IRS Changes Plan Qualification Procedures, Returns, Other Procedures

February 3, 2016

Budget limitations continue to drive the Internal Revenue Service (IRS) to change its procedures for approving qualified plans, annual reporting returns and other key qualified plan forms and processes.  Along with these changes in administrative and reporting procedures, the IRS also continues to tinker with rules for qualified plans relating to domestic partners and other plan requirements.  In the process, the IRS continually is issuing additional guidance including a slew of recent guidance that has material impact upon employer and other plan sponsors and fiduciaries of qualified plans Employer and other plan fiduciaries should consult counsel about how these changes impact the protection provided by IRS  qualified plan approval, options and expenses for obtaining approval and other changes impacting their qualified 401k and other defined contribution and defined benefit plans.

  • Determinations

Revisions to the Employee Plans Determination Letter Program: (Notice 2016-3) will

  • update Revenue Procedure 2007-44 and:
  • allow controlled groups and affiliated service groups that previously made a Cycle A election to submit determination letter applications during the third Cycle A submission period (February 1, 2016 – January 31, 2017);
  • revoke any expiration dates on determination letters issued prior to January 4, 2016; and
  • extend the period from April 30, 2016, to April 30, 2017, during which certain employers may establish or adopt a defined contribution pre-approved plan on or after January 1, 2016, and may, if eligible, apply for a determination letter.
  • New Guidance

In addition to the changes in the qualification procedures and reporting forms, the IRS also announced other changes and clarifications of its qualified plan rules on its interpretation of domestic partner equality requirementsfor retirement plans (Notice 2015-86).  It also has published interim guidance on the deadline for adoption of discretionary plan amendments. (TEGE-07-1215-0026).  In addition it published guidance on when certain retirement plan and IRA deadlines may be extended for disaster affected taxpayers

  • New Form 5500s & Other Forms

The IRS also has released new form 5500 forms for use in filing returns required for 2015 and 2016 plan years and associated guidance including:

  • 2015 Form 5500-EZ, Return of One-Participant (Owners and Their Spouses) Retirement Plan (instructions)
  • Publication 560 (01/2016), Retirement Plans for Small Business (SEP, SIMPLE, and Qualified Plans)
  • Publication 590-A (01/2016), Contributions to Individual Retirement Arrangements (IRAs)
  • 2016 Form 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, Etc.
  • 2016 Form 5498, IRA Contribution Information
  • 2016 instructions for Forms 5498 and 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, Etc., and IRA Contribution Information
  • Corrected mailing address for Form 5308, Request for Change in Plan/Trust Year (Under section 412(d)(1) of the Internal Revenue Code) to: Internal Revenue Service, Attn: EP Letter Rulings, Stop 31, P.O. Box 12192, Covington, KY 41012-0192.

Staying atop these and other IRS qualified plan rules and development is important for retirement plan sponsors and their service providers and fiduciaries.  Employer and other plan sponsors and their leaders in particular should try to stay ahead of these changes to ensure they avoid expensive correction procedures and penalties, exposures to fiduciary breeches that can arise under the employee retirement income security act out of defects, budget appropriately to for fill responsibilities and project plan cost as part of the overall compensation costs, and minimize the administrative and financial expense of complying with reporting and other requirements by collecting necessary data and documentation more efficiently throughout the process.


Remember Microsoft: The Need for Effective Risk Management as to Contract Employees

January 28, 2016

By Robert G. Chadwick, Jr.

The number of workers supplied to businesses by staffing agencies has been steadily increasing for some time. According to the American Staffing Association, “[e]very day staffing businesses send three million employees to work in America’s offices, factories, hospitals, warehouses and other worksites –virtually every place that people work, staffing employees are on the job.” The Bureau of Labor Statistics predicts this number will reach four million by 2022.

The reasons for a company to forego regular employees in favor of staffing agency employees include flexibility, time, cost and expertise. For many companies, these benefits offset the mark-up charged by staffing agencies.

