EEOC Race Suit Showcases Rising Business Discrimination & Retaliation Exposures

March 29, 2023

A new race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) against commerce remanufacturer PRC Industries (PRC) warns other businesses of the increased need to use care to protect their own organizations against employment discrimination and retaliation charges under Title VII of the Civil Rights Act of 1964 and other federal laws given the heightened proactivity of the Biden Administration led EEOC in investigation and prosecuting these types of complaints.

PRC Race Suit

According to EEOC’s complaint in EEOC v PRC Industries, Inc. Corp, Case No. 3-27-2023 JJO-VSC, two Black workers, a married couple hired in January 2020 to work at PRC’s Reno, Nevada repair facility faced constant racial taunts and slurs, including the ‘n-word,’ from their supervisors, a brother and sister. The couple also observed the sibling supervisors routinely denigrating other Black employees due to their race. The complaint charges this conduct occurred openly, in front of co-workers and managers. Senior personnel, including a site manager and a vice president, failed to take adequate steps to curb the misconduct, despite being put on notice of the racial harassment. In late-May 2020, when the couple continued to report ongoing offensive treatment, they were fired via text message by one of the supervisors accused of harassment.

The EEOC charges this alleged conduct of tolerating racial harassment and firing the workers for complaining to the EEOC about it violated Title VII of the Civil Rights Act of 1964 which prohibits harassment due to race and requires employers ­to take prompt action to investigate and stop the misconduct after they receive notice of it.

The EEOC lawsuit in the U.S. District Court for the District of Nevada seeks compensatory and punitive damages, back pay and injunctive relief designed to prevent such discrimination in the future.

EEOC Enforcement Warn Other Businesses

The EEOC press release on the lawsuit warns other businesses and their leaders against committing or tolerating similar or other prohibited discrimination or retaliation.

“Leaders set company culture by the language and conduct they choose to tolerate as well as the behavior they model,” said EEOC San Francisco District Director Nancy Sienko. “Federal civil rights laws mandate that employers act promptly and effectively to stop race-based harassment, and the EEOC will hold employers accountable if they fail to meet their obligations.”

The PRC lawsuit is one of the latest in an accelerating civil rights and other employment discrimination and retaliation investigations, charges, and lawsuits the EEOC is taking in response to the proactive civil rights agenda of the Biden Administration.

In pursuit of its mission to advance equal employment opportunity, the EEOC focused on several major areas during FY 2022, including aggressive educational outreach, addressing systemic discrimination, advancing racial justice in the workplace, enforcing pay equity, and addressing the use of artificial intelligence in employment decisions.

Among other things, the EEOC 2022 Annual Performance Report (APR) (“2022 Data”) shows EEOC has seen an uptick in complaints filed by workers. In Fiscal Year (“FY”) 2022, the agency received 73,485 new discrimination charges, which represents an increase of almost 20% when compared to the previous fiscal year. The agency also handled more than 475,000 calls —an 18% increase from FY 2021—and managed 32% more emails from the public than the previous year.

To help manage the increased demand and strengthen the agency’s ability to prevent and remedy employment discrimination, the EEOC specifically focused on growing its workforce to meet growing requests for its assistance by filling 352 new positions and 500 total staff vacancies in FY 2022, the majority of which were in frontline positions.

The effects of this proactivity is confirmed by the 2022 EEOC enforcement data. The agency marked several significant accomplishments in FY 2022.

  • Obtained more than $513 million in monetary benefits for victims of discrimination, an increase from the previous fiscal year;
  • Resolved over 65,000 charges of discrimination.

Meanwhile in the federal sector, the EEOC:

  • Conducted more than 3,000 free outreach events reaching almost 220,000 individuals.
  • Resolved 9,336 hearings;
  • Recovered more than $132 million for federal workers and applicants; and
  • Significantly reduced the federal hearing inventory by 25% from FY 2021 to FY 2022

EEOC appears to be continuing its aggressive enforcement into 2023. In March, 2023 alone, for instance, the EEOC has announced the following discrimination and retaliation actions

These and other developments, send a strong message to businesses and business leaders to use their compliance and employment, discrimination and retaliation compliance, and risk management efforts. No b

In the face of these developments, businesses and their leaders should move quickly to audit, their current compliance and risk as well as manage their exposures.

In assessing pre-existing risk, businesses should take in to count the likelihood that compliance and operations may have been disrupted during the COVID healthcare emergency. Additional difficulties in investigating and defending risk also may arise because of turnover in management or other staffing. In light of these and other challenges, many businesses may wish to consider acquiring or increasing their employment practices liability as a backstop against these risks.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators.  A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Know When FLSA Overtime Rate Includes Shift Differentials, Incentives, Bonuses & Other Supplemental Comp To Avoid Pricey Overtime Mistakes

March 28, 2023

A $259,474 backpay award the U.S. Department of Labor’s Wage and Hour Division (“WHD”) ordered plastics manufacturer Jadex Inc. and four subsidiaries (“Jadex”) to pay alerts other businesses against improperly failing to include incentives, bonuses and premium pay failed to include incentives, bonuses and premium when calculating and paying overtime under the Fair Labor Standards Act (“FLSA”).

