Time To Tighten Business Travel Policies

January 30, 2018

Businesses with employees that travel regularly or for the occasional training or other isolated business trip should review and update their travel related policies, practices, and procedures for evolving laws, risks and management needs.

To start with, 2017 tax reforms impact the tax treatment of various employee relocation and travel related expense. Businesses should review these changes and make appropriate updates now to avoid headaches for the business and its employees later.

While many employers mostly focus upon travel expense management, reporting and reimbursement, smart employers also understand there’s much more to consider.

First and foremost, since employees often forget that the purpose of business travel is carrying out the business of the company and not a boondoggle, business travel policies and communications should make clear to employees that their trip is about work. Policies should make clear to employees their tesponsibility for attending meetings and performing other business-related responsibilities as well as for conducting themselves at all times consistent with company policy and to promote a positive impression of the employer and the company.

Naturally all travel policies also should require compliance with all applicable laws and customs. For international travel, this includes compliance with the Foreign Corrupt Practices Act, the Patriot Act, U.S. and foreign immigration and customs, and other relevant laws, rules and customs. However, domestic travelers also should be reminded if their duty to comply with local laws as well.

Amid the current “Me Too” frenzy, however, companies also should consider addressing other potentially risky behavior that tends to arise when employees travel on business. Unfortunately history proves that many employees actually do need to be told and reminded to abstain from inappropriate alcohol, sexual harassment or other behavior that could create liability or embarrassment for the company when traveling for business or engaging in other activities. Because business travel tends to blur distinctions between business and personal time, most businesses will want to establish and communicate high expectations concerning on and off-duty conduct when traveling on business to head off potential problems. Updated direction about hosting or participating in entertainment and other social activities with co-workers, customers, vendors, prospects and others also often are warranted.

Beyond communicating expectations of employees while on business travel, businesses also should confirm their company’s compensation, expense reimbursement, timekeeping and reporting, hours of work, and other policies comply with current laws and capture and retain appropriate documentation.

Businesses must recognize, for instance, that training and other work related travel typically is considered hours of work for wage an hour, safety and various other purposes. Employers should confirm their policies and practices properly capture and count all required hours of compensable work and pay hourly workers for time on the road properly in accordance with Labor Department requirements. Many employers unfortunately get nailed for overtime violations because of assumptions or misunderstandings of rules. For instance, many employers improperly fail to count air travel and certain other travel time as compensable when required to do so under Labor Department Fair Labor Standards Act (FLSA) rules. Likewise, improperly structured expense reimbursement policies or practices can bump up overtime pay liability by requiring the employer to include otherwise excludable expense reimbursements payments in the hourly rate of pay when calculating regular and overtime pay. Employers must ensure they understand these rules and take appropriate steps to capture, track, report and pay for time and expenses upfront to defend an audit or other challenge effectively and efficiently.

Reviewing and tightening workforce travel related policies, practices and procedures to meet current laws, business and social expectations and management needs can boost the bang businesses realize for their business travel buck while mitigating a host of legal and business risks.

About The Author

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation; Former Chair of the RPTE Employee Benefits and Compensation Committee, a current Co-Chair of the Committee, and the former Chair of its Welfare Benefit and its Defined Compensation Plan Committees and former RPTE Joint Committee on Employee Benefits Council (JCEB) Representative, Cynthia Marcotte Stamer is a Martindale-Hubble “AV-Preeminent” practicing attorney and management consultant, author, public policy advocate, author and lecturer repeatedly recognized for her 30 plus years’ of work and pragmatic thought leadership, publications and training on health, pension and other employee benefit,  insurance, labor and employment, and health care  fiduciary responsibility, payment, investment, contracting  and other design, administration and compliance concerns as among the “Top Rated Labor & Employment Lawyers in Texas,” a “Legal Leader,” a “Top Woman Lawyer” and with other awards by LexisNexis® Martindale-Hubbell®; as among the “Best Lawyers In Dallas” for her work in the field of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, in International Who’s Who of Professionals and with numerous other awards and distinctions.

Highly valued for her ability to meld her extensive legal and industry knowledge and experience with her talents as an insightful innovator and pragmatic problem solver, Ms. Stamer advises, represents and defends employer, union, multi-employer, association and other employee benefit plan sponsors, insurers and managed care organizations, fiduciaries, plan administrators, technology and other service providers, government and community leaders and others about health and other employee benefit and insurance program and policy design and innovation, funding, documentation, administration, communication, data security and use, contracting, plan, public and regulatory reforms and enforcement, and other risk management, compliance and operations matters. Her experience encompasses leading and supporting the development and defense of innovative new policies, programs, practices and solutions; advising and representing clients on routine plan establishment, plan documentation and contract drafting and review, administration, change and other compliance and operations; crisis prevention and response, compliance and risk management audits and investigations, enforcement actions and other dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, Justice, Securities and Exchange Commission, Education and other federal agencies, state legislatures, attorneys general, insurance, labor, worker’s compensation, and other agencies and regulators, and various other foreign and domestic governmental bodies and agencies. She also provides strategic and other supports clients in defending litigation as lead strategy counsel, special counsel and as an expert witness. Alongside her extensive legal and operational experience, Ms. Stamer also is recognized for her work as a public and regulatory policy advocate and community leader with a gift for finding pragmatic solutions and helping to forge the common ground necessary to build consensus. Best known for her domestic public policy and community leadership on health care and insurance reform, Ms. Stamer’s lifelong public policy and community service involvement includes service as a lead consultant to the Government of Bolivia on its pension privatization project, as well as extensive legislative and regulatory reform, advocacy and input workforce, worker classification, employee benefit, public health and healthcare, social security and other disability and aging in place, education, migration reforms domestically and internationally throughout her adult life. In addition to her public and regulatory policy involvement, Ms. Stamer also contributes her service and leadership to a professional and civic organizations and efforts including her involvement as the Founder and Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE; Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence; Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; Vice Chair, Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group; current Fiduciary Responsibility Committee Co-Chair and Membership Committee member of the ABA RPTE Section; former RPTE Employee Benefits and Other Compensation Group Chair, former Chair and Co-Chair of its Welfare Plans Committee, and Defined Contribution Plans Committee; former RPTE Representative to ABA Joint Committee on Employee Benefits Council; former RPTE Representative to the ABA Health Law Coordinating Counsel; former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, former Board Member, Continuing Education Chair and Treasurer of the Southwest Benefits Association; Vice President of the North Texas Healthcare Compliance Professionals Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; past Dallas World Affairs Council Board Member, and in leadership of many other professional, civic and community organizations. Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, the Society of Professional Benefits Administrators, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients, serves on the faculty and planning committee of many workshops, seminars, and symposia, and on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other public policy advocacy and other professional and civic organizations and involvements. Through these and other involvements, she helps develop and build solutions, build consensus, garner funding and other resources, manage compliance and other operations, and take other actions to identify promote tangible improvements in health care and other policy and operational areas.

Before founding her current law firm, Cynthia Marcotte Stamer, P.C., Ms. Stamer practiced law as a partner with several prominent national and international law firms for more than 10 years before founding Cynthia Marcotte Stamer, P.C. to practice her unique brand of “Solutions law™” and to devote more time to the pragmatic policy and system reform, community education and innovation, and other health system improvement efforts of her PROJECT COPE: the Coalition on Patient Empowerment initiative.

About Solutions Law Press, Inc.™

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

If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating 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, 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 an admission. The author reserves 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 presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of 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.

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.

©2018 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


Consider Internal Investigation & Defense Costs When Administering Compliance Programs

December 5, 2017

The Justice Department’s report Tuesday that the Justice Department spent $3.2 million on Special counsel Robert Mueller’s Russia probe its first four-and-a-half months highlights the importance for leaders accountable for their organizations’s Federal Sentencing Guideline, sexual harassment and other corporate compliance programs to appropriately plan and budget for potential investigation and defense costs as part of their compliance and risk management planning.

Conducting an internal investigation or defending a government or other allegation of wrongdoing often proves surprisingly expensive. While how much an internal investigation costs can vary widely depending on the issue, its potential civil and criminal liability and public relations implications on the organization and its management, it’s timing, the adequacy of the pre-event compliance management and record keeping relating to the issue, and a host of other concerns, investigation and defense costs often become largely irrelevant when an organization is required to investigate or defend against charges of legal or other business misconduct that expose the organization or its leadership to potentially devastating legal or business consequences. When these events happen, organizations and their leaders often see little option to spend whatever is necessary to defend their organization and its reputation.

Compared to the reported internal investigation and defense expenditures of private sector organizations that have faced these these make or break investigations, the Justice Department’s reported expenditures to date on the Russian probe look small.

For instance, Twenty-First Century Fox in March, 2017 Securities and Exchange Commission (SEC) filings disclosed spending $45 million tied to litigation related to harassment allegations in the 9 first three quarters of 2017 and $10 million “related to settlements of pending and potential litigations” during its fiscal third quarter as well as having received investigative inquiries and stockholder demands to inspect the books and records of the company which could lead to future litigation in the aftermath of sexual harassment allegations at Fox News.

In contrast, Avon Products spent nearly $500 million conducting its internal investigation before paying a $135m fine to the US government to settle charges it violated the Foreign Corrupt Practices Act by giving Chinese authorities $8 million in gifts and cash while it sought to obtain the first “direct sell” license in China.

These and other publicly disclosed expenditures make clear that corporate officers and directors need to reassess their investment in compliance both to strengthen the effectiveness of their efforts and to plan to deal with the financial, legal, operational and other costs of investigating and defending potential charges.

Aboaut 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 management work, coaching, teachings, and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant,  business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.

About Solutions Law Press, Inc.™

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

If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating 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, 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 an admission. The author reserves 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 presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of 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.

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.

©2017 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.


Bill Mandating E-Verify, Raising Employer I-9 Penalties Approved By House Judiciary Committee

October 28, 2017

Employers will face heightened employment-related immigration responsibilities and fines for hiring undocumented aliens if Congress passes a bill that would mandate that all employers use the E-Verify process to check the Work eligibility of all new hires approved October 25 by the House Judiciary Committee.

One of two Immigration bills that passed the Committee on October 25, the Legal Workforce Act (LWA), H.R. 3711 Introduced by Representatives Lamar Smith (R-TX) and Ken Calvert (R-CA), along with House Judiciary Committee Chairman Bob Goodlatte (R-VA), among other things, would:

  • Replace the current paper-based I-9 system with a completely electronic work-eligibility check under which employers would attest through the electronic verification system that they had examined the new hire’s employment and identification documents to ensure authenticity. Under the bill, employers have the choice to continue do the attestation on paper as well.
  • Phase-in mandatory E-Verify participation for new hires for employers with more than 10,000 employees, within 6 months of enactment and remaining employers over stage periods of not longer than 24 months.
  • Allow employers to seek a one-time six-month extension of the initial phase-in from the Department of Homeland Security (DHS).
  • Require employers to perform an E-Verify check on employees who perform “agricultural labor or services within 18 months after enactment.”
  • Grant employers a safe harbor from prosecution if they use the E-Verify program in good faith and, through no fault of their own, receive an incorrect eligibility confirmation.
  • Raise penalties on employers that knowingly hire illegal immigrants and create a penalty for individuals (employees or employers) who knowingly submit false information to the E-Verify system.
  • Require DHS to implement pilot programs to help prevent against identity theft within the system.
  • Pre-empt state law on employer fines for immigration-related issues or require employers to verify work status or identity for work authorization purposes but continue to allow States to award business licenses on the basis of compliance with the federal system.

One of two Immigration Reform bills the Committee passed October 25, the legislation is one of many immigration reform proposals Congress is considering. Employers should read the bill, provide feedback and watch for developments.

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 management work, coaching, teachings, and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant,  business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.

About Solutions Law Press, Inc.™

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

RAISE Act Immigration Reforms Touted As “Giving Americans A Raise” to Congress about the legislation as well as monitor developments..To read further about the proposal, check out the House Judiciary Committee’s summary of the bill.


Dealing With HR, Benefits & Other Headaches From Equifax and Other Data Breach

October 6, 2017

As businesses continue to struggle to comply with the growing plethora of federal and state laws mandating data security, the identity theft and cyber security epidemic keeps growing.

As human resources and other business leaders work to guard their own data and respond to employee demands for assistance in responding to breaches of their personal financial and other data, this weeks’ announcement that embattled credit monitoring giant Equifax has been awarded the exclusive contract to provide taxpayer identification and fraud prevention services to the Internal Revenue Service has many questioning whether these investments are futile.

The IRS’ announcement comes despite the September 7, 2017 announcement by Equifax of a data breach of its records impacting sensitive personal information of millions of consumers including:

  • The names, Social Security numbers, birth dates, addresses and, in some instances, driver’s license numbers of an estimated 143 million U.S. consumers;
  • Credit card numbers for approximately 209,000 U.S. consumers,
  • Certain dispute documents with personal identifying information for approximately 182,000 U.S. consumers,and
  • Personal information for certain U.K. and Canadian consumers.

The huge breach already was creating many headaches for many businesses and their human resources departments before the IRS announced the award of the contract to Equifax. Due to the massive size of the breach, mist companies have been required to respond to concerns of workers impacted directly by the breach as well as requests of employees and identity theft protection companies that the business consider offering cybersecurity protection for employees or customers.

Beyond helping their workforce understand and cope with the news, many businesses and employee benefit plans also face the added headache of needing to investigate and respond to concerns about their own potential responsibilities to provide breach notification or take other actions. This added headache arises due to their or their plans’ use of Equifax or vendors utilizing Equifax to run employee or vendor background checks or carry out internal employee or employee benefit plan, customer or other business activities. These involvements often give rise to duties to conduct investigations and potentially provide notification or other responses to employees, applicants, benefit plan members, contractors or customers whose data may have been impacted under the Fair and Accurate Credit Transactions Act (FACTA), the Health Insurance Portability and Accountability Act (HIPAA), the Employee Retirement Income Security Act (ERISA) Fiduciary Responsibility rules or various other federal and state laws and regulations, vendor contracts or their own data privacy or security policies.

When notification is recommended or required, human resources and other business leaders also have to consider if modifications should be considered to standard protocols recommended to data breach victims. Notification and registration as an identity theft victim with Equifax long has been a standard part of the federal and state government recommended protocol for recommended to consumers impacted by identity theft or other data breaches. See,e.g., IRS Taxpayer Guide To Identity Theft. Although government agencies as of yet have not changed this recommendation to remove Equifax reporting, many consumers and others view reporting to Equifax as akin to the fox watching the hen house. Consequently, employers and other parties helping consumers respond to the breach often receive push back or questions from consumers about the appropriateness and security reporting to Equifax in light of its breach.

Beyond evaluating and handling their own legal responsibilities to investigate and deal with any breach impacting their data, employers and other business leaders also likely are or should consider what claims against Equifax, other vendors and business partners involved with Equifax and their own liability insurers are available and warranted to help cover the costs and potential liabilities for the business arising from the breach and it’s fall out.

As employers and other businesses work through these issues, They should keep in mind that the fallout is likely to continue for years and be further complicated by past and subsequent breaches impacting other governmental and private organizations. Human resources, employee benefits and other businesses and their leaders can expect to experience challenges dealing with fraudulent uses of misappropriated information as well as demands that they tighten up their background check, data security and usage and other practices and documentation to mitigate risks from the compromised data.

Human resources, employee benefits and other business leaders need to secure the assistance of counsel experienced in guiding their organizations through these and other challenges.

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 management work, coaching, teachings, and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes. Author of numerous works on privacy and data security, Ms. Stamer‘s experience includes involvement in cyber security and other data privacy and security matters for more than 20 years.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant,  business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.

About Solutions Law Press, Inc.™

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

RAISE Act Immigration Reforms Touted As “Giving Americans A Raise”

Health Clinic At Houston Convention Center, Other HHS Help For Hurricane Harvey Victims

IRS Updates Amounts Used To Calculate 2017 Obamacare Individual Individual Shares Responsibility Tax Penalties

DB Plan Sponsors Check Out New Bifurcated Distribution Model Amendmentsy

U.S. News Names 2017-2018 “Best” Hospitals; Patient Usefulness Starts With Metholodogy Understanding

Use Lessons Of Past Mistakes or Injustice To Build Better Future

Prepare For Turnover, Other Challenges From Rising Workforce Competition

Employers, Health Plans Should Brace For Tightened Federal Mental Health Coverage Mandate Disclosure And Enforcement

Withholding Calculator Tool Helps Workers Figure Withholding

Better Preparing U.S. Workers To Fill Your Jobs

SCOTUS Ruling Bars Many State Arbitration Agreement Restrictions

$2.4M HIPAA Settlement Message Warns Health Plans & Providers Against Sharing Medical Info With Media, Others

If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating 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, 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 an admission. The author reserves 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 presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of 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.

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.

©2017 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.


RAISE Act Immigration Reforms Touted As “Giving Americans A Raise”

August 2, 2017

Employers operating in the United States (U.S.) should evaluate potential workforce and implications of immigration law reforms proposed in the revised The Reforming American Immigration for a Strong Economy Act (RAISE Act) reintroduced in the Senate by co-sponsors Senators Tom Cotton and David Perdue with the announced backing of President Donald Trump earlier today (August 2, 2017).

Applauding the RAISE ACT as his preferred vehicle for implementing the “merit based” Green Card system he promised would be implemented during his Presidential campaign, President Trump said the RAISE Act reforms will “give Americans a raise” by creating a “skills-based immigration system that seeks to make America more competitive, raise wages for American workers, and create jobs” while also ensuring that “newcomers to our wonderful country will be assimilated, will succeed, and will achieve the American Dream.”

In pursuit of these goals, the RAISE Act would radically restructure U.S. rules to radically change the foreign workers and others eligible to qualify for work or other visas to enter the U.S., the procedures for their selection and other visa rules.

The centerpiece of these reforms are the RAISE Act’s proposal to replace the current permanent employment visa and lottery visa programs used to determine what foreign workers receive Green Cards to work in the U.S. with a “merit based system” under which a newly created “skills-based point system” would determine the workers eligible for selection to receive a work visa to work in the U.S. based upon listed “predictors of immigrant success and economic contribution.”  Under the skills-based point system created by the RAISE Act, selection for inclusion in the pool of workers eligible to work in the U.S. would rank foreign workers seeking visas based on a merit-based point system created under the legislation.

