Legal Question in Legal Ethics in Virginia
My employer allows it's employee's who are not licensed in their field to unknowingly break the law every day. Here are the laws governing our field:
� 54.1-1700. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board for Opticians.
"Licensed physician" means any person licensed by the Board of Medicine to practice medicine and surgery.
"Optician" means any person, not exempted by � 54.1-1701, who prepares or dispenses eyeglasses, spectacles, lenses, or related appurtenances, for the intended wearers or users, on prescriptions from licensed physicians or licensed optometrists, or as duplications or reproductions of previously prepared eyeglasses, spectacles, lenses, or related appurtenances; or who, in accordance with such prescriptions, duplications or reproductions, measures, adapts, fits, and adjusts eyeglasses, spectacles, lenses, or appurtenances, to the human face.
"Licensed optician" means any person who is the holder of a license issued by the Board for Opticians.
"Licensed optometrist" means any person authorized by Virginia law to practice optometry.
(1954, c. 237, � 54-398.2; 1988, c. 765.)
� 54.1-1701. Exemptions.
The provisions of this chapter shall not apply to:
1. Any licensed physician or licensed optometrist; or
2. Any individual, partnership or corporation engaged in supplying ophthalmic prescriptions and supplies exclusively to licensed physicians, licensed optometrists, licensed opticians, or optical scientists; or
3. Any person who does not hold himself out to the public as an "optician," and who works exclusively under the direct supervision and control of a licensed physician or licensed optometrist or licensed optician, and in the same location; or
4. The sale of spectacles, eyeglasses, magnifying glasses, goggles, sunglasses, telescopes, or binoculars which are completely preassembled and sold as merchandise; or
5. Any optician who (i) does not regularly practice in Virginia, (ii) holds a current valid license or certificate to practice as an optician in another state, territory, district or possession of the United States, (iii) volunteers to provide free health care to an underserved area of this Commonwealth under the auspices of a publicly supported all volunteer, nonprofit organization with no paid employees that sponsors the provision of health care to populations of underserved people throughout the world, (iv) files a copy of the license or certificate issued in such other jurisdiction with the Board, (v) notifies the Board, within fifteen days prior to the voluntary provision of services of the dates and location of such services, and (vi) acknowledges, in writing, that such licensure exemption shall only be valid, in compliance with the Board's regulations, during the limited period that such free health care is made available through the volunteer, nonprofit organization on the dates and at the location filed with the Board.
(1954, c. 237, �� 54-398.1, 54-398.3; 1974, c. 534; 1988, c. 765; 2002, c. 740.)
� 54.1-1704. Practice of opticians restricted.
No person shall practice or offer to practice as an optician in this Commonwealth unless he holds a license issued under this chapter.
(1954, c. 237, � 54-398.3; 1974, c. 534; 1988, c. 765.)
� 54.1-1706. Permissible practices.
Notwithstanding the provisions of subdivisions 7 and 8 of � 54.1-3204, a licensed optician is authorized to prepare and dispense eyeglasses, spectacles, lenses, or related appurtenances, for the intended wearers or users, on prescriptions from licensed physicians or licensed optometrists; duplicate and reproduce previously prepared eyeglasses, spectacles, lenses, or related appurtenances; and, in accordance with such prescriptions, duplications or reproductions, measure, adapt, fit, and adjust eyeglasses, spectacles, lenses, or appurtenances, to the human face. A licensed optician shall not, however, duplicate a contact lens solely from a previously prepared contact lens.
(1990, c. 718; 1993, c. 206; 2009, cc. 353, 761.)
In not one of our locations is a licensed Optician, licensed Optometrist or a licensed Physician in charge in any way shape or form.
My question is what I can do about this. Every day I go to work I am breaking the law. Can I sue my employer? Should I confront them? Or should I just report them?
1 Answer from Attorneys
This kind of situation can be very difficult, because you have to make a distinction between YOU PERSONALLY possibly breaking a law vs. you trying to run the world and be responsible for other people.
It would be legally and morally right to address the issue and stop it. But "no good deed goes unpunished," as they say. So you have to consider where you are going to draw a pay check at the same time.
If you are not causing this or involved as a manager someway, you may be opening up a can of worms. For example, it is possible that your interpretation of these matters and the law could be wrong. There could be an exemption somewhere that you are not aware of. There might be an agreement in place of some sort.
In addition to the statutes you have cited, one would also need to look at who the courts have interpreted these statutes.
So in terms of your own life, I would say you would want to be careful. But in terms of affecting other people's lives, you have to be a lot more certain.
HOWEVER,. If some regulator wants to go after you, no one is going to protect you. You can expect that you will be on your own if someone tries to charge you with something.
So I think your best option would be to quietly look for other employment.
It WOULD be proper and appropriate for you to go to your boss or your boss's boss and bring your concerns to them.
Trouble is.... in the real world, if you don't have an alternative job lined up and ready then it can place you in a very vulnerable position.
So I don' think it is a good idea for ANYONE to accuse your boss or your employer and create a hostile situation if you don't have any other options lined up.
You might be 100% right legally... but still out on the street without anything to live in.
But your employer's assurances that it is okay will probably NOT protect you if you are charged with violating these laws. (Only in the sense that prosecutors sometimes like to go after the bigger fish ,but not legally.)
I don't think that you can sue your employer.
If you were sued or prosecuted, you might be able to turn around and sue your employer for any losses that you suffer. You could say that your employer put you in that situation.
But I don't think yo ucan sue them for you and them both together breaking the law.
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