Jadex Overtime Schooling

Jadex Inc., a South Carolina manufacturing holding company that employs approximately 1,800 employees at its headquarters and subsidiaries, Alltrista Plastics LLC, ArtaZn LLC, LifeMade Products LLC, and Shakespeare Co. LLC, is learning an expensive lesson about the FlSA’s requirements to include most shift, differentials, bonuses, or other supplemental compensation in an employee’s base rate of pay when calculating his overtime.

WHD found Jadex underpaid 939 employees by improperly omitting additional pay from the base rate of pay when calculating overtime,

A WHD audit of Jadex found the employers violated the FLSA by failing to include bonuses workers earned by reaching sales and safety goals per quarter, incentives awarded for working night shifts and for serving as trainers to other employees, additional hourly amounts for every hour worked during peak production seasons and bonuses for perfect attendance and personal safety performance during peak seasons.

As a result of the audit, WHD recovered a total $259,474 of overtime for the employees from Jadex.

Precautionary Lesson For Other Businesses

WHD warned other businesses against making similar mistakes when calculating overtime due their workers when announcing its recovery from Jafex. “Employers must understand all applicable rules when it comes to paying workers overtime. This includes adding bonuses and incentive pay when factoring overtime pay. Anything less robs workers of their hard-earned wages,” said Wage and Hour Division District Director Jamie Benefiel in Columbia, South Carolina.

Employers often unknowingly underpay overtime, because they failed to recognize that most bonuses, incentive pay, shift differentials, and other special compensation presumptively generally must be included in the base rate of pay for purposes of calculating overtime due to non exempt employees unless the employer can demonstrate that the extra compensation qualifies under one of the exemptions allowed by the FLSA.

Employers caught making this mistake, can face back pay awards for the unpaid overtime, plus assessments of interest and penalties. To avoid these exposures, employers should consult with qualified legal counsel to confirm their proper treatment of all aspects of compensation paid to nonexempt employees for purposes of overtime, and other wage in our purposes.

Getting nailed for failing to appropriately, taking account incentive, bonus, shift, differentials, and other supplemental compensation creates a particular hardship for the employer as the employer will unexpectedly before’s to pay 1 1/2 times the budgeted supplemental compensation amount plus interest and penalties for overtime hours worked if it turns out that the compensation is required to be taken in account for overtime purposes.

To avoid these unpleasant consequences, businesses and their leaders should consult with qualified legal counsel to fully understand how supplemental compensation is likely to be treated for purposes of the FLSA, before announcing or paying the supplemental compensation. Pre-armed with a proper understanding of what types of supplemental compensation, the FLSA requires an employer to include in the base rate of pay for overtime calculation purposes empowers the business to more reliably budget for and pay incentive compensation without the risk of an anticipated overtime liability.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators.  A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Comments Off on Know When FLSA Overtime Rate Includes Shift Differentials, Incentives, Bonuses & Other Supplemental Comp To Avoid Pricey Overtime Mistakes | board of directors, Brokers, compensation, compliance, Corporate Compliance, corporate governance, employee, Employee Handbook, Employer, Employers, Employment Agreement, Executive Compensation, Fair Labor Standards Act, FLSA | Permalink
Posted by Cynthia Marcotte Stamer

USICS Pandemic Flexibilities Ended 3/23

March 23, 2023

U.S. Citizenship and Immigration Services flexibilities first announced in March 2020, to address the COVID-19 pandemic generally now are ended.

USCIS previously notified the public on January 24, 2023 it planned to end its COVID-19 pandemic flexibilities on March 23, 2023. Since no events occurred prompting a change of plans, USCIS let the flexibilities end as planned.

The March 23 end of the flexibilities impacts applicants for new or renewing visas, as well as employers whose I –9 compliance is impacted by visas whose processing deadlines were delayed under the flexibilities.

As a result of the flexibilities end, visa holders, and applicants must respond to any notices or requests from USCIS dated after March 23 by the deadlines listed in the notice or request. This includes:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional centers;
  • Notices of Intent to Withdraw Temporary Protected Status; and
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

Additionally, an individual wishing to file Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), regarding a decision dated after March 23, 2023, you must comply with the deadlines in the form instructions.

USCIS retains discretion to provide certain flexibilities on a case-by-case basis upon request, for applicants or petitioners affected by an emergency or unforeseen circumstance, such as natural catastrophes (hurricanes, wildfires, severe weather, etc.), national emergencies (public health emergencies), or severe illness (including COVID). Please see the Immigration Relief in Emergencies or Unforeseen Circumstances webpage for more information about remaining case-by-case flexibilities

As a reminder, the flexibilities regarding reproduced signatures first announced on March 20, 2020, became policy as announced on July 25, 2022.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses on I-9 and other foreign worker and many other workforce, worker compensation, payroll and other tax, wage and hour and other compensation, employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, USICS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Providing Or Using PEOs Or Other Outsourced Payroll Services? Review Updated IRS Certified Professional Employer Organization Rules

March 10, 2023

Professional employer organizations (“PEOs”) and other entities performing payroll administration and tax reporting responsibilities for their business clients and employing businesses that use their services should review the updated Internal Revenue Service (“IRS”) requirements to be and remain a Certified Professional Employer Organization (CPEO) under the voluntary CPEO Program the IRS established and administers under the Tax Increase Prevention Act of 2014. Revenue Procedure 2023-18  updates the IRS’ current rules and procedures to become and remain certified as a Certified Professional Employer Organization (CPEO) and the procedures relating to suspension and revocation of CPEO certification.

