Accommodating Client Racial Preferences No Excuse For Discriminatory Assignment Of Workers

July 31, 2023

A new federal lawsuit reminds employers customer preferences or demands cont justify discrimination based on race or other grounds prohibited by federal law.

Brooklyn-based home health company ACARE HHC Inc., doing business as Four Seasons Licensed Home Health Care Agency (“Four Seasons”) faces a race discrimination suit for allegedly removing home health aides from their work assignments due to their race and national origin to accommodate client preferences.

According to a lawsuit filed (EEOC v. ACARE HHC d/b/a Four Seasons Licensed Home Health Care, 23-cv-5760), filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) in the U.S. District Court for Eastern District of New York on July 31, 2023, Four Seasons routinely acceded to racial preferences of patients in making home health aide assignments. The EEOC claims Four Seasons routinely removed Black and Hispanic home health aides based on clients’ race and national origin-based requests. Four Seasons would transfer aides to a new assignment or, if no other assignment was available, the aides lost their employment completely. The EEOC charges this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race and national origin. The EEOC seeks compensatory damages and punitive damages for the affected employees, and injunctive relief to remedy and prevent future discrimination based on employees’ race and national origin.

The lawsuit, warns employers against resigning or assigning workers to accommodate racial or other prohibited discriminatory preferences of customers, or business partners. “Making work assignment decisions based on an employee’s race or national origin is against the law, including when these decisions are grounded in preferences of the employer’s clients,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office.

The lawsuit is one of a plethora of enforcement actions by EEOC under the Bill den Administration’s prioritization of expansion and enforcement of discrimination and other workers’ rights laws.

In light of these efforts, employers should take immediate steps to update policies, postings, training and practices to ensure their ability to defend their compliance with race and other federal non discrimination laws.

For More Information

We hope this update is helpful. For more information about 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 to 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 health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 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 such as: 

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

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. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Employer’s Refusal To Allow Employee To Undergo Dialysis At Work Triggers EEOC ADA Discrimination & Retaliation Lawsuit

July 31, 2023

Columbia, Mississippi-based Singley Construction Company, Inc., faces an Equal Employment Opportunity Commission (“EEOC”) lawsuit that charges the employer violated the Americans With Disabilities Act (“ADA”) by failing to accommodate an employee’s disability by allowed ng her to undergo dialysis in its workplace and then retaliating against her for requesting the accommodation and filing a charge with the EEOC.

The ADA requires covered employers to make reasonable accommodations for their employees’ disabilities unless the employer proves the accommodation is unreasonable, would impose an undue hardship, is prohibited by law or creates material safety threats to the employee or others. Additionally, the ADA prohibits disability discrimination and retaliation against employees for requesting accommodations, filing charges with the EEOC or Wang aging in other actions protected by the ADA.

In its suit filed in the U.S. District Court for the Southern District of Mississippi (Civil Action No. 2:23-cv-00106-KS-MTP) on July 31, 2023, the EEOC charges that Singley refused to accommodate its office manager’s end-stage renal disease by refusing the employee’s request to perform continuous ambulatory peritoneal dialysis (CAPD) on Singley’s premises so that she could maintain her full-time work schedule. According to the EEOC, this denial forced the office manager to lose around 50% of her work hours and pay as she had to regularly leave work to undergo her dialysis treatments. The EEOC further alleged that Singley constructively discharged the employee because of her disability and in retaliation for requesting a reasonable accommodation and for filing an EEOC charge.

The EEOC seeks monetary damages for the employee including back pay, compensatory damages, and punitive damages as well as injunctive relief designed to prevent such unlawful conduct in the future.

The EEOC contends the employer had a duty to allow her to undergo dialysis at work. “Employees on dialysis have rights under the ADA so that they can maintain their employment,” said Marsha Rucker, the regional attorney for the EEOC’s Birmingham District. “Employers would be well advised to recognize the right of workers to request reasonable accommodation for disabilities and to receive reasonable accommodation for disabilities absent undue hardship and direct threat. When businesses ignore these rights, the EEOC will hold them accountable.”

