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Joshua Alan Burt

Joshua Burt’s Answers

432 total

  • Publication of Private Facts and Medical Privacy Violations

    I received the following letter from Kaiser Permanente, Medical Center – [...I am writing to inform you about a health information privacy matter. We received notification on May 2015 that some elements of your medical information were inadve...

    Joshua’s Answer

    In California, there are a couple of rights of privacy that are invoked in this situation. There is a common law right to privacy and the California Constitutional right to privacy. The first requires that disclosure be highly offensive to a reasonable person and the second requires that the invasion of privacy be sufficiently serious to constitute an egregious breach of the social norms underlying your privacy right.

    Typically, a breach of your medical records information would fulfill both tests. However, the next issue is what your damages may be. Since it was not widely published, there is likely no damage to your employability or other general damages.

    However, you may have special damages such as emotional pain and suffering because of this breach of your privacy.

    You should consult with an attorney to discuss these specifics and more.

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  • If a hospital gives me an incurable infectious disease, such as hepatitis b, do I have a winnable medical malpractice case?

    hospitalized for acute pacreatitus which led to gall bladder removal surgery. Once released from hospital, became ill and went back into hospital at which time was diagnosed with hepatitus b. Didn't have it when I went into the hospital the first ...

    Joshua’s Answer

    To prove a case for malpractice, your attorney would have to prove the following, among other things:

    (1) That you did not get Hep-C outside the hospital environment;
    (2) That the hospital staff failed to follow the applicable standards of care and that failure caused you to contract Hep-C; and
    (3) That you were damaged because of this conduct.

    Number 3 is easy to prove if you are able to prove 1 and 2. You need to consult directly with an attorney to discuss the details of your case, review your medical records, and evaluate your case based on the facts learned.

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  • One of my fellow co-workers where I worked slapped me on my butt. My own supervisor saw it, and she did not report it to HR OR

    OR report it to the GM and she laughed at the fact that this co-worker got caught by her in the act of slapping me on my butt. Is this grounds for anything?

    Joshua’s Answer

    This conduct is sexual harassment in the workplace and is actionable under both Federal and California employment laws. Your supervisors failure to report and take action may create significant liability for your employer. Furthermore, the individual who slapped is also individually responsible for sexual harassment.

    However, you should report this to HR immediately. You need to protect yourself in the workplace.

    Also, if this or other harassing conduct has occurred in the past, your claims would also be strengthened and the potential for damages increases.

    You should discuss the details with an attorney ASAP so they can advise you before you go to HR about this. However, I would suggest not waiting too long to report the conduct to HR.

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  • The UCI med. center has possibly a medical malpractice on my family member. Is UCI medical center a California state hospital?

    If we want to sue UCI medical center, do we need to notify this hospital by letter in 6 months after the date of medical malpractice happened, if they are the California state hospital? If they are a Ca state hospital, can we just write a letter ...

    Joshua’s Answer

    UCI Medical Center typically is considered a public entity. Under most circumstances, you would have to serve them with the Government Claims Act notice within 6 months of the malpractice (or discovery of the malpractice if earlier discovery was not reasonable to expect). There may be certain exceptions that would apply if the doctors or other providers involved in the malpractice are independent contractors. Those individuals or groups could have the typical 1 year statute of limitations applied.

    Medical Malpractice is a very difficult area of law. It requires medical experts, and attorney with expertise in the area of law and a good working knowledge of the science behind the medicine, and so many other skills to truly fight the case the correct way.

    Your family should strongly consider hiring an attorney.

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  • This is additional information on my earlier post. My branch is closing, all employees are being laid off at year end.

    I qualify for a severance program as defined in the company's corporate policy manual. Their severance letter to me outlines my benefits/severance if I stay till year end and sign a waiver. I attend regular meetings to make the transition smoother...

    Joshua’s Answer

    • Selected as best answer

    From what you tell me, I doubt you will lose your severance. I have never seen an agreements that would result in that if you don't later accept employment from the same employer. That said, there is a first time for everything.

    The bottom line is that the severance agreement, assuming you signed it, will more than likely govern what happens. no one can give you an opinion without reading the terms of the severance agreement.

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  • Can I submit a none facial video of my old supervisor to HR , without his permission?