As companies have learned over the years, however, a staffing agency arrangement does not necessarily determine who the legal employer of a contract worker is. Depending upon the situation, a contract worker may be legally regarded as an employee of the staffing agency, an employee of the host company, or both. If the host company is the contract worker’s sole or joint employer, it is not necessarily shielded by the staffing agency arrangement from potential liability to the worker under applicable employment laws. Furthermore, if the host company is the worker’s sole or joint employer, it must include the worker when determining whether it employs the requisite number of employees to be subject to certain employment obligations.

One of the more infamous examples of the legal risks faced by companies who use staffing agency employees is Vizcaino v. Microsoft Corp., a federal class action brought in 1992 alleging improper denial of benefits under the software company’s Employee Stock Purchase Plan (“ESPP”). The claimants, however, were not regular employees of Microsoft. Instead, the potential class was made of thousands of workers classified by the company as independent contractors (sometimes called freelancers) or temporary agency employees (also called temps). Protracted litigation resulted in a court opinion that the freelancers and temps were common law employees of Microsoft, which was sufficient to be participants in the company’s ESPP. In 2000, Microsoft agreed to pay $97 million to settle the class action.

In recent years, federal government agencies have raised the legal stakes even further for companies who use procure workers through staffing agencies. On April 29, 2013, the Occupational Safety & Health Administration (“OSHA”) launched the Temporary Worker Initiative as part of “a concerted effort using enforcement, outreach and training to assure that temporary workers are protected from workplace hazards.” According to OSHA News Releases, more than 50 citations addressing temporary workers have been issued by the agency against “host employers” and/or “staffing agencies” since April 29, 2013.

On August 27, 2015, a decision by the National Labor Relations Board (“NLRB”) in Browning-Ferris Indus. Of California, Inc. found its previous joint employer standard had failed to keep pace with “the recent dramatic growth in contingent employment relationships.” The NLRB announced a new standard, which is currently pending review by the D.C. Court of Appeals, which makes it easier to show that client companies are joint employers of workers supplied and paid by staffing agencies. The new standard paves the way for joint collective bargaining responsibility for a client company and staffing agency as to contract workers.

On January 20, 2016, the Wage & Hour Division of the U.S. Department of Labor (“DOL”) released an Administrator’s Interpretation which identifies scenarios under which a business and a staffing agency can share joint responsibility to pay minimum and overtime wages to staffing agency employees. The DOL also published a new Fact Sheet addressing joint employer coverage under the Family & Medical Leave Act.

There are other potential liabilities undertaken by companies with contract employees. As early as 1997, the Equal Employment Opportunity Commission (“EEOC”) published guidance as to the application of federal employment discrimination laws to contingent workers placed by temporary employment agencies and other staffing firms. This guidance was updated by the EEOC in 2000 to address the unique issues presented by the Americans with Disabilities Act.

Even as they enjoy the benefits of staffing agency arrangements, therefore, companies must be mindful to manage the legal risks presented by such arrangements. The terms of the written contract with a staffing agency are certainly a good starting point, but should not be the sole focus, of this risk management process. Even a well-drafted contract cannot insulate a company from (1) responsibilities which cannot legally be delegated or indemnified by contract, (2) non-monetary judgments or decrees, (3) the risk of insolvency of the staffing agency, or (4) the up-front expenses which may need to be incurred to enforce the contract.

The degree of control possessed over contract workers may also be addressed by a company but, again, should not be over-valued as a risk management option. Separate management structures by a host company and staffing agency were insufficient to foreclose a finding of joint employer responsibility in the NLRB’s decision in Browning-Ferris Indus. of California. The “ultimate” right of control as to the workers was found to still lie with Browning-Ferris.

Rather, to be effective, a company’s risk management efforts as to contract workers must be similar to the risk management efforts applicable to its regular employees. Specifically, the company must adopt processes which empower and protect the company through interactions and communications with the workers. For a potential legal claim, these interactions and communications may ultimately be the difference between a finding in favor of the worker and a finding in favor of the company. Similarly, for a union-organizing campaign, these interactions and communications may be the difference between a union victory and a union defeat.