Beyond these specific reforms to the worker visa programs, other proposed reforms that tighten the eligibility rules and requirements for granting visas to noncitizen family members of U.S. citizens and foreign workers also can be expected to impact the recruitment and employment of foreign workers.  For this reason, employers and workers concerned with the recruitment of foreign labor to work in the United States generally will want to carefully evaluate all of these proposed reforms.

Proposed Direct Reforms To Work Visa Programs

The RAISE Act’s strategy for reforming the worker visa program focuses on the replacement of the current permanent employment visa and lottery programs with a newly created “skills-based points system” for granting work-eligible visas similar to systems used by Canada and Australia.  Concurrent with the deployment of the new skills-based point system, the RAISE Act provides for the elimination of the existing diversity visa lottery program, pursuant to which the U.S. currently grants via lottery selection 50,000 visas annually in a lottery to applicants from countries with low rates of immigration to the United States, with no regard to the applicants’ skills.

As proposed under RAISE Act §5, the U.S. would issue up to 140,000 employment-based visas annually to applicants selected by the U.S. Citizenship and Immigration Services twice a year to receive an invitation to file full applications and undergo security vetting from the pool of applicants scoring the highest points the new skills-based points system created under the RAISE Act.

Under the RAISE Act reforms, a new skills-based points system would be used to prioritize applicants for visa eligibility based on the following “predictors of immigrant success and economic contribution:”

  • Education,
  • English-language ability,
  • High-paying job offers,
  • Age,
  • Record of extraordinary achievement, and
  • Entrepreneurial initiative.

The RAISE Act would require that an applicant score at least 30-points to eligible to qualify for inclusion in the pool of applicants eligible to be considered for possible selection to receive an employment-based visa or “Green Card.”  Subject to this floor, applicants would be selected for invitation to complete the application process and undergo a security check based on their score relative to other applicants.

Immigrant households arriving through the points system are not eligible for federal means tested benefits for a period of 5 years.

Section 5(e) of the RAISE Act requires an annual statistical report on the skills-based points system while Section 5(f) requires a quadrennial report to Congress recommending updates to the points system with the aim of improving the economy and enhancing working Americans’ wages.

Section 6 conditions naturalization on the sponsors of an immigrant fulfilling their obligation to reimburse the federal government for benefits used by the immigrant, as required under current law.

Proposed Changes To Immigration Preferences for Family Members of U.S. Citizens & Residents

Beyond the direct reforms to the worker visa systems, the RAISE Act’s proposed changes to the preferences for granting visas to family members of U.S. citizens and residents also are likely to impact the recruitment and retention of foreign workers to fill positions in the United States by both narrowing to spouses and children the list of family members eligible to qualify as “family-sponsored immigrants” and tightening the requirements for parents of citizens and residents to qualify for visitors visa.

As proposed, the RAISE Act would keep, but narrow the availability of visas for “family-sponsored immigrants.”  RAISE Act §4 would continue to allow preferences for spouses and minor children of U.S. residents but eliminate visa preferences for extended family and grown adult family members of U.S. residents.  Along with narrowing the individuals that can qualify for visa preferences as family-sponsored immigrants, the RAISE Act also caps the allowable number of “family-sponsored immigrants” eligible for admission per fiscal year to 88,000 reduced by the number of certain previously admitted family-sponsored immigrants not obtaining alien lawfully admitted to the United States for permanent residence status within a specified period remaining in the United States.

Along with this narrowing of the applicability of preferences for family-sponsored immigrants, the RAISE Act also proposes to create a temporary visa under which elderly parents of U.S. residents could come to the United States for a limited period of time conditional upon the fulfillment by the resident of certain conditions.  This newly created nonimmigrant classification for alien parents of adult United States Citizens would be conditional upon the sponsoring nonimmigrant child being at least 21 years old, legally resident in the U.S., responsible for the nonimmigrant parent’s support and for providing satisfactory proof that the sponsoring child maintains health insurance coverage for the parent at no cost to the parent. Furthermore, the parent receiving the visitor’s visa would not be authorized to be employed in the United States or eligible for any Federal, State, or local public benefit.

Proposed Cap on Offers Of Permanent Residency To Refugees

RAISE Act § 3 would caps the number of refugees granted permanent visas to the United States at 50,000 per year, in line with a 13-year average. It also requires the President to report the annual number of refugees admitted to the United States.

President, Sponsors Say Reforms Give U.S. Citizens “A Raise”

Joined by RAISE Act co-sponsors Senator Cotton and Senator Perdue for his Rose Garden announcement of support for enactment of the RAISE Act this morning, President Trump reaffirmed his campaign commitment to create “a merit-based immigration system that protects U.S. workers and taxpayers” that “demonstrates our compassion for struggling American families who deserve an immigration system that puts their needs first and that puts America first” while helping “ensure that newcomers to our wonderful country will be assimilated, will succeed, and will achieve the American Dream.

According to President Trump, “The RAISE Act — R-A-I-S-E — the RAISE Act will reduce poverty, increase wages, and save taxpayers billions and billions of dollars … by changing the way the United States issues Green Cards to nationals from other countries” to protect low skilled U.S. workers from unfair foreign immigrant competition by replacing a “low-skilled system” with a new points-based system for receiving a Green Card “that favors applicants who can speak English, financially support themselves and their families, and demonstrate skills that will contribute to our economy.”

President Trump also touted provisions of the RAISE Act for preventing new migrants and new immigrants from collecting welfare and other benefits upon entry to the country as protecting U.S. taxpayers.

Implications For Employers

The reforms proposed by the RAISE Act, if enacted as proposed are likely to impact U.S. based employers in a multitude of ways including, but not limited to the obvious changes in the selection and availability of foreign workers for employment in the United States.

Obviously, the proposed changes to the processes for selection and qualification of non-citizens will impact both the nature of the workers eligible for employment, and the procedures and timing of their availability.   The emphasis on granting visas to higher skilled workers over those with lower skills likely will raise concerns for employers reliant upon lower skilled foreign labor.  While the new point system is touted as preferring the recruitment of higher skilled workers, it remains to be seen whether the system actually will meet the workforce needs already expressed by a host of hi-tech and other U.S. businesses concerned about immigration reform.  Meanwhile, employers recruiting foreign workers with family members also should anticipate that foreign workers may request or require assistance from their U.S. employer to fulfill newly imposed requirements that the worker provide health care coverage as a condition to his sponsorship of a parental visa or to address new government benefit eligibility exclusions included in the RAISE Act.

Beyond impacting the actual availability of foreign workers and their skill sets, it also is likely that the English-speaking and other preferences incorporated into the skills based point system proposed by the REACH Act also inevitably will necessitate some reconsideration if not actual reform of federal or state laws or regulations concerning nondiscrimination based on national origin, race or other civil rights laws that have been the basis of challenges to English language only workforce or other business rules. It remains to be seen how Congress and the Administration contemplates the new priority system will integrate with the employment and other federal and state laws that commonly are relied upon to protect foreign and English as a Second Language individuals against employment and other discrimination.

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 management work, coaching, teachings, and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.  A former lead consultant to the Government of Bolivia on its Pension Reform project, Vice Chair of Policy of the American Bar Association International Section Life Sciences Committee and an active in a host of migration reform and other cross-border workforce, pandemic and other healthcare, education, ethics, cyber crime policy reforms within and outside the United States throughout her career, Ms. Stamer also has extensive experience working with domestic and foreign businesses on a host of immigration, workforce, compensation, benefits, privacy, and other compliance and management challenges arising in connection with the management and use of ex-pat and other global workforces by U.S. and foreign businesses.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant,  business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association, the US-Mexico Chamber of Commerce and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.

About Solutions Law Press, Inc.™

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

If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating 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, 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 an admission. The author reserves 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 presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of 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.

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.

©2017 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.


Stamer Kicks Off Dallas HR 2015 Monthly Lunch Series With 2015 Federal Legislative, Regulatory & Enforcement Update

November 10, 2014

Human resources and other management leaders are watching Washington to see if the change in Congressional control resulting from the November 4, 2014 mid-term election ushers in a more management friendly federal legal environment. Since President Obama took office, the Democrats aggressive pursuit of health care, minimum wage and other federal pro-labor legislation, regulations and enforcement has increased management responsibilities, costs and liabilities.

Nationally recognized management attorney, public policy advisor and advocate, author and lecturer Cynthia Marcotte Stamer will help human resources and other management leaders prepare for 2015 when she speaks on “2015 Federal Legislative, Regulatory & Enforcement Update: What HR & Benefit Leaders Should Expect & Do Now” at the 2015 Dallas HR monthly luncheon series kickoff meeting on January 13, 2014.

About The Program

While November 4, 2014 Republican election victories gave Republicans a narrow majority in both the House and Senate when the new Congress takes office January 3, 2015, the new Republican Majority may face significant challenges delivering on their promises to move quickly to enact more business-friendly health care, guest worker, tax and other key reforms Republicans say will boost the employment and the economy.

While President Obama and Democrat Congressional leaders say they plan to work with the new majority, President Obama already is threatening to use vetoes, regulations and executive orders to block Republicans from obstructing or rolling back his pro-labor policy and enforcement agenda.   When the new Congress takes office, the narrowness of the Republican Majority in the Senate means Republicans can’t block a Democratic filibuster or override a Presidential veto without recruiting some Democratic support.

As the Democrats and Republicans head into battle again, Board Certified Labor & Employment attorney and public policy advocate Cynthia Marcotte Stamer will help human resources and other management leaders get oriented for the year ahead by sharing her insights and predictions on the legislative, regulatory and enforcement agendas that HR, benefit and other business leaders need to plan for and watch in 2015.  Among other things, Ms. Stamer will:

  • Discuss how management can benefit from monitoring and working to influence potential legislative, regulatory and enforcement developments when planning and administering HR and related workforce policies;
  • Discuss the key workforce and other legislative, regulatory and enforcement priorities and proposals Democrats and Republicans plan to pursue during 2015;
  • Share her insights and predictions about how the narrow Republican majority, Mr. Obama’s lame duck presidency and other factors could impact each Party’s ability to pursue its agenda
  • Share tips management leaders can use to help monitor developments and to help shape legislation, regulation and enforcement through Dallas HR, SHRM and other organizations as well as individually;
  • Learn tips for anticipating and maintaining flexibility to respond to legislative, regulatory and enforcement developments; and
  • More

To register or get more details about the program, DallasHR, or both, see http://www.dallashr.org.

About Ms. Stamer

Board certified labor and employment attorney, public policy leader, author, speaker Cynthia Marcotte Stamer is nationally and internationally recognized and valued for her more than 25 years of work advising and representing employers, insurers, employee benefit plans, their fiduciaries and advisors, business and community leaders and governments about workforce, employee benefits, social security and pension, health and insurance, immigration and other performance and risk management, public policy and related regulatory and public policy, management and other operational concerns.

Throughout her career, Ms. Stamer continuously both has helped businesses and their management to monitor and respond to federal and state legislative, regulatory and enforcement concerns and to anticipate and shape federal, state and other laws, regulations, and enforcement in the United States and internationally.

Well known for her leadership on workforce, health and pension policy through her extensive work with clients as well as through her high profile involvements as the Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment, a founding Board member of the Alliance for Health Care Excellence, a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA), and the State Bar of Texas leadership and other involvements with the ABA including her annual service leading the annual agency meeting of Joint Committee on Employee Benefits (JCEB) representatives with the HHS Office of Civil Rights and participation in other JCEB agency meetings, past involvements with legislative affairs for the Texas Association of Business and Dallas HR and others, and many speeches, publications, and other educational outreach efforts, Ms. Stamer has worked closely with Congress and federal and state regulators on the Patient Protection & Affordable Care Act and other health care, pension, immigration, tax and other workforce-related legislative and regulatory reforms for more than 30 years. One of the primary drafters of the Bolivian Social Security reform law and a highly involved leader on U.S. workforce, benefits, immigration and health care policy reform, Ms. Stamer’s experience also includes working with U.S. and foreign government, trade association, private business and other organizations to help reform other countries’ and U.S. workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Ms. Stamer also contributes her policy, regulatory and other leadership to many professional and civic organizations including as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, a Substantive Groups & Committee Member; a member of the leadership council of the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; the current Vice Chair of the ABA TIPS Employee Benefit Committee, and the past Coordinator of the Gulf Coast TEGE Council TE Division.

The publisher and editor of Solutions Law Press, Inc. who serves on the Editorial Advisory Boards of Employee Benefit News, HR.com, InsuranceThoughtLeadership.com and many other publications, Ms. Stamer also is a prolific and highly respected author and speaker,  National Public Radio, CBS, NBC, and other national and regional news organization, Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Telemundo, Modern Healthcare, Business Insurance, Employee Benefit News, the Employee Benefits News, World At Work, Benefits Magazine, InsuranceThoughtLeadership.com, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, CEO Magazine, CFO Magazine, CIO Magazine, the Houston Business Journal, and many other prominent news and publications.  She also serves as a planning faculty member and regularly conducts training and speaks on these and other management, compliance and public policy concerns for these and a diverse range of other organizations. For additional information about Ms. Stamer, see www.cynthiastamer.com.

For Added Information and Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

For Help Or More Information

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

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.

About Solutions Law Press

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

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

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting

April 8, 2014

Health plans, their sponsoring employers and administrators face new challenges and responsibilities under a slew of regulations on the treatment of same-sex domestic partners issued by the Internal Revenue Service, Department of Labor and other federal government agencies since the Supreme Court ruled unconstitutional the Defense Against Marriage Act’s prohibition against the recognition of same-sex partnerships as marriage for purposes of federal law.

Attorney and industry thought leader Cynthia Marcotte Stamer will join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

The SPBA Spring Meeting scheduled to take place May 16-18 will cover a broad range of timely topics on health care reform and other issues and concerns for self-insured health plan administrators and their clients.

In addition to her April 17 DOMA presentation, Ms. Stamer also is scheduled to share her insights and experiences financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims.”

For additional details about the SPBA or its Spring Meeting, see www.spbatpa.org.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

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

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Stamer Speaks On “Action Steps When A Client Stops Funding Claims” at 2014 SPBA Spring Meeting

April 8, 2014

Health plans and their administrators face significant practical legal and operational challenges when the employer sponsoring the plan goes bankruptcy, has financial trouble or otherwise stops funding the plan.

Attorney, industry thought leader and Solutions Law Press, Inc. Publisher and Editor, Cynthia Marcotte Stamer will join a panel of distinguished attorneys discussing financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims” on Friday, April 18, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

The SPBA Spring Meeting scheduled to take place May 16-18 will cover a broad range of timely topics on health care reform and other issues and concerns for self-insured health plan administrators and their clients.

In addition to her April 18 presentation, Ms. Stamer also is scheduled to join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

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

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


IRS Gives Ex Pat Plans Limited Exemption From ACA Reporting Rule

April 3, 2014

The Internal Revenue Service (IRS) is giving U.S. businesses with workers working oversees (expatriates) additional limited temporary relief from certain mandates of the Patient Protection and Affordable Care Act (ACA).  While this relief will be welcome for many multinational employers, these employers and their health plans and insurers need to use caution not to overestimate this relief.  Employers and administrators of health plans covering expatriates generally  generally remain obligated by U.S. law to design and administer their group health plans to properly comply with applicable U.S. mandates and tax rules..

The temporary relief for employers and health plans covering expatriate announced by the IRS today (April 3, 2014) scheduled to be published in Internal Revenue Bulletin 2014-16 on April 14, 2014,  Notice 2014-24,  provides a temporary safe harbor for an entity that reports expatriate health insurance plans on its Supplemental Health Care Exhibit (SHCE).  For the 2014 and 2015 fee years, Notice 2014-24 will allow such an entity to exclude 50% of its direct premiums written for expatriate plans in reporting total direct premiums written to the IRS for purposes of determining its ACA § 9010 Health Insurance Providers Fee.

This new guidance supplements guidance previously published guidance in“FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”).  The Expat FAQ states these health plans generally are not required to comply with the ACA requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the IRS (collectively, the Agencies) on March 8, 2013.  The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.”  Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens.  For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax.  Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Employers also should be careful to ensure that the guidance applies to their program.  Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.”  For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as  “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States.  Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ.  Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months.  Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws.  When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns.

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates.  Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances.

The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies.  With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending.  Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

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

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Justice Department Sues Texas Bus Company For Illegal Discrimination Against Citizens When Hiring H-2B Program Workers

August 6, 2013

A federal lawsuit against Houston-based bus company Autobuses Ejecutivos LLC, d/b/a Omnibus Express, reminds U.S employers hiring foreign workers under the H-2B or other special worker visa programs to use care to ensure that they can prove that their need for foreign workers is not the result of recruitment and hiring practices that illegally discriminate against work-eligible members of the U.S. workforce already in the United States.

The Justice Department announced on August 6, 2013 that it and the Executive Office of Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) are suing Omnibus Express for allegedly violating the Immigration and Nationality Act’s (INA) anti-discrimination provisions by preferring to hire for bus driver positions temporary nonimmigrant visa holders on H-2B visas over work-eligible U.S. citizens, certain lawful permanent residents and other protected individuals.

H-2B Program Hiring Prohibited If Need Based On Illegal Discrimination

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs only when there are not enough U.S. workers who are able, willing or qualified to do the temporary work.  While H-2B program hiring can be invaluable when a legitimate need exists, businesses contemplating or using the program need to be prepared to show their need to hire workers on H-2B visas is not the result of discriminatory hiring practices prohibited by the INA or other federal employment discrimination laws.

The INA generally protects work-eligible individuals in the United States, such as U.S. citizens, certain lawful permanent residents, refugees and asylees, from unlawful discrimination in hiring based on their citizenship status prohibiting employers from discriminating in hiring against these protected work-eligible workers based on their citizenship status.

Accordingly, while the H-2B program provides a valid opportunity to hire foreign workers consistent with the H-2B visa program requirements when in fact there are insufficient work-eligible, qualified applicants already in the U.S. to fill the position, employers hiring workers under the H-2B or other visa programs need to ensure that they are not inappropriately discriminating against U.S. citizens, permanent residents or other work-eligible individuals already in the U.S. in their recruitment and hiring practices when taking advantage of the H-2B program to hire workers.