Voluntarily becoming and remaining certified as a CPEO means that a PEO has met the detailed background, experience, business location, financial reporting, tax compliance, and bonding requirements described in the statute and regulations of the CPEO program.

To be eligible for certification as a CPEO, a PEO:

  • must be a business entity,
  • must have at least one physical business location within the United States,
  • should have a history of financial responsibility, organizational integrity, and tax compliance (federal, state, and local),
  • and should be managed by individuals (a majority of whom are U.S. citizens or residents) who have knowledge or experience regarding federal and state employment tax compliance and business practices relating to those compliance requirements.

Like its predecessors, Revenue Procedure 2023-18 requires PEOs must meet and comply with detained requirements for becoming and remaining certified as a CPEO and PEOs performing payroll services as a CPEO assume additional tax liability.  In addition to the detailed requirements to show suitability to qualify as a CPEO, CPEOs also face annual reporting and other requirements to preserve their certification.  PEOS that currently are, or are interested in becoming CPEOs should carefully review these requirements to ensure their ability to meet and comply with the conditions.

Although CPEO certification is voluntary, many PEOs find the burdens of certification helpful if not necessary to meet the expectation of their preferred customers.  Many businesses outsourcing payroll and other tax services require or prefer use CPEOs when outsourcing payroll and other tax services because if the CPEO and business agree and the CPEO timely files the required Form 8973, Certified Professional Employer Organization/Customer Reporting Agreement with the IRS at the start of the contract, the CPEO generally becomes solely liable for paying the customer’s employment taxes, filing returns, and making deposits and payments for the taxes reported with regard to remuneration it pays to work site (but not nonwork site) employees under the payroll outsourcing arrangement.  The CPEO will file aggregate employment tax returns for all its customers using the CPEO’s employer identification number (EIN) with the appropriate Schedule R, Allocation Schedule for Aggregate Filers attached that allocates to each customer the information reported. The CPEO deposits and pays the tax liabilities of those customers using the CPEO’s EIN, according to the CPEO’s deposit requirements. CPEO customers cannot view federal tax deposits and payments made by the CPEO using the Electronic Federal Tax Payment System (EFTPS). In other words, an appropriate payroll outsourcing arrangement with a CPEO allows the business both to outsource the performance of the functions and much of the liability for the proper performance of those activities to the CPEO.  A CPEO and its customer may both be liable with regard to remuneration the CPEO pays to non-worksite employees, however. For additional information on employers outsourcing their payroll responsibilities under the Internal Revenue Code, see Outsourcing Payroll and Third Party Payers.

PEOs apply to become CPEOs using the IRS’ Online Registration System for PEO certification which requires the applying PEO to complete the following:

Revenue Procedure 2023-18 modifies and supersedes both Revenue Procedure 2016-33 and Revenue Procedure 2017-14. It addresses the procedures for applying to be certified as a Certified Professional Employer Organization (CPEO), the requirements for a CPEO to remain certified, and the procedures relating to suspension and revocation of CPEO certification. Revenue Procedure 2023-18 is scheduled for official publication in Internal Revenue Bulletin 2023-13, on March 27, 2023. Its provisions become effective today effective March 10, 2023. CPEOs and PEOs contemplating certification, as well as the businesses outsourcing or considering outsourcing to them should carefully evaluate the updated guidance and its implications on their responsibilities and liabilities. When conducting these evaluations and contracting, all parties should fully understand the implications of the arrangement. Likewise, parties involved in these arrangements also should keep in mind that the Internal Revenue Code characterization of relationships to workers and allocations of responsibility and liability for payroll or other tax obligations do not determine the consequences of their arrangement for most other legal purposes. Rather, the characterization of an outsourcing business and a PEO or other workforce vendor as an employer, joint employer, agent or other responsible party and each party’s potential respective obligations and exposures under Federal or state wage and hour, discrimination, safety, leave, union and other labor and employment laws is governed by the applicable statutes, regulations and rulings. PEOs and businesses using PEO or other outsourcing, staffing, subcontracting or similar arrangements should carefully evaluate the consequences of their proposed arrangements under all relevant laws. For additional information on employers outsourcing their payroll responsibilities, see Outsourcing Payroll and Third Party Payers.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators.  A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™m

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Posted by Cynthia Marcotte Stamer

USCIS Adopts Domestic Mobile Biometrics Collection and Remote Domestic Applicant Biometrics Collection

March 7, 2023

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services (“USCIS”) issuing policy guidance governing its mobile biometrics collection and the biometrics collection of benefit requestors in remote locations to s to make it more accessible for certain benefit requestors.

USCIS generally requires applicants for visas or other benefits to schedule and keep a biometrics appointment at a local Application Support Center (ASC) after the applicant files an application, petition, or other benefit request. The person submitting biometrics must bring the Form I-797C and valid, unexpired photo identification (for example, Permanent Resident Card (Form I-551), passport, or driver’s license) to the appointment, if required. USCIS considers a person to have abandoned his or her application, petition, or request if he or she fails to appear for the biometrics appointment unless, by the appointment time, USCIS receives a change of address or rescheduling request that it concludes warrants excusing the failure to appear.

