamental principles. One, actually performing work related tasks regardless, regardless of the day of the week, the time, or location. How is it being paid? Do you have employees that work on Saturdays at their home, Sundays at home, after hours, they’re coming home? How are you paying that? How are you verifying that?

Stuart Oberman: [00:02:33] Principle number two, the cornerstone of all this discussion is the 1947 Portal-to-Portal Act and its amendments to the Fair Labor Standards Act. Folks, that will put you to sleep if you read that. But essentially what it is, it’s employees spending time commuting from their home to the workplace, where do they begin the workday, and how do they end? Are they being paid for it going back home?

Stuart Oberman: [00:03:08] So, for those of you that never heard of the Portal-to-Portal Act and how it is related to the Fair Labor Standards Act, which governs what your employees do and what you pay every day, if you say I have no idea, I would advise you strongly to call someone who knows what that is.

Stuart Oberman: [00:03:31] Now, a couple topics. Do you have a policy for midday travel? Under federal regulations that’s considered all in a day’s work rule. You’re going to go down a road on that one. We’re not even going to go down there today because we’re going to go down for hours on that one.

Stuart Oberman: [00:03:52] So, what is it? It’s travel to the job site to job site during the workday. If you have a person that’s going job to job, site to site traveling salesman, construction foreman, whatever it is, do you have a regulatory item that you’re looking at and what are you guided by?

Stuart Oberman: [00:04:11] Next, I want you to look at multiple worksites. So, what if an employee reports to different sites each morning? Does that render the home to work commute not normal or ordinary? That’s a question you’ve got to ask yourself. And is that time spent on the road – big word – compensable overtime? Are you paying for that? How are you paying for it or why aren’t you paying for it? Are you even tracking that employee’s time?

Stuart Oberman: [00:04:47] Another hot topic, pre-commute activities. We have a lot and a lot of people that do work at their home before they even leave. I know I do. I know I do. My day starts at 5:30, and I’m doing work before I leave the house for the office. So, what if an employee brings some work home at night and then goes to the office, are they working at night? Are they working during the day? How are you tracking that? That is what we call a pre-commute activity. Do you have a regulatory item of review for that?

Stuart Oberman: [00:05:24] The next topic I want you to take a look at – these are all things I want you to understand that, again, are much too detailed for this podcast, but at least you know the topic and what it relates to and how it relates to what you do – same day travel to another city.

Stuart Oberman: [00:05:42] I’m located in Atlanta. Suppose I go to Chattanooga. You know, or I’ve got a company that’s in South Atlanta and they travel to Nashville for the day? That’s what we call special one day assignments. Do you have a policy in place for that or do you even track that? Because I will guarantee you, your employees that leave, folks, they’re tracking that. And you better be aware they are tracking it because otherwise they’re going to track it for you, which is never a good day.

Stuart Oberman: [00:06:14] So, let’s take a look at, also, do you have a policy in place for travel involving an overnight stay? Do you even have overtime travel expenses outlined? Are you paying overtime? How are you paying your people that travel? You know, again, through the COVID, everyone was locked down, no travel. And now, folks, it is wide open. If you look at the papers, you listen to the news, travel, it explodes. The airlines can’t keep up with it. Hotels are doing real well, You know, rush hour traffic going to and from on holidays, I mean, it’s amazing. So, how do you have overnight travel? How do you handle that?

Stuart Oberman: [00:06:58] Also, travel from a hotel to a worksite or worksite to hotel. Again, where are your salespeople going? Are they spending the night? How are they spending the night with their time? Are they working on their laptop when they’re at the hotel? How are you tracking that? You better believe they’re tracking that. Are they working at the hotel before they leave? That can be overtime. How are you tracking your job site issues? Is that going to be O.T.?

Stuart Oberman: [00:07:27] Now, question, what if driving is part of the job? You know, the FLSA, it outlines an employee who drives a bus, a car, automobile, boat, plane as part of their job. Do you have anything in place that outlines that, “Hey, we’re not paying you overtime, Mr. Employee or Ms. Employee, because it’s outlined here we’re not doing that.”