The lawsuit highlights the need for employers to use care when dealing with employees requesting accommodation in their workplaces.

For More Information

We hope this update is helpful. For more information about 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 to 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 health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress, and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community, and government leaders on health, severance, disability, pension, and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration, and defense of their organization’s workforce, employee benefit and compensation, safety, discipline, and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

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

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. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Comments Off on Employer’s Refusal To Allow Employee To Undergo Dialysis At Work Triggers EEOC ADA Discrimination & Retaliation Lawsuit | Accommodation, ADA, Civil Rights, compensation, Construction, Corporate Compliance, Disability, Disability Discrimination, Discrimination, EEOC, employee, Employer, Employers, Employment Discrimination, OFCCP | Tagged: , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Electronic Injury Reporting Requirements Changing January 1, 2024; Confirm Your Organization’s Status and Responsibilities Under New Rules

July 26, 2023

The Occupational Health and Safety Administration (“OSHA”) is changing its requirements for reporting occupational injury data electronically. Under OSHA’s new OSHA Improve Tracking of Workplace Injuries and Illnesses Final Rule (“New Electronic Reporting Rule”) published July 21, 2023. OSHA is updating both its electronic reporting requirements and the Appendix used to determine the employers required to electronically report OSHA injury data. Consequently, employers will need to reevaluate their status for purposes of determining if the electronic reporting requirements apply as well as what electronic filing responsibilities, if any, apply to their organizations.

OSHA Injury Tracking & Electronic Reporting Through December 31, 2023

Currently, 29 CFR part 1904 (“Basic Tracking Rule”) requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments using three forms or their equivalent:

  • OSHA Form 300, the Log of Work-Related Injuries and Illnesses, which includes information about the employee’s name, job title, date of the injury or illness, where the injury or illness occurred, description of the injury or illness (e.g., body part affected), and the outcome of the injury or illness (e.g., death, days away from work, job transfer or restriction);
  • OSHA Form 301, the Injury and Illness Incident Report, which includes the employee’s name and address, date of birth, date hired, and gender and the name and address of the health care professional that treated the employee, as well as more detailed information about where and how the injury or illness occurred; and
  • OSHA Form 300A, the Annual Summary of Work-Related Injuries and Illnesses, containing general information about an employer’s workplace, such as the average number of employees and total number of hours worked by all employees during the calendar year. It does not contain information about individual employees. Employers are required to prepare this form at the end of each year and post the form in a visible location in the workplace from February 1 to April 30 of the year following the year covered by the form. 

In addition to the Basic Tracking Rule, Section 1904.41 of the OSHA regulations currently requires electronic reporting of certain injury and illness data to OSHA by two groups once a year:

  • Establishments with 250 or more employees in industries required to routinely keep OSHA injury and illness records must electronically submit information from the Form 300A summary to OSHA once a year;  and
  • Establishments with 20-249 employees in industries listed on appendix A of part 1904 subpart E to the regulation (“high hazard employers”) must electronically submit information from their Form 300A summary to OSHA once a year.

The New OSHA Electronic Reporting Rule modifies these electronic reporting requirements beginning January 1, 2024 while leaving the Basic Tracking Rule unchanged.

New OSHA Electronic Reporting Rules After December 31, 2023

Beginning in January, 2024, the New Electronic Reporting Rule will require three groups of establishments to electronically submit information from their injury and illness recordkeeping forms to OSHA once a year as follows:

  • High hazard employer establishments with 20-249 employees will continue to be required to electronically submit information from their Form 300A annual summary to OSHA once a year; and
  • Establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records will continue to be required to electronically submit information from the Form 300A to OSHA once a year; and
  • High hazard employers will be newly required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year.