Since some applicants face health, logistical or other legitimate challenges to appearing in person, USCIS intends to make biometric collection more accessible for benefit requestors unable to attend appointments at USCIS Application Support Centers (ASC) due to health or other issues, or because their physical location requires multiple modes of transportation or substantial travel times to reach an ASC, where USCIS generally collects biometrics.

To this end, USCIS is amending the USCIS Policy Manual to:

  • Provide circumstances under which USCIS may conduct mobile biometrics collection for benefit requestors who reside in remote locations in relation to ASCs; and
  • Provide an alternative method to fingerprint collection, to include fingerprint cards and coordination with other agencies, for certain benefit requestors who live in locations so remote that USCIS mobile biometric services would not be practical.

The availability of remote collection may help employers and their workers seeking visas with restrictions on the workers ability to travel to an on-site collection location. Employers with workers with these challenges should coordinate with the worker and their immigration counsel to ensure they pursue these new opportunities where appropriate.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends health care, education, DOT, government contractors and a wide range of other employers about drug testing and drug free workplace, discrimination, safety and other employment, benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here. 

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Federal Marijuanna Pardons Create Potential Employer Headaches

March 5, 2023


Employers whose policies disqualify applicants from employment based on past Marijuanna convictions need to prepare to respond to applicants presenting certificates of pardon of their prior federal conviction of simple Marijuanna conviction received under President Biden’s October 6, 2023 Presidential Proclamation on Marijuana Possession.

Biden Marijuanna Pardons

The Proclamation provided a blanket pardon for all prior federal and D.C. (but not state) offenses of simple possession of marijuana. 

Those who were pardoned on October 6, 2022, are eligible for a certificate of pardon. Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on October 6, 2022. Those convicted of state marijuana offenses do not qualify for the pardon.

On March 3, 2023, the Justice Department announced the application process for issuing certificates of the pardons to pardoned individuals. This process allows pardoned individuals to get prof of their pardons to present to employers and others. Consequently health care and other businesses should prepare to respond to applicants presenting these certificates. 

When he made the pardon proclamation, President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon. On March 3, 2023, the Justice Department issued an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden. 

The online application available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on October 6, 2022, for simple possession of marijuana.

President Biden said when making his proclamation he intended the pardons to “help relieve the consequences arising from these convictions.” The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities such as restrictions on the right to vote, to hold office or to sit on a jury that are imposed because of the pardoned conviction. Proofs of pardon also may help those pardoned to obtain licenses, bonding or employment.

Potential Employer Challenges

The pardons are likely to create concerns for health care and other employers who currently disqualify applicants from eligibility for employment based on drug related criminal conditions where the employer remains subject to statutory, regulatory, contractual or other requirements prohibiting employment of workers with prior or current history of drug offenses or use. 

As a starting point, employers should carefully review their own existing policies as well as any statutory, regulatory contractual requirements applicable to their workforce to assess the implications of the pardons on the employment eligibility of a pardoned worker. Ambiguities are likely to arise under many policies, particularly where a hugyirunof drug use or possession is disqualifying without a requirement of a conviction. 

Employers contemplating continuing to disqualify pardoned applicants for safety or other reasons probably should seek the advice of legal counsel. Some pardoned applicants might argue an employer’s reliance on a pardoned criminal drug conviction constitutes prohibited discrimination based on a history of prior drug dependence that violates the Americans With Disabilities Act or other discrimination laws. Statements made by President Biden and others within the Administration suggest the Equal Employmrnt Opportunity omission might support these or similar arguments in furtherance of promotion if President Biden’s policy of facilitating opportunities for employment for individuals recovering from substance abuse. 

Employers also may struggle with equity questions raised by the pardoning of federal convicts but not those with state convictions. 

Employers should monitor Equal Employment Opportunities Commission and other guidance and seek advice of experienced legal counsel to develop and administer hiring policies to mitigate potential exposures. 

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends health care, education, DOT, government contractors and a wide range of other employers about drug testing and drug free workplace, discrimination, safety and other employment, benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here. 

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Affordable Housing Company Nailed For Sexual Harassment

March 3, 2023

Kingston Properties will pay $240,000 to five women to settle a sexual harassment lawsuit filed by the U.S. Equal Employ­ment Opportunity Commission (EEOC).

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, including subjecting employees a hostile work environment based on sex. The EEOC filed suit in U.S. District Court for the Northern District of New York (EEOC v. Birchez Associates LLC, et al., Civil Action No. 19-cv-8110) after first attempting to reach a pre-litigation settlement through its conciliation process.

According to the EEOC’s lawsuit, Steve Aaron, the former owner and top management official of the affordable housing development company re­peatedly subjected female employees to crude sexual comments. He frequently yelled at his female employees and used obscene sexist epithets. The harassment also involved unwelcome physical contact and subjecting a female employee to pornography on a cell phone. Despite repeated objections by female employees, the conduct did not stop, causing several women to resign.

During the lawsuit, a new owner purchased the properties. Under the decree, the new owner will not allow Steve Aaron or the top manager of the prior companies to be involved with their employees or in the management of the buildings.