Stuart Oberman: [00:07:54] Now, the wonderful world of COVID, remote, flexible, agile – the keyword of today – agile work conditions. What if you have an employee that’s hoteling working remote, flexible hours? A agile working arrangement where they come into some particular place two or three times a week. Or what about two or three times a month? What’s the regulatory matter? Are you requiring them to come into the office? Are you requiring them to come into their location, whether it’s remote, not remote?

Stuart Oberman: [00:08:35] Now, I want to ask you this question, so do you have or do you even know the consequences of compensable travel time? Are you tracking those? Do you know when you must pay the employees? Do you have a process in place to track the time? First and foremost, how are you tracking time? “Well, my employees have logs.” I will tell you, employers are not keeping track of their logs.

Stuart Oberman: [00:09:02] I would venture to say that if you have an employee company car and you say,”Hey, Mr. Employee, Ms. Employee. I want you to produce your logs. I want to see how up to date they are.” I’m going to go out on a limb, I’m going to say at least 80 to 90 percent are not even up to date maybe in a day or two, some even months. So, I think you got to have a process in place of how much you’re paying them. Are they overtime hours? Are they not overtime hours? And what’s the threshold? Do your hours start at 42 hours O.T.? Do your hours start at 46 O.T.?

Stuart Oberman: [00:09:40] Next question is, how are you paying for travel? How much is compensable travel? Folks, you got people on the road and you got guys going to job, to job, to job, to job. You’ve got to ask yourself all these topics we went through today, how am I paying these people? And then, does paying for travel make it hours worked? How are you calculating these things?

Stuart Oberman: [00:10:06] So, employees often wonder, you know, what’s hours worked considered? Do I even have a definition of hours worked? Chances are probably not. I would venture to say that all the topics we listed today, 90 percent that have employees that travel have no guidelines whatsoever regarding this. I’ll go out on a limb and I’ll say 70 to 80 percent don’t even have a policy employee manual. Without a manual, you got no regulatory guidance on these things. So, you’re going to lose. You’re going to lose.

Stuart Oberman: [00:10:37] I want you to keep track of these things. I want you to listen on the topics. If you don’t have an agenda, if you don’t have a bullet point items that you’re looking at, I urge you to find counsel that understands this. Make sure your H.R. people are trained.

Stuart Oberman: [00:10:55] Folks, that’s going to conclude today’s podcast, Advisory Insights, Stuart Oberman. If you need to reach us, please feel free to call at 770-886-2400 or email stuart, S-T-U-A-R-T, @obermanlaw.com. Folks, thanks a lot. Have a fantastic day and we’ll look forward to more podcasts.

Outro: [00:11:19] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Simple Steps to HR Compliance

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Simple Steps to HR Compliance
Advisory Insights Podcast
Simple Steps to HR Compliance
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Simple Steps to HR Compliance

Simple Steps to HR Compliance (Advisory Insights Podcast, Episode 18)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discusses the importance of compliance with state and federal hiring laws, and simple steps businesses can take to be HR compliant. He advises that interviews and telephone conversations should be recorded, and that organizations should have a process in place to ensure equal pay for equal work.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone to Advisory Insights. Stuart Oberman here. All right, folks, we’re going to jump right into H.R. We’re going to have a series of H.R. podcasts coming through because it is such a topic going into 2023, and what’s being done in 2022 that lead into 2023. But I want to keep this really simple, because there’s only a handful of things you really need to do in H.R. side in order to stay in compliance and stay out of trouble.

Stuart Oberman: [00:00:52] So, what are we going to do? Topic today, simple steps to H.R. compliance. Simple steps. I’m not talking about reinventing the wheel. I’m talking about looking at things you’re doing internally, what you need to improve, what the map is that you need to follow to the compliance.

Stuart Oberman: [00:01:10] So, let’s take one of the first steps we need to do. First and foremost, folks, your managers have to be trained. A lot of companies, big, small, global do not have managers. They’re not trained. And they’re not really up to date for the challenges that lie ahead.

Stuart Oberman: [00:01:27] You know, look, I don’t care whether you are a startup or Fortune 500 company, H.R. compliance checks are mandatory nowadays. But there’s a couple of things that I want to take a look at. I don’t care whether you have a state, local, or federal issues you’re looking at or you’re a federal contractor or you are doing business with big or small companies, I want you to listen to a couple of regulatory issues from the federal government we want to take a look at that you just have to know.