    My boss was playing video games on the clock. He was well aware that he was on camera since there are cameras mounted in the room. I took a video of him playing video games. His back is to the camera so there is no facial shot. I am compiling ...

    Joshua’s Answer

    The key question here is whether your boss had a reasonable expectation of privacy while playing the video games? From what you recount, it sounds like your employer keeps a video camera trained on or near your bosses work space, that your boss knew that the video camera could record him at anytime, and that your employer possibly installed the camera.

    If it is true that your employer installed the camera and that your boss knew of its existence, he had no reasonable expectation of privacy at the office. In most circumstances, an employer has a right to record the goings on in its work spaces. There are several exceptions, including bathroom facilities, locker rooms, and related private areas. But, it does not appear that any exceptions I know of apply here.

    Furthermore, you have only given the facts that you think are applicable to the situation in your question. There may be other facts that are important in the analysis that an attorney can only learn via a thorough prospective client interview. My comments above are very general regarding the law and should not be taken as an opinion on your specific case. There is so much I would ask you in follow up.

    Also, even if you legal can get away with it, it does not necessarily mean divulging the video to the company is a good idea. Beyond the legal ramifications, you have to consider the political ramifications of doing this. That is for you to decide. Your boss may find out that you did this. Some employers don't like pot stirrers. On the other hand, the employer may appreciate the assistance in this.

    Again, this is a delicate political question that you need to answer only after getting a formal opinion of your lawyer.

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  • My ex employer stated I did not perform lack of performance to a new employer that is why he let me go,

    Had a reference check company call him and received a report, I have been using my ex employer as a reference for the past 9 months I have had many offers well above what I was paid in the past but when they check my references they all have said ...

    Joshua’s Answer

    This is a similar post to your earlier post but now you indicate you have a non-disparagement clause in what appears to be a a settlement agreement. If that is the case and it covers this reference issue, you may very well have a breach of contract case.

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  • My ex employer stated I did not perform lack of performance to a new employer and that "Do I need a real estate attorney?"

    Had a reference check company call him and received a report, I have been using my ex employer as a reference for the past 9 months I have had many offers well above what I was paid in the past but when they check my references they all have said ...

    Joshua’s Answer

    This is a rather complicated area of the law. In California. former employer's typically have a qualified privilege to report to prospective employers who seek comment on a reference to discuss the former employee's capabilities for the job and whether that employee is eligible for re-hire by the former employer, among other things. That privileged is "qualified" in that it only applies if the former employer makes the representations, whether true or not, without malice.

    That exception to the qualified privilege is basically the substance of Labor Code Sections 1050 and 1054. If the former employer misrepresents the truth with the goal of preventing your hiring and a new employer, there can be strict criminal and civil penalties.

    Your post does not give enough detail for any attorney to give an opinion. You should discuss this with an experienced employment attorney directly in order to get a concrete opinion as soon as possible.

    However, as you point out,

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  • For exempt or salary and you don't work 8 hrs a day can they dock pay or have you take PTO hours? Dock if not enough PTO?

    My husband has worked for employer for 26 yrs. Last year they converted to PTO. He has 3 weeks. Any day that he doesn't work 8 hr they dock his PTO. If he works over 8 hrs no additional compensation. He now has negative PTO and they have began doc...

    Joshua’s Answer

    I agree with Mr. Kirschbaum. Your husband's employer is violating his rights one way or the other. Either they are breaching his contractual right to his full pay because he is truly an exempt employee or they are violating California's wage and hour laws and have misclassified him as an exempt employee.

    You should discuss the particulars with counsel as soon as possible.

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  • Employer not providing paystubs

    If employer not provide paystubs, can you file a wage claim for the penalties discussed in CA Labor Code 226 or do you have to file a lawsuit in court? Will the DLSE help to get the $50 for initial pay period and $100 per employee, etc.?

    Joshua’s Answer

    I concur with Mr. Robertson. However, if there are enough employees who also are not receiving pay stubs, then this is a classic wage and hour class action lawsuit. You could be a representative of the class and force a real change in the employers business practices and get compensation for yourself as well as your coworkers.

    Depending on your goals, this is something you should consider. You should speak directly with an attorney with experience handling employment class action cases.

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