Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status

April 9, 2015

Employers covered by the Family & Medical Leave Act (FMLA) have a temporary reprieve from the obligation to comply with a change to the FMLA regulations’ definition of “spouse” that requires FMLA-covered employers to recognize certain same-sex relationships as marriages for purposes of the FMLA that had been slated to take effect on March 27, 2015 under a preliminary injunction order granted by the District Court for the Northern District of Texas in Texas v. U.S, No. 7:15-cv-00056-O, 2015 BL 84253 (N.D. Tex. Mar. 26, 2015).   However the delay in the implementation of the regulation as a practical matter may present traps for unwary employers in light of federal employment discrimination law rules that prohibit employers from discriminating against employees based on sexual orientation or gender identity. 

The preliminary injunction issued by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas on March 26 rule enjoins the Labor Department from enforcing a final regulation that would require employers covered by the FMLA to grant workers in legal same-sex marriages to take job-protected leave under the FMLA to care for a seriously ill spouse even if the state where the employee lives or works doesn’t recognize same-sex marriages.

The preliminary injunction resulted from a lawsuit brought by the attorney generals of Texas, Arkansas, Louisiana and Nebraska questioning the validity of change to the definition of “spouse” in DOL Regulation § 825.102 and § 825.122 to expand the definition of the term “spouse” for purposes of the FMLA to include same-sex relationships recognized as marriage under the state law of the location of the marriage celebration.

The Final Regulation redefining the term “spouse” for purposes of the FMLA is one of a host of changes to federal employment, tax, immigration and other regulations and enforcement policies announced by the Obama Administration in response to the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013).

In Windsor, the Supreme Court ruled unconstitutional and struck down Section 3 of the Defense of Marriage Act (DOMA), which sought to preclude same-sex couples from being treated as married for purposes of federal law including the FMLA by restricting the definition of marriage for federal law only to relationships between persons of the opposite sex.

If and when implemented, the FMLA Final Regulation will revise the DOL’s FMLA regulations to provide that “Spouse” means

a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a State that recognizes such marriages; or
  2. If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

According the DOL, the adoption of a place of celebration standard for determining marital status in the Final Rule ensures that all legally married employees have consistent FMLA leave rights regardless of where they live. The Department believes that this place of celebration rule will give fullest effect to the purpose of the FMLA to let employees to take unpaid, job-protected leave to care for a spouse for an FMLA-qualifying reason.  Thus, whether a same-sex or other couple qualifies as married for purposes of the FMLA turns upon whether the couple is in a relationship legally recognized as a married in the state in which the ceremony was performed.  However, the Final Regulation does not require employers to treat same-sex civil unions, as well as opposite-sex civil unions, as marriages and as such are not guaranteed the right to take FMLA spousal leave nor do have other protections of the Act, including from retaliation. As noted above, an employer may offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, including voluntarily offering other types of leave for couples in civil unions. In addition, eligible employees in civil unions can take FMLA leave for their own serious health condition, for the birth of a child or the placement of a child for adoption or foster care and for bonding, to care for their child or parent with a serious health condition, and for qualifying military family leave reasons.

In Texas v. U.S., the states jointly argued that the Final Rule unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages.  Explaining his finding that the states had demonstrated a substantial likelihood of prevailing on the merits on their claim that the Final Regulation violates the Full Faith & Credit Clause of the U.S. Constitution, Judge O’Conner wrote, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages.”  Accordingly, Justice O’Conner ordered the Labor Department to stay implementation of the Final Regulation pending a decision on the merits of the states’ claims.

Even as Judge O’Connor issued his preliminary injunction, the Obama Administration was moving ahead to implement new mandates extending sweeping new protections prohibiting government contractors and subcontractors from discriminating against workers based on sexual orientation or gender identity under an Executive Order issued by President Obama that took effect April 8, 2015.  See Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US EmployersSince the preliminary injunction issued by Judge O’Connor does not apply to that Executive Order, employers contemplating holding off granting FMLA rights to employees involved in same-sex relationships should consult with legal counsel about the potential that such delay, despite Judge O’Connor’s order, might form the basis of employment discrimination, government contracting regulation violations or both.

 For  Advice, Representation, Training & Other Resources

If you need help 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, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

Solutions Law Pressâ„¢ provides business risk management, legal compliance, management effectiveness and other resources, training and education on 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 resources at www.solutionslawpress.com.