Stuart Oberman: [00:02:00] One, Fair Labor Standards Act, FLSA. We talked about that on the previous podcast, but now we’re going to look at I want to know what your minimum wage requirements are. Are you paying overtime? Have you reviewed your Affordable Care Act? Now, all that’s going to be jumping into recruiting and hiring as we jump into our next section. American with Disabilities Act, do you even have a guideline for that? A little bit overlap from our last one, but still, I want to follow this trend. OSHA, you know, OSHA violations are very, very stiff. They come with a lot of fines, especially if you are in the healthcare area.

Stuart Oberman: [00:02:39] The Family Medical Leave Act, so what we’re seeing now is are there policies? You know, when couples are having babies, now they’re taking 12 longer weeks off. Are you prepared for that? EEOC, so we’re going to do a statistics with EEOC in, probably, next podcast or two that you’re not going to believe the statistics on those. So, that is why you have to be aware of what’s coming local, what’s coming national, and what’s coming into your area as far as what you’re doing, what you’re located at.

Stuart Oberman: [00:03:14] Recruiting and hiring, I’ll be honest, most of these issues that we’re going to talk about are an absolute disaster when it comes to company organizations. They’re not prepared. They don’t know. They just simply hire anyone who walks across the street and somebody in today’s world. We’re seeing a little bit of a pullback. But, still, you know, they’re hiring bodies and their H.R. compliance is a mess as far as recruiting goes.

Stuart Oberman: [00:03:37] So, as we move quickly into 2023 – again, I don’t care whether you’re a startup or Fortune 500 companies – we have some very, very, very big companies that I will assure you are substantial revenue companies, billion-dollar companies, half-a-billion companies, they are not where they need to be. And this is a great time for them to take a look at some things.

Stuart Oberman: [00:04:00] So, what are we doing? I want to look at recruiting. I want to run through some things that you have to have for recruiting or should at least take a look at, because now it’s down to H.R. And if H.R. doesn’t have the tools to go forward with these, then really the C-suites are going to have more headaches down the road. I want to see that my companies have use of non-discriminatory job descriptions.

Stuart Oberman: [00:04:22] Well, first and foremost, does anyone of you have an employee manual? Two, do they even have job descriptions that are non-discriminatory? You have to look at those. You have to put those guidelines up. Two, are there proper questions that you are asking for the interview process? Are you complying with the salary issues? Are you complying with records requests? Are your people even trained on asking questions for that?

Stuart Oberman: [00:04:51] I know we’ve said some stuff in the past about proper interview questions. I would urge all of our H.R. people, C-suites, employees that are listening to this, I don’t care whether you are on a dental office or you sell major manufacturing to global industries, you’ve got to understand what these questions are and where to stay away from.

Stuart Oberman: [00:05:12] Three, I’m going to tell you right now the questions you want to stay away from, marital status, religion – why you would want to get into religion on an interview is beyond my comprehension -sexual preference, citizenship, date of birth, age. Again, let me repeat those. Those are basics. So, when you have your questions all lined out for your candidates or employees, monitoring these questions regarding marital status, religion, sexual preference, citizenship, date of birth, age – I’m gonna throw one more at you – residence – residence.

Stuart Oberman: [00:05:52] Number four, I want you to keep all application forms and interview evaluations in order to document a reason for rejecting a candidate if you have an EEOC complaint regarding that person that was not hired. Yes, I did say that. If you reject a candidate, why did you reject them? And are you prepared to answer to the EEOC that you did not have discriminatory matters for rejecting that client?

Stuart Oberman: [00:06:30] And I will tell you, we’re seeing more and more of that. I’m going to tell you right now, I would assume that your interviews are being recorded by your candidates, so I think you need to be real careful about that. I would assume your telephone conversations are being recorded. And I will assure you, Zoom is being recorded. So, you need to be really, really, really careful and you need to be really based on your H.R. compliance issues as to what questions not to ask.

Stuart Oberman: [00:06:59] So, I want to make sure you provide equal compensation for equal work regardless, regardless of the internal job descriptions. Equal pay for equal work. Do you have guidelines for that? Is there a process for that. Now, obviously, you’re not going to have that as much detail as if you’re a small company versus a big company. Again, whether you make $1,000 or 100 million, do you have that process?