The lawsuit and settlement are among a waive of employment discrimination lawsuits, settlements and charges the EEOC has announced in recent weeks which warn other employers to ensure their workplaces comply with federal sexual harassment and other employment discrimination laws. Employers covered by these rules are encouraged to take steps to position their organizations to avoid and defend against similar charges or disputes.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here. 

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Comments Off on Affordable Housing Company Nailed For Sexual Harassment | Corporate Compliance, Discrimination, Employers, Employment, Employment Discrimination, Employment Policies, Sexual Harassment, sexual harassnrnt | Permalink
Posted by Cynthia Marcotte Stamer

Disability Program Sued For Disability Discrimination

March 3, 2023

The Equal Employment Opportunity Commission (“EEOC”) is suing a nonprofit providing programs for people with disabilities and others to build self-reliance through educational, therapeutic, and employment services for violating the Americans With Disabilities Act (“ADA”) by refusing to accommodate an employee with a degenerative hip impairment and instead fired her.

The ADA prohibits employers from refusing to provide reasonable accommodations to employees or applicants with a disability unless doing so would constitute an undue hardship.

According to the EEOC’s suit filed today (March 3, 2023) against Innovative Services NW (ISNW),Carly Romero earned praise as a valued employee and strong performer by high level managers during the seven years she worked as a janitor in the Innovative Services NW (ISNW), Janitorial Services Program in Vancouver, Washington.

In November 2019, Romero attempted to return to work with a doctor’s release allowing her to resume janitorial activities, except for wearing a backpack vacuum. As a reasonable accommodation, Romero asked to use an upright vacuum instead. The EEOC’s investigation found that even though ISNW had permitted other janitors to use upright vacuums at some customer sites, ISNW refused Romero’s repeated requests to return to work. Claiming “there would be too much risk to return [Romero] to work without a 100% release,” ISNW placed Romero on unpaid leave, then fired her on January 21, 2020.

The EEOC charges these actions by ISNW violated the ADA. “Ms. Romero simply asked to return to work using an upright vacuum, equipment already used by other employees. Instead, ISNW chose to fire her,” said Elizabeth Cannon, director of EEOC’s Seattle Field Office. “Under the ADA, an employer cannot deny an employee with a disability the opportunity to work when there is a readily available accommodation that would allow her to perform her job.”

After attempting to negotiate a settlement failed, the EEOC filed its lawsuit, EEOC v. Innovative Services NW, Civil Number 2:23-CV-00295, in U.S. District Court for the Western District of Washington seeking back pay, compensatory and punitive damages, and injunctive relief designed to prevent similar discrimination in the future. If the EEOC prevails ISNW can expect to be ordered to pay attorneys’s fees as well.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Medical Clinic Co-Founder Sentencing & New Charges Filed Against Substance Abuse Clinic Operator Highlight Threat Health Plans Face From Health Plan Fraud Scammers

March 3, 2023

The U.S. District Court for the Western District of Kentucky ordered the co-founder of a that Yesdel Acosta Perez to time served of 14 months in prison and to pay $258,507 in restitution for his role in causing health care clinics he cofounded to bill 15 self-funded health plans for $4.7 million in medical services never provided. The conviction reminds health plans, health care providers and others that fraudulently billing self-insured or other private health plans can result in criminal conviction punishable as felony under multiple provisions of the United States Criminal Code. Acosta Perez’ sentencing coincides with the Justice Department’s announcement of its March 2, 2023 filing of similar criminal charges against the operator of a chain of substance abuse clinics and others for their alleged involvement in millions of dollars of false charges billed to private health plans, Medicare and Medicaid for substance abuse addition treatment not provided.

The conviction and sentencing of Acosta Perez and the newly announced charges against operators of a chain of addiction treatment clinics in Massachusetts and Rhode Island and others for alleged ahealth care fraud aggravated identity theft, money laundering and obstruction in relation to alleged billing of millions of dollars of false charges to private health plans, Medicare and Medicaid for substance abuse treatment by clinics highlight the continuing threat fraudulent actors present for self-insured and other private health plans, Medicare and Medicaid, as well as the potential criminal prosecution and consequences those individuals convicted of these crimes risk from their criminal activity.

Acosta Perez Conviction & Sentencing

The co-founder of Romero Rehabilitation Physical Therapy Inc. and Empire USA Inc. in Louisville and Imaging Group Center Inc. in Atlanta plead guilty to one count of conspiracy to commit healthcare fraud in February, 2023, after the U.S. Department of Labor found the operators collected $258,000 from 15 self-funded healthcare benefit programs for services they never provided based on fraudulent claims made between 2016 and 2018.

In June, 2018, a federal grand jury indicted Acosta Perez and fellow co-founder Eduardo Chinea-Martinez and others on multiple counts of Health Care Fraud in violation of 18 U.S.C. §1347, Theft from a Health Care Benefit Program in violation of 18 U.S.C. §669, Aggravated Identity Theft in violation of 18 U.S 8 U.S.C. §1028A, Money Laundering in violation of 18 U,S,C. §1956, Mail Fraud in violation of 18 U.S.C Chapter 63 and aiding and abetting in the commission of these violations under 18 U.S.C. §1349. billing various healthcare benefit programs through claims administrators Humana, CIGNA and United Healthcare for $4.7 million for services never provided. The U.S. Criminal Code authorized potential sentences of between 10 to 20 years of imprisonment as well as subjected charged defendants to asset forfeiture upon conviction.