The threat of increased government scrutiny and legal liability may not diminish the growing popularity of staffing agency arrangements. History, however, teaches that blindly reaping the benefits of staff agency arrangements without managing the risks of such arrangements can have dire financial consequences. Remember Microsoft.

About the Author

Robert G. Chadwick, Jr. is a shareholder of the Chadwick Law Firm, P.C., a Managing Member of Stamer│Chadwick│Soefje PLLC. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and has been recognized as a Texas “Super Lawyer” in “Employment Litigation: Defense” by Thompson Reuters, and a “Top Rated Lawyer in Labor & Employment Law” by Martindale-Hubbell.

Mr. Chadwick’s experience with federal and state discrimination litigation is extensive. He has not only tried discrimination suits before federal juries, he has also briefed and argued discrimination appeals before the Fifth and Tenth Circuit Courts of Appeal, and briefed appeals before the U.S. Supreme Court. Mr. Chadwick also regularly speaks regarding compliance with federal, state and municipal discrimination laws.

For more information about Mr. Chadwick and Stamer ׀ Chadwick ׀ Soefje PLLC, see here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also may be interested reviewing other Solutions Law Press, Inc.™ resources such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here.

© 2016 Robert G. Chadwick, Jr. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved.


Obama Administration Proposes Rules Giving Jobseeker Equal Opportunity Protections

January 26, 2016

In keeping with President Obama’s administration long agenda of expanding equal employment and discrimination protections and enforcement, the Obama Administration now is proposing new regulations that if adopted as proposed, would expand the equal employment and nondiscrimination protections applicable for individuals receiving services through federal apprenticeships and other programs or activities provided by partners at American Job Centers and other key workforce programs that aid jobseekers administered by the U.S. Department of Labor’s Civil Rights Center (CRC).

In a Notice of Proposed Rulemaking released by CRC on January 25, 2016, CRC proposed to revise its current regulations, which were originally adopted in 1999 both:

  • To implement the expanded nondiscrimination and equal opportunity obligations made under Section 188 of the Workforce Innovation and Opportunity Act (WIOA) signed into law in July 2014; and
  • To reflect the Obama Administration’s expansive interpretation, enforcement and other practices of protections for transgender, gender identity, pregnancy, limited English proficiency (LEP) and other individuals against discrimination implemented by the Obama Administration in its enforcement of other federal equal employment and other nondiscrimination laws.

WIOA Implementation Identified As Reason For Proposed Regulations

In the cases of the CRC’s proposed regulations, the CRC identifies its need to adopt regulations to implement the WIOA as the reason for its restatement of its equal opportunity regulations at this time.

The Obama Administration is using its adoption of implementing regulations for WIOA Section 188 to revise and update the CRC’s equal opportunity rules generally to reflect changes in the interpretation of federal employment and other nondiscrimination rules already adopted during Mr. Obama’s presidency in other federal equal rights and nondiscrimination laws and regulations.

WIOA Section 188 prohibits discrimination against individuals participating in any job training for adults and youth, apprenticeships, and programs or activities provided by partners at American Job Centers or other covered program or activity that receives financial assistance under Title I of WIOA because of the race, color, religion, sex, national origin, age, disability, or political affiliation or belief of the individual participating in the program and, for beneficiaries only, because of their citizenship status. The WIOA discrimination and equal opportunity rules apply to recipients of financial assistance under Title I of WIOA and to program partners at American Job Centers that offer programs or activities through the workforce development system including partners that conduct related programs or activities through the One-Stop delivery system such as Unemployment Insurance, Temporary Assistance for Needy Families, adult education, Trade Adjustment Assistance, and others.  The CRC’s proposed regulations are the latest of the growing responsibilities and risks that private businesses and state and local government agencies increasingly face to lawsuits, agency audits and sanctions, program disqualification, and other enforcement actions under federal equal employment opportunity and nondiscrimination requirements, particularly in light of the expanded scope and applicability of disability and various other federal nondiscrimination laws implemented during the Obama Administration by statutory, regulatory, executive order or other federal action. The extension of these changes into the CRC regulations reflects the continuing commitment of the Obama Administration to implement and enforce these expansions as fully as possible before Mr. Obama leaves office.