Stuart Oberman: [00:07:29] Now, what you have to show is that your payment structure is compliant with State and Federal guidelines. That’s a list of five things that you must look at before you do anything else. Before you overhaul anything else, take a look at those things. Are you in compliance? Are they in process? Are you in violation of any State, Local, Federal laws?

Stuart Oberman: [00:07:57] Now, folks, you really got to understand that in today’s world – and look, you can read The Wall Street Journal, you can read the local newspaper, you can watch your local news, I don’t care what you watch or what you read – H.R. is just no longer an option. You’ve got to comply with these things. And our hiring managers have got to keep up with this, and they’re not. You know, some great organizations out there, there’s the SHRMs of the world that are unbelievable great organizations. Get involved in those organizations and figure out what you need to do, and what you do not need to do, and what you need to change.

Stuart Oberman: [00:08:34] Folks, that’s the end of our podcast today. Stuart Oberman, Advisory Insights. If you have any questions, please feel free to give us a call at 770-886-2400 or email me at stuart, S-T-U-A-R-T, @obermanlaw.com. Folks, thank you so much. I hope you take a look at what you’re doing H.R.-wise and then we’ll wish everyone a fantastic day. Thank you.

Outro: [00:09:01] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Regulatory Concerns for 2023

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Regulatory Concerns for 2023
Advisory Insights Podcast
Regulatory Concerns for 2023
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Regulatory Concerns for 2023

Regulatory Concerns for 2023 (Advisory Insights Podcast, Episode 17)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm looked ahead to 2023 and covered some of the basic HR-related compliance reviews businesses should conduct at year end 2022, including manuals and checklists, time tracking and overtime policies, employee vs. contractor classification, and more. Stuart also urged employers use this time to verify their compliance with the FLSA, the Affordable Care Act, the Americans with Disabilities Act, OSHA, and EEOC.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Welcome everyone to Advisory Insights. This is Stuart Oberman. Well, I’ll tell you, folks, 2023 is almost here. So, at this time of year, it is a mad, mad scramble to get everything organized, closed out for 2022, and then see what we have for 2023. So, this is a perfect, perfect time that our clients, big or small, whether you make $100,000 a year or whether you’re half-a-billion to a billion dollars, it’s all, all, all regulatory time. So, what are we going to cover?

Stuart Oberman: [00:01:30] As we review regulatory concerns for 2023, it’s a mad scramble now. Our clients, whether they’re big, they’re small, whether they make $1,000 a year or half-a-billion dollars or a billion dollars, it is all regulatory time. So, what I want to do is really take a look at what are the basic things that you need to really look at on an H.R. Process, whether it is local, regional, national landscape. Human resources is an extremely, extremely hot topic right now.

Stuart Oberman: [00:02:01] You know, when you have states that are regulating hair color, when you have states that are regulating non-compete agreements, when you have states regulating background checks, whether we have employee classification issues, whether we have IRS issues, let’s take a quick look at some of the things that we need to look at and what everyone needs to look at as a checklist for 2023 starting today.

Stuart Oberman: [00:02:28] One, I want everyone to do a complete compliance review. What does that mean? That means all your manuals, all your checklists, all your personnel issues, all your tax forms, whatever you need to do to make sure that those personnel files are absolutely in order we need to take a look at.

Stuart Oberman: [00:02:50] Second step in this wonderful world that we live in of the revolving employee coming and going, boomeranging, the great resignation. I forgot the biggest term now is a great – I don’t know, where employees just sort of float along and they really don’t check in or check out. They just float and, eventually, wait to be fired.

Stuart Oberman: [00:03:13] I want you to take a look at hiring and recruiting, you know, what is your onboarding process. That’s the next one, employee onboarding. Do you have the regulatory matters? Do you have the offer letters, which we’re going to cover in another episode. Do you have the background checks? Are you granted permission to do background checks? Are you granted permission to do criminal checks? I mean, these are the things that you really, really have to take a look at as far as onboarding goes.

Stuart Oberman: [00:03:42] Do you have a training process in place for the employees or are they just sort of floundering? Have they received non-disclosure agreements? Have they received social media, cell phone, internet policy agreements? These are all the things that you need to handle right when they start the first day.