As OSHA will update the NAICS codes in appendix A to subpart E used to determine if an employer is a high hazard employer in connection with its implementation of these new rules, employers will need to reevaluate whether their organizations are considered high hazard employers under the updated appendix A to determine what electronic reporting obligations, if any, their organization must meet. Employers required to report electronically should expect that in addition to other required information, OSHA now will require organizations to identify their organization by name when filing their electronic reports and that OSHA plans to report collected establishment-specific, case-specific injury and illness information online with worker identifying and certain other information suppressed. OSHA believes that the expanded public access to establishment-specific, case-specific injury and illness data will promote workplace safety by helping OSHA with enforcement and allow employers, employees, potential employees, employee representatives, customers, potential customers, researchers, and the general public to make more informed decisions about workplace safety and health at a given establishment.

To avoid exposure for violating applicable OSHA electronic reporting or other requirements, all employers should evaluate their status under the New Electronic Reporting Rule and if applicable, begin preparing to comply with any applicable data collection and reporting requirements.

More Information

We hope this update is helpful. For more information about 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 to 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 health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress, and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community, and government leaders on health, severance, disability, pension, and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration, and defense of their organization’s workforce, employee benefit and compensation, safety, discipline, and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

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

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. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Comments Off on OSHA Electronic Injury Reporting Requirements Changing January 1, 2024; Confirm Your Organization’s Status and Responsibilities Under New Rules | compliance, Construction, Corporate Compliance, corporate governance, Emploeyrs, employee, Employee Handbook, Employer, Employers, Employment, enforcement, HR, Human Resources, Internal Controls, Internal Investigations, Joint Employer, Management, OSHA, Whistleblower | Tagged: , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

Businesses Risk Out-Of-State Lawsuits, Regulation From Registering In Consent To Jurisdiction States and Contractual Consents To Jurisdiction

July 17, 2023

Out-of-state employers, insurers, employee benefit plan vendors, and other businesses registered to do business in Pennsylvania, Georgia, Iowa, Kansas, Minnesota, or another state that requires that out-of-state businesses consent to jurisdiction as a condition of their registration to do business in the state face a heightened risk of getting hauled into court in the consent to jurisdiction state following last month’s Supreme Court decision in Mallory v. Norfolk Southern Railway Company, 600 U. S. ____ (2023) even if none of the events giving rise to the lawsuit took place in that state.

The Mallory ruling arose from a state lawsuit filed in Pennsylvania state court seeking damages by Robert Mallory (“Mallory”) to recover damages for cancer the argued was caused by the negligence of his former employer, Norfolk Southern Railroad (“Norfolk”) pursuant to the Federal Employers’ Liability Act workers’ compensation scheme that permits railroad employees to sue for injuries caused by employer negligence. Mallory filed the suit in Pennsylvania, a jurisdiction with no real connection to the claims but noted for its favorability to plaintiffs even though he never worked for Norfolk in Pennsylvania.  Mallory only worked for Norfolk in Ohio and Virginia, was a Virginia resident at the time of the suit, and only briefly lived in Pennsylvania after leaving Norfolk’s employment before returning to live in Virginia. Given the lack of connection of Pennsylvania to the parties and events giving rise to the claim, Virginia-based Norfolk Southern moved for the dismissal of the Pennsylvania lawsuit for lack of the requisite “substantial minimum contacts” generally required to support personal jurisdiction.

While courts generally recognize and enforce contractual agreements by a party to consent to jurisdiction, mere registration of an out-of-state business to do business in a state historically has not been recognized as creating the necessary “substantial minimum contacts” that the Due Process clause of the United States Constitution generally requires exist to provide the general personal jurisdiction that must exist for a state court to possess jurisdiction to decide a lawsuit over the out-of-state business under the Supreme Court precedent first articulated in International Shoe Co. v. Washington, 326 U. S. 310 (1945)

Because Pennsylvania is one of five states that currently requires all out-of-state businesses registering to do business in the State to consent to be sued in the state as a condition of registration, however, Mallory argued and the Supreme Court agreed in Mallory that Norfolk waived its ability to object to personal jurisdiction when it registered to do business in the Commonwealth. 