Highlights of Proposed CRC Regulations

If adopted as proposed by the CRC, the proposed rule would update the equal opportunity and nondiscrimination requirements applicable to American Job Centers and other WIOA partners working within the workforce development system to:

  • Align the equal opportunity and nondiscrimination protections for individuals in WIOA programs with current regulations and guidance issued by the Departments of Justice and Education, the Equal Employment Opportunity Commission and other federal agencies regarding the following equal opportunity and discrimination laws:
    • Title VI and Title VII of the Civil Rights Act of 1964;
    • Title IX of the Education Amendments of 1972;
    • The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008; and
    • Section 504 of the Rehabilitation Act of 1973.
  • Clarify that sex discrimination under the WIOA, as under the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, includes discrimination based on transgender status, gender identity, or sex-stereotyping as well as pregnancy, childbirth, and related medical conditions.
  • Clarify that discrimination based on national origin may include discrimination because someone has limited English proficiency (LEP) and strengthen the ability of the Labor Department and private plaintiffs to enforce this expectation by requiring recipients and partners to:
    • Record the primary language of applicants, participants and beneficiaries in their programs;
    • Take “reasonable steps” to ensure that LEP individuals have meaningful access to aid, benefits, services, and training;
    • Notify participants about these rights, including offering oral interpretation and written translation of both hard-copy and electronic materials in non-English languages.
    • The Proposed Rule also would clarify which CRC views as “vital” documents required to be translated and include an appendix describing promising practices to help recipients comply with their legal obligations and includes the components of a plan to facilitate meaningful access for individuals with limited English proficiency.
  • Change the equal opportunity notice or poster that the Labor Department requires recipients and partners to post to inform individuals participating in their programs and activities about their equal employment opportunity protections and rights to reflect these expanded rights and responsibilities by among other things, clearly state that “sex,” as a prohibited basis for discrimination, includes pregnancy, childbirth, and related medical conditions, transgender status, gender identity, and sex stereotyping and that discrimination against LEP persons may be a form of national origin discrimination.
  • Promote the ability of the Labor Department and private plaintiffs to enforce compliance by among other things:
    • Implementing clearer and broader descriptions of recipient and partner responsibilities, more effective Equal Opportunity Officers, and enhanced data collection;
    • Expanding recipient and partner recordkeeping and requiring other actions that will make proof of violations easier;
    • Requiring annual monitoring, instead of the current “periodic” monitoring and other increased enforcement in accord with the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and in accord with Title IX of the Education Amendments of 1972.

CRC Proposal Reflects Broader Agency Regulatory & Enforcement Agenda For All U.S. Businesses & State & Local Agencies

While the CRC’s proposed regulations most directly impact those providing services or programs to jobseekers and other assistance under CRC administered programs, the proposed regulations also are yet another strong sign for private businesses and state and local government agencies alike of the need to step up their compliance and risk management in light of expanded responsibilities and enforcement of federal equal employment opportunity laws under the Obama Administration. As a result, all U.S. businesses as well as state and local government agencies should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements as well as strengthen oversight and investigation practices, tighten vendor contracts, explore insurance or other options for planning for funding costs of defending investigations, litigation or other enforcement actions, and other heightened compliance and risk management strategies and practices.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help reviewing your group health plan or responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 30- year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see CynthiaStamer.com or StamerChadwickSoefje.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc. ™ resources at SolutuonsLawPress.com such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here.

©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved.