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 at here or e-mailing this information here.

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


Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers

April 8, 2015

Effective today (April 8, 2015), all U.S. businesses working as government contractors or subcontractors are prohibited from discriminating in employment against lesbian, gay, bisexual and transgender (LGBT) applicants and employees on the basis of sexual orientation or gender identity. While the new LGBT nondiscrimination rules for government contractors and subcontractors imposed by are the latest in a series of changes imposing new obligations for U.S. government contractors and other U.S. employers in their dealings with LGBT workers, all employers of 15 or more employees, not just government contractors, increasingly face employment discrimination risks and other expanding obligations to LGBT workers as a result of evolving judicial precedent and the pro-LGBT rights regulatory agenda of the Obama Administration. As publicity and the Obama Administration’s outreach about the implementation of the new nondiscrimination rules for government contractors and other announcements about these other new federal LGBT employment protections are likely to fuel new claims and demands by workers asserting these new rights, government contractors and all other employers should act quickly to ensure that their policies and benefit programs, as well as compliance and risk management procedures are properly updated to meet these changing federal rules regarding the employment rights of LGBT workers.

The new federal government contracting prohibition against sexual orientation and gender identity discrimination by federal government contractors is imposed by President Obama’s Executive Order on LGBT Workplace Discrimination, which takes effect today and applies to all federal government contractors and subcontractors regardless of the type of government contract, number of employees or project revenue. The Executive Order’s requirement that government contractors and subcontractors not discriminate based on sexual orientation or gender identity covers every type of new and modified federal contract and every establishment of those contractors and subcontractors – not just the ones directly involved in performing the contract. As a result of the Executive Order, all federal government contractors and subcontractors are prohibited from discriminating against lesbian, gay, bisexual or transgender people in hiring, firing, pay, promotion and other employment practices based on their sexual orientation or gender identity.

The Executive Order’s prohibition against federal contractors and subcontractors discriminating on the basis of sexual orientation and gender identity expressly elevates sexual orientation and gender identity to the same protected status as race, color, religion, national origin, disability and veteran status for purposes of the employment discrimination rules applicable to federal government contractors. While at this point, the Obama Administration rules do not also require federal government contractors and subcontractors to undertake any specific new record keeping, data analysis, goal setting or other similar affirmative action, government contractors and subcontractors of all types and sizes will want to take care to update their nondiscrimination policies and practices to reflect their policy against discrimination based on sexual orientation or gender identity, as well as ensure that their hiring, promotion, compensation and other employment practices and associated documentation are administered and documented to defend against potential discrimination charges based on gender identity or sexual orientation.

While the Executive Order expressly applies only to government contractors and subcontractors, in fact all employers of 15 or more employees increasingly need to be concerned about employment discrimination exposures brought by employees who are, or are perceived to be LGBT individuals, as well as keeping their employment and employee benefit practices compliant with a host of recent federal rule changes on the treatment of LGBT individuals.

On the employment discrimination front, most employers, not just government contractors, need to use care to meet their duty to protect LGBT and others from “gender stereotyping” and same-sex sexual harassment or other sex discrimination in their workplaces recognized by the courts as encompassed in Title VII’s sex discrimination protections.

Under the gender stereotyping theory recognized by the Supreme Court in Price Waterhouse v. Hopkins (1989), for instance, an employer violates Title VII if “X discriminates against Y because X believes that Y does not dress, walk, talk, etc. as members of Y’s gender typically do.”  In EEOC v. Boh Bros. Const. Co., LLC , 731 F. 3d 444 (5th Cir. 2013) for instance, the Fifth Circuit upheld Title VII gender stereotying based sex discrimination claims of an iron worker  who claimed his supervisor in the all-male work environment  accused him of being gay subjected him to highly offensive, often sexually explicit verbal and physical harassment for months because the supervisor perceived his behavior was effeminate and did not conform to the supervisor’s  idea of how a man should act.

Likewise, the EEOC and courts also have continued to recognize sexual harassment claims based on harassing conduct inflicted by a party of the same sex as the victim plaintiff.   For instance, last year the EEOC announced  that Wells Fargo Bank, N.A. agreed to pay $290,000 to four female bank tellers and take other corrective action to settle an EEOC sexual harassment lawsuit where the EEOC charged that a female manager and another female bank teller at a Wells Fargo branch in Reno, Nevada sexually harassed the women by making graphic sexual comments, gestures and images; inappropriate touching, and making suggestions to wear sexually provocative clothing to attract customers and to advance in the workplace, which the Wells Fargo allegedly failed to act quickly to stop despite complaints about the conduct from the victims.

