Could an unpaid MFT associate sue for wage theft and win?

The BossIn 2013, two former interns at publishing company Conde Nast filed suit demanding back wages and attorney fees. Their lawsuit came on the heels of two other successful lawsuits demanding that interns actually get paid for their work: A federal district court sided with the interns who sued Fox Searchlight Pictures, saying the interns should have been paid for their work on the film “Black Swan.” And the year before, Charlie Rose and his production company agreed to pay up to $250,000 to more than 150 former interns to settle a class-action suit.

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Getting (and giving) better answers to legal questions on Facebook

Matthew Henry / Burst / Licensed under Creative Commons ZeroFacebook is a great resource for gathering information. Often, and for the right reasons, we turn to social media in hopes of gathering information we need in a short period of time and with little effort. But for therapists going to social media with legal questions, that convenience may not be worth it. Many of the answers therapists give peers for legal questions on Facebook are incorrect.

We reviewed 20 recent posts that included legal questions in therapist groups on Facebook. We looked strictly at legal questions where there was a clear correct answer that we could easily reference. So anything requiring interpretation of law was purposefully left out. Our review was by no means comprehensive — it falls more closely in bar-napkin-math territory. But we still think this quick review offers some valuable information.

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Updated: BBS legal opinion improves, doesn’t fix, child abuse reporting issue

California mandated child abuse reporters would no longer need to discriminate against gay or lesbian youth. But the legal opinion is just that: An opinion.                                                                                                                                                                                                                                                                                                            

A legal opinion announced on Thursday by the California Board of Behavioral Sciences appears to go partway to resolving the problem of discriminatory reporting of child abuse.

The opinion, prepared at BBS request by legal counsel for the Department of Consumer Affairs, essentially says that oral sex, anal sex, and object penetration should be treated the same as vaginal intercourse when considering abuse reporting. If two minors of similar ages (as defined by the law; see the age combination descriptions in this earlier post) engage in consensual acts without evidence of coercion or other signs of abuse, those acts are not reportable.

BBS Executive Director Kim Madsen announced at Thursday’s Policy and Advocacy Committee meeting that she would make the full legal opinion public. While the opinion does not carry the weight of law, it should be helpful for therapists seeking to understand when the BBS expects child abuse reports to be made, and when the therapist can rely on their own judgment as to what is abusive.

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Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Yes, Tweets can be considered advertisements

For California therapists promoting their practices on Twitter, there isn’t enough room to include legally-required disclosures on every tweet. Here’s what to do.                                                                                                                                                                                                                                                                                                            

Twitter is a web site that allows for “micro-blogging,” or posting of messages that are 140 characters or less. Because of Twitter’s open and social nature, it can be a good platform for sharing news about your practice. However, as you can imagine, 140 characters is often not enough room to include both your legally-required disclosures and whatever meaningful content you had hoped to include in a post on the site (otherwise known as a “tweet”).

If you are an LMFT, LPCC, or LCSW in California (other state laws vary), you can advertise your practice on Twitter, you just need to use caution in doing so. The California Board of Behavioral Sciences reported in a committee meeting that they had consulted with legal counsel on therapists’ use of Twitter [page 6 of linked PDF]. If the BBS were to receive a complaint about such advertising, they said they would consider advertising “as a whole.” In other words, if your tweet only links to your web site, they would consider the tweet and the site together. As long as a potential client must have seen your legally-mandated disclosures in at least one of those places, you should be safe.

Another way to think of it is, do NOT include any direct contact information – like your phone number, email address, or office location – in a tweet or on your Twitter profile. If you do that, a potential client could come to you just from the tweet, never having seen your required disclosures. Instead, make sure your Twitter profile and individual tweets ONLY include a link to a web site or other resource where you do meet all of California’s advertising standards.

Standard caveat applies here: I’m not a lawyer, so if you are in need of legal advice, this isn’t that. Talk with someone who has actually, like, gone to law school. I’m giving my best clinician’s understanding of both the law and what the BBS has said about it.