The grand jury inditement and subsequent prosecution of Acosta Perz and a fellow co-founder resulted from an Employee Benefit Security Benefit Administration investigation that found that, between May 2015 and January 2016, Acosta Perez and Eduardo Chinea-Martinez co-founded three companies to intentionally defraud various healthcare benefit programs. Investigators also determined Acosta Perez opened bank accounts for the fictitious businesses at JPMorgan Chase Bank, Wells Fargo Bank and Bank of America. Acosta Perez and Chinea-Martinez. The indictment charges that Acosta Perez and Chinea-Martinez misappropriated and used patients’ names, dates of birth, insurance/policy numbers, addresses, and patient IDs/Social Security Numbers, without the patients’ knowledge and names and National Provider Numbers (“NPIs”) from uninvolved doctors without the doctors’ knowledge to create claims for payment by representing these uninvolved doctors and clinics allegedly ordered or performed the services in the false and fraudulent billings submitted by defendants for payment to submit fraudulent claims. The fraudulent claims directed the plans to send payment for the billed services to a Regus virtual office location in Louisville, Kentucky. Acosta Perez then directed Regus via email to forward all mail to Romero Rehabilitation Physical Therapy. According to the indictment, using this process to submit claims for payment for the fraudulent services, Chinea-Martinez and Acosta Perez billed approximately $4,700,000 in fraudulent medical services to the self-insured plans and received payment for $258,000.

In March 2020, the court sentenced Chinea-Martinez to 42 months in prison and three years of supervised release for his part in the scheme. However, before his in June 2018, Acosta Perez fled the U.S. On July 22, 2022, however, the Italian government granted the request of the U.S. for the extradition of Acosta Perez and surrendered him to U.S. authorities. Acosta-Perez was arrested in June 2022.

New Health Care Fraud Charges Against Rhode Island and Massachusetts Addiction Treatment Chain Operators

Acosta-Perez’s sentencing coincides with the Justice Department’s March 2, 2023 announcement of its filing of a host of similar charges in Rhode Island against the operator of a chain of addiction treatment clinics and others for alleged aggravated identity theft, money laundering and obstruction in relation to theft of the identities and other patient and provider information and using their information to file false charges billed to private health plans, Medicare and Medicaid for substance abuse treatment by clinics.

Michael Brier, Mi Ok Bruining and Recovery Connections Centers of America, Inc. (RCCA) are charged in a federal criminal complaint with health care fraud and Michael Brier also is charged with aggravated identity theft, money laundering and obstruction. In addition, the treatment center and its former supervisory counselor were also charged with health care fraud. The Justice Department announcement of these charges reminds readers that its federal criminal complaint is merely an accusation and that the defendants are presumed innocent unless and until proven guilty.

The Justice Department alleges in court documents that, Brier, Bruining, and RCCA shortchanged Rhode Island and Massachusetts substance abuse disorder patients out of much needed counseling and treatment services, while defrauding Medicare, Medicaid, and other health insurers out of millions of dollars.

According to the charging documents, Brier, Bruining and RCCA operated a chain of addiction treatment centers but failed to provide the patients with the required counseling sessions and treatment, while simultaneous billing Medicare, Medicaid and other health care payors for 45-minute counseling sessions on a routine basis even though the sessions were not more than 15 minutes, and often only 5-10 minutes or less.  At times, so many counseling sessions were billed at this level that the total amount of time would be impossible for the available therapist to have provided in any 24 hours period. 

Brier and RCCA are also alleged to have caused a fraudulent application to be submitted to Medicare which, among other things, misrepresented and concealed the role that Brier was playing in the business and failed to disclose Brier’s 2013 criminal conviction for federal tax crimes, which was relevant to Medicare’s consideration of the application. 

The Complaint also alleges that Brier purported to practice medicine and wrote and caused to be filled fraudulent prescriptions using the names and prescriber information, including Drug Enforcement Administration numbers, of doctors without their permission.

Brier is also alleged to have falsified a document in a matter within the jurisdiction of an agency of the United States by causing the Medical Director to sign a false and back-dated document.

The complaint alleges that defendants caused millions of dollars in fraudulent billings to be submitted to Medicare and millions more in fraudulent billings to other health care payors. The government is also seeking to forfeit thirteen bank accounts, two buildings, and two vehicles allegedly realized by the defendants as a result of the alleged criminal conduct.

The two prosecutions highlight the continuing challenge health plans and other health care payers face from fraudulent claims submitted by criminal actors intent on deliberately defrauding health plans through schemes to knowingly defraud plans by creating and filing false claims. Health plans and their fiduciaries and administrators should be vigilant in their efforts to identify and protect their health benefit programs against these schemes and if victimized or presented with evidence of these schemes, should work with experienced legal counsel to prudently investigate these concerns and report relevant findings to the EBSA, the Department of Justice Health Care Fraud Task Force or both.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Comments Off on Medical Clinic Co-Founder Sentencing & New Charges Filed Against Substance Abuse Clinic Operator Highlight Threat Health Plans Face From Health Plan Fraud Scammers | Claims, Claims Administration, Corporate Compliance, ERISA, Health Care Fraud, Health Plans | Permalink
Posted by Cynthia Marcotte Stamer

Court Order Shows What Not To Do When Facing A FLSA Or Other DOL Investigation

March 2, 2023

A federal court order against a Brewster home care provider shows some key things an employer should not do when facing a Department of Labor Wage and Hour Division Fair Labor Standards Act (“FLSA”) or other Labor Department investigation. With Labor Department wage and hour and other employment and labor law enforcement soaring under the Biden Administration’s pro-employee agenda, all employers should learn from the schooling this and other noncompliant employers are receiving from the Labor Department and courts.