In addition to the anti-discrimination provisions of the INA, hiring practices that discriminate in favor of hiring workers over other qualified applicants based on the respective citizenship, national origin, race or other protected status of the respective applicants or workers also can expose a business to liability under various other laws. In addition to suits brought by the Justice Department, prohibited discrimination by an employer under these other employment discrimination laws may expose a business to liability to actions brought by private litigants, the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance (OFCCP) or other agencies, or both.

Omnibus Express Suit Highlights Risks Of H-2B Visa Hiring Need Based On Illegal Discrimination

The Justice Department complaint charges that Omnibus Express failed to fulfill this obligation.  It claims that Omnibus Express violated the INA by actively discouraging or failing to consider the applications of many qualified U.S. citizens and other protected individuals between September 2012 to February 2013 while at the same time petitioning the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) for permission to hire up to 50 foreign workers on H-2B visas.    The Justice Department alleges that Omnibus Express violated the INA by hiring 42 H-2B workers during this period based on its representation to the DOL and USCIS that there were not enough qualified workers in the United States to fill the 50 bus driver positions when in fact, its practices illegally discriminated against work-eligible U.S. citizens, lawful permanent residents and other INA-protected individuals who could have filled the positions.

The Justice Department asks the court to redress these alleged violations of the INA by ordering Omnibus Express to pay back pay for injured parties and civil penalties prohibiting future discrimination by Omnibus Express, and ordering other injunctive relief.

INA Discrimination Prosecution Part Of Obama Administration’s Emphasis on Enforcing Discrimination Laws

Businesses also should keep in mind that the Justice Department’s prosecution of Omnibus Express for alleged illegal citizenship discrimination also is part of the Obama Administration’s larger agenda prioritizing the expansion of non-discrimination safeguards for protected classes and the enforcement of these non-discrimination laws.

Since Mr. Obama took office, the Administration has sought regulatory and statutory changes that expand the federal employment and other anti-discrimination for a broad range of groups. The Administration also continues to proactively seek to expand the individuals protected by these and other Federal anti-discrimination laws even as the Departments of Justice, Labor, Health & Human Services, Education, Housing & Urban Development and other federal agencies have expanded their investigation, prosecution and public outreach of these laws.

In light of these developments, businesses should recognize that this proactive anti-discrimination agenda makes it wise for private businesses and state and local government agencies to take greater care to prevent and position their organizations to defend against potential discrimination and retaliation claims under the INA and a broad range of other employment and other anti-discrimination laws.

While this activist agenda in the anti-discrimination law area merits tighter compliance and risk management for all organizations, government contractors or subcontractors particularly face heightened risk as a result of recent expansions to the reach and requirements of nondiscrimination requirements.

Act To Mitigate Citizenship, National Origin & Other Employment Discrimination Exposures

Accordingly, while the Omnibus Express particularly highlights the importance for businesses subject to U.S. law to use care before hiring foreign workers on H-2B or other special visas to ensure that they can demonstration the need for foreign workers does not stem from recruitment and hiring practices that illegally discriminate against applicants already in and eligible to work in the U.S. who would be qualified to fill those positions.

Furthermore, businesses should use care not to underestimate their exposure to liability from charges of illegal discrimination in violation of the INA or other federal employment discrimination laws.  Prohibited discrimination against workers based on citizenship, national origin or other prohibited grounds exposes employers to private lawsuits by workers seeking damages, attorneys’ fees and costs, and other remedies.  In addition to these private exposures, the suit against Omnibus Express shows that the readiness of the Justice Department to enforce the INA so that work-authorized individuals have equal access to employment in the United States free from prohibited discrimination based on citizenship.

Jocelyn Samuels, Acting Assistant Attorney General for the Justice Department’s Civil Rights Division affirmed this commitment in the announcement of the Justice Department suit against Omnibus Express, stating “We are committed to enforcing the INA so that work-authorized individuals have equal access to employment in the United States.”

Accordingly, all businesses should make the tightened risk management of their INA anti-discrimination risks part of a broader emphasis on the prevention and management of their organization’s discrimination exposures generally.

As part of these risk management efforts, organizations should:

  • Review and update their understanding of current anti-discrimination rules under the INA and other laws;
  • Evaluate the adequacy of and tighten existing practices and documentation to mitigate exposures with discrimination and other laws;
  • Update and tighten management controls, investigation and other procedures to promote compliance with anti-discrimination policies and identify and mitigate exposures arising in the course of operations;
  • Conduct well-documented periodic training on these and other anti-discrimination compliance and risk management practices; and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 25 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend against employment and other anti-discrimination and anti-retaliation, union-management relations, wage and hour, and other labor and employment laws, other regulatory requirements, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee, a member of the HR.com editorial advisory board, a past National Consultants Board Member and Region IV Chair for SHRM, past Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on workforce and risk management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.  For information about engaging Ms. Stamer for representation, training or other assistance, contact Ms. Stamer directly at (469) 767-8872.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer including:

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Nonexclusive license to republish granted to Solutions Law Press, Inc.  All other rights reserved


Study Finds Down Economy, Not Health Care Reform Accounts For Slower Health Care Cost Increases; Projects Renewed Costs When Economy Improves

April 22, 2013

Bad economic times, and not health care reform, account for the record slowdown in U.S. health care spending, according to a new Kaiser Family Foundation study, Assessing the Effects of the Economy on the Recent Slowdown in Health Spending (Study).   The Study findings call into question assertions by Obama Administration officials crediting health care reform, pressure on health plans applied by the Obama Administration officials and other regulatory and enforcement efforts with reducing the curve on health care costs.

According to Kaiser Foundation, government statistics show that the period from 2009-2011 had the slowest growth (3.9%) in health care expenditures since the government began tracking health expenditure data in 1960.   

The Study that evaluated how the economy affects U.S. health spending concluded that economic factors beyond the health system explain 77 percent of the slowdown and predicts more rapid growth when the economy strengthens.  Meanwhile, the Study credits only 23 percent of the slowdown in the growth of expenditures as resulting from higher deductibles and other cost-sharing or other health care system changes.

Based on these findings, the Study warns that Americans should expect health care costs to resume increasing in future years after lags resulting from the economic slowdown resolve.

 “The problem of health costs is not solved and we need to be realistic that health spending increases will return to more typical levels as the economy improves,” Foundation President and CEO Drew E. Altman said. “But the analysis also shows that the economy is not the entire story, and if we could shave even a percentage point or more off annual health care spending increases, we could save trillions of dollars over the next decade.”

Researchers at the Kaiser Family Foundation prepared the Study by conducting statistical modeling and analysis of 50 years of health spending and economic trends using data on the U.S. economy and national health care expenditures data from actuaries at the Centers for Medicare and Medicaid Services through 2011, and from the Center for Sustainable Health Spending at the Altarum Institute for 2012.

Join Discussion By Participating In Project COPE: The Coalition On Patient Empowerment & Its  Coalition on Responsible Health Policy

Want to share and exchange ideals and information about health care and collaborate about opportunities to make it work?  Sharing and promoting the use of practical practices, tools, information and ideas that patients and their families, health care providers, employers, health plans, communities and policymakers can share and offer to help patients, their families and others in their care communities to understand and work together to better help the patients, their family and their professional and private care community plan for and manage these  needs is the purpose of Project COPE, The Coalition on Patient Empowerment & It’s Affiliate, the Coalition on Responsible Health Policy.

The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans.  The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up:  Step up and help bridge the gap when you or your organization can. Speak up to help communicate and facilitate when you can.  Building health care neighborhoods filled with good neighbors throughout the community is the key.

The outcome of this latest health care reform push is only a small part of a continuing process.  Whether or not the Affordable Care Act makes financing care better or worse, the same challenges exist.  The real meaning of the enacted reforms will be determined largely by the shaping and implementation of regulations and enforcement actions which generally are conducted outside the public eye.  Americans individually and collectively clearly should monitor and continue to provide input through this critical time to help shape constructive rather than obstructive policy. Regardless of how the policy ultimately evolves, however, Americans, American businesses, and American communities still will need to roll up their sleeves and work to deal with the realities of dealing with ill, aging and disabled people and their families.  While the reimbursement and coverage map will change and new government mandates will confine providers, payers and patients, the practical needs and challenges of patients and families will be the same and confusion about the new configuration will create new challenges as patients, providers and payers work through the changes.

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here .  You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can reach other recent updates and other informative publications and resources.

Recent examples of these publications include:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


IRS Witholding Calculator Can Help Avoid Over & Underwithholding

April 21, 2013

If you have employees that had too much or too little tax taken out of their paychecks, refer them to this new YouTube video about using the IRS withholding calculator at inbox:body:0000000001510000020000000800000000000000:Read#Third.

For Help With These Or Other Matters

If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Ms. Stamer has more than 24 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigrations & Customs, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, internal controls and risk management matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.

A featured presenter in the recent “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” teleconference sponsored by the American Bar Association Joint Committee on Employee Benefits, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.

For important information concerning this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2011 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.


Responding To West, Texas, Boston & Other Tragedies: Information and Reassurance Resources

April 18, 2013

As our concern and prayers go out to the citizens of West, Texas struggle to deal with the injuries and damages resulting from the April 17, 2013 explosion in the wake of the Boston bombing tragedy earlier in the week, the Solutions Law Press, Inc. is sharing the following resources and information provided by Congressman Sam Johnson’s office, which may be of help to individuals dealing with or affected by this heartbreaking tragedy in Texas.

Emergency information

Family Phone Lines:
To check on injured residents admitted to Hillcrest Baptist Medical Center call (254) 202-1100

For family inquiries about patients at Scott & White call (888) 394-4947

Family inquiries about patients at Providence Health Center (254) 761-7200

Hotline for information on victims and survivors (254) 826-4115

Blood Donations:
Carter Blood Care Center will accept donations beginning at 9 a.m. Thursday in Waco

Providence Hospital will hold a blood drive between 11 am-5 pm

Scott & White Blood Donation Center accept donations starting at 8 am

Shelter:
First Baptist Church of Lott has room for anyone needing a place to stay. Call (254) 829-2321

The Aquilla ISD opened facilities for those seeking refuge.   Please report to the gym entrance.

Blair’s Cove Apartments in Waco offering housing to any West residents affected by the explosion at 2425 S. 21st St. (254) 447-0810

Latham Springs Baptist Camp is open to displaced residents at 134 Private Road 223 in Aquilla

The Abbott gym is open to displaced residents

Valley mills Nursing Home has rooms available for nursing home residents if placement is needed for any of the West nursing home residents. Call 254-932-6288.

First Baptist Church of Gholson is open for anyone who needs a place to stay

Gholson ISD open for those seeking shelter

Brazos Meadows Baptist Church at 625 S. Hewitt Dr., next to Castleman Creek Elementary will be open for anyone who needs a place to stay

Antioch Community Church at 501 North 20th Street in Waco is open to displaced residents

Alliance Auto Auction between Elm Mott and West on I-35 is open to anyone needing a place to stay

Penelope School is open for displaced residents at 309 Avenue D

Central United Methodist Church off Bagby Avenue near Hillcrest Baptist Medical Center is open overnight

American Legion Post 121 in Elm Mott is open for displaced residents

Sykora Family Ford in West has opened for residents who need a safe place to rest

Town Hall Estates in Hillsboro was taking in displaced residents

Google Document for Housing

Medical Assistance:
Central Texas Urgent Care clinics in Hewitt and Lacy Lakeview will remain open all night to treat those with minor injuries

HEB Pharmacy in the Woodway area is staying open all night to help accommodate West residents who may be injured and need prescriptions filled

Donation Locations:
The Extraco Events Center will be setting up to take donations starting tomorrow at 9:00 am. For information call 254-776-1660

The Home Depot store in Bellmead will be open all night for those who need plywood, generators, etc.

Both Peas & Tots and Smarty Pants consignment stores in Waco are accepting clothing donations in all sizes for those in West

Axtell High School will be taking any kind of donations at the school tomorrow! Please donate anything! The PALS organization is taking all donations and will be accepting tomorrow and Friday during school.

BCBSTX Member Resources

Earlier today, Blue Cross Blue Shield of Texas also shared an e-mail with its employer group plan sponsors containing resources for members of plans it insures or administers. 

BCBSTX News Alert: April 18, 2013Assistance Available for Members Impacted by Explosion at West, Texas, Fertilizer PlantDuring a crisis situation, you never know where you may end up. We at Blue Cross and Blue Shield of Texas (BCBSTX) understand that a number of our members living, working or traveling in the West, Texas, area may be impacted and/or displaced as a result of the explosion at the West Fertilizer Co. plant that occurred yesterday,
April 17.BCBSTX is prepared to assist our members by:

  • Explaining the options for accessing care
  • Helping to locate a network provider, hospital or dialysis center
  • Assisting with early refills of prescription medications
  • Working to ensure transition of care or continuity of care needs are met
  • Accessing member identification information

Please share this information with your employees:

  • For an emergency situation, members should go directly to the nearest hospital.
  • For non-emergency care needs, members can call the customer service number on the back of their member ID card to locate a network provider.
  • When arriving at the participating doctor’s office or hospital, the member will need to present his/her BCBSTX ID card.
  • If a member does not have his/her member ID card, needs help finding care or has coverage questions, our customer service representatives will assist them. They can also log in to Blue Access for MembersSM on the BCBSTX website or access our mobile site to search for a doctor, access their ID card and more.
  • BlueCard® participants (indicated by a suitcase on the member ID card) can call the National BlueCard access number to be routed to the appropriate customer service center.

Watch for continuing updates as we respond to the needs of our groups and members impacted by this tragedy. Please contact your BCBSTX account representative should you have any questions.

Important Blue Cross Phone Numbers

  • BCBSTX Customer Service for all group plan members: 800-521-2227
  • BCBSTX Customer Service for individual/family policyholders: 888-697-0683
  • BCBSTX Customer Service for Medicare Supplement policyholders: 800-654-9390
  • Federal Employee Information: 800-442-4607
  • National BlueCard access: 800-810-BLUE (2583)

The tragedies in West and Boston are felt across the nation and the world.  The direct impact that these events have on the victims and their families is unimaginable and overwhelming.  Beyond the impact to those injured or killed and their families and friends, the unexpected and devastating losses and powerlessness stemming from these events also significantly impact those who never knew the victims.   As governments, health care providers, and communities work to redress the existing fallout and strengthen our defenses against future similar events and the media obsessively covers all real and suspected development, it is to be expected that these resultant concerns will draw the attention of children as well as adults across the nation.  Business and community leaders should expect that this absorption will naturally result in distraction and concern. In addition to exhibiting empathy for the victims and understanding for the horrid distraction of those observers impacted less directly, consider the opportunity to offer reassurance by reminding those in your workplaces and communities of the planning, resources and procedures that your community and organization has in place to prevent, mitigate and respond in the event of a family or community disaster.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publications available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Justice Department Charges Employer, Pension Plan With Violating USERRA Reemployment Rights

April 17, 2013

The Justice Department’s announcement today of its filing of a lawsuit charging County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (Cook Pension Plan) and Cook County with willfully violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by refusing to allow an employee to make catch up contributions to the employer’s pension plan when she returned from military leave. As the Obama Administration continues to withdraw troops from Afghanistan and other deployments, the suit is a timely reminder to employers of the importance of ensuring that their businesses properly honor the rights of returning service members under USERRA, the expanded military related medical leave rules of the Family & Medical Leave Act and other applicable laws.

USERRA & Other Reemployment Rights

USERRA generally provides that an individual who leaves a job to serve in the uniformed services is generally entitled to continue medical coverage for up to 26 months while absent for a qualifying military leave, reemployment by the previous employer upon timely return from military leave and, upon reemployment, to restoration of service, promotion, benefits and other rights of employment. 

As part of these reemployment rights, qualifying service members timely returning from military leave are entitled to receive credit for benefits, including employee pension plan benefits, that would have accrued but for the employee’s absence due to the military service. USERRA’s pension-related provisions generally require that pension plans treat a service member who is called to active duty as if the service member had no break in service for purpose of the administration of pension benefits when the service member timely returns to employment at the end of a military leave.  In addition to these pension rights, USERRA also requires employers honor other rights to employment, promotion and other benefits and rights of employment.

Beyond these USERRA employment rights, service members taking or returning from active duty often enjoy various other employment and other protections under various other federal and state laws, many of which have been expanded in recent years. Under requirements of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), for instance, creditors including a pension plan, employer loan program or credit union generally are required to drop interest charges down to 6 percent on debt owed by those called to active duty for the period of such military service. Further, under the Employee Retirement Income Security Act (ERISA), the loan will not fail to be a qualified loan under ERISA solely because the interest rate is capped by SSCRA.  These and other provisions of federal law often require pension and profit-sharing plans that allow plan loans to change loan terms and tailor other special treatment of participants who are on military leave.

In addition to the specific protection given to a service member, employers also need to be ready to honor certain family leave protections afforded to qualifying family members or caregivers of service members added to the Family & Medical Leave Act (FMLA) in recent years.  As amended to include these military leave related protections, the FMLA may require certain employees who are the spouse, son, daughter, or parent of a military member to take to 12 weeks of FMLA leave during any 12-month period to address the most common issues that arise when a military member is deployed to a foreign country, such as attending military sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare. This provision applies to the families of members of both the active duty and reserve components of the Armed Forces.  Meanwhile, the “Military Caregiver Leave” provisions added to the FMLA may entitle certain employees who are the spouse, son, daughter, parent or next of kin of a covered service member to up to 26 weeks of FMLA leave during a single 12-month period to care for the service member who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred or aggravated in the line of duty on active duty. These provisions apply to the families of members of both the active duty and reserve components of the Armed Forces.  The expansion of these requirements, updating of regulation, and rising enforcement by private plaintiffs and the government make it advisable that businesses take all necessary steps to ensure their employment practices, employee benefit plans, fringe benefit programs and other practices are updated and administered to comply with the current requirements of USERAA,  SSCRA, the FMLA and other applicable federal and state laws.

Justice Department Cook County Lawsuit

The latest in a growing number of lawsuits against businesses for violating the employment and other rights of military service members brought by the Justice Department, Department of Labor and private plaintiffs, the lawsuit against Cook County and the Cook Pension Plan highlights the growing enforcement and liability risks that U.S. employers and their employee benefit plans face for failing to properly honor the rights of military service people under USERRA and other laws.

On April 17, 2013, the Justice Department sued Cook County and the Cook Pension Plan with violating USERRA by refusing to allow U.S. Army Reserve Member Latoya Hayward to lawfully contribute to her pension for the time she was serving in the armed forces.