In addition, government contractors and other U.S. employers also generally need to review and update heir employment, employee benefit plans, leave policies and other practices to ensure that they are up to date and defensible in light of the ongoing series of new rules affording new protections for LGBT workers issued by the Obama Administration in the aftermath of the Supreme Court’s ruling of the Defense of Marriage Act unconstitutional in Windsor. In the aftermath of Windsor, the Departments of Labor, Veterans Affairs, Treasury, Justice, Homeland Security and other federal agencies modified immigration, family and military leave, employee benefits, and a host of other rules to require both public and private employers and their employee benefit plans afford marriage-equivalent treatment workers involved in certain same-sex relationships as well as to extend other LGBT employment and other protections. As a result of these and other expansions in the legal protections of LGBT individuals by the Obama Administration like the Executive Order and these other regulatory and enforcement changes, as well as evolving precedent in the wake of the Windsor decision, all U.S. employers should prepare to meet new legal requirements, as well as rising expectations by members of the LGBT community about their workplace, employee benefits and other rights.

In anticipation of these rising requirements and expectations all employers including government contractors should engage legal counsel for assistance in reviewing and updating their policies and practices to comply with the evolving federal and state rules on workplace and other rights of LGBT individuals and strategies for appropriately managing the legal risks and other concerns associated with these emerging entitlements and expectations. For government contractors and other employers concerns about discrimination exposures, this discussion generally should include consideration about whether in addition updating written policies and procedures, the employer should consider workforce training, communications or other actions to promote workforce compliance with the new policies, minimize the risk that the failure to retrain the workforce might make it easier for potential plaintiffs to use events or policies occurring before the new rules became effective to help bolster post-effective date discrimination claims, and other risk management and compliance procedures.

 For  Advice, Representation, Training & Other Resources

If you need help 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, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

Solutions Law Pressâ„¢ provides business risk management, legal compliance, management effectiveness and other resources, training and education on 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 resources at www.solutionslawpress.com.

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 at here or e-mailing this information here.

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


Stamer, Others Discuss Employer, Health Plan Implications Of Anthem Breach on 4/2

March 28, 2015

Recent data breaches by Anthem, Premera and other health plan vendors present significant legal and practical responsibilities and consequences for health plans, their employer and other sponsors, fiduciaries, administrators, service providers and participants. Health Plans, Sponsoring Employers & Others Urged To Act Immediately In Response To Premera, Anthem Blue Cross BreachesSolutions Law Press, Inc. editor and author Cynthia Marcotte Stamer will be among one of the featured speakers discussing these concerns and options for managing them at an upcoming free study group conference call sponsored by the RPTE Employee Benefit Plans and Other Compensation Arrangements Group on April 2, 2015 beginning at Noon Central Time.

During the study group conference call, Ms. Stamer and other speakers, Lisa Van Fleet and Chuck Thulin, will explore challenges for plan fiduciaries, administrators and sponsors including:

  • Who is the fiduciary with responsibility over these matters
  • ERISA fiduciary duties to investigate and respond to breaches
  • Fiduciary obligations in connection with selection of vendors
  • Curtailing data leakage and breach exposure by addressing delegation rights of vendors
  • Interaction with HIPAA, IRC, and other laws
  • Breach notification and ERISA communication duties
  • Operational challenges

The conference call study group is a free benefit for members of the American Bar Association RPTE Section. Other attorneys and ABA members are invited to join and get involved with RPTE and the Group.The following is the dial in information for the call:

Dial in number: 866/646-6488

Participant Pass code: 725 588 7619

For Help With Risk Management, Compliance & Other Management Concerns

If you need assistance in responding to a health plan breach concern or with auditing or assessing, updating or defending your organization’s compliance, risk management or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469) 767-8872.

Scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights, a faculty and steering committee for the Southern California ISSA-HIMSS Health Care Privacy Program, Board Certified in Labor & Employment Law, a Fellow in the American College of Employee Benefits Counsel  recognized as a “Top 100″ lawyer in labor and employment, employee benefits and health care law, Ms. Stamer is nationally recognized for her work, publications, public speaking and education and other leadership on privacy and data security and other risk management and compliance.

