Avoiding Liability Bulletin – April 2010
The issue of payment for supervision is once again being raised in California with respect to the marriage and family therapy and social work professions. This time the question being asked is whether an employer may lawfully charge or receive payment for supervision provided to an employed or volunteering intern. For many years, payment by pre-licensed persons (such as, registered interns) for supervision has been permissible (with respect to the acceptability of hours of experience), except when employed in a private practice setting. Recently, the licensing board for these two professions sponsored a bill that removed the restriction on payment for supervision when a pre-licensed person is employed in a private practice setting. Thus, the licensing board (Board of Behavioral Sciences) has for many years counted the hours of experience of interns and trainees regardless of whether such pre-licensed persons paid for supervision or not (except in private practice settings – which was for a long time prohibited, but no longer).
Employers who hire interns or trainees must be careful, however, that they do not run afoul of state labor laws pertaining to the payment of wages. For example, the California Labor Code makes it unlawful for an employer to collect or receive from an employee any part of wages previously (the statute uses the word “theretofore”) paid by the employer to the employee. There are exceptions to this law, one of which allows a deduction from the employee’s wages when a deduction is expressly authorized in writing by the employee and the deduction does not amount to a rebate or deduction from the standard wage arrived at pursuant to a wage agreement. These laws are intended to prevent the employer from exploiting the employee. Typically, a state labor authority would get involved if and when an employee files a complaint alleging that he or she has been exploited by the employer.
A written agreement between the employee and employer might include, for example, that the employee understands that his or her wage is fixed at a specific amount, that he or she agrees that the employer is not obligated (some may be) to provide the kind and amount of supervision required by the licensing law for the employee to be credited with hours of experience toward licensure, that the supervision to be given is for the personal benefit of the employee who is seeking state licensure, and that the employee understands and agrees that the payment for such supervision is voluntary and is not considered by the employee to be a deduction from wages. To determine whether or not such an agreement (with different or additional provisions, depending upon the specific arrangement) is satisfactory, employers must get their own legal advice in order to make sure that they do not violate applicable state laws.
How is the issue of payment for supervision handled in the state in which you practice? Are employers allowed to charge or receive payment for supervision? Does the licensing board accept hours of experience gained toward licensure when the pre-licensed person pays for supervision? May employers (including nonprofits) charge volunteers or employees a “training fee” rather than charge for supervision?
ABOUT THE AUTHOR
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.