The Justice Department complaint charges that Hayward began working for John H. Stroger Jr. Hospital, which is owned and operated by Cook County in 2008. During her employment with Stroger Hospital, Hayward was mobilized for a two year tour of duty with the Army Reserves starting on July 27, 2009. While on active service, Hayward served as a nurse case manager at Walter Reed Hospital as part of the Warrior Transition Brigade.

The Justice Department complaint alleges that when Hayward returned from duty, the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County notified her not only that she was ineligible to make payments into her pension for the 90-day grace period following her active military service, but also that her employee contributions for the two-year period of her active military service would be subject to a 3 percent interest fee. 

According to Hayward’s complaint, both of the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County’s requirements for her participation in her employer’s pension plan violated USERRA’s pension protection provisions.

Enforcement of USERRA & Other Rights of Military Service Members Rising

In announcing the suit against Cook County and the Cook Pension Plan, Jocelyn Samuels, Principal Deputy Assistant Attorney General for the Civil Rights Division warned, “The Justice Department is committed to vigorously enforcing federal laws that protect the employment rights of our service members.”

Viewed in the context of a series of other recent suits and settlements, the suit against Cook County and the Cook Pension Plan is one of a growing number of lawsuits brought by the Justice Department, Department of Labor Department of Veterans Affairs and other government and private litigants reflects that the Obama Administration is acting on this commitment. 

The Department of Labor Veterans’ Employment & Training Service (VETS) reported to Congress that in Fiscal Year (FY) 2011, VETS reviewed 1,548 new unique USERRA complaint cases, up 110 cases from those received in FY 2010.  Nearly 35 percent of the complaints reviewed by VETS contained allegations of some form of employment discrimination on the basis of past, present, or future, military service, status, or obligations.  An additional 25 percent of the complaints involved allegations of improper reinstatement into civilian jobs following military service.  See  2011 VETS USERRA Report To Congress.  

Recent litigation and settlements by the Justice Department and other agencies bear out that the Obama Administration is continuing to make enforcement of military service member rights a priority during the 2012 FY that began in October.  See, e.g.,  Michael Sipos and Gary Smith v. FlightSafety Services Corporation, Co. Consent Decree (April 4, 2013);  Mervin Jones v. Jerome County Sheriff’s Office, ID complaint (January 7, 2013); Service Members to Receive $39 Million for Violations of the Servicemembers Civil Relief Act; Justice Department Settles Disability Discrimination Case Involving Disabled Veteran in Utah; Justice Department Reaches $12 Million Settlement to Resolve Violations of the Servicemembers Civil Relief Act by Capital One; and Justice Department Files Complaint Against Forsyth County, North Carolina, Sheriff for Violating the Employment Rights of Army National Guard Soldier

 

Given this heightened emphasis on enforcement, U.S. businesses should act to update their policies, practices, training and other compliance and risk management practices to ensure that their employment, lending, and other practices for dealing with military service members and their families are properly designed and administered to minimize the risk that their business will become one of these enforcement statistics.

For Help or More Information

If you need help reviewing and updating, administering or defending your  human resources, employee benefits or other compliance and risk management practices in these or other areas, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  As a part of this practice, Ms. Stamer extensively has worked with U.S. businesses and benefit plans to manage, prevent and resolve concerns involving the rights of military service members and others as well as spoken and written extensively on these concerns.  Examples of some of her recent articles on military service members employment and other risks include her workshop and accompanying training manual, When The Military Comes Home: USERRA, VEVRRA, FMLA, COBRA, HIPAA and Beyond, New USERRA Militarty Reservist Regulations; Big Penalty for Lender Shows Risks of Violating Military Service or Vets Rights and others.

A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publications available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Administration Proposes To Let PBGC Board Set Premiums In Effort To Shore Up Finances

April 10, 2013

The Obama Administration again is proposing that the Board of the Pension Benefit Guaranty Corporation (PBGC) get the power to set premium rates based on the financial soundness of company sponsors to shore up the agency’s finances in hopes of heading off the need for a government bailout of the agency’s liabilities. 

PBGC, which insures traditional pensions offered by non-governmental employers  continues to struggle for funding to meet the costs of funding its program of insuring failed private defined benefit pension plans.  Always challenging, maintaining financial solvency has become particularly problematic with company failures soaring and investment returns down in the ailing economy.  On November 16, 2012, the agency said its deficit increased to $34 billion, the largest in PBGC’s 38-year history.

The PBGC currently relies exclusively on premiums set by Congress and assets recovered from failed plans to operate and fund its private pension guarantee obligations.  It presently doesn’t receive taxpayer dollars. Premiums, set by Congress, have historically been too low to meet the agency’s needs.

 The Government Accountability Office issued a report saying Congress should consider “revising PBGC’s premium structure to better reflect the agency’s risk from individual plans and sponsors

The proposal to give the PBGC authority to determine premiums is intended to shore up the agency’s funding.  “Without premium increases PBGC will be faced with requesting a taxpayer bailout or shutting down,” said PBGC Director Josh Gotbaum.  “The current system punishes responsible companies by making them pay for the mistakes of others and punishes plans by raising rates just when companies can least afford it.  Tha’s why administrations of both parties, and recently GAO, have supported giving PBGC what the FDIC has long had — the ability to set its own rates and to set them in ways that are fair.”

The Administration originally introduced the idea of allowing the PBGC to set its own premiums in 2012.  It now has reintroduced the effort that ties premiums to company risk in its 2014 budget. Under the current proposal, the PBGC Board, which consists of secretaries of Labor, Commerce, and Treasury, with the secretary of Labor as chair, wouldn’t get the authority to set rates until 2015. The budget requires the board to perform a one-year study with a public comment period. Additionally, premium increases would be gradually phased in to give company sponsors time to prepare for the new rates.

For Help With These Or Other Matters

If you need help dealing with pension or other employee benefit funding, design or administration challenges, dealing with the PBGC,  IRS, Labor Department or other agency or legal challenge to your organization’s existing employee benefit or other practices, or other workforce re-engineering, labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Ms. Stamer has more than 26 years experience advising and representing employer, employee benefit and other clients on human resources, employee benefit, internal controls and risk management matters including extensive work on workforce re-engineering and other human resources and employee benefits challenges of distressed and other companies, and related matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.   Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com

For important information concerning this communication click here THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Administration Proposes Expanding Eligibility, Simplifying Small Employer Health Care Tax Credit

April 10, 2013

The Obama Administration’s Fiscal Year 2014 Revenue Proposals include a proposal  to expand the group of employers eligible for the Small Employer Health Care Tax Credit (Health Credit) enacted as part of the Patient Protection and Affordable Care Act (ACA) retroactive to January 1, 2013.  See General Explanations of the Administration’s Fiscal Year 2014 Revenue Proposals pages 39-40.

Current Law

Under long-standing provisions of the Internal Revenue Code (Code), the cost to an employer of providing health coverage for its employees is generally deductible as an ordinary and necessary business expense for employee compensation and the value of employer-provided health coverage is not subject to employer-paid Federal Insurance Contributions Act tax.  Meanwhile, unless the program violates the non-discrimination rules of Internal Revenue Code §105 or the employees are offered a choice in a manner that violates Code §125, employees are generally not taxed on the premiums or the value of employer-provided health coverage for themselves, their spouses and their dependents. 

As an additional inducement for small employers to provide health coverage for low-income employees, the ACA created the Health Credit.  During 2010 through 2013, the maximum credit is 35 percent (25 percent for tax-exempt employers) of the employer’s contributions to the premium. For 2014 and later years, the maximum credit percentage is 50 percent (35 percent for tax-exempts).  The amount of the available credit recently was reduced as part of the reductions implemented under sequester.

To qualify for the Health Credit, the Code currently limits the availability of the Health Credit to amounts paid for health coverage for employees with average annual full-time equivalent wages of no more than $50,000 (indexed beginning 2014) by an employer that employs no more than 25 full-time equivalent employees during the taxable year and pays at least 50 percent of the premium for coverage.  For taxable years beginning in 2010 through 2013, the credit is available for any health insurance coverage purchased from an insurance company licensed under State law. For taxable years beginning after December 31, 2013, the credit is available only for health insurance purchased through a Health Insurance Exchange and only for a maximum coverage period of two additional consecutive taxable years, beginning with the first year in which the employer or any predecessor first offers any qualified plans to its employees through an Exchange.

While for-profit firms may claim the tax credit as a general business credit and may carry the credit back for one year and carry the credit forward for 20 years, the Health Credit only currently is available for tax liability under the alternative minimum tax. For tax-exempt organizations, the credit is refundable and is capped at the amount of income tax withholding for employees and both the employee and employer portion of the health insurance (Medicare) payroll tax.

Eligible employer contributions are limited by the amount the employer would have contributed under the State average premium. Also, the credit is phased out on a sliding scale between 10 and 25 full-time equivalent employees as well as between an average annual wage of $25,000 (indexed) and $50,000 (indexed). Because the reductions are additive, an employer with fewer than 25 full-time employees paying an average wage less than $50,000 might not be eligible for any tax credit.

Proposed Change

The proposal would expand the group of employers who are eligible for the credit to include employers with up to 50 full-time equivalent employees and would begin the phase-out at 20 full-time equivalent employees for taxable years beginning after January 31, 2012. In addition, there would be a change in the coordination of the phase-outs based on average wage and the number of employees (using a formula that is multiplicative rather than additive) so as to provide a more gradual combined phase-out.

According to the Administration, the proposal is intended to ensure that employers with fewer than 50 employees and an average wage less than $50,000 would be eligible for the credit, even if they are nearing the end of both phase-outs. The proposal would also eliminate the requirement that an employer make a uniform contribution on behalf of each employee (although applicable nondiscrimination laws will still apply), and would eliminate the limit imposed by the State average premium.

The Administration says expanding eligibility for the credit and simplifying its operation would:

  • Increase the utilization of the tax credit
  • Encourage more small employers to provide health benefits to employees and their families
  • Incent small employers to join an Exchange, thereby broadening the risk pool
  • Enhance fairness among employers
  • Remove complexity and potential discouragement to small employers claiming the Health Credit resulting from the uniform contribution requirement and the State premium contribution limit.

 Health Care Reform Coping Steps For All Businesses

The proposal to expand the Health Credit comes as many employers continue to struggle to understand the potential implications of ACA’s health care reforms sand determine how to respond. 

For tips about coping with health care reform for employers, check out  13 Employer Tips For Responding To Health Care Reform Now and other resources in the Solutions Law Press, Inc. HR & Benefits Update at www.solutionslawpress.com.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publications available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Test Your Health Care Reform Knowledge On 3rd Anniversary of Reform Passage

March 21, 2013

March 21, 2013 is the 3rd Anniversary of the Affordable Care Act.    With the 2014 rollout of the next round of reforms approaching, the Kaiser Family Foundation invites you to take its latest interactive quiz to test your knowledge about what’s in – and what’s not in – the health reform law and encourage your friends and family to do the same.  You can compare your knowledge with others and share your results on Facebook and Twitter. The quiz also includes links to more information about specific provisions of the law.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publications available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Insured “Expatriate Plans” Get Temporary Reprieve From Affordable Care Act Compliance Thru 2015 If Meet Other Health Plan Mandates

March 13, 2013

U.S. businesses with workers working oversees and foreign businesses sending employees to work in the U.S. often overlook the need to design their expatriate health benefit and certain other welfare plans and employment practices to properly comply with applicable U.S. mandates.

“Expatriate health plans” within the meaning of the “FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”) are not required to comply the Affordable Care Act (ACA) requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Agencies) on March 8, 2013.

ACA & Other Federal Health Plan Rules Generally Apply To Expat Coverage

The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.”  Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens.  For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

 Businesses should design and administer their health plans in accordance with all relevant federal health benefit regulations unless qualification for their plan for exemption is specifically verified.

Temporary Transitional ACA Relief For “Expatriate Health Plans”

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax.  Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Definition of “Expatriate Health Plan” Limited To Certain Insured Health Plans

Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.”  For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as  “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.   

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States.  Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ.  Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months.  Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Agencies Invite Public Input On ACA Application To Expatriate Health Plans

The Agencies request comments on and information about the unique challenges that expatriate health plans may face in complying with provisions of the Affordable Care Act, including information about which particular types of plans face these challenges and with respect to which particular provisions of the Affordable Care Act.  In anticipation of further input and analysis, the Expat FAQ speculates that potential challenges that could complicate Affordable Care Act compliance for an expatriate health plan might include:

  • Reconciling and coordinating the multiple regulatory regimes that apply to expatriate health plans might make it impossible or impracticable to comply with all the relevant rules at least in the near term;
  • Independent review organizations may not exist abroad;
  • It may be difficult for certain preventive services to be provided, or even be identified as preventive, when services are provided outside the United States by clinical providers that use different code sets and medical terminology to identify services.
  • Expatriate issuers may face challenges and delays in communicating with enrollees living abroad.
  • Due to the complex nature of these plans, standardized benefits disclosures can be difficult for issuers to produce.
  • Expatriate health plans may require additional regulatory approvals from foreign governments.
  • In some circumstances, it is possible that domestic and foreign law requirements conflict.

The Expat FAQ invites employers, insurers and other interested persons to provide input to the Agencies by sending their comments by May 8, 2013 to e.ohpsca-expat.ebsa@dol.gov.  Sponsors, insurers and administrators should share their concerns and insights in response to this invitation.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws.  When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns. 

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates.  Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances. 

 The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies.  With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending.  Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns. 

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at http://www.CynthiaStamer.com.

About Solutions Law Press

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

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

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.   ©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

“Expatriate health plans” within the meaning of the “FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”) are not required to comply the Affordable Care Act (ACA) requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Agencies) on March 8, 2013.

ACA & Other Federal Health Plan Rules Generally Apply To Expat Coverage

The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally…

View original post 2,596 more words


Insured “Expatriate Plans” Get Temporary Reprieve From Affordable Care Act Compliance Thru 2015 If Meet Other Health Plan Mandates

March 13, 2013

“Expatriate health plans” within the meaning of the “FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”) are not required to comply the Affordable Care Act (ACA) requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Agencies) on March 8, 2013.

ACA & Other Federal Health Plan Rules Generally Apply To Expat Coverage

The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.”  Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens.  For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

 Businesses should design and administer their health plans in accordance with all relevant federal health benefit regulations unless qualification for their plan for exemption is specifically verified.

Temporary Transitional ACA Relief For “Expatriate Health Plans”

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax.  Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Definition of “Expatriate Health Plan” Limited To Certain Insured Health Plans

Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.”  For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as  “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.   

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States.  Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ.  Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months.  Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Agencies Invite Public Input On ACA Application To Expatriate Health Plans

The Agencies request comments on and information about the unique challenges that expatriate health plans may face in complying with provisions of the Affordable Care Act, including information about which particular types of plans face these challenges and with respect to which particular provisions of the Affordable Care Act.  In anticipation of further input and analysis, the Expat FAQ speculates that potential challenges that could complicate Affordable Care Act compliance for an expatriate health plan might include:

  • Reconciling and coordinating the multiple regulatory regimes that apply to expatriate health plans might make it impossible or impracticable to comply with all the relevant rules at least in the near term;
  • Independent review organizations may not exist abroad;
  • It may be difficult for certain preventive services to be provided, or even be identified as preventive, when services are provided outside the United States by clinical providers that use different code sets and medical terminology to identify services.
  • Expatriate issuers may face challenges and delays in communicating with enrollees living abroad.
  • Due to the complex nature of these plans, standardized benefits disclosures can be difficult for issuers to produce.
  • Expatriate health plans may require additional regulatory approvals from foreign governments.
  • In some circumstances, it is possible that domestic and foreign law requirements conflict.

The Expat FAQ invites employers, insurers and other interested persons to provide input to the Agencies by sending their comments by May 8, 2013 to e.ohpsca-expat.ebsa@dol.gov.  Sponsors, insurers and administrators should share their concerns and insights in response to this invitation.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws.  When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns. 

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs that often is provided pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates.  Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances. 

 The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies.  With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending.  Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health insurance,  employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns.  She also has helped to design expatriate health and other benefit programs for businesses and insurers and assisted U.S. and foreign businesses with other expatriate and multinational workforce and benefits planning and administration throughout her career.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com and other employee benefits and human resources publications. She also is active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Businesses Urged To Strengthen Their Worker Classification Defenses As IRS, Other Agencies Step Up Audits & Enforcement

March 10, 2013

Businesses using non-employee workers should heed the recently announced expansion of the Internal Revenue Service (IRS) Voluntary Classification VCS Program (VCS Program) as yet another warning to clean up their worker classification practices and defenses for all workers performing services for the business in any non-employee capacity. 

Relying upon misclassifications of workers as nonemployed service providers presents many financial, legal and operational risks for businesses.  When businesses treat workers as nonemployees who render services in such a way that makes the worker likely to qualify as a common law employee, the business runs the risk of overlooking or underestimating the costs and liabilities of employing those workers.  The enforcement records of the U.S. Department of Labor Wage & Hour Division contains a lengthy and ever-lengthening record of businesses subjected to expensive backpay and penalty awards because the business failed to pay minimum wage or overtime to workers determined to qualify as common law employees entitled to minimum wage and overtime under the Fair Labor Standards Act.  See, e.g.,  Employers Should Tighten Worker Classification Practices As Obama Administration Moves To Stamp Out Misclassification Abuses; $1 Million + FLSA Overtime Settlement Shows Employers Should Tighten On-Call, Other Wage & Hour Practices;  Employer Charged With Misclassifying  & Underpaying Workers To Pay $754,578 FLSA Back Pay Settlement

Originally announced on September 22, 2011 in Announcement 2011-64,  the VCS Program as modified by Announcement 2012-45 continues to offer businesses a carrot to reclassify as employees workers misclassified for payroll tax purposes as independent contractors, leased employees or other non-employee workers backed by the enforcement stick of the IRS’ promise to zealously impose penalties and interest against employers caught wrongfully misclassifying workers.  While the IRS’s VCS Program and stepped up audits of worker classification provide a strong incentive for business to address their worker classification risks, the IRS is only one of many agencies on the alert for worker misclassification exposures.  Worker misclassification also impacts wage and hour, safety, immigration, worker’s compensation, employee benefits, negligence and a host of other obligations. 