In Mallory, the Supreme Court Majority ruled that any corporation registered to do business in a state which requires out-of-state businesses to consent to general personal jurisdiction waives its right to assert a Due Process challenge to jurisdiction in that state. Accordingly, businesses registering to do business in a consent-to-jurisdiction registration state should anticipate that their mere registration with the state likely subjects the business to the jurisdiction of courts in that state even if the business has not entered into a contractual agreement to submit to that state’s jurisdiction or otherwise engage in other actions establishing the required substantial minimum contacts to satisfy the International Shoe Due Process standards even if none of the events underlying the lawsuit took place in that state.

Given the Supreme Court’s Mallory decision, businesses should take into account the potential risks of being subjected to out-of-state litigation and regulation anytime the business expands operations into, registers to do business as an out-of-state business or signs an agreement consenting to jurisdiction into a state other than their primary place of business. As evidenced by Mallory, businesses generally should consider and take steps to manage the risks of allowing the creation of jurisdiction against their business in states other than the primary location in which the business operates. Businesses subject to jurisdiction in a state generally become subject to laws, regulations, and lawsuits in that state. Aside from added obligations and costs associated with being subject to the laws of another state and conducting litigation in an unfamiliar state, businesses subject to the jurisdiction of laws in courts in multiple states open the door for opposing parties to strengthen their position by foreign shopping. Like Mallory, disgruntled current or former employees, plan members, or other opposing parties in disputes may choose to file their lawsuit in the state with the laws, rules, or precedent most favorable to their position even where the dispute does not arise out of events occurring in the chosen state.  Along with assessing when their organization may be subject to liability in other states, businesses should review their insurance coverage and applications to ensure that their insurance and other risk management arrangements take into account the added risks and liabilities that could arise from the additional state law jurisdiction. Consequently, businesses choosing to operate, to register to do business in a consent-to-jurisdiction state, or contractually to agree to submit to jurisdiction in any states should be prepared for the possibility that their organization could subject themselves to regulations, lawsuits, investigations and enforcement actions in that state.

More Information

We hope this update is helpful. For more information about 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 to 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 health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress, and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community, and government leaders on health, severance, disability, pension, and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration, and defense of their organization’s workforce, employee benefit and compensation, safety, discipline, and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

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

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Stamer To Discuss Emerging Impact of Dobbs on Employers, Employee Benefits and Healthcare At SPBAA Fall Conference

July 5, 2023

Attorney and Solutions Law Press, Inc. author Cynthia Marcotte Stamer will discuss the emerging challenges and potential coping strategies for third party administrators (“TPAs”), employers and employee benefit plans for dealing with the evolving federal and state litigation, regulation, enforcement, pollical dissention, disruptions and uncertainty triggered by the Supreme Court’s Dobbs v. Jackson Women’s Health Organization landmark abortion decision as a panelist for the “Emerging Impact of Dobbs on Employers, Employee Benefits and Healthcare” at the 2023 Fall Spring Meeting of the Society of Professional Benefit Administrators (“SPBA”) on September 13-14, 2023 at the Hilton Downtown Hotel in Nashville, Tennessee.

In Dobbs, the Supreme Court reversed its previous 1973 Roe v. Wade ruling when it ruled the U.S. Constitution does not provide any Constitutional right to an abortion. While the Dobbs opinion expressly limited its holding only to the right to abortion, the principles expressed by the Supreme Court majority inevitably touched off debate over the implications of Dobbs and other cases pending before the Court on contraception, LBGT rights and other reproductive and privacy rights. Meanwhile, the Dobbs opinion also has prompted the Biden Administration to issue a series of Executive Orders, regulations, and other actions intended to stymie and obstruct legislative and other bans or restrictions on abortion and other reproductive rights in states with politically conservative majorities in Dobbs’ wake. 

As the aftermath of Dobbs continues to unfold, employers, employee benefit plans, TPAs, medical providers, patients and others are facing struggling to understand and respond to the shifting and often ambiguous workforce, benefits, care, safety, cybersecurity, privacy and other immediate legal and practical demands and concerns fueled by the evolving federal and state litigation, regulation, enforcement, political upheaval and uncertainty emerging in response to Dobbs.