Stuart Oberman: [00:03:58] So then, let’s take a look at our payroll and time keeping measures. Huge topic issue. Are you properly paying your employees for overtime? We’re going to cover that issue as it relates to commuting employees in a couple episodes down the road. But how are you paying your employees? Are they W-2? Are they 1099? Are you paying them for travel time to the job, paying spending the night? Are you traveling?

Stuart Oberman: [00:04:25] You know, we’re going to get into a little bit of the The Portal-to-Portal Act. You’re probably thinking, what in the world is that? Well, that’s an early, early law that’s been around for about 60 or 70 years that, honestly, most H.R. people do not know about. So, timekeeping measures. Are you tracking time? How are you tracking time? Is it manual? Is it by computer? Is it by software?

Stuart Oberman: [00:04:48] Because what happens is we have some employers that will not pay their staff overtime until they reach 46 hours. Now, there’s a five hour gap there every week. That can be very, very costly. Do you have a policy in place? Is your OT policy, whatever that may be – I’ll use the word defensible – defensible? Is it defensible against the IRS? Is it defensible against the Department of Labor, no matter where your state is, or federal? What do those things look like?

Stuart Oberman: [00:05:26] Classification, independent contractor or employee. Do you pass the simple smell test? I think it was back in ’84, I believe, or the early ’80s, the IRS set up 20 checkmarks, if you will, on what you need to look at to determine whether a person is an employee or independent contractor. Are we looking at the control test? The old saying, if you control the time, place, and manner of an individual, they are an employee. So, that could be a very, very, very costly mistake.

Stuart Oberman: [00:06:05] Next question is proper record considerations. Are you keeping track of those? So, there’s a couple of things you need to look at when you’re saying you’re tracking those. So, I want you to take a look at do you comply with the Fair Labor Standards Act, FLSA, the minimum wage, overtime? Should that be reviewed? Absolutely. Are you looking at the Affordable Care Act? Do you comply with that? Simple things. Do you have enough employees to comply with those areas? American with Disabilities Act, the ADA, are you looking at those? Occupational Safe and Health Act, OSHA – OSHA, the big guys. Family Medical Leave Act, are you looking at that, FMLA, 50 employees or over?

Stuart Oberman: [00:06:53] Do some of your employees that are 15 or some of your companies that are 15 and more employees, do they qualify for that? And then, the beloved agency, the EEOC, which is a nasty, nasty governmental organization that, really, I say nasty, but they do a lot of good things. And we’re going to cover some areas on that down the road.

Stuart Oberman: [00:07:15] So, what are the next things? EEOC retaliation. So, if your employee reports you to a governmental agency or state agency or even a local agency, and you retaliate, well, what does that mean? You can’t fire, you can’t demote, you can’t reprimand, you can’t punish your employees because they simply went ahead and reported you, which they are allowed to do. The question is, how do you deal with that internally and do you have a retaliation process? That has to be reviewed. You’ve got to look at your H.R. You have to have specific guidelines for non-retaliation.

Stuart Oberman: [00:07:57] And, lastly, I’m going to take a look at federal guidelines for 15 or more employees. Now, have you even looked at whether or not the FLSA even applies to you? The question is it will. Affordable Care Act, Medical Disabilities Act, OSHA, FMLA, EEOC, do those even apply to you if you have 15 or more employees? If you don’t know the answer to that question, you’re way out of compliance.

Stuart Oberman: [00:08:24] And I would urge everyone to take a look at what their guidelines are, ask questions, seek counsel, go to the C-suites of your company. And if you are not in compliance, now is an absolute great time because people wait to the second, third, fourth quarter to do this. Now’s the time to deal with it going into 2023.

Stuart Oberman: [00:08:49] Folks, that is our H.R. concerns for 2023 entering. I want you to really take a look at these things and make sure because it is really a trap for the unwary if you are not.

Stuart Oberman: [00:09:02] Folks, Stuart Oberman, Oberman Law Firm and Advisory Insights. If you have any questions, please feel free to contact me at 770-886-2400 or email stuart, S-T-U-A-R-T, @obermanlaw.com. We’re going to have some great, great topics to follow on our next podcast. So, everyone, have a fantastic day. Thank you.