All of these exposures carry potentially costly compensation, interest, and civil and in some cases even criminal penalty exposures for the businesses and their leaders.  Consequently, businesses should act prudently and promptly to identify and address all of these risks and move forward holistically to manage their misclassification exposures.

Agencies charged with enforcement of these other laws as well as private plaintiffs also are on the alert for and pursing businesses for aggressive misclassification of workers in these other exposure areas.   Since most businesses uniformly classify workers as either employees or non-employees for most purposes,  business leaders must understand and manage the full scope of their businesses’ misclassification exposures when charting and implementing their strategy in response to the VCS Program or another voluntary compliance program, responding to an audit or other agency action, addressing a private plaintiff suit or conducting other risk management and compliance activities impacting or affected by worker classification concerns. 

VCS Program Offers  Limited Worker Misclassification Exposure Relief

Worker misclassification impacts a broad range of tax and non-tax legal obligations and risks well beyond income tax withholding, payroll and other employment tax liability and reporting and disclosure. A worker classification challenge or necessity determination in one area inherently prompts the need to address the worker reclassification and attendant risks in other areas.

Typically, in addition to treating a worker as a non-employee for tax purposes, a business also will treat the worker as a non-employee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, worker’s compensation, workplace safety, tort liability and insurance and other purposes.

Health Care Reform To Increase Worker Classification Risks

Businesses can look forward to these risks rising in 2014, when the “pay or play” employer shared responsibility, health plan non-discrimination, default enrollment and other new rules take effect under the Patient Protection & Affordable Care Act (ACA).  Given these new ACA requirements and the government’s need to get as many workers covered as employees to make them work, as well as existing laws, IRS and other agencies are expanding staffing and stepping up enforcement against businesses that misclassify workers.

Whether and how ACA’s “pay-or-play” employer shared responsibility payment, default enrollment, insured health plan non-discrimination and other federal health plan rules apply to a business’ health plan requires a correct understanding of what workers considered employed by the business and how these workers are counted and classified for purposes of ACA and other federal health plan mandates.  

ACA and other federal health plan rules decide what rules apply to which businesses or health plans based on the number of employees a business is considered to employ, their hours worked, their seasonal or other status, and other relevant classification as determined by the applicable rule.  The ACA and other rules vary in the relevant number of employees that trigger applicability of the rule and how businesses must count workers to decide when a particular rule applies.  Consequently, trying to predict the employer shared responsibility payment, if any under Internal Revenue Code (Code) Section 4980H or model the burden or cost of any other federal health benefit mandates requires each business know who counts and how to classify workers for each of these rules.  Most of these rules start with a “common law” definition of employee then apply rules to add or ignore various workers.  Because most federal health plan rules also take into account “commonly controlled” and “affiliated” businesses’ employees when determining rule coverage, businesses also may need to know that information for other related or commonly owned businesses.  

For instance, when a business along with all commonly controlled or affiliated employers, if any, employ a combined workforce of 50 or more “full-time” and “full-time equivalent employees” (Large Employer) does not offer “affordable,” “minimum essential coverage” to every full-time employee and his dependents under a legally compliant health plan that provides “minimum essential value” within the meaning of ACA after 2013, the business generally should expect to pay a shared responsibility payment under Code Section 4980H for each month after 2013 that any “full-time” employee  receives a tax subsidy or credit for enrolling in one of ACA’s health care exchanges.  The amount of this required shared responsibility payment will be calculated under Code Section 4980H based on the plan design and coverage the employer health plan offers and the required employee contribution for employee only coverage.

If the business intends to continue to offer health coverage, it similarly will need to accurately understand which workers count as its employees for purposes of determining who gets coverage and the consequences to the business for those workers that qualify as full-time, common law employees not offered coverage.

In either case, ACA uses the common law employee test as the basis for classification of workers both to determine what businesses have sufficient full-time employees to become covered under these rules, the payment, if any, required under Code Section 4980H’s new employer shared responsibility payment requirements, as well as the workers entitled to benefit from these rules under employer sponsored health plans.  Accordingly, These the already significant legal and financial consequences for employers that misclassify workers will rise significantly when ACA gets fully implemented beginning in 2014.

Consider VCP Program Relief In Context Of Other Worker Classification Risks

As part of a broader effort to get businesses properly to classify and fulfill tax and other responsibilities to workers, the IRS is offering certain qualifying businesses an opportunity to resolve payroll liabilities arising from past worker misclassifications under the VCS Program. The VCS Program settlement opportunity emerged in 2011 as worker misclassification amid rising scrutiny and enforcement by the IRS and other agencies against businesses for misclassification related violations of the Code, wage and hour, safety, discrimination, immigration and various other laws.

Touted by the IRS as providing “greater certainty for employers, workers and the government,” the VCS Program offers businesses that meet the eligibility criteria for the program the option to resolve past payroll tax liability for the misclassified workers by paying a settlement payment of just over one percent of the wages paid to the reclassified workers for the past year and by meeting other program criteria. When a business meets the VCS Program requirements, the IRS promises not to conduct a payroll tax audit or assess interest or penalties against the business for unpaid payroll taxes for the previously misclassified workers covered by the VCS Program.  For more detail, see New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks; Medical Resident Stipend Ruling Shows Health Care, Other Employers Should Review Payroll Practices; Employment Tax Takes Center Stage as IRS Begins National Research Project , Executive Compensation Audits.

The IRS hoped the threat of much larger liability if the IRS catches their misclassification in an audit would induce businesses to settle their exposure and come into compliance by participating in the VCS Program. 

Part of the low participation stemmed from restrictions incorporated into the VCS Program.  Not all businesses with misclassified workers qualified to use the program.  The original criteria to enter the VCS Program established in 2011 required that a business:

  • Be treating the workers as nonemployees;
  • Consistently have treated the workers in the past as nonemployees;
  • To have filed all required Forms 1099 for amounts paid to the workers;
  • Not currently be under IRS audit;
  • Not be under audit by the Department of Labor or a state agency on the classification of these workers or contesting the classification of the workers in court; and
  • To agree to extend the statute of limitations on their payroll tax liabilities from three to six years.

After only about 1000 employers used the VCS Program to voluntarily resolve their payroll tax liability for misclassified workers, the IRS modified the program in hopes of making participation more attractive to businesses in Announcement 2012-45.  As modified by Announcement 2012-45, employers under IRS audit, other than an employment tax audit, now qualify for the VCS Program. Announcement 2012-45 also eliminates the requirement that employers agree to extend their statute of limitations on payroll tax liability from three to six years.   

A business that meets these adjusted criteria for participation now follows the following steps to enter the VCS Program:

  • Files the Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before the business plans to begin treating the workers as employees;
  • Adjusts its worker classification practices prospectively with respect to the previously misclassified workers;
  • Pays the required settlement fee; and
  • Properly classifies workers going forward. 

While these changes may make participation in the VCS Program more attractive to some employers, many employers may view use of the VCS Program as too risky because of uncertainties about the proper classification of certain workers in light of the highly fact specific nature of the determination, as well as concerns about the effect that use of the VCS Program might have on the businesses non-tax misclassification exposures for workers that would be reclassified under the VCS Program.

Uncertainties Complication Worker Classification Risk Management

One of the biggest challenges to getting businesses to change their worker classifications is getting the businesses to accept the notion that long-standing worker classification practices in fact might not be defensible. 

Although existing precedent and regulatory guidance makes clear that certain long-standing worker classification practices of many businesses would not hold up if scrutinized, business leaders understandably often discount the risk because these classifications historically have continued with little or no challenge in the past.

Even when business leaders recognize that changing enforcement patterns merit reconsideration of historical worker classification practices, they may be reluctant to reclassify the workers. 

The common law employment test applied to decide if a worker is an employee for payroll, income tax, employee benefit plan and other purposes under the Code often relies on a subjective, highly fact-specific analysis of the particular circumstances of the worker.  Employment status typically is presumed under the common law test for purposes of the Code and most other laws.  This means that the business, rather than the IRS or other agency, generally bears the burden of proving the correctness of its classification of a worker as a non-employee for purposes of these determinations. 

Given the business typically bears the burden of proving a worker is not an employee, a business receiving services from workers performing services in a capacity other than as a employee should ensure that the position in structural form and operation will withstand scrutiny under the common law and other applicable tests and retain the necessary evidence to support this characterization in anticipation of a potential future audit or other challenge.

Since the business can expect to bear the burden of proving the appropriateness of a nonemployee characterization, businesses also should exercise special care to avoid relying upon overly optimistic assessment of the facts and circumstances when assessing the defensibility of their characterization of the position. 

When the factual evidence creates significant questions about the defensibility of a worker’s classification as a non-employee, an employing business generally should consider reclassifying or restructuring the position to be more defensible pursuant to a process designed to mitigate or resolve risks of the prior classification.  Often, it also may be desirable for the business to incorporate certain contractual, compensation and other safeguards into the worker relationship, both to support the nonemployee characterization and to minimize future reclassification challenges and exposures.

Consider Importance of Attorney-Client Privilege As Risk Management Tool

Because of the broad reaching and potentially significant liability exposures arising from misclassification, business leaders generally should work to ensure that their risk analysis and decision-making discussion is conducted in a way that positions these discussions for protection under attorney-client privilege and attorney work product privilege.

The availability of the attorney-client and other evidentiary privilege to help shield the investigation and associated decision-making is particularly important because of the potentially significant civil and even criminal liability exposures that often arise from worker misclassification under various relevant laws. 

The interwoven nature of the tax and non-tax risks merits particular awareness by business leaders of the need to use care in deciding the outside advisors and consultants that will help in the evaluation of the risks and structuring of solutions.  With the VCS Program and other tax exposures in the limelight, businesses can expect that their accounting and other consultant advisors will recommend and even offer to lead the review.  While appropriately structured involvement by these non-legal consultants can be a valuable tool, the blended nature of the misclassification exposures means that the evidentiary privileges that accountants often assert to help shield their tax related discussions from discovery in certain federal tax prosecutions are likely to provide inadequate protection against discovery given the broad non-tax related exposures inherent in the misclassification problem.  For this reason, business leaders are urged to require that any audits and other activities by these non-legal consultants to evaluate or mitigate these exposures be engaged and conducted whenever possible within attorney-client privilege to protect and promote the ability to assert evidentiary protections against disclosure and discovery of sensitive discussions. Accordingly, while businesses definitely should incorporate appropriate tax advisors into the evaluation process, most businesses before commencing meaningful discussions with or engaging assessments by their accounting firm or other non-attorney tax advisor will want to engage counsel and coordinate  their accounting and other non-attorney tax advisors” involvement and activities through qualified legal counsel to protect and maximize the ability to conduct the analysis of their risks and options within the protection of attorney-client privilege.

For Help With These Or Other Matters

If you need assistance in conducting a risk assessment of or responding to an IRS, Labor, HHS, DOJ, ICE, private claim or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit, compensation practices, compliance, or other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters,  Ms. Stamer has more than 25 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, tax, internal controls, risk management and other legal and operational management concerns. 

Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

For important information about this communication click here THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


13 Employer Tips For Coping With Health Care Reform Now!

March 5, 2013

Since the Supreme Court’s June 28, 2012 National Federation of Independent Business v. Sebelius health care reform ruling upholding the “pay or play” mandates of the Patient Protection & Affordable Care Act (ACA), most business leaders, plan fiduciaries, health insurers, administrators of employment-based group health plans have accepted the need to prepare for health care reform changes taking effect in 2014.  

Unfortunately, delays in the release of anticipated regulatory guidance, the development and implementation of federal and state exchanges and other regulatory and market reforms have made it difficult for many businesses to understand their obligations, options, and their associated costs. 

Most business and industry leaders report frustration with the continuing lack of clarity and uncertainty about rules and costs.  Meanwhile, sequester just made life (and costs) worse for many small employers whose current 2013 health plan budget depends upon plans to benefit from he Small Business Health Care Tax Credit (SBHCTC) enacted as part of ACA. 

Despite these continuing uncertainties and challenges, the impending January 1, 2014 deadline for compliance doesn’t allow most businesses the luxury for waiting for clarification.  To complete the necessary arrangements, businesses unfortunately must decide the direction they plan to take and start working to implement their choice despite these existing uncertainties while managing their existing health benefit programs and costs through 2013.

Small Employers Relying On Health Plan Tax Credit Should Adjust Budgets In Response To Sequester Cut

For small employers and tax-exempt employers counting on the Small Business Health Care Tax Credit (SBHCTC) enacted as part of ACA to afford health care coverage for their employees, health benefit planning needs to begin with determining and dealing with any new problems that an almost 9% cut in the 2013 SBHCTC tax credit triggered by sequester may have on the amount of the credit for the current 2013 tax year.

ACA added the SBHCTC to the Internal Revenue Code (Code) to help and encourage qualifying small businesses to provide health coverage for their employees.  For tax years 2010 through 2013, the maximum credit is 35 percent for a qualifying small business employer and 25 percent for small tax-exempt employers such as charities. See IRS 3 Simple Steps Publication for help estimating the credit. An enhanced version of the credit is scheduled to increase the tax credit rate to 50 percent and 35 percent, respectively in 2014.

Many small businesses are unaware that sequester automatically cut their 2013 SBHCTC tax credit.   Under the sequester requirements of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, certain automatic budget cuts went into effect on March 1, 2013. These required cuts include an 8.7% reduction to the refundable part of the SBHCTC for otherwise qualifying small employers under Code Section 45R. As a result, qualifying employers counting on the SBHCTC credit to pay for employee health coverage need to know that this credit effectively is reduced by 8.7% percent. The sequestration reduction rate will apply until the end of the fiscal year on September 30, 2013 or intervening Congressional action, at which time the sequestration rate is subject to change.

Health Care Reform Coping Steps For All Businesses

While the sequester SBHCTC cut uniquely affects small businesses employing 25 or fewer workers, almost all businesses regardless of size are struggling to cope with the challenges of health care reform. The following steps may be helpful for many businesses working to chart a path for moving forward amid these uncertainties:

1.  Know Your Workforce & Proper Worker Classifications For Purposes of Health Plan Rules

Whether and how ACA’s “pay-or-play” employer shared responsibility payment, default enrollment, insured health plan non-discrimination and other federal health plan rules apply to your company’s health plan requires a correct understanding of what workers considered employed by your business and how these workers are counted and classified for purposes of ACA and other federal health plan mandates is the first step to projecting the potential costs and liabilities of your business under Code Section 4980H. 

ACA and other federal health plan rules decide what rules apply to which businesses or health plans based on the number of employees a business is considered to employ, their hours worked, their seasonal or other status, and other relevant classification as determined by the applicable rule.  The ACA and other rules vary in the relevant number of employees that trigger applicability of the rule and how businesses must count workers to decide when a particular rule applies.

Trying to predict the employer shared responsibility payment, if any under Code Section 4980H or model the burden or cost of any other federal health benefit mandate requires each business know who counts and how to classify workers for each of these rules.  Most of these rules start with a “common law” definition of employee then apply rules to add or ignore various workers.  Because most federal health plan rules also take into account “commonly controlled” and “affiliated” businesses’ employees when determining rule coverage, businesses also may need to know that information for other related or commonly owned businesses.  

2.  Make Rough Cost Projection To Preliminarily Decide Whether To “Pay” or “Play”

Under ACA, each business retains the option not to offer any health coverage for any employee or employee groups provided the business can tolerate the resulting consequences.  When a business along with all commonly controlled or affiliated employers, if any, employ a combined workforce of 50 or more “full-time” and “full-time equivalent employees” (Large Employer) does not offer “affordable,” “minimum essential coverage” to every full-time employee and his dependents under a legally compliant health plan that provides “minimum essential value” within the meaning of ACA after 2013, the business generally should expect to pay a shared responsibility payment under Code Section 4980H for each month after 2013 that any “full-time” employee  receives a tax subsidy or credit for enrolling in one of ACA’s health care exchanges.  The amount of this required shared responsibility payment will be calculated under Code Section 4980H based on the plan design and coverage the employer health plan offers and the required employee contribution for employee only coverage. Consequently, most businesses should project the relative cost to their business of paying the shared responsibility payment under Code Section 4980H against the cost of providing coverage to decide if it makes sense to even consider continuing to offer health coverage.

While not yet final, recently proposed Internal Revenue Service (IRS) regulations that would implement Code Section 4980H (4980H Regulations) provide a fairly good roadmap for business leaders to use to project their likely shared responsibility payment if the business assumes that the cost of offering coverage to avoid paying the shared responsibility payment will not be less than its existing health plan costs.  Starting with this assumption, the 4980H Regulations provide some roadmap that the business can use to project its likely shared responsibility payment if the business fails to offer health coverage under a plan offering minimum essential coverage to each full-time employee and their dependents.  Using this assumption, a businesses also can get a rough comparison of the projected cost difference per full-time employee if the offers a plan providing minimum essential coverage to all full-time employees and their dependents with minimum essential value that turns out to be “unaffordable” to some of these employees under ACA.   

While refinement of the data in the time and other employment records might help a business refine these estimates, the preliminary projections made using existing data and these assumptions generally will help a business decide if it wants to go ahead under the assumption it will pay or play.  If the business plans only to pay the shared responsibility payment, its efforts should focus on collecting and retaining the data needed to prove compliance and minimize its liability by planning its workforce and taking advantage of any safe harbor or other elections available to it under the 4980H Regulations for counting and classifying its workers. 

3. If Business Decides To Offer Health Coverage After 2013, Decide Plan Design

If the business intends to continue to offer health coverage, the business also needs to decide the plan coverage and terms of that plan.  In all cases, any health coverage offered generally must be designed so the business prudently can afford to pay benefit and administration costs of the plan and also meet all applicable mandates.  The mandates applicable to the plan generally are based on the size of the employer as determined by the applicable federal rules. 

Within these parameters, the business generally has the following choices:

  • Offer health plan that provides minimum essential coverage with minimum essential value to all full-time employees, but pay a shared responsibility payment for full-time employees electing exchange coverage whose employee only contribution would be considered “unaffordable” under ACA because it exceeds 9.5% of their wages;
  • Offer health plan that provides minimum essential coverage with minimum essential value to all full-time employees, and subside the cost of coverage for any low-paid workers as necessary to prevent that coverage from being unaffordable for any worker;
  • Offer a health plan providing minimum essential coverage to some but not all full-time employees and pay the shared responsibility payment calculated under Code Section 4980H(b) for any full-time employee that elects coverage under the exchange to whom the plan is either unaffordable or doesn’t offer minimum essential coverage; or
  • Some combination of these options, designed to meet the other federal health plan rules applicable for health plans offered by businesses employing that number of workers.