It’s time for national licensure laws in mental health

State differences in license requirements are small and serve no meaningful purpose. Considering mental health care as interstate commerce would improve access to care for those in need.
                                                                                                                                                                                                                                                                                                           

Blank USA, w territoriesMarriage and family therapy students and interns today see similar steps on their career path no matter where they live in the US. Most states require a masters degree based on COAMFTE requirements, roughly 3,000 hours of supervised experience, and a passing score on the National MFT Exam to be licensed. The rules from state to state are not identical, though: As just a quick sampling, Delaware requires 3,200 hours. New Jersey separates out requirements for general counseling experience and MFT experience. And California doesn’t recognize the national exam. (It’s now a few years out of date, but go to page 258 of this PDF for a very well-done table of 2007 state MFT licensure requirements around the country, put together by California’s Board of Behavioral Sciences.)

There is no real need for these differences. In theory, having states determine their own licensure standards should ensure that each state is preparing professionals to meet the unique needs of that state’s population; in practice, though, that isn’t what happens. The development and refining of licensure laws has been about balancing national standards with political compromise. Neither the public nor the professions are demonstrably better-served by an MFT who passed the California exams as opposed to the National MFT Exam (or by 3,200 hours of experience versus 3,000, or any of the other minute differences between states). The state differences in mental health licensing do little more than create headaches for those professionals trying to move from one state to another.

The time has come for national licensing laws, for family therapists as well as the rest of the mental health professions.

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The professions understand that license portability is a problem. Each of the national mental health organizations has a model licensure law that they use as an ideal example for state legislatures around the country. (The American Psychological Association recently amended theirs to allow states to forgo a postdoctoral internship requirement.) These model acts promote the standardization of requirements from one state to the next, easing license portability for professionals and helping ensure to the public that the meaning of a professional title will not dramatically change when one crosses a state line. Those are both worthy aims. Unfortunately, they have not been especially successful.

National licensure has not been pursued in mental health because of concerns about the U.S. Constitution, which leaves to the states any powers not expressly given to the federal government. Since the licensing of professions is not a federal power in the Constitution, the states have needed to take it on themselves. The result has been our patchwork of state laws for each profession.

Two things have changed in the past decade to create the right conditions for national licensure to emerge. One has been the completion of a nation of licensure for MFTs and LPCs. The other has been the rapid growth of telemedicine.

  1. A nation of licensure. In 2009, Montana became the 50th state to license MFTs and my great state of California became the 50th state to license counselors. This fact alone does not justify a single, national standard for licensure, but it is vital to the context of the discussion.

  2. Growth of telemedicine. The internet has hastened the development of remote services, but did not create it. Therapists have been working with clients by phone since the early days of psychotherapy. Today, through secure videoconference connections, a therapist in his or her office in a major city could easily work with clients anywhere in the world where the technological means exist for such a connection. The American Counseling Association’s Code of Ethics has outlined clear and specific guidelines for therapists providing services by phone or internet. While there is limited data on the effectiveness of technology-assisted therapy, for many people who are in rural communities, have specific language needs, or simply lack the means to go to a therapist’s office, the alternative to phone- or internet-based treatment is no treatment at all. This point is where the Constitutional argument would seem to shift: The internet can make psychotherapy a form of interstate commerce. Regulating interstate commerce is squarely within the federal government’s powers under the Commerce Clause.

It has been repeatedly well-documented that rural areas face a severe shortage of mental health providers. At the same time, early-career practitioners in mental health — often living in urban areas — regularly fret about whether they can make a living in their chosen fields. A national licensure standard would go a great distance toward easing both concerns.

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Of course, I am a family therapist, not a constitutional lawyer. So I could be way, way off-base here in my reasoning when it comes to the law. If so, please say so in the comments! As the old quotation goes, I never learned anything from anyone who agreed with me. So send your disagreeable emails to ben[at]bencaldwell[dot]com, post in the comments below, or be pithy with a message to my Twitter feed.