Outro: [00:09:25] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman, Founder, Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Material Risks in a Healthcare Merger

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Material Risks Healthcare Merger
Advisory Insights Podcast
Material Risks in a Healthcare Merger
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Material Risks Healthcare Merger

Material Risks in a Healthcare Merger (Advisory Insights Podcast, Episode 16)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law offered due diligence tips when purchasing a healthcare practice. He discussed the material risks and potential pitfalls of buying a healthcare business without fully understanding the requirements of governmental reimbursement, the importance of being knowledgeable about laws like the Anti-Kickback Statute, the Stark Law, the False Claims Act, and more.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights, brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:21] Welcome everyone to Advisory Insights. This is Stuart Oberman as your host. I would say I want to talk about mergers and acquisitions in health care. I will tell you, last year was an absolute blistering year in the industry. And I’ll tell you, for us, Oberman Law Firm, it was amazing last year what we did, how we did it, especially in the fourth quarter.

Stuart Oberman: [00:00:45] So, a substantial part of what we did on the mergers and acquisitions was health care related. But I want to talk about some items in general. A little background. Last year we did I think the numbers were about 135 transactions, I think maybe a little bit plus or minus. And I believe the number was a total of about $350 million worth of transactions. So, we saw a lot, a lot of things in healthcare transactions. I want to talk about a couple of things in particular.

Stuart Oberman: [00:01:17] So, first and foremost, for those that are in a highly regulated industry, especially in health care, you’ve got to be careful when you do diligence. So when you are doing a healthcare transaction, an acquisition, it should never be overlooked that what you’re doing is and has to be heavily regulated. So, one of the things that we look for is we want our buyers to sift through sellers’ records to ensure that that seller is in compliance with state and federal law, especially on the reps and warranties. That’s a whole other topic we may cover for another day.

Stuart Oberman: [00:02:07] But if you are in a healthcare-related transaction and you are the buyer, I cannot stress enough on your due diligence, do not, do not leave off compliance. So, especially – I want to talk especially about this area. If you are buying a business, whether it is a medical practice, whether it is a particular practice area in different industries, you have to be extremely careful if that buyer, or if that seller, participates in the Federal Health Care Programs. Acronym FHCP. That has to be scrutinized in every single healthcare transaction.

Stuart Oberman: [00:02:59] So, let me tell you if it is an FHCP practice or business and they get government reimbursement, there are extremely stringent provisions for participation in that particular payment structure, if you will, in how they submit claims. You have to audit how they submit claims because that is a material risk, a due that you will inherit if it is not done correctly. Once you purchase that business, you run the risk of being a successor to liability.

Stuart Oberman: [00:03:42] So, what happens is if they don’t, if the seller has not met stringent – I can’t stress this enough – stringent requirements, they are facing substantial civil fines and penalties. And also you cannot overlook the potential of clawbacks, allegations of overpayment, and in some cases, False Claims Act, FCA, liability. That is critical that you have to understand the requirements of governmental reimbursement and how they relate to any industry – I mean, excuse me, how they relate to any business in health care.

Stuart Oberman: [00:04:24] Now, what I’ll tell you is we’re seeing this a huge clampdown – the DOJ, strikeforce, regions throughout the country – fraud and abuse. Fraud and abuse under the FHCPs is rampant. Absolutely rampant. If you look at the advisory notices, the takedowns under the DOJ communications, you’re going to look at a couple of things. You’ve got to look at the Anti-Kickback Statute, AKS. If you don’t know what that is and you’re buying a business that is subsidized by governmental reimbursement, you have to get assistance with that transaction. Stark law, Physicians Self-Referral prohibition. You have to look under the criminal and civil False Claims Act.

Stuart Oberman: [00:05:20] Those under fraud and abuse will take you down financially quickly if you purchase a particular healthcare business and you’re not fully aware of this. One thing that we see a lot that is overlooked is licensures. So, depending on what business you are purchasing, every healthcare business requires certain licensure, no matter what it is. In some cases, they’re very specific. They could be generic. You have to do your due diligence under the licensure requirements in healthcare transactions because if you purchase a business and then you overlook the proper licenses, you are looking at potential disaster on a very, very expensive investment.

Stuart Oberman: [00:06:09] So, those are a couple of things. Again, I can probably speak for three hours regarding governmental reimbursement, FHCP programs, fraud and abuse. The Anti-Kickback Statute is a three-hour lecture in and of itself. Stark is a whole different world. That’s another – you know, you could easily talk an hour or 2 hours in Stark and not even hit half the topics. But I would strongly encourage you to know exactly what the False Claims Acts are and how they relate to you in the transaction.