 


Health Benefit Still Top Employer Benefit Cost

December 14, 2015

Bureau of Labor (BLS) statistics released December 9, 2015 confirm that health benefit costs continue to lead the benefit cost expenditures made by employers in both the public and private sector.

BLS statistics for September 2015 show state and local government employer costs for insurance benefits averaged $5.34 per hour, or 12.0 percent of the average of $46.66 per hour employee compensation cost paid by government employers for hours worked in September 2015.

BLS reports that largest component of insurance costs in September 2015 was health insurance, which averaged $5.20, or 11.6 percent of total compensation. In contrast, in September 2015, the average cost for retirement and savings benefits was $4.63 per hour worked in state and local government, or 10.4 percent of total compensation. Included in this amount were employer costs for defined benefit plans, which averaged $4.26 per hour (9.5 percent of total compensation), and defined contribution plans, which averaged 37 cents (0.8 percent). Meanwhile, BLS reports that the average vacation, holiday, sick leave, and personal leave (paid leave) benefit costs for state and local government employers was $3.24 per hour worked. While costs for legally required benefits, including Social Security, Medicare, unemployment insurance (both state and federal), and workers’ compensation, for state and local governments averaged $2.63 per hour worked.

In contrast, private industry employer costs for health care averaged $2.83 per hour or 8.5 percent of the average of $33.37 per hour employee compensation cost paid by government employers for hours worked in September 2015 for hours worked in September 2015. Private sector paid leave costs averaged $2.17 per hour worked or 6.9 percent of total compensation, supplemental pay averaged $1.04 or 3.3 percent, retirement and savings averaged $1.25 or 4.0 percent, and legally required benefits averaged $2.51 per hour worked or 7.9 percent.

The statistics reveal that at least for now, health benefits remain a key benefit offered by many employers  in both the public and private sector despite the significance of these costs.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help reviewing your group health plan or responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 27 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriate and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see http://www.cynthiastamer.com or the Stamer│Chadwick │Soefje PLLC website or contact Ms. Stamer via email to here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at http://www.solutionslawpress.com such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™. All other rights reserved.


Practioners Register For New PBGC E-Filing Portal

December 11, 2015

This week (December 9, 2015), the Pension Benefit Guarantee Corporation (PBGC) upgraded its e-4010 application and re-named it the PBGC e-filing portal. In addition to preparing and submitting 4010 filings via the e-filing portal, practitioners will have the option of filing information required under PBGC’s new ERISA 4043 regulation via the portal. The new e-filing portal also has a multiemployer plan module from which various applications and notices and may (or in some cases, must) be submitted to PBGC (e.g., applications for financial assistance, annual funding notices, critical and endangered notices). The new e-filing portal has no impact on My PAA.

Practitioners who don’t already have an e-4010 account will need to set up an account to be able to use the PBGC e‑filing portal. Current e-4010 account holders have been informed of the minimal ways in which this change affects them via email. The information included in that email is also available on PBGC’s 4010 webpage.

Stay tuned! The PBGC announcement about the e-filing portal says that it expects to post additional information about the new e-filing portal in the future.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help reviewing your group health plan or responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 27 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriate and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see the CynthiaStamer.com or the Stamer│Chadwick │Soefje PLLC website or contact Ms. Stamer via email to here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at http://www.solutionslawpress.com such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™. All other rights reserved.


Health Coverage Options When Employment Ends

December 7, 2015

Employment losses almost inevitably bring losses in health and other coverages and benefits.  Finding coverage and figuring out how to pay for it always has been dicey.

Unemployed workers and their families should carefully investigate all of their options.   Traditionally, employees of employers with 20 or more employees have enjoyed the opportunity to elect to continue health coverage for a period of up to 18 months (29  months in the case of certain disabled workers) following an employment loss under the coverage continuation rules of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA) by paying COBRA premiums of up to 102% (150% for coverage for disabled person after initial 18 months of COBRA coverage) of the employer cost of that coverage.  While these rights generally remain in effect, electing COBRA may not be the most cost effective choice for many workers and their family members to maintain health coverage in light of the health care reforms of the Patient Protection & Affordable Care Act (ACA).