Sunrise Home Health Care, Inc. & Owner Injunction For FLSA Investigation interference & Retaliation

The Labor Department obtained a temporary restraining order in the U.S. District Court for the Southern District of New York on March 1, 2023 ordering Sunrise Home Care Inc. and owner Elsa Silva to stop retaliating against employees in an effort to obstruct the wage and Hour Division’s FLSA investigation.

According to the Labor Department complaint, when the Wage and Hour Division began an investigation to evaluate the employers’ compliance with the FLSA in January 2023, Silva has harassed and intimidated employees repeatedly by

  • Asking workers about their communications with investigators;
  • instructing workers to provide false information;
  • Telling employees she would have to close the business and they would lose their jobs if the investigation determined she had to pay overtime premiums; and
  • Pressuring employees to agree to return to the employers any monies owed to employees as a result of the investigation.

The court order secured by the Labor Department forbids Silva and Sunrise Home Care Inc. from doing the following:

  • Violating the FLSA’s anti-retaliation provisions.
  • Threatening employees with termination or other retaliatory actions or taking any other actions to prevent them from participating in the Department’s investigation or in any other FLSA-protected activity.
  • Obstructing and interfering, in any way, with the investigation.
  • Telling workers not to cooperate with investigators or to provide incomplete or false information to them.
  • Questioning employees about their cooperation or communications with investigators.
  • Advising current and former employees that they must “kickback” or return any back wages the department may determine they are owed.
  • Communicating with any employee regarding the investigation without first informing the employee that they may communicate with investigators voluntarily and not be discriminated against for doing so.

The court order secured by the Labor Department also orders Silva and Sunrise Home Care Inc. to:

  • Permit division representatives to read aloud – in English, Spanish, Portuguese and any other language understood by most employees – a statement describing employees’ FLSA rights during their paid working hours and in the presence of the defendants.
  • Mail a written statement of the same to current and former employees.
  • Provide a written notice to the Wage and Hour Division at least seven days before terminating an employee for any reason.

The injunctive relief issued by the Court seeks to allows the Labor Department investigation to continue without further employer obstruction. Aside from any contempt sanctions Sunrise and Silva could incur for violating the court’s order, the alleged threats and retaliation also could serve as a basis for the assessment of additional liability as a sanction for the employee’s prohibited retaliation beyond any backpay and penalty awards the Labor Department finds the employer owes for failing to pay wages or keep records.

FLSA Liability Risks High; Learn From Other Employer’s Mistakes

Other employees and their management should learn from the schooling the court ordered against Sunrise and Silva and avoid engaging in the actions prohibited by the court order when facing their own FLSA or other Labor Department investigation.

The Labor Department views audit, investigation and enforcement of the FLSA compliance and violations a key priority and employers risk significant liability for violations from Wage and Hour Division or private enforcement.

Enforcement by the Labor Department and private litigants of minimum wage, overtime, child labor, human trafficking and other laws is increasingly common. the Labor Department Wage and Hour Division concludes approximately 21,000 Fair Labor Standards Act cases, impacting over 200,000 workers each year. Over the last five years, Wage and Hour has collected more than $1 billion in back wages for workers in America. But the Department of Labor recognizes that back wages alone provide insufficient compensation to employees for lost wages. Although actual enforcement dipped slightly over the past two years due to the disruption in the Wage and Hour Division’s staffing and operation during the COVID-19 health care emergency, its announcement of a stream of FLSA enforcement actions reflects it is resuming its zealous enforcement. See WHD FLSA and Other Statistics. Therefore, liquidated damages are intended to compensate workers for damages they may have incurred as the result of not having been paid timely for all the wages they legally earned.

Employers found in violation of these rules enforcement actions face actual damages, interest, civil monetary penalties, enforcement costs, and in the case of willful violations, even potential criminal sanctions. While the Labor Department during the Trump Presidency suspended its pursuit of collection of liquidated damages authorized under the FLSA Generous recoveries also make private enforcement very attractive to employees and plaintiffs’ counsel, this leniency ended after President Biden took office. Since April 9, 2021, Labor Department wage and hour law enforcement policy includes pursuing the implementation and collection of liquidated damages in addition to back pay and interest due for unpaid wages from employers found in violation of the FLSA and other wage and hour laws. Private litigants can recover actual damages plus double damages, interest, attorneys’ fees and other costs of enforcement. The availability of these extraordinary damages and recoveries makes these highly popular cases to many plaintiffs’ attorneys.

As demonstrated by the Exxon injunction, employers facing wage and hour investigations, audits or even employee inquiries or underpayment assertions other should keep in mind that actions by the employer that could be viewed as interference with an investigation by the Labor Department as well as improperly handled employee questions or statements of concern about potential FLSA and other related requirements can create retaliation or whistleblower risks. Accordingly, employers should use care to investigate and respond carefully to these concerns, addressing workers during the conduct of a Labor Department audit, investigation or enforcement action and in handling subsequent discipline or other employment decisions involving workers raising them.