Stuart Oberman: [00:06:42] So, folks, that’s a very, very short summary of a very complex matter. If you have a healthcare transaction, it does not have to be a large hospital. It could be a dermatology practice, dental practice, healthcare practice. It doesn’t matter. Anything that is regulated by the government in health care, especially if they take Federal Health Care Program subsidies, reimbursements, critical, folks.

Stuart Oberman: [00:07:13] Folks, that’s a very, very short topic for a long, long conversation.

Stuart Oberman: [00:07:17] I want to welcome – and thank you for joining Advisory Insights. Stuart Oberman here. Please feel free to give us a call at 770-554 – excuse me, 770-886-2400. Again, 770-886-2400. Or feel free to reach out, email, stuart, S-T-U-A-R-T, @obermanlaw.com. Folk, thanks for joining us again. We appreciate you joining us and have a fantastic day.

Outro: [00:07:45] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including healthcare mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm
Stuart Oberman, Founder, Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

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Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

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IT Due Diligence in a Merger

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IT Due Diligence Merger
Advisory Insights Podcast
IT Due Diligence in a Merger
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IT Due Diligence Merger

IT Due Diligence in a Merger (Advisory Insights Podcast, Episode 15)

In this episode of Advisory Insights, Stuart Oberman with Oberman Law Firm discussed the importance of cybersecurity in today’s business world. He stressed the need for businesses to do their due diligence in evaluating potential acquisition targets, why he recommends a cybersecurity risk assessment, and cautioned IT and HR professionals to be aware of the risks involved in handling sensitive information.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Outro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights, brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:21] Hello, everyone. Stuart Oberman here for Advisory Insights, your host. Hey, I want to talk about a couple of things here in mergers and acquisitions. In a previous podcast, we covered material risks that involved governmental reimbursement, fraud and abuse, and licensure. But I want to sort of digress a little bit. So, I mentioned before in some of our podcasts that we had really a 2021 extraordinary year, mergers and acquisitions, that we did about 135 acquisitions and probably $330 million worth of revenue in those acquisitions.

Stuart Oberman: [00:00:59] So, one, as I digress and looked at some of those acquisitions that we are involved in, some of them are fairly big. One of the items that was, I could tell you, significantly overlooked is I.T. and what due diligence is required in a merger and acquisition for I.T. So, look, when you get – the first thing you can do is you ask for financials, then you ask for account receivables and you ask for the customer database, then you ask for the products and services. Then, you ask for facilities. What we don’t see a lot of requests for is I.T. Now, I.T. is sort of one of those things where, “Well, I’m not worried about I.T. Everyone knows I.T. I got an I.T. guy.” Your I.T. guy will send you right down the river if you don’t understand some of this stuff.

Stuart Oberman: [00:01:47] So, let me tell you. I want to take a look at a couple of things, a couple of bullet points. If you’re contemplating a merger and acquisition, big or small, does it matter? I.T. I want to know how their sensitive data is stored. I want to know that. I want a specific outline of how that occurs. I want to know all their software licenses. I want to know what I’m paying for. I want to know what I’m committing to. I want to know what I’m assigning myself to. I want to know what’s being purchased. I want to know what can be canceled.

Stuart Oberman: [00:02:16] So, another thing I want to look at is, is my equipment I’m going to purchase out of date? Is it end of its life cycle? Is it ready for the big waste bin in the sky? Is my Windows application up to date? Or is my license up to date?

Stuart Oberman: [00:02:36] Also, we talked previously in a podcast regarding health care. Health care. Health care. If you’ve got a – if you had – well, first you want to do is ask that particular seller, “Have you ever had a breach?” And, if they have and they are a health care industry, you want to go, “Are you under investigation? Have you received notice from HHS or any other state or federal agency?” So, otherwise, you really don’t know if there has been a breach or if there’s still a breach you’re ready to purchase and you don’t even know about it.

Stuart Oberman: [00:03:16] One thing you want to take a look at is, have your I.T. person as well versed in this area, see if there’s been a breach before with the software. I would always recommend a complete cybersecurity risk assessment. The last thing you need is a hack. And all of a sudden you’re asked to go to the nearest Bitcoin station and transfer $25,000 in Bitcoin. What is the risk, especially in health care? What is the due diligence? Is there an annual risk assessment which is required under HIPAA?

