Is a Doctor an Employee of a Hospital or Non-Physician Medical Group?
In California, the determination of whether a doctor is an employee or an independent contractor when working for a hospital or non-physician owned medical group is governed by the Borello test as specified in California Labor Code § 2783(c). This test evaluates the right to control the manner and means of accomplishing the desired result.
Key Points
Labor Code § 2783: This code, enacted in 2020, specifically states that the Borello test applies to physicians for determining employee vs. independent contractor status.
Business & Professions Code § 2400: This 1980 statute does not conflict with Labor Code § 2783. Any argument that a doctor cannot be an employee based on this code is considered a red herring.
Statutory Interpretation: According to Code of Civil Procedure § 1859, when a general and particular provision are inconsistent, the latter is paramount. Later enactments supersede earlier ones, and more specific provisions take precedence over general ones (Collection Bureau of San Jose v. Rumsey, 2000).
Common Law Test for Employment
Right to Control: The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result (S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 1989).
Discharge Without Cause: The ability to discharge the worker without cause is strong evidence of the right to control (Ayala v. Antelope Valley Newspapers, Inc., 2014).
Right to Leave: An employee may quit, but an independent contractor is legally obligated to complete their contract (Ayala, 2014).
These principles help determine whether a doctor is an employee or an independent contractor in California.
These issues often arise in whistleblower cases where allegations are made on behalf of the doctor under Labor Code section 1102.5.
Daniel Horowitz and his physician medical attorneys represent physicians in employment litigation, peer review and licensing matters and whistleblowing cases. Call us if you need
advice or assistance.