Stamer will join FTI Consulting, Inc.’s Tracy McCollum Bordignon in exploring the implications of the Dobbs and other subsequent developments on the responsibilities, risks and options of TPAs, employers and plans when dealing with abortion and other reproductive rights of employees and plan members and share strategies to help these organizations cope with the shifting legal, operational and political fallout of Dobbs.

An employee benefit and employment lawyer Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and a Fellow in the American College of Employee Benefit Counsel, Stamer has more than 35 years of experience guiding employers, health and other employee benefit and insurance programs and their fiduciaries, insurers and TPA on policy and product design, administration, compliance, and risk management and related workforce, contracting, regulatory and other compliance, risk management and operations concerns.

Recognized as Martindale Hubble “Top Rated Lawyer” and “Legal Leader” in Health Care and Labor and Employment Law; as among the D Magazine “Best Lawyers In Dallas” in Labor & Employment, Tax: ERISA & Employee Benefits,  Health Care and Business and Commercial Law, Stamer’s work throughout her career as focused on the design, documentation, implementation, review, amendment, termination, enforcement and defense of workforce, employee benefit, and managed care and insurance policies, programs, claims and appeals administration, funding, contracting, compliance, enforcement, investigation and defense, and other aspects of the operation and administration of self-insured and insured health and other employee benefit and insurance plans and related workforce, insurance, managed care and other health care, technology, tax and other concerns arising in relation these programs, products and practices for employer and other employee benefit plan sponsors, fiduciaries, third party administrators and other plan service providers, insurers and others in a wide range of contexts. Her work, and the interests of her clients are enhanced by her continuous involvement in federal and state legislative advocacy, regulatory affairs and government relations on these and other related concerns throughout her career.

In the course of this work, Stamer frequently advises and represents and defends health and other employee benefit plans, their fiduciaries, third party administrators, brokers, insurers, trustees and other plan service providers, debtor plan sponsors and their leaders, auditors, creditors and creditor committees, bankruptcy trustees, on prevention and mitigation of claims, fiduciary, licensing, prompt pay and other contractual, regulatory and other risks and liabilities arising from underfunded or distressed companies and employee benefit plans.  She also advises employers, their boards, investors and management, third party administrators, preferred provider organizations, insurers and other plan service providers and others in fiduciary, claims and other audits, investigations and enforcement actions by private litigants, the Department of Labor, Department of Health & Human Services, Internal Revenue Service, Department of Justice, Federal Trade Commission, state insurance, attorneys’ general or other regulator, contractual arising out of workforce and staffing, employee benefit and insurance practices and programs in ongoing operations, corporate or credit transactions, bankruptcy or other situations and serves as special or consulting counsel for bankruptcy and other human resources, benefits, insurance, health care and regulatory compliance and investigation concerns. Stamer also counsels, represents and defends third party administrators, preferred provider and other managed care organizations, brokers and other regulated parties in Department of Labor, Department of Health & Human Services, Internal Revenue Service, Department of Justice, Federal Trade Commission and other federal; state insurance, labor, health, and other agency notice and reporting, investigations, audits, discipline and other enforcement actions.

Stamer also contributes her experience and knowledge by serving as Scribe for the American Bar Association (“ABA) Joint Committee on Employee Benefits (“JCEB”) annual agency meeting with the Department of Health and Human Services as well as a leader of employee benefits, human resources, health care and other Committees and projects for multiple Sections of the ABA and many other organizations  Recognized as an industry thought leader, Stamer also publishes and speaks extensively on health and other employee benefits, compensation, workforce, health care and related regulatory compliance and risk management matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Stamer and her experience or to access other publications by Stamer see CynthiaStamer.com or contact Stamer directly via e-mail or telephone (214) 452-8287.

For more details about the SPBAA or the agenda or registration for its Fall Conference in Nashville, see here.

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