ACA generally requires that each American maintain minimum essential coverage meeting the requirements of ACA or pay the ACA imposed penalty for failing to do this.  For this reason, families of laid off workers generally will want to take timely action to maintain or enroll in coverage after employment based coverage otherwise would end following a layoff or employment termination.

Deciding what coverage to elect is an important decision.  ACA health care reforms have added new options as well as new complexity that unemployed workers and their families should carefully evaluate before deciding whether to elect COBRA.  Depending on the income of the worker or his family member and various other facts and circumstances, a terminated employee or one or more of his family members might be able to spend less money to get the same other coverage by purchasing coverage through one of the health insurance exchanges established under ACA.  This is particularly likely to be the case for individuals and families considered to earn less than 400% of the poverty level, as these individuals are likely to qualify for ACA subsidies if coverage is purchased through an exchange.  When making these decisions, families also should evaluate whether adult dependent children or others within the family could obtain coverage less expensively if they purchase coverage separately from the exchange or accept employer provided coverage from their employer where the cost might be less.  Unemployed workers and their family members should evaluate all options carefully both to determine the level of coverage to get and where to obtain coverage most cost effectively.

 The U.S. Department of Labor Employee Benefit Security Administration will host a webcast on Health Coverage Options If Losing A Job on January 21, 2016 from 2:00 PM to 3:00 PM. Get information and register here.  Workers and their families concerned with these issues may want to register to take advantage of this resource as part of their evaluations.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help reviewing your group health plan or responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 27 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriate and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see http://www.cynthiastamer.com or the Stamer│Chadwick │Soefje PLLC website or contact Ms. Stamer via email to here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at http://www.solutionslawpress.com such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™. All other rights reserved.

 


Varying LGBT Obligations Of Private Employers Underscore Importance Of Familiarity With State and Municipal Laws

November 16, 2015

By Robert G. Chadwick, Jr.

On November 3, 2015, voters in Houston, Texas, the nation’s fourth largest city, soundly rejected a proposed equal rights ordinance which sought to outlaw discrimination based upon sexual orientation and gender identity in city employment, city services, city contracting practices, housing, public accommodations and private employment. The vote was a rare setback for LGBT (Lesbian, Gay, Bisexual & Transgender) activists who had enjoyed recent success in both the legal and public opinion arenas, culminating in the June 28, 2015 Supreme Court opinion in Obergefell v. Hodges recognizing same-sex marriage as a right protected by the Fourteenth Amendment. Particularly troublesome for many Houston voters was the perception the ordinance would require that public restrooms accommodate transgendered individuals.

For employers in Houston who would have been subject to the private employment provisions had the ordinance passed, however, the vote was a victory for three important reasons.

No Express LGBT Obligations Exist for Private Employers under Federal Law

As long as they employ the requisite number of employees, private employers may not discriminate against applicants or employees based upon age, race, color, national origin, citizenship, religion, disability, genetic information or military service. No such express protections exist for sexual orientation or sexual identity. First introduced in Congress in 1994, the Employment Non-Discrimination Act (“ENDA”), seeks to add sexual orientation and gender identity to the list of federally protected categories. To date, the ENDA has not received the requisite support of Congress for passage.

Merely being gay or transgendered, therefore, does not entitle an applicant or employee to seek remedies for discrimination under federal law. Indeed, most federal courts have rejected arguments that sexual orientation and gender identity are federally protected categories. Remedies for discrimination under federal law, therefore, are available only if a claimant shows membership in one of the protected categories listed above.

In this regard, the Equal Employment Opportunity Commission (“EEOC”) interprets the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”) to implicitly include sexual orientation and gender identity. Specifically, the agency has maintained Title VII protects gay and transgendered individuals who can demonstrate they were subject to discrimination, not because they are gay or transgendered, but because their conduct does not conform to traditional male or female stereotypes.