A management attorney who works with businesses and government to manage and redress people, process and risk, Ms. Stamer has worked extensively on data and other privacy risk management and compliance,  Throughout her career, she has conducted investigations and advised, and assisted health care, insurance, retail and a broad range of other public and private organizations with privacy and data security audit and risk management, contracting, investigation, defense and remediation throughout her more than 25 year career.

Past Chair and of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits,  past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, current Co-Chair of the RPTE Welfare Benefit Committee and Vice Chair of the ABA TIPS Employee Benefits Committee, Ms. Stamer works, publishes and speaks extensively on cyber crime and other privacy, management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other  concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the ABA, Insurance Thought Leadership, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

As part of her extensive involvements in privacy and data security concerns, Ms. Stamer will be among the panelists discussing “Fiduciary Obligations In the Context of a Data Breach” conference call to be hosted on April 2, 2015 by Fiduciary Responsibility Committee of the American Bar Association (ABA) Real Property Probate and Estate Section Employee Benefits & Other Compensation Group.  During the program, Ms. Stamer and other panelists will discuss the quagmire of fiduciary legal and operational challenges that data breach announcements by health plan vendors and insurers present for employer and union-sponsored health plan fiduciaries and health plans.  She also will serves as the scribe for the upcoming ABA Joint Committee On Employee Benefits Annual Agency Meeting with the Federal agency that enforces HIPAA, the Office of Civil Rights, and 2014 Conference Chair and  steering committee and faculty member of the Southern California ISSA/HIMSS Healthcare Privacy & Security Summit scheduled for June 4, 2015 in Los Angeles.

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.  For information about participation in the April 2 Conference Call or joining the Committee, see here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on 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 resources at www.solutionslawpress.com.

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 at here or e-mailing this information here.

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


Congress Passess Joint Resolution Overturning NLRB “Quickie Election Rule”

March 27, 2015

The new Republican Majority in Congress is moving quickly to attack and overturn a series of pro-union rules implemented under the leadership of the Obama Administration. Today, for instance, a Joint Resolution that seeks to invalidate the National Labor Relations Board (NLRB) “election now, hearing later” “quickie election rule” was presented for signatures to President Obama.

Passed by the Senate March 4, 2015 and the House on March 19, 2017 and presented to the President on March 27, 2015, S.J.Res.8 provides Congressional disapproval of, and specifies that the quickie election rule is to have no force and effect on union representation case procedures.

Adopted by the NLRB December 12, 2014 at 79 Fed. Reg. 74308 (Dec. 15, 2014), the quickie election rule would make it more difficult for employers to oppose union organizing elections by subjecting employers to what some commentators refer to as “ambush elections.” The procedural changes to NLRB election procedures implemented by the quickie election rule place employers at a significant disadvantage when faced with a union demand for an election,

Incorporating most of the procedures contained in a 2011 NLRB proposal previously invalidated by the District of Columbia’s district court in Chamber of Commerce of the United States v. NLRB, 879 F. Supp. 2d 18, 21, 25, 30 (D.D.C. 2012), the quickie election rule as finalized by the NLRB among other things requires that:

  • Union elections generally be held within 10 to 21 days after the petition filing, rather than the previous rule’s 42 days;
  • Any pre-election hearings occur eight days after the petition filing;
  • Employers to file before the pre-election hearing a position statement addressing threshold issues such as unit appropriateness, bargaining unit exclusions, and the proposed date, time and location of the election;
  • Scheduling of post-election hearings 14 days after the filing of objections;
  • Employers seeking a pre-election hearing to provide the union with two lists identifying employees in the challenged petitioned-for unit and in what the employer argues is the appropriate unit;
  • Within two days after the unit is decided, the employer to provide an electronic list of employees including names, addresses, phone numbers, work locations and classifications. Employees’ personal phone numbers and email addresses must be provided if available to employer.
  • Once a union is certified, barring employees from seeking to decertify the election until the later of one year or the expiration of the first collective bargaining agreement.
  • At the pre-election hearing, the parties generally to litigate issues necessary to determine the appropriateness of conducting an election but allowing deferral of the decision of certain eligibility and inclusion issues decided by an NLRB regional director until the post-election stage.