When making these decisions, uncertainty about the cost of coverage, the income of the workers, and which low-income employees, if any, actually will choose to enroll in the health plan versus choose to get coverage from the exchange creates some uncertainty to the predictions.  As guidance continues to emerge, however, the modeling of these issues becomes increasingly more reliable.  In the meantime, businesses that plan to continue to offer coverage must make their best guess to project costs and design their health programs while keeping a careful eye on the emerging guidance and market cost data.

4.  Understand The Cast Of Characters & What Hat(s) (Including You) They Wear

Employers and their management rely upon many vendors and advisors and assumptions when making plan design and risk management decisions.  Many times, employer and members of their management unknowingly assume significant risk because of misperceptions about these allocations of duties and operational and legal accountability.   Business and plan leaders need a correct understanding of these roles and responsibilities to understand the risks and to what extent they can rely upon a vendor or advisor to properly design and administer a health plan or carry out related obligations, what risks cannot be delegated, and how to manage these risks.

Under the Employee Retirement Income Security Act (ERISA), any party that exercises discretion or control over health plan administration, funds or certain other matters generally is considered a plan “fiduciary.” Fiduciaries generally are personally liable for prudently and appropriately administering their health plan related responsibilities prudently in accordance with ERISA and other applicable laws and the plan terms.  Knowing who is acting as a fiduciary and understanding those duties and liabilities and how to manage these risks significantly affects the exposure that an employer or member of its management risks as a result of an employer’s sponsorship in a group health plan or other employee benefit program.  Also, knowing what duties come first and how to prove that the fiduciary did the right thing is key to managing risks when an individual who has fiduciary responsibilities under ERISA also is responsible for carrying out other management duties of the sponsoring employer, a vendor or elsewhere that carries duties or interests that conflict with his health plan related fiduciary duties.

The plan sponsor or members of its leadership, a service provider or members of their staff generally may be a fiduciary for purposes of ERISA if it either is named as the fiduciary, it functionally exercises the discretion to be considered a fiduciary, or it otherwise has discretionary power over plan administration or other fiduciary matters.  Many plan sponsors and their management unwittingly take on liability that they assume rests with an insurer or service provider because the company or members of its management are named as the plan administrator or named fiduciary with regard to duties that the company has hired an insurer or service provider to provide or allowed that service provider to disclaim fiduciary or discretionary status with regard to those responsibilities.  Management also can have fiduciary exposure based on their authority for selecting plan fiduciaries and vendors. 

Also, by not knowing who the fiduciaries are, plans and their fiduciaries often fail to confirm the eligibility of some parties serving as fiduciaries, to arrange for bonding of service providers or fiduciaries as required to comply with Title I of ERISA.  Failing to properly understand when the plan sponsor, member of its management or another party is or could be a fiduciary can create unnecessary and unexpected risks and lead to reliance upon vendors who provide advice but leave the employer or a management member holding the bag for resulting liability.

A correct understanding of the risks and who bears them is critical to understand the risks, opportunities to mitigate risk through effective contracting or other outsourcing, when outsourcing does not effectively transfer risks, where to invest resources for contract, plan or process review and changes or other risk management, and where to expect costs and risks and implement processes and procedures to deal with risks that cannot be outsourced or managed.

5.  Know What Rules Apply To Your Plan, The Sponsoring Employer, The Plan Its Fiduciaries & Plan Vendors & How This Impacts You & Your Group Health Plan

The requirements for health plans and the resulting liabilities have undergone continuous changes.   ACA adds to an already extensive list of complicated federal rules about health plans and their administration.   ACA, the Code, ERISA, the Social Security Act, the Privacy, Security, and Administrative Simplification and Breach Notification rules of the Health Insurance Portability & Accountability Act (HIPAA) and various other federal laws also impose certain health plan related obligations and liabilities on health plan fiduciaries, their employer or other health plan sponsors and other parties.  These ever-expanding requirements increasingly impose civil or criminal sanctions, excise tax or other liability on plan administrators or other parties for failing to maintain legally compliant plans, file required reports, give required notifications or meet other requirements.  In many instances, this includes a requirement to know and self-report violations of some of these federal rules. 

Beyond these exposures, employers who sponsor group health plans that violate certain federal group health plan mandates have a duty to self-report certain regulatory plan failures and pay excise taxes where such failures are not corrected in a timely fashion once discovered, or are due to willful neglect. Code Section 6039D imposes excise taxes for failure to comply with health care continuation (COBRA) , health plan portability (HIPAA), genetic nondiscrimination (GINA), mental health parity (MHPAEA) , minimum hospital stays for newborns and mothers (Newborns’ and Mothers’ Health Protection Act), coverage of dependent students on medically necessary leaves of absence (Michelle’s Law), health savings account (HSA) and Archer medical savings account (Archer MSA) contribution comparability and various other federal requirements incorporated into the Internal Revenue Code.   

Since 2010, IRS regulations have required employers sponsoring group health plans not complying with mandates covered by Internal Revenue Code Section 6039D to self-report violations and pay related excise taxes.  Under these regulations, the sponsoring employer (or in some cases, the insurer, HMO or third-party administrator) must report health plan compliance failures annually on IRS Form 8928 (“Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code”).  Beyond any specific liability under ERISA or the particular law for such violations, the potential excise tax liability that can result under these provisions can be significant.  For example, COBRA, HIPAA, and GINA violations typically carry excise tax liability of $100 per day per individual affected. Compliance with applicable federal group health plan mandates is critical to avoid these excise taxes as well as other federal group health plan liabilities.

6.   Update Health Plan Documents, SPDs & Other Communications, Administrative Forms & Procedures, Contracts & Processes To Meet Requirements & Manage Exposures

Along with knowing what rules apply, timely updating written plan documents, communications and administration forms, administrative practices, contracts and other health plan related materials processes and procedures has never been more critical. 

A tightly written plan document and other plan communications have never been more important.  Federal law generally requires that health plan be established, maintained and administered in accordance with legally complaint, written plan documents and impose a growing list of standards and requirements governing the design and administration of these programs. In addition to the existing and impending ACA mandates, ERISA, the Code , the Social Security Act, federal eligibility and coverage continuation mandates of laws like the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Health Insurance Portability & Accountability Act, the Family & Medical Leave Act, the Genetic Information and Nondiscrimination Act (GINA), Michelle’s Law, mental health parity and other laws regulate the eligibility, coverage, administration and other design features of employment-based health plans and their administration.    ACA and other laws also require that employers, health plan administrators and fiduciaries protect the privacy of data, as well as comply with claims and appeals, communication, fiduciary responsibility, bonding, record keeping, reporting and other requirements.

Failing to update documents, communications, administrative forms and processes and other materials and practices can unleash a host of exposures. ERISA requires that that all material plan terms be set forth in a written plan document.  Many other federal health plan mandates require that this plan document include certain specific provisions.  Beyond these mandated terms, the ability to uphold and enforce plan terms often can be hurt or hindered by the tightness or sloppiness of the plan language. 

Among other things, noncompliant plan documents, communications and practices can trigger unanticipated costs and liabilities by undermining the ability to administer plan terms and conditions.  They also may expose the plan, plan fiduciaries and others to lawsuits, administrative enforcement and sanctions and other enforcement liabilities. 

For this purpose of deciding what and how much to do, it is critical to keep in mind the devil is in the details.  Not only must the documentation meet all technical mandates, the language, its clarity and specificity, and getting the plan document to match the actual processes that will be used to administer the plan and ensuring that the plan documents and processes match the summary plan description, summary of benefits and coverage, administrative forms and documentation and other plan communications and documentation in a legally compliant way significantly impacts the defensibility of the plan terms and the expense that the plan, its sponsor and fiduciaries can expect to incur to defend it.

7.  Clean Up Claims and Appeals, SPDs & Other Practices To Enhance Defensibility

Proper health plan claims and appeals plan and summary plan description language, procedures, processing, notification and documentation is critical to maintain defensible claims and appeals decisions required to enforce plan terms and manage claims denial related liabilities and defense costs.  Noncompliance with these requirements may prevent health plans from defending their claims or appeals denials, expose the plan administrator and plan fiduciaries involved or responsible for these activities to penalties, prompt unnecessary lawsuits, Labor Department enforcement or both; and drive up plan administration costs.

Unfortunately, most group health plans, their insurers and administrators need to substantially strengthen their plan documentation; handling; timeliness; notifications and other claims denials; and other claims and other appeals processes and documentation to meet existing regulations and otherwise strengthen their defensibility. 

Among other things, existing court decisions document that many plans existing plan documents, summary plan descriptions and explanations of benefits, claims and appeals investigations and documentation and notifications often need improvement to meet the basic plan document, summary plan description and reasonable claims rules of the plan document, summary plan description, fiduciary responsibility, reasonable claims and appeals procedures of ERISA and its implementing regulations.  Court precedent shows that inadequate drafting of these provisions, as well as specific provisions coverage and benefit provisions frequently undermines the defensibility of claims and appeals determinations. In addition to requiring that claims be processed and paid prudently in accordance with the terms of written plan documents, ERISA also requirements that plan fiduciaries decide and administer claims and appeals in accordance with reasonable claims procedures. 

Although the Labor Department updated its regulations implementing this reasonable claims and appeals procedure requirement more than 10 years ago, the Department of Labor updated its ERISA claims and appeals regulations to include detailed health plan claims and appeals requirements, many group health plans, their administrators and insurers still have not updated their health plans, summary plan descriptions, claims and appeals notification, and claims and appeals procedures to comply with these requirements.   

These omissions only become more significant under ACA.  The external review and other detailed additional requirements that the Affordable  Care Act dictates that group health plans not grandfathered from its provisions and its provisions holding these non-grandfathered plans strictly liable for deficiencies in their claims and appeals procedures makes the need to address inadequacies even more imperative for those non-grandfathered group health plans.  Inadequate attention to these concerns can force a plan to pay benefits for claims otherwise not covered as well as additional defense costs and penalties.

8.  Consistency Matters:  Build Good Plan, Then Follow It

Defensible health plan administration starts with the building and adopting strong, legally compliant plan terms and processes that are carefully documented and communicated in a prudent, legally compliant manner.  The next key is to actually use this investment by conducting plan administration and related operations consistent with the terms and allocated responsibilities to administer the plan in a documented, legally compliant and prudent manner. 

Good documentation and design on the front end should minimize ambiguities in the meaning of the plan and who is responsible for doing what when. 

With these tools in place, delays and other hiccups that result from confusion about plan terms, how they apply to a particular circumstance or who is responsible for doing what, when should be minimized and much more easily resolved by timely, appropriate action by the proper responsible party.  This facilitation of administration and its consistency can do much to enhance the defensibility of the plan and minimize other plan related risks and costs.

9.  Ensure Correct Party Carries Out Plan and Communications Plan Functions And Communications Compliant, Timely, Prudent, Provable Manner

Having the proper party perform plan related responsibilities and respond to claims and inquiries in a compliant, timely, prudent manner is another key element to managing health plan risk and promoting enforceability.  Ideally, the party appointed to act as the named fiduciary for purposes of carrying out a particular function also should conduct all plan communications regarding that function in terms that makes clear its role and negates responsibility or authority of others. 

When an employer or other plan sponsor goes to the trouble to appoint a committee, service provider or other party to serve as the named fiduciary then chooses to communicate about the plan anyway, the Supreme Court in FMC v. Halliday made clear it runs the risk that the plan related communications may be considered discretionary fiduciary conduct for which it may be liable as a functional fiduciary.  Meanwhile, these communications by nonfiduciaries also may create binding obligations upon the plan and its named fiduciaries to the extent made by a plan sponsor or conducted by a staff member or service provider performing responsibilities delegated by the plan fiduciary.

Beyond expanding the scope of potential fiduciaries, communications conducted by nonfiduciaries also tend to create defensibility for many other reasons.  For instance, allowing unauthorized parties to perform plan functions may not comport with the plan terms, and are less likely to create and keep required documentation and follow procedures necessary to promote enforceability.  Also, the communications, decisions and other actions by these nonfiduciary actors also are unlikely to qualify for discretionary review by the courts because grants of discretionary authority, if any in the written plan document to qualify the decisions of the named fiduciary for deferential review by courts typically will not extend to actions by these nonfiduciary parties.  Furthermore, the likelihood that the communication or other activity conducted will not comply with the fiduciary responsibility or other requirements governing the performance of the plan related functions is significantly increased when a plan sponsor, service provider, member of management, or other party not who has not been appointed or accepted the appointment  act as a named fiduciary undertakes to speak or act because that party very likely does not accept or fully appreciate the potential nature of its actions, the fiduciary and other legal rules applicable to the conduct, and the potential implications for the nonfiduciary actor, the plan and its fiduciaries.

10.  Clean Up Date Collection, Protection & Reporting

Existing and impending ACA and other federal mandates require that group health plans, their sponsors collect, maintain and administer is exploding. Existing eligibility mandates, for example, already require that plans have access to a broad range of personal identifying, personal health and a broad range of other sensitive information about employees and dependents who are or may be eligible for coverage under the plan.

While employers and their health plans historically have collected and retained the names, place of residence, family relationships, social security number, and other similar information about employees and their dependents, these data collection, retention and reporting requirements have and will continue to expand dramatically in response to evolving legal requirements. 

Already, health plans also from time to time need employee earnings, company ownership, employment status, family income, family, medical, military, and school leave information, divorce and child custody, enrollment in Medicare, Medicaid and other coverage and a broad range of other additional information.  Under the ACA, these data needs will explode to include a whole new range of information about total family income, availability and enrollment in other coverage, cultural and language affiliations, and many other items.   

Collecting, retaining and deploying this information will be critical to meeting existing and new plan administration and reporting requirements.  How this data collection is conducted, shared, safeguarded against misuse or other legally sensitive contact by the employer, service providers, the plan and others will be essential to mitigate exposures to federal employment and other nondiscrimination, HIPAA and other privacy, fiduciary responsibility and other legal risks and obligations. 

To the extent that payroll providers, third party administrators or other outside service providers will participate in the collection, retention, or use of this data, time also should be set aside both to conduct due diligence about their suitability, as well as to negotiate the necessary contractual arrangements and safeguards to make their involvement appropriate. 

Finally, given the highly sensitive nature of this data, employers, health plans and others that will collect and use this data will need to implement appropriate safeguards to prevent and monitor for improper use, access or disclosure and to conduct the necessary training to suitably protect this data.

11.  Monitor, Assess Implications & Provide Relevant Input to Regulators About Emerging Requirements & Interpretive Guidance Implementing 2014 Affordable Care Act & Other Mandates.

While the Supreme Court’s decision upheld as Constitutional ACA’s individual and employer shared responsibility mandates as a tax, many opportunities to impact its mandates remain.

Beyond the highly visible, continuing and often heated debates ranging in Congress and the court of public opinion on whether Congress should change its provisions, a plethora of regulatory interpretations issued or impending release by the implementing agencies, the IRS, HHS and Labor Department, and state insurance regulators will significantly impact what requirements and costs employers, insurers, individuals and governments will bear when the law takes effect.  Businesses sponsoring health plans should carefully scrutinize this regulatory guidance and provide meaningful, timely input to Congress, the regulators or both as appropriate to help influence the direction of regulatory or Congressional actions that would materially impact these burdens.

12.  Help Employees & Their Families Build Their Health Care Self-Management Skills

Whether or not your company plans to continue to sponsor employee health coverage after 2014, providing training and tools to help employees and their families strengthen their ability to understand and manage their health, health care needs and benefits can pay big dividends.  Beyond the financial costs to employees and employers of paying to care for a serious illness or injury, productivity also suffers while employees dealing with their own or a family member’s chronic or serious health care condition.  Wellness programs that encourage and support the efforts of employees and their families to stay healthy may be one valuable component of these efforts.  Beyond trying to prevent the need to cope with illness behind wellness programs, however, opportunities to realize big financial, productivity and benefit value recognition rewards also exist in the too often overlooked opportunity to provide training, education and tools that employees and their families need to better understand and self-manage care, benefits, finances and life challenges that commonly arise when dealing with their own or a family member’s illness. Providing education, tools and other resources that can help employees access, organize and effectively use health care and benefit information to manage care and the consequences of illness, their benefits and how to use them, to participate more effectively in care and care decisions, to recognize and self-manage financial, lost-time and other challenges associated with the illness not addressable or covered by health benefit programs, and other practical skills can help reduce lost time and other productivity impacts while helping employees and their families get the most out of the health care dollars spent.

13.  Pack Your Parachute-Plan Your Defense & Exist Strategies

With the parade of expense and liabilities associated with health plans, businesses sponsoring health plans and the management, service providers and others involved in their establishment, continuation, maintenance or administration are well advised to pack their survival kit and develop their exit strategies to position to soften the landing in case their health plan experiences a legal or operational disaster. 

Employers and other health plan sponsors and fiduciaries typically hire and rely upon a host of vendors and advisors to design and administer their health plans.  When selecting and hiring these service providers, health plan sponsors and fiduciaries are well-advised to investigate carefully their credentials as well as require the vendors to provide written commitments to stand behind their advice and services. 

Too often, while these service providers and advisors encourage plan sponsors and fiduciaries to allow the vendor to lead them or even handle on an ongoing basis plan administration services by touting their services, experience, expert systems and process and commitment to stand behind the customer when making the sale or encouraging reliance upon their advice when tough decisions are made, they rush to stand behind exculpatory and on-sided indemnification provisions in their service contracts to limit or avoid liability,   demand indemnification from their customer or both when things go wrong. 

While ERISA may offer some relief from certain of these exculpatory provisions under some circumstances, plan sponsors and fiduciaries should work to credential service providers and require service providers to commit to being accountable for their services by requiring contracts acknowledge all promised services and standards of quality, require vendors to commit to provide legally compliant and prudently designed and administered services that meet or exceed applicable legal requirements, to provide liability-backed indemnification or other protection for damages and costs resulting from vendor imprudence or malfeasance, to allow for contract termination if the vendor becomes unsuitable for continued use due to changing law or other circumstances and requiring the vendor to return data and other documentation critical to defend past decisions and provide for ongoing administration.  Keep documentation about advice, assurances and other relevant evidence received from vendors which could be useful in showing your company’s or plan’s efforts to make prudent efforts to provide for the proper administration of the plan.  When concerns arise, use care to investigate and redress concerns in a timely, measured fashion which both shows the prudent response to the concern and reflects sensitivity to the fiduciary and other roles and responsibilities of the employer sponsor and other parties involved.