Along with FLSA claims, these violations also can trigger state wage an hour, payday act and other liabilities.

Many businesses experience difficulties defending wage and hour and other FLSA claims due to lax timekeeping and recordkeeping practices, misclassification of workers as contract labor or exempt, failure to include nondiscretionary bonus or other required compensation or hours of work when calculating overtime liability and other common mistakes.

Businesses also should use care to manage their potential exposure to joint employer or other liability for unpaid wages, overtime or other FLSA violations committed by subcontractors, contract labor companies, staffing or other businesses providing workers. Businesses can face imputed liability for violations committed by these other organizations when the facts and circumstances show the business exercises sufficient control over the details of the details of the worker’s work to qualify as a common law employer, whether the relationship between the business and the provider of worker qualifies as a “joint employment” relationship under the rules applicable to FLSA and National Labor Relations Act determinations for joint employment or certain other situations. he Wage and Hour Division also has propose adoption of a regulation to govern classification of workers as employees versus independent contractors for purposes of the FLSA, which if adopted, would heighten the likelihood that many workers considered contractors by businesses could be reclassified by the Labor Department as employees for FLSA and other wage and hour law purposes. The comment period for that regulation closed in December, 2022. Government contractors and subcontractors also may bear responsibility for contracting with subcontractors and taking other steps to ensure that these subcontracting entities comply with government contract wage requirements and the FLSA.

Misunderstandings about when workers are classified as employees versus contractors, exempt versus non-exempt, and regarding the appropriate tracking, counting, and reporting of hours work increasingly play a major role in aiding Labor Department or plaintiff’s successful enforcement and increase employer liability. Many employers failure to appreciate the significance of statutory presumptions of the existence of an employment relationship and of non-exempt status on the burden of proof the employer must meet to defend its treatment of a worker as a nonemployee or exempt employee. Many employers also fail to recognize the significance of special FLSA rules for characterization of workers as employees, the risk of reclassification of workers the employer considers as contractors or through staffing, day labor or other labor subcontractors as their employees or joint employees. Equally common are misconceptions about the narrowness of the rules for treating employees as exempt and eligible for payment on a salary rather than hourly basis. These mistakes also create a heightened risk that the employer will failed to track necessary Information to defend against employee or Labor Department hours of work claims, overtime or minimum wage claim as well as fuel additional liability for failing to comply with FLSA rules for tracking reporting of hours work. These misperceptions also often lead misinformed employers to take actions that provide a basis for retaliation claims. The Labor Department and private litigant leverage these mistakes to achieve their recoveries.

Because these audits often uncover violations or lead to sensitive conversations about the classification and payment of workers under the FLSA and other laws, employers and their leaders generally should arrange for this analysis to be conducted within the scope of attorney client privilege under the direction of a lawyer experienced in FLSA and other employment law compliance.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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 your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Comments Off on Court Order Shows What Not To Do When Facing A FLSA Or Other DOL Investigation | Child Labor, child labor, compensation, Construction, Corporate Compliance, corporate governance, employee, Employee Handbook, Employees Under Age 20, Employer, Employers, Employment, Employment Policies, enforcement, Fair Labor Standards Act, FLSA, FMLA, Government Contractors, Handicapped Employee, HR, Human Resources, Joint Employer, Retaliation, tipped employee, White Collar Exemption | Tagged: , , , , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

EEOC Exxon Mobile Race Suit Based On Nooses Hung In Workplace

March 2, 2023

Exxon Mobil Corporation (“Exxon” faces a Equal Employment Opportunity Commission lawsuit charging Exxon violated federal law prohibiting racial harassment in its workplace by failing to take effective measures to prevent the display of hangman’s nooses at its Baton Rouge complex.

Racial Harassment Violates Title VII

Racially harassing conduct that alters the terms and conditions of the workplace violates the prohibition against discrimination on the basis of race of Title VII of the Civil Rights Act of 1964. Even isolated displays of racially threatening symbols can risk violation of this race discrimination prohibition. When employers become aware of racially offensive or threatening conduct in the workplace, they have a legal obligation to take prompt, remedial action aimed at stopping it.

Exxon’s Alleged Race Discrimination

According to the EEOC’s complaint filed in Louisiana on March 2, 2023, a Black employee at ExxonMobil’s chemical plant found a hangman’s noose at his worksite in January 2020. When the employee reported the noose, the complaint clains ExxonMobil knew three other nooses had been displayed at the Baton Rouge complex.

After the employee reported the noose in January, a fifth noose was reported in December 2020 at the complex.

The EEOC alleges that ExxonMobil investigated some, but not all, of the prior incidents and failed to take measures reasonably calculated to end the harassment.

Elizabeth Owen, a senior trial attorney in the EEOC’s New Orleans Field Office, explained, “A noose is a longstanding symbol of violence associated with the lynching of African Americans. Such symbols are inherently threatening and significantly alter the workplace environment for Black Americans.”

EEOC charges Exxon’s actions and omissions regarding the noose incidents created a racially hostile work environment.

More Information

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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