The Joint Resolution to overturn the quickie election rule is part of an ongoing battle between Republicans, who following the November 2014 elections now hold a slim majority of the seats in both the House and Senate, and President Obama and Congressional Democrats, who since Mr. Obama’s election have acted aggressively to promote and expand union rights and safeguards. Since the November, 2014 elections, President Obama has promised to act aggressively to continue to promote pro-union and other policies opposed by Republications by executive order, rulemaking, veto and enforcement authority. Look for more battles over these and other contested policies in the months ahead.

For Help or More Information

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related challenges

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 26 year career,

Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; 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 and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She 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 retirement 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.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


IRS Changes Plan Correction Procedures

March 27, 2015

Revenue Procedure 2015-27 modifies Revenue Procedure 2013-12, 2013-4 I.R.B. 313 to make miscellaneous changes made to improve EPCRS, such as reducing VCP compliance fees relating to failures to meet the requirements of Internal Revenue Code § 72(p) with respect to participant loans, and clarifying that for certain overpayments, as defined in sections 5.01(3)(c) and 5.02(4) of Rev. Proc. 2013-12, a plan may use correction methods other than the correction methods set forth in section 6.06(3) and 6.06(4) of Rev. Proc. 2013-12.  This revenue procedure also requests comments on recoupment of overpayments.  

For Help or More Information

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related challenges

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 26 year career,

Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; 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 and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She 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 retirement 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.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Texas Employers Top Target For EEOC Charges

March 26, 2015

Texas employers lead the list of employers that should act to tighten their employment discrimination compliance and risk management to prepare for heightened  likelihood of  charges, litigation and other  enforcement.

Texas employers remain the most frequent target of discrimination charges, Equal Employment Opportunity Commission (EEOC) statistics show.

With EEOC and other agencies as well as private litigants growing more aggressive in bringing claims and judgements, sanctions, investigation and defense costs rising, all employers should evaluate the adequacy of current policies and practices, tighten documentation, weigh the need for employment practices liability coverage and take other steps to minimize exposures to these claims and prepare to defend against allegations of discrimination.  With Texas leading the charge list, Texaa employers particularly should be sensitive to their potential exposure.

 For Representation, Training & Other Resources

If you need assistance monitoring or addressing human resources, internal controls, employee benefits or compensation  risks, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help. 

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work. A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related representations. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 25 year career, Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations. In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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. Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; 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 and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She 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 retirement 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. You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


ACA Prohibits Employer Paying Individual Health Premiums For Employees, IRS Says Again

March 22, 2015

Employers cannot pay for or reimburse employees for any portion of the cost for the employee to buy individual health insurance coverage for himself or his family from a Health Insurance Exchange or “Marketplace” established as part of the health care reforms of the Patient Protection & Affordable Care Act (ACA) or otherwise.  That’s the message of new IRS Notice 2015-17. Employers that since 2013 have paid for or reimbursed employers for individual health insurance costs through a cafeteria plan or otherwise in 2014 should contact qualified legal counsel experienced in the health plan rules of ACA and federal health plan rules to discuss their practice, the extent to which any payments or reimbursements previously paid can qualify for special temporary relief granted to small employers under IRS Notice 2015-17, and what if any corrective action the employer needs to take to correct any compliance concerns associated with current or prior year’s practice of paying for or reimbursing individual health policy costs.

Although certain brokers and consultants continue to aggressively promote arrangements under which employers pay for or reimburse employees for individual health policy premiums as a way for employers to circumvent some of the challenges for employers of offering health coverage to employees under the group health plan rules of ACA, the IRS, DOL and HHS have made clear since early 2013 that they view such practices as prohibited by ACA’s Market Reforms, regardless of whether the payment or reimbursement is done on a pre-tax or after-tax basis, or done through a formal “plan” or through any other employer payment plan or arrangement.  See FAQs About Affordable Care Act Implementation (Part XI) issued by the Department of Labor (DOL) and Department of Health & Human Services (HHS) on January 24, 2013; Notice 2013-54 and DOL Technical Release 2013-03 issued on September 13, 2013; IRS FAQ on Employer Healthcare Arrangements; and FAQs About Affordable Care Act Implementation (Part XXII) issued by DOL  and HHS on November 6, 2014.