Get Moving Now

Since many compliance deadlines already have past and the impending deadlines allow plan sponsors and fiduciaries limited time to finish arrangements, businesses, fiduciaries and their service providers need to get moving immediately to update their health plans to meet existing  and impending compliance and risk management risks under ACA and other federal laws, decisions and regulations.

Even as businesses move forward to respond to health care reform’s challenges, their leaders should continue to give input to Congress and regulators about the need to improve the rules and reduce business uncertainty and burdens.  With many regulations still in proposed or interim form and health care reform and its costs still a concern for many Congressional leaders, significant opportunity still exists to provide input to federal and state regulators on many key aspects of ACA and its relationship to other applicable laws.  Businesses and other health plan sponsors, plan fiduciaries, insurers and administrators, and other vendors must stay involved and alert.  Zealously monitor new developments and share timely input with Congress and regulators about existing and emerging rules that present concerns and other opportunities for improvement even as you position to respond to these rules before they become fully implemented.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

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Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publications available for review here including:

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2013 Cynthia Marcotte Stamer, P.C.  Non-Exclusive License To Republish Granted To Solutions Law Press, Inc.  All Other Rights Reserved.


Record $2.3 Million+ H-2A Backpay Order Plus Civil Money Penalty Reminds Businesses Employing Foreign Workers To Manage Compliance

July 10, 2012

Underpaying and failing to meet other H-2A visa program requirements for its employment of temporary foreign agricultural workers was an extremely costly mistake for Yerington, Nevada-based onion grower Peri & Sons.   

Peri & Sons must pay a record total of $2,338,700 in back wages to 1,365 workers, plus a $500,000 civil money penalty to the Department of Labor for failing to properly pay foreign agricultural workers working under the H-2A visa program under a consent order entered by U.S. Department of Labor Administrative Law Judge Steven Berlin in San Francisco.  The consent order announced by the Labor Department Wage and Hour Division today (July 10, 2012) reminds U.S. businesses of the need to meet compliance responsibilities when employing foreign workers and illustrates the significant risks that employers of foreign workers risk by failing to meet minimum wage and hour, overtime, vis, I-9 and other requirements for employing foreign workers.

The record back pay order stems from charges brought by the Labor Department’s Wage and Hour Division after it determined that Peri & Sons violated the FLSA and the H-2A visa program requirements by underpaying H-2A employees involved in irrigation, harvesting, packing and shipping of onions sold in grocery stores nationwide. All of the affected workers came to the U.S. from Mexico under the H-2A temporary agricultural worker visa program. In most cases, their earnings fell below the hourly wage required by the program, as well as below the federal minimum wage of $7.25 per hour for a brief period of time. Investigators also found that workers were not paid for time spent in mandatory pesticide training or reimbursed for subsistence expenses while traveling to and from the U.S. Additionally, Peri & Sons did not pay the worker’s return transportation costs at the end of the contract period.

The H-2A temporary agricultural worker program permits agricultural employers who expect a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to do temporary or seasonal agricultural work. The employer must file an application stating that a sufficient number of domestic workers are not available and the employment of these workers will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Employers using the H-2A program also must meet a number of specific conditions relating to recruitment, wages, housing, meals and transportation. See more on H-2A visa employment rules here.

Reflective of the Obama Administration’s heavy emphasis of the enforcement of wage and hour and other laws protective of workers, the Peri & Sons order shows the potential risks that employers run when violating these rules.  To minimize these exposures, employers of H-2A or other workers employed under special visa programs should carefully manage these programs to ensure their ability to prove compliance with all requirements of the visa program, the FLSA, and other relevant laws.  These programs should include careful and ongoing due diligence to maintain a current understanding of all applicable requirements for the legal employment of these workers and the establishment of systemized processes and documentation both to support compliance and to preserve evidence necessary to prove this compliance against possible investigations or charges.  When conducting and planning these activities, businesses should keep in mind that employers of foreign workers generally are accountable for meeting all human resources and related laws generally applicale to employees as well as additional visa and other eligibility to work credentialing, documentation, pay and other requirements. 

About Ms. Stamer

Recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and management consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, staffing and manpower companies, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, governmental leaders and others on wag hour and other workforce, employee benefits, compensation, internal controls and compliance, and related performance and risk management concerns. Her experience includes extensive work advising domestic and international businesses about employment, recruitment, compensation and management of workers and other human resources, employee benefit and other reengineering, performance management, risk management, compliance, public policy and other concerns and opportunities.

A primary drafter of the Bolivian Social Security privatization law with extensive domestic and international workforce, regulatory and public policy experience, Ms. Stamer has extensive experience advising U.S. and foreign businesses about the employment of foreign workers in the U.S., as well as other cross-border employment and other workforce management and compliance concerns.  In addition, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on human resources and other workforce, health and other employee benefits, insurance, tax, compliance and other matters.  She has represented clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, HUD and Justice; state legislatures attorneys general, insurance, labor, worker’s compensation, and other state and local agencies and regulators; and various foreign governments and their officials.

Ms. Stamer also shares her experience through leadership involvement in a number of human resources and related management and professional organizations  An Editorial Advisory Board Member and author for the Institute of Human Resources (IHR/HR.com), Insurance Thought Leaders, Employee Benefit News, and various other highly regarded publications, Ms. Stamer also presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative and in various other professional and civic leadership. She previously has served on the Dallas World Affairs Council Board, and has been active in cross border policy, trade and other activities of the US-Mexico Chamber of Commerce and a variety of other organizations.    

A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training on employee benefits, human resources, health care, privacy and data security, technology and other compliance and management topics.  Ms.  Stamer has written and spoken extensively on cross-border migration, workforce, health care, pension, insurance, ethics and internal controls, public policy and other challenges businesses and governments face in connection with cross border or multinational employment or operations.  An Editorial Advisory Board member and author for HR.com, Insurance Thought Leaders and many other publications, Ms. Stamer also regularly serves on the faculty and planning committees of a multitude of symposium and other educational programs. 

Her publications and insights on these and other related topics appear in the Health Care Compliance Association, American Bar Association, Atlantic Information Service, Bureau of National Affairs, World At Work, SHRM, The Wall Street Journal, Government Institutes, Inc.,Business Insurance, the Dallas Morning News, HR.Com, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.   For more details about Ms. Stamer’s services, experience, presentations, publications, and other credentials or to inquire about arranging counseling, training or presentations or other services by Ms. Stamer, see www.CynthiaStamer.com or contact Ms. Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2012 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks

September 26, 2011

Program Another Sign of Growing Audit & Enforcement Risks.   Businesses Urged To Strengthen Their Worker Classification Defenses

The September 22, 2011 launch by the Internal Revenue Service of a new Voluntary Worker Classification Settlement Program (“Settlement Program”) is the latest warning to businesses using independent contractors, leased employees or other non-employee workers of the need to review critically within the scope of attorney-client privilege the defensibility of their existing classification and treatment of those workers as non-employees in light of the in light of stepped up scrutiny and enforcement emphasis by the IRS and other federal and state regulators as well as workers and others in private litigation.

Coupled with growing scrutiny and challenges to businesses efforts to avoid employment-related liability and obligations through the use or workers that the business characterizes as non-employees by other federal and state agencies and plaintiff attorneys, the Settlement Agreement announcement is another sign that businesses using workers who are not employees need to be prepared to defend their worker classification and the legality of their dealings with these workers under applicable federal and state laws.

To guard against these and other growing risks of worker classification, employers receiving services from workers who are not considered employees for purposes of income or payroll should review within the scope of attorney-client privilege the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies and consult with qualified legal counsel about the advisability to adjust these practices to mitigate exposures to potential IRS, Labor Department or other penalties associated with worker misclassification.

Settlement Program Establishment Should Prompt Review Defensibility of Worker Classifications

The new Settlement Program established under Announcement 2011-64 reflects the widespread emphasis by the IRS and other federal and state regulators on uncovering and redressing misclassification of workers as non-employees by businesses for purposes of tax and other laws.  IRS scrutiny of worker classification practices by businesses has risen significantly over the past decade. 

The IRS’ launch of the Settlement Program follows its announcement in September, 2010 of plans to conduct approximately 6,000 payroll tax audits over a three year period focusing on the appropriateness of employer worker classification and other payroll tax practices.  The announcement of the new Settlement Program signals that the IRS perceives that worker misclassification by business in violation of Federal tax laws is sufficiently widespread and pervasive to merit both efforts to incentive voluntary correction through participation in the Settlement Program, as well as stiff enforcement against businesses that fail to self-correct worker classification compliance concerns.

Designed to increase tax compliance and provide what the IRS says will be “greater certainty for employers, workers and the government,” the IRS says the Settlement Program offers eligible employers concerned about potential worker misclassification exposures that might arise from a payroll tax audit the opportunity to come into compliance by making the required filing, adjusting their practices and paying the required settlement fee effectively equaling just over one percent of the wages paid to the reclassified workers for the past year.  If this settlement fee is paid and the other requirements of the Settlement Program are met, the Settlement Program specifies that employers accepted into the program will not be assessed interest or penalties and not be audited on payroll taxes related to these workers for prior years.

For businesses that can meet applicable requirements for participation, participation in the Settlement Program may offer an attractive option for resolving payroll related tax risks.  However, not all employers will qualify for the Settlement Program.  Employers must meet the eligibility requirements for participation.

Also, employers electing to use the Settlement Program need to understand the implications of that participation on the Statute of Limitations on their payroll tax liabilities. For the first three years of participation in the program, the Settlement Program specifies that participating employers will be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes.  Businesses will need to weigh the benefits of using the Settlement Program, if available, against the risk of reclassification and the availability of other resolution options that may be available under applicable Internal Revenue Code and IRS rules and procedures. Furthermore, many businesses evaluating worker classifications also may find it difficult to determine with certainty the risk of reclassification for certain categories of workers. Whether a worker is properly classified as an employee for most purposes under the Internal Revenue Code’s income tax withholding and reporting, payroll tax and most other employment tax turns on a highly fact specific analysis of under a common law employment test.  When an analysis of the evidence reflects a high degree of certainty that the classification of a worker as a non-employee was not defensible under existing tax authorities, use of the Settlement Program or other tools to resolve liability definitely merits consideration.  Because of the factual nature of the analysis, however, the decision whether to use the Settlement Program where the circumstances under which the worker renders services are less clear may be more difficult.  When making these assessments, businesses should avoid the temptation of being overly optimistic in their assessment of the facts and circumstances given that the Internal Revenue Code generally assigns responsibility to the business to prove the appropriateness of its classification of a worker as a non-employee.  While this allocation of the burden of proof means businesses should exercise caution when engaging workers in non-employee capacities, where the facts support this characterization, classification of a worker as a non-employee can be appropriate.  When deciding to continue the non-employee characterization for purposes of the Internal Revenue Code, however, businesses are urged to document the evidentiary basis and evidence supporting that determination in anticipation of a potential future audit or other challenge.

Learn more about the Settlement Program and worker classification risk management here.

Businesses Should Address Other Worker Reclassification Risks When Conducting Settlement Program Risk Analysis

As welcome as the opportunity to resolve potential payroll tax exposures through participation in the Settlement Program, businesses considering using the Settlement Program also will need to understand and prepared to address various non-tax legal concerns.   Because worker misclassification tends to impact on a broad range of legal obligations and risks, businesses evaluating or planning to use the Settlement Program are act quickly, but carefully, to evaluate and determine whether and how to use the Settlement Program and to identify and take appropriate steps to address both the tax-related liabilities targeted for resolution under the Settlement Program, as well as misclassification exposures likely to arise with respect to workers to be reclassified in connection with the use of the Settlement Program.

When conducting this evaluation and deciding whether to use the Settlement Program, businesses also need to keep the wider implications of the analysis and their decisions regarding how to handle a potential aggressive or misclassification as a worker as a non-employee.  A determination of potential aggressive or misclassification for purposes of the Internal Revenue Code’s payroll tax rules generally will necessitate the need to evaluate potential exposures that may arise from the worker misclassification under other federal and state laws. 

Typically, in addition to treating a worker as a non-employee for tax purposes, a business also will treat the worker as a non-employee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, worker’s compensation, workplace safety, tort liability and insurance and other purposes.   Consequently, a determination that reclassification is advisable for tax purposes generally will prompt the need to consider how to address the worker reclassification and attendant risk for purposes of other legal risks and requirements, as well as those covered by the Settlement Program.  Businesses will need to consider how the voluntary reclassification of workers and settlement under the Settlement Program may impact their exposures and obligations under other laws.  As the Settlement Program does not provide relief from the exposures arising from misclassification under other laws, businesses should be prepared to evaluate the advisability of reclassification of the worker for purposes of these other laws, the potential exposures attendant to misclassification of workers under those laws, and risks, challenges and opportunities for mitigating these exposures.

Businesses Cautioned To Conduct Evaluations & Discussions In Attorney-Client Privilege Due To Complexity & Significance of Potential Exposures

Conducting and discussing the Settlement Program and other related concerns within the scope of attorney-client privilege is particularly important because of the potentially significant civil and even criminal liability exposures that may arise from misclassification of workers for purposes of the various relevant laws.  Because of the broad reaching and potentially significant non-tax exposure inherent in these discussions, business leaders are cautioned that the evidentiary privileges that often provides protection against disclosure of certain discussions with accountants and certain other non-attorney tax advisors for purposes of certain tax laws may be inadequate in scope to protect discussions against discovery for purposes of these other laws.  Accordingly, while businesses definitely should incorporate appropriate tax advisors into the evaluation process, most businesses before commencing meaningful discussions with or engaging assessments by their accounting firm or other non-attorney tax advisor will want to engage counsel and coordinate the involvement of their accounting and other non-attorney tax advisors through qualified legal counsel to protect and maximize the ability to conduct the analysis of their risks and options within the protection of attorney-client privilege.

For Help With These Or Other Matters

If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Ms. Stamer has more than 24 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigrations & Customs, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, internal controls and risk management matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  

A featured presenter in the recent “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” teleconference sponsored by the American Bar Association Joint Committee on Employee Benefits, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com

For important information concerning this communication click here THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures

May 20, 2011

The National Labor Regulations Board (NLRB)’s announcement of a settlement against a Connecticut nursing home operator this week in conjunction with a series of other enforcement actions highlight the need for businesses to tighten defenses and exercise other caution to minimize their organization’s exposure to potential NLRB charges or investigation.    As reflected by many of these enforcement acts, the exposures arise both from active efforts by businesses to suppress union organizing or contracting activities, as well as the failure to identify and manage hidden labor law exposures in the design and administration of more ordinary human resources, compliance, business operations and other policies and practices.

On May 17, 2011, the NLRB announced here  that Connecticut nursing home operator Spectrum Healthcare has agreed to settle a NLRB case involving multiple allegations of unlawful suspensions, discharges and unilateral changes in violation of the National Labor Relations Act and other federal labor laws by offering reinstatement and back pay to all discharged and striking workers and signing a new three-year collective bargaining agreement with its employees’ union, New England Health Care Employees Union District 1199, SEIU.

Along with the contract and reinstatement of all employees, the company agreed to pay $545,000 in back pay and pension benefits to employees who were harmed by the unfair labor practices, and to expunge any disciplinary records related to the case. As a result, all NLRB charges against the company have been withdrawn. Spectrum admits to no wrongdoing in the settlement.

The settlement, reached midway through a hearing before an NLRB administrative law judge in Connecticut and approved by the judge yesterday, ends a long-running dispute which grew into a strike by almost 400 employees at four nursing homes in Connecticut operated by Spectrum Healthcare, LLC.  Complaints issued by the NLRB Regional Office in Hartford alleged that, beginning in the fall of 2009, several months after the prior collective bargaining agreement expired, Spectrum discharged seven employees and suspended three others to retaliate against their union activities and to discourage other employees from supporting the union. In addition, one employee was discharged and seven others were suspended after the employer unilaterally changed its tardiness discipline policy without first bargaining with the union.

The complaints further alleged that in April 2010, employees at the four nursing homes — in Derby, Ansonia, Winsted, and Hartford — went on strike to protest the unfair labor practices. When the strikers offered unconditionally to return to work in late August, the employer refused to take them back. Under federal labor law, if a strike is called because of an unfair labor practice, employees are entitled to reinstatement after an unconditional offer to return to work.

The reinstated employees are due to return to the facilities this week.

The Spectrum Healthcare settlement is reflective of the growing number of NLRB enforcement orders against employers generally and health care providers specifically under the Obama Administration. The Obama Administration has close ties and has expressed its strong and open support for union and union organizing activities.  The adoption of a series of union friendly labor law reforms was one of the key campaign promises of President Obama during his election campaign.  While other legislative priorities and the change in the leadership of the House of Representatives appears to have slowed efforts to push through this agenda, it has not slowed the Administration’s efforts to support unions with strong enforcement activities.  Empowered by a difficult economic and job situation and an awareness of the Obama Administration’s strong support for union organizing and other activities, unions are stepping up organizing efforts and more aggressively challenging employers actions.

Over the past few months, public awareness of the Obama Administration’s aggressive enforcement agenda on behalf of unions has drawn new attention as a result of the widespread media coverage of NLRB actions challenging Boeings planned relocation of certain manufacturing jobs intervention in a planned relocation of certain manufacturing operations.  See, e.g., Acting General Counsel Lafe Solomon releases statement on Boeing complaint; National Labor Relations Board issues complaint against Boeing Company for unlawfully transferring work to a non-union facilityHowever, the Boeing and Spectrum Healthcare actions represent only the tip of the iceberg of the rising number of NLRB enforcement activities, most of which take place with little media or public attention.