Stuart Oberman: [00:03:54] Another thing we see as grossly overlooked, I want to know about your firewalls. I want to know about your backups. Do you back up by taking a flash drive home every night? Are you backed up to your computer? What if someone steals your computer? Are you backed up to the server? Are you backed up to the cloud? How secure is a cloud? Does your Uncle Vinnie control the cloud? What are the securities? You got to know these things.

Stuart Oberman: [00:04:22] “Well, my buddy has a great server. He stores all my I.T.” Well, that’s great, but what’s – let me know the buddy’s protocols. What’s the IP address? There’s a floating. I want to know how your data is backed up. Again, is it backed up to a flash drive? Is it backed up to the computer? Or you have no backup, whatever it is. I want to know what cybersecurity protocols and procedures you implemented in the last 12, 24 months. “Well, I haven’t really done anything. Everything’s secure.” You’ve got a problem. You better know what’s been upgraded. You better know what the security protocols are. You better know what you’re purchasing and you better know if they’ve had a breach of cybersecurity, period.

Stuart Oberman: [00:05:13] So, let’s take a look at a couple of other things that we’ve been looking at. Again, I think there’s a laundry list here. But again, I could probably talk for two hours on this one subject, but we just have a very limited time. I want to take a look at whether or not they have cybersecurity insurance. It is becoming very difficult to obtain cybersecurity insurance. There are only a few players in the market. And what are the coverages? What is the non-coverage? What are they making you do and what are you certifying that you have done and maintained in relation for that coverage? So, you’re going to get a checklist probably from the cybersecurity insurance company. It’s going to outline certain things that you’ve done, that you haven’t done or that you need to do. And I would venture to say that if you put something false and misleading on that particular application and they find out you have no coverage, which is horrible, especially when some of these big hacks.

Stuart Oberman: [00:06:18] So, I want to know what your I.T. guy is doing or if you have hired or going to hire a third party to do a vulnerability screen. I want to know what your vulnerabilities are. I want to know how to fix it. I want to know what patches I need. I want to see when the last time you’ve patched. Are you getting constant upgrades? Are you outdated on Windows? You know, are you in Windows 6? I’m going to – for those of you that are a little bit older, I’m going to use the term DOS. We have clients that are still working on DOS. Yes, DOS. I can’t stress that enough. We have members of practices, businesses that they’re running two systems, DOS. And then, for the younger guys, of course, the Windows and Macs.

Stuart Oberman: [00:07:12] So, I want to make sure your information technology person understands what’s going on. What are their qualifications? Do they simply do your backups, or are they a legit, legit down and dirty cybersecurity company?

Stuart Oberman: [00:07:29] So, again, in evaluating every business that you’re going to acquire – and let me go so far as this. If you’re a business, period, you’ve got to look at cybersecurity policies. You got to look at protocols, procedures. You should do your due diligence as if you’re purchasing your own business. Are you doing it? Are you doing a security risk analysis? Are you doing the assessments? Take a look at all these things.

Stuart Oberman: [00:07:53] Cybersecurity is no longer an option. It’s absolutely mandated with everything that goes on your systems, payments, history, Social Security numbers. It’s amazing what will end up on the black market, if you will, on information.

Stuart Oberman: [00:08:11] Folks, I tell you, again, that’s a three-hour conversation. I just want to hit some highlights. I want to hit some bullet points whether or not you’re looking to buy a business, whether or not you’re owning, you have owned a business, or you’re an I.T. guy, or you’re actually an H.R. person. Are you taking a look at all these things that you need to do on a daily basis especially to be secure?

Stuart Oberman: [00:08:33] Folks, we’re going to wrap it up for today. Stuart Obermann here, your host on Advisory Insights. Thanks for joining us. Hope you took away one or two things which will make you an absolute success.

Stuart Oberman: [00:08:43] If you want to reach us, please feel free to give us a call, 770-886-2400. Or myself, stuart, S-T-U-A-R-T, @obermanlaw.com. Thanks for joining us and we’ll see you on the next podcast.

Outro: [00:08:58] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including healthcare mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm
Stuart Oberman, Founder, Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

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