While reaffirming the IRS, HHS and DOL’s previous guidance indicating that ACA’s Market reforms prohibit employer payment plans, Notice 2015-17 also:

  • Announces temporary transitional relief from excise tax penalties under Code § 4980D for certain arrangements maintained by qualifying small employers that maintained such arrangements in 2014.
  • Provides additional guidance on the tax treatment of employer payment plans; and
  • Supplements and clarifies the guidance provided in Notice 2013-54 and other guidance about ACA’s prohibition of employer payment plans.

In light of this guidance, any employer currently maintaining such arrangement immediately should consult with qualified legal counsel within the scope of attorney-client privilege about their arrangement, among other things to evaluate:

  • The legality of the existing and proposed arrangements and their liability and other implications on the employer’s compliance with ACA and resulting liabilities and responsibilities resulting therefrom in light of the additional guidance on the tax treatment of such arrangements set forth in Notice 2015-17, as well as previously published IRS and other Tri-Agencies guidance about employer payment plans; and
  • Whether any action needs to be taken to address any potential violation of Tri-Agency rules resulting from the arrangement.

When conducting this evaluation, employers and others  should use care not to over-estimate the scope of the temporary relief announced in Notice 2015-17.  First, the relief announced in 2015-17 only applies for the 2014 tax year for certain small employers from the self-reporting and excise tax liability provisions of Internal Revenue Code (Code) § 4980D for failure to satisfy market reforms in relation to the specific arrangements detailed in Notice 2015-17.  In this respect, Notice 2015-17’s transition relief only applies for the 2014 tax year to employer healthcare arrangements that are :

  • Employer payment plans, as described in Notice 2013-54, if the plan is sponsored by an employer that is not an Applicable Large Employer (ALE) under Code § 4980H(c)(2) and §§54.4980H-1(a)(4) and -2;
  • S corporation healthcare arrangements for 2-percent shareholder-employees;
  • Medicare premium reimbursement arrangements; and
  • TRICARE-related health reimbursement arrangements (HRAs).

When evaluating an existing, previous or proposed employer payment arrangement, employers and others involved should consider taking steps to arrange for their discussions and evaluations to be conducted in a manner that positions the party or parties to be able to claim attorney-client privilege of the discussions and to protect such privileges against waiver to the extent possible.  In this respect, employers and others involved in such arrangements should be cognizant that certain evidentiary privileges such as accountant-client privilege that sometimes might apply for certain tax representation purposes may provide less reliable evidentiary discovery protection than attorney-client privileges under the circumstances as  discussions with accountants or other non-attorney consultants or advisors typically do not generally provide protection like attorney-client privilege in non-tax civil litigation by private plaintiffs or enforcement actions by certain of the Tri-Agencies of potential violations of the ACA Market Reform prohibition.

ACA’s prohibition against employer payment of individual health insurance policy premiums is only one of an ever-growing list of ACA and other federal health plan rules that employers and other group health plan sponsors and their plans must meet.  Many of these rules also fall under a Sarbanes-Oxley style provision of the Code that requires most employers to evaluate and maintain their health plan’s compliance with the applicable rule or self-report and self-assess and pay the applicable penalty for the violation when filing their health plan’s annual Form 5500.  With the 2014 plan year Form 5500 filing deadline rapidly approaching, employers and their health plan fiduciaries, insurer and vendors will want to act quickly to review, identify and develop a plan with legal counsel to address any potential concerns with the market reform and other requirements of federal law promptly

For Advice, Training & Other Resources

If your business need legal advice about the your health or other employee benefit or human resources practices, assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a Fellow in the American College of Employee Benefit Counsel, ABA, and State Bar of Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health plans and insurers about ACA, and a wide range of other plan design, administration, data security and privacy and other compliance risk management policies.  Ms. Stamer also regularly represents clients and works with Congress and state legislatures, EBSA, IRS, EEOC, OCR and other HHS agencies, state insurance and other regulators, and others.   She also publishes and speaks extensively on health and other employee benefit plan and insurance, staffing and human resources, compensation and benefits, technology, public policy, privacy, regulatory and public policy and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on 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 resources at www.solutionslawpress.com.

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 at here or e-mailing this information here.

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. For important information about this communication click here

NOTE:  This article is provided for educational purposes.  It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization.  Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances.

The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations.  The Regulations now require that either we (1) include the following disclaimer in most written Federal tax correspondence or (2) undertake significant due diligence that we have not performed (but can perform on request).

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


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