Along side the Spectrum Healthcare and Boeing actions, in recent weeks, the NLRB also has been busy with several other enforcement activities.  For instance:

  • On May 9 2011, the NLRB issued a complaint against Hispanics United of Buffalo (HUB), a nonprofit that provides social services to low-income clients, that alleges that HUB unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook ; and
  • On May 17, the NLRB secured a temporary injunction from a U.S. District Court in San Jose California against San Jose area waste hauling company OS Transport LLC,   charged with engaging in unfair labor practices including the termination of a lead organizer and another Union supporter, retaliation against Union efforts in the form of unfavorable assignments, threats to Union supporters, and promises of improved treatment of employees who disavow the Union for the alleged purpose of defeating a union. o offer reinstatement to two drivers and restore full assignments to other drivers who had expressed support for a union during an organizing campaign. More Details here.,

In addition, in recent weeks, the NLRB also has:

 Amid this difficult enforcement environment, business leaders should exercise special care to prepare to defend their actions against both potential organizing efforts, to understand the types of actions and activities that may help fuel charges, and take steps to manage these and other union organization and other labor risks.  

For Help With Labor & Employment, Employee Benefits Or Other Risk Management and Defense

If you need assistance in auditing or assessing, updating or defending your labor and employment, employee benefits, compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

 

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

 ©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


DOL Announces Changes To H-2B Prevailing Wage Calculation Rules

January 20, 2011

The methodology used to calculates the prevailing wages the Labor Department requires employer to pay H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status will change effective January 1, 2012. Comments on the Final Regulation published here (Final Regulations) in the January 19, 2011 Federal Register are due March 21, 2011.   Employers using or contemplating using H-2B workers should take into account these new rules when budgeting and projecting workforce costs and assessing the cost-effectiveness and compliance requirements associated with these contemplated relationships.

To comply with its H-2B program obligations, an employer must pay H-2B workers hired in connection with an H-2B application a wage that will not adversely affect the wages of U.S. workers similarly employed. The Labor Department’s H-2B procedures have always provided that adverse effect is prevented by requiring H-2B employers to offer and pay at least the prevailing wage to the H-2B workers and those U.S. workers recruited in connection with the job opportunity.

The Final Regulations are issued largely in response to an August 30, 2010  court order that set aside portions of regulations governing the H-2B temporary worker program issued on December 19, 2009 at 73 Fed. Reg. 78020 (“2008 Final Rule”).  On August 30, 2010, a Federal Court found that the Labor Department violated the Administrative Procedures Act when it issued the 2008 Final Regulations.  See Comit[eacute] de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, Civil No. 2:09-cv- 240-LP, 2010 WL 3431761 (E.D. Pa.).  In that decision, the Federal District Court ordered the Labor Department to “promulgate new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the Administrative Procedure Act.  The Final Regulation is issued in response to this order.

Under the Final Regulation, Labor Regulation § 655.10 generally will provide that for temporary labor  certification purposes, the prevailing wage is the highest of the following:

  • The wage rate set forth in the CBA, if the job opportunity is  covered by a CBA that was negotiated at arms’ length between the union  and the employer;
  • The wage rate established under the DBA or SCA for the occupation in the area of intended employment if the job opportunity is  in an occupation for which such a wage rate has been determined; or
  • The arithmetic mean of the wages of workers similarly employed in the occupation in the area of intended employment as determined by  the OES. This computation will be based on the arithmetic mean wage of  all workers in the occupation.

The NPC now only will consider employer provided wage surveys for purposes of determining the prevailing wage in a very limited number of circumstances where the employer is permitted to and makes a request for a prevailing wage determination in accordance with the Final Regulations.

For assistance with assessing or defending your current worker classification, wage and hour or other health care and human resources policies and controls, please contact Cynthia Marcotte Stamer at cstamer@solutionslawyer.net, 972-419-7188.

For Help With Investigations, Policy Updates Or Other Needs

If you need assistance reviewing your prevailing wage determinations under these, government contracts or other laws, or evaluating, managing or defending your organization’s existing other labor and employment, employee benefit, compensation, compliance or other practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872 .

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer frequently has worked, extensively on these and other workforce and performance related matters.   She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press, Inc.

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here and reading some of our other Solutions Law Press, Inc.™ human resources news here.

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

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 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.

 

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press, Inc.™  All other rights reserved.


ICE Invites Comments On Information Required For IMAGE Program Employers

August 31, 2010

September 30, 2010 now is the deadline for employers and others wishing to comment on the information that the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) plans to require employers to supply when completing the “Form 73–028, IMAGE Information Request and Membership Application/ICE Mutual Agreement between Government and Employers” (IMAGE Form) required to participate in the IMAGE program originally announced by ICE in the June 11, 2010 Federal Register here.  In a notice published in the August 31, 2010 Federal Register, ICE announced that it is extending the period for commenting on its proposed information collection requirements for an additional 30 days after having received no response to its June 11, 2011 request for comments.  Read more here.

For Assistance or More Information

If your organization needs assistance reviewing or responding to the request for comments or otherwise designing, defending or administering I-9 or other human resources compliance concerns, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 23 years experience advising employers and others about I-9 and other labor and employment, employee benefits, compensation and other workforce compliance, risk management and defense matters.  She continuously advises employers about these and other related regulatory compliance, workforce management, operational, public policy, enforcement, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, and many other organizations.  Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications.  To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others.  You can review other highlights of Ms. Stamer’s experience here

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

©2010 Solutions Law Press. All rights reserved.


Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny

June 29, 2010

Employers using independent contractors, leased employees or other non-employee workers should carefully review the defensibility of their existing classification and treatment of those workers under tax, labor, employment, employee benefit and other laws in light of stepped up interest and scrutiny by Congress and regulators.

On June 17, 2010, the Senate Committee on Health, Education, Labor, and Pensions held hearings on pending legislation intended to prevent employers from misclassifying workers as independent contractors to avoid paying minimum wage or overtime or other legal protections due employees under the Fair Labor Standards Act (FLSA). 

The Employee Misclassification Prevention Act S.3254/H.R.5107 seeks to reduce misclassification errors by amending the Fair Labor Standards Act:

  • Requiring employers to keep accurate records of each workers’ status;
  • Clarifying it’s a violation of the Fair Labor FLSA to misclassify workers;
  • Increasing fines for misclassification under the FLSA;
  • Requiring employers to notify workers if the employer classifies them as an employee or independent contractor;
  • Creating an “employee’s rights website” containing relevant information concerning state and federal wage and hour issues; and
  • Protecting workers against discrimination or retaliation for requesting proper classification will be protected.

In addition to proposed changes to the FLSA, Congress also is looking at legislation that would tighten worker classification rules under other laws.  For instance,  the Taxpayer Responsibility, Accountability and Consistency Act of 2009 H.R.3408/ S.2882 would target perceived worker misclassification employment and income tax withholding and reporting abuses by amending the Internal Revenue Code to:

  • Require reporting to the Internal Revenue Service (IRS) of payments of $600 or more made to corporations;
  • Define criteria and rules relating to the treatment of workers as employees or independent contractors;
  • Increase penalties for failure to file correct tax return information or comply with other information reporting requirements; and
  • Require the Secretary of the Treasury to issue an annual report on worker misclassification.

Other proposed legislation would tighten requirements and oversight of the use of independent contractors and other non-employee workers under OSHA and various other federal laws. 

While Congress tightens even tighter requirements, regulators are stepping up their scrutiny of employer practices for classifying workers under existing laws.  Under a National Research Program announced last September, the Internal Revenue Service has begun conducting the first of approximately 6,000 payroll tax audits that it plans to complete over a three-year period focusing on the appropriateness of employer worker classification and other payroll tax practices. 

To guard against these and other growing risks of worker classification, employers should review within the scope of attorney-client privilege the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies and consult with qualified legal counsel about the advisability to adjust these practices to mitigate exposures to potential IRS, Labor Department or other penalties associated with worker misclassification.

If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer recently was a featured panelist on the ABA Joint Committee on Employee Benefits Teleconference on “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” and has worked, published and spoken extensively on worker classification and other related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. You can review other highlights of Ms. Stamer’s experience here.

If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872. 

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to receive our Solutions Law Press distributions here. For important information about this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

©2010 Solutions Law Press. All rights reserved.


Labor Department Final H-2A Certification Procedures Tighten Requirements For Employment Of Temporary Agricultural Employment Of Workers

February 11, 2010

By Cynthia Marcotte Stamer

The Labor Department is tightening requirements for the employment of temporary agricultural workers under the H-2A temporary agricultural worker program.  Final Labor Department Regulations governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program will be published in tomorrow’s federal register. The rule will be effective March 15, 2010.

Among other things, the final rule includes stronger mechanisms for enforcement of the worker protection provisions required by the H-2A program by the Labor Department. It also contains provisions designed to ensure U.S. workers in the same occupation working for the same employer, regardless of date of hire, receive no less than the same wage as foreign workers.  It creates a national electronic job registry where job orders will be posted through 50 percent of the contract period.  It also prohibits cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the U.S. to perform agricultural work of a temporary or seasonal nature. The U.S. Department of Homeland Security may not approve an H-2A visa petition unless the Department of Labor, through its Employment and Training Administration, certifies that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The Department of Labor certified 94 percent of the applications submitted for a total of 86,014 workers.

To view a fact sheet and more information about the benefits of the new H2A Rule, see here.

For Assistance

If you would like to request a copy of the regulation or have questions about or need assistance evaluating, commenting on or responding to I-9 or other employment related immigration, employment, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer has more than 22 years experience advising and assisting employers, employee benefit plans and their fiduciaries, and others about these and other workforce management and compliance matters.  Her work includes extensive experience advising and defending employers and others in relation to I-9, employment discrimination and other workforce hiring and management concerns domestically and internationally.  She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the ICE, IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks, writes and conducts training extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2010 Cynthia Marcotte Stamer. All rights reserved. 


Homeland Security Updates List of Nations Whose Nationals Are Eligible for H-2A or H-2B Visas

January 20, 2010

The Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) in conjunction with the United States Secretary of State yesterday announced the countries whose nationals are eligible to participate in the H–2A and H–2B visa program for the upcoming year. USCIS may only approve H–2A and H–2B petitions for nationals of countries included among this list of countries.   USCIS published the list the Federal Register on January 19, 2010.

The countries included on the list of countries whose nationals are eligible to participate in the H–2A and H–2B visa programs for one year period beginning January 18, 2010 through January 17, 2011 include: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employment, compensation, employee benefit, workplace health and safety, or corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced assisting employers and others to design, administer and defend I-9 and other labor and employment, compensation, employee benefits, corporate ethics and compliance and other risk management practices.  She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy,  leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved.


Senate Finance Chairman Baucus Introduces New Health Care Reform Bill

November 19, 2009

S.1796, America’s Healthy Future Act of 2009 Reflects Chairman’s Response To House’s Passage of HR 3962 & Other Feedback

Senate Finance Committee Chairman Max Baucus (D-MT) today (November 19, 2009) introduced his latest health care reform proposal, the America’s Healthy Future Act of 2009 (S.1796).  Chairman Baucus’ introduction of S. 1796 follows the November 7, 2009 passage by the U.S. House of Representatives of the massive health care reform proposal sponsored by Representative John Dingell (D-MI) and supported by Speaker Nancy Pelosi, the Affordable Health Care for America Act (HR. 3962).

Totaling 1504 pages in length, S.1796 proposes a lengthy and complex array of reforms to the U.S. health care coverage and delivery system, which would affect virtually each U.S. employer, health care provider, payer, and resident. As with the provisions of HR. 3962 and other versions of health care reform, the reforms outlined in the provisions of S.1796 include complexities and nuances which may not be apparent in partisan or non-partisan discussions or summaries of its goals or purposes. Consequently, individuals or businesses concerned about the proposed reforms are encouraged to begin and base their review and analysis on the actual text of S.1796, a copy of which as introduced is available for review here.  

The continuing emphasis of President Obama and other members of the Democratic Party Leadership in Congress on the passage of health care reform means that Senator Baucus and other Democratic Leaders in Congress are likely to continue to make passage of health care reform a priority.  U.S. businesses and individuals concerned about the proposed reforms should carefully review both the Senate and House bills and act quickly to provide their input on any matters of special interest and concern.

Selected Health Coverage Reform Highlights

Among other things, S.1796, as introduced, would enact sweeping health insurance coverage reforms that would create new obligations for employers, insurers, and individual workers.  In this respect, S.1796, among other things would:

  • Amend the Social Security Act (SSA) to add a new title XXII (Health Insurance Coverage) to ensure that all Americans have access to affordable and essential health benefits coverage.
  • Require all health benefits plans offered to individuals and employers in the individual and small group market to be qualified health benefits plans (QHBPs).
  • Amend the Internal Revenue Code to: (1) allow tax credits related to the purchase of health insurance through the state exchanges; and (2) impose an excise tax on individuals without essential health benefits coverage and on employers who fail to meet health insurance coverage requirements with respect to their full-time employees.
  • Prohibit QHBP from excluding coverage for preexisting conditions, or otherwise limiting or conditioning coverage based on any health status-related factors.
  • Require QHBPs to offer coverage in the individual and small group markets on a guaranteed issue and guaranteed renewal basis.
  • Amend the cafeteria plan rules of Internal Revenue Code § 125 to, among other things, require that in order for a health flexible spending arrangement (HFSA) to qualify as a qualified benefit eligible to be offered under a cafeteria plan, the cafeteria plan must limit the maximum salary reduction contribution per employee per taxable year to $2,500 beginning in 2011.
  • Increase the threshold for the itemized income tax deduction for medical expenses.
  • Require states to: (1) establish rating areas; (2) adopt a specified risk adjustment model; and (3) establish transitional reinsurance programs for individual markets.
  • Require QHBP offerors in the individual and small group markets to consider all enrollees in a plan to be members of a single risk pool.
  • Require the Secretary of Health and Human Services (HHS) to establish: (1) risk corridors for certain plan years; (2) high risk pools for individuals with preexisting conditions; (3) a temporary reinsurance program for retirees covered by employer-based plans; and (4) a program under which a state establishes one or more QHBPs to provide at least an essential benefits package to eligible individuals in lieu of offering coverage through an exchange.
  • Entitle a qualified individual to the choice to enroll or not to enroll in a QHBP offered through an exchange covering the individual’s state as well as QHBPs in the individual market while at the same time requiring that such individuals to be U.S. citizens or lawful residents.
  • Require each state to establish: (1) an exchange designed to facilitate enrollment in QHBPs in the individual market; and (2) a Small Business Health Options Program (SHOP) exchange designed to assist qualified small employers in facilitating the enrollment of their employees in QHBPs in either the individual or the small group market.
  • Direct the Secretary to: (1) establish a system allowing state residents to participate in state health subsidy programs; and (2) study methods exchange QHBPs can employ to encourage health care providers to make increased meaningful use of electronic health records.
  • Dictate the mandated contents of an essential health benefit benefits package, including little or no cost-sharing, no annual or lifetime limits on coverage, and preventive services.
  • Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
  • Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
  • With regard to abortions: (1) declare that the Act does not require health care benefits plans to provide coverage for abortions; prohibit QHBPs from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions; (3) continues application of state and federal laws regarding abortion; (4) prohibit the use of premium credits and cost-sharing subsidies for QHBPs covering abortion services for which federal funding is prohibited; (5) require the plan offeror to determine whether or not the plan provides coverage of abortion services for which federal funding is prohibited or is allowed; and  (6) require the Secretary to assure that at least one QHBP covers abortion services for which federal funding is prohibited or allowed; and at least one QHBP that does not cover abortion services for which federal funding is allowed.

Other Selected Health Care System, Reimbursement & Other Reform Highlights

S.1796 also would expand and modify existing Medicare, Medicaid, CHIP and other federal health care programs and enact a host of other new rules and requirements affecting health care providers, drug companies and other participants in the U.S. health care system.  Other proposed reforms include provisions that would:

  • Require the President to: (1) certify annually in the President’s Budget whether or not the provisions in this Act will increase the budget deficit in the coming fiscal year; and (2) instruct the HHS Secretary and the Secretary of the Treasury to make required reductions in exchange credits and subsidies.
  • Establish a new mandatory eligibility category under SSA title XIX (Medicaid) for all non-elderly, nonpregnant individuals who are otherwise ineligible for Medicaid.
  • Revise Medicaid benefits.
  • Rescind funds available in the Medicaid Improvement Fund for FY2014-2018.
  • Make appropriations for Aging and Disability Resource Center initiatives.
  • Increase the federal medical assistance percentage (FMAP) for states to offer home and community-based services as a long-term care (LTC) alternative to nursing homes.
  • Create a Community First Choice Option.
  • Add a new optional categorically needy eligibility group to Medicaid for individuals: (1) with income that exceeds 133% of the poverty line; and (2) certain other individuals, but only for benefits limited to family planning services and supplies.
  • Direct the Secretary to establish a grants program to support school-based health centers.
  • Remove smoking cessation drugs, barbiturates, and benzodiazepines from Medicaid’s excluded drug list.
  • Revise requirements for Medicaid disproportionate share hospital (DSH) payments.
  • Direct the Secretary to establish a Federal Coordinated Health Care Office within the Centers for Medicare & Medicaid Services (CMMS).
  • Direct the Secretary to establish a Medicaid Quality Measurement Program.
  • Revise requirements for the Medicaid and CHIP Payment and Access Commission (MACPAC) under SSA title XXI, Children’s Health Insurance Program.
  • Set forth special rules relating to American Indians and Alaska Indians.
  • Require the Secretary to establish procedures for sharing data collected under a federal health care program on race, ethnicity, sex, primary language, type of disability, and related measures and data analyses.
  • Amend SSA title V with respect to the Maternal and Child Health (MCH) block grant program.
  • Provide funding for abstinence education.
  • Incorporate reforms originally proposed under the Elder Justice Act of 2009 pursuant to which amendments would be made to the provisions of SSA title XX relating to Block Grants to States for Social Services with respect to elder abuse, neglect, and exploitation and their prevention.
  • Establish within the Office of the Secretary an Elder Justice Coordinating Council.
  • Direct the Secretary to establish a hospital value-based purchasing program under Medicare.
  • Extend the Medicare Physician Quality Reporting Initiative program (PQRI) incentive payments beyond 2010.
  • Modify the Physician Feedback Program.
  • Require the Secretary to develop a plan to implement a Medicare value-based purchasing program for home health agencies and skilled nursing facilities (SNFs).
  • Amend SSA title XVIII (Medicare) to direct the Secretary to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health.
  • Direct the President to convene an Interagency Working Group on Health Care Quality.
  • Amend