Obviously, proving that an employer was motived by a specific gender stereotype presents an evidentiary hurdle which would not otherwise be faced if discrimination based upon sexual orientation or gender identity was expressly proscribed by federal law. Accordingly, such claims have met with mixed results in federal court. 

LGBT Obligations for Private Employers Vary By State 

Seventeen states and the District of Columbia have laws expressly banning discrimination in private employment based upon sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Three states have laws making unlawful discrimination in private employment based upon sexual orientation: New Hampshire, New York and Wisconsin.

Texas is one of 28 states which have no express statewide protections for private employees based upon sexual orientation or sexual identity. The other states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, West Virginia and Wyoming.

In 2015, proposed amendments to add sexual orientation and gender identity as protected categories in private employment were introduced without success in Arizona, Kentucky, Michigan, Nebraska, and South Carolina.

Even For States with No Express LGBT Obligations for Private Employers, Such Obligations May Nevertheless be Imposed by Municipal Ordinance

That a state has no express protections for private employees based upon sexual orientation or sexual identity does not necessarily mean that employers in the state can breathe easy. In many of the 28 states listed above, municipalities have enacted LGBT ordinances which cover private employers. These municipalities include Atlanta, Cincinnati, Cleveland, Columbus, Detroit, Indianapolis, Kansas City, New Orleans, Orlando, Philadelphia, Phoenix, Pittsburgh, St. Louis and Tampa.

In Texas, Austin, Dallas, Fort Worth and Plano have each enacted a LGBT ordinance which includes prohibitions not otherwise imposed by federal or state law. As long as they employ the requisite number of employees, private employers in these cities may not discriminate against applicants and employees on the basis of sexual orientation; gender identity is also protected in the Austin, Fort Worth and Plano ordinances.

At stake in the November 3rd election in Houston, therefore, was whether private employers in the city would be subject to the same proscriptions as employers in Austin, Dallas, Fort Worth and Plano. With the rejection of the proposed equal rights ordinance, private employers in Houston now have (1) no greater legal exposure to claims by gay and transgendered applicants and employees than private employers in Texas municipalities without a LGBT ordinance, and (2) lesser exposure to claims by gay and transgendered applicants and employees than private employers in Texas municipalities with a LGBT ordinance.

Takeaway For Private Employers 

Especially for private employers with multiple locations, familiarity with state and municipal laws is critical to a complete understanding of all the legal obligations owed to employees. Varying LGBT obligations is but one example of how such obligations can differ by locality.

For Advice, Representation, Training or More Information

If you need help responding to these performance and risk management, compliance, enforcement or management concerns, updating or defending your management, corporate governance, compliance, risk management, workforce or other policies, practices, or actions, board or other training, or other assistance or information, contact the author of this update, management attorney Robert G. Chadwick, Jr. Mr. Chadwick is a shareholder of the Chadwick Law Firm, P.C., a Managing Member of Stamer│Chadwick│Soefje PLLC. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and has been recognized as a Texas “Super Lawyer” in “Employment Litigation: Defense” by Thompson Reuters, and a “Top Rated Lawyer in Labor & Employment Law” by Martindale-Hubbell.

Mr. Chadwick’s experience with federal and state discrimination litigation is extensive. He has not only tried discrimination suits before federal juries, he has also briefed and argued discrimination appeals before the Fifth and Tenth Circuit Courts of Appeal, and briefed appeals before the U.S. Supreme Court. Mr. Chadwick also regularly speaks regarding compliance with federal, state and municipal discrimination laws.

To explore engaging Mr. Chadwick to advise or defend your business or its management against discrimination claims or other litigation, to get advice about steps that your business or its leaders should consider taking to minimize or resolve these or other legal or operational risks, or for other help assessing or managing your workforce, operations, contact Mr. Chadwick via email here or via telephone to (214) 728-0122. For more information about Mr. Chadwick and Stamer ׀ Chadwick ׀ Soefje PLLC, see here.


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