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BusinessResourceLaw
BusinessResourceLaw, Employment Lawyer
Category: Employment Law
Satisfied Customers: 13
Experience:  Attorney at Law at The Business Resource Law Office
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I have a lab tech employed by a lab company in my clinic. I

Customer Question

I have a lab tech employed by a lab company in my clinic. I also want her doing some clinic duties when not pulling lab. Can I pay her also under my clinic for the same time? Essentially the lab company would pay her and I would as well to avoid conflict
JA: When we are ready I'll take you to the appropriate web page.
Customer: I'm trying to avoid violating any anti kickback statute
JA: Have you documented this or discussed it with HR?
Customer: I am the owner, we don't have hr
JA: Is the employment agreement "at will," union, full time or part time?
Customer: With the lab company its full time, they pay her, I want to pay her and use her full time as well. She has a lot of downtime I can use her during
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 1 month ago.
Category: Employment Law
Expert:  Legal Eagle replied 1 month ago.

Hello! My name is ***** ***** I am an attorney with Just Answer. I'll be here to help today! Do you mind if I take a moment to review your question? By the way, the system will automatically ask for a phone call. By no means are you required to accept it.

Expert:  Legal Eagle replied 1 month ago.

Ok the answer to your question is yes, you can absolutely pay that individual even though they are employed with someone else. There aren't going to be any statutes that would apply here. Really, the only thing that would apply is going to be the principles of contract law. It is possible that the lab tech may have a prohibition in their contract that prevents them from working for someone else while on company time. However, if the contract does not say this, then there is not going to be any harm legally. The only other thing for which you would need to be aware is the regular issues with having an independent contractor or employee (i..e unemployment insurance, etc.)

Expert:  Legal Eagle replied 1 month ago.

Follow up questions are free, so did you have any additional questions? If not, were you satisfied with my service today?

Customer: replied 1 month ago.
if I am paying her as well I won't be violating any anti kickback laws with the lab providing a phlebotomist right? I'm trying to prevent any issues.
Customer: replied 1 month ago.
No call please
Expert:  Legal Eagle replied 1 month ago.

Good question. The kickback laws prohibit offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate Federal health care program business. If you are a private health care program or business, it will not apply.

Expert:  Legal Eagle replied 1 month ago.

did you have any follow up questions?

Customer: replied 1 month ago.
We are a private clinic, the lab does bill the patient insurances.
Customer: replied 1 month ago.
the lab gets Medicare dollars for doing the lab work. We don't bill the patient for the labwork
Expert:  Legal Eagle replied 1 month ago.

Understood. If that is the case, then there is no problems with this here:)

Expert:  BusinessResourceLaw replied 1 month ago.

Hello, I came across your question and would like to throw in my two cents for you to consider, as I think what you're proposing may be problematic from a practical - and possibly legal - standpoint.

You indicate that she is employed full time by the lab company and you would also like to employ her full time and have her perform clinical work for you during her "downtime." As the previous attorney indicated, there may be an express prohibition with her contract with the lab company. But even if there isn't, the lab company might come after your clinic for interfering with her contract (e.g., causing her to work for you when she should be working and producing revenue for them). Then there's the practical matter of how to distinguish and properly bill for the work being performed. How do you prevent her from double dipping and charging both companies at once? Then there's the matter of overtime pay and who will pay the overtime rate when the division of labor becomes murky.

If you are bent on hiring this individual, you will need to address these issues beforehand - and I would suggest getting the prior written consent of her current employer. Then, to make things cleaner, you might consider having her work for you on days/at times she is not working for her current employer - not just when she has some downtime during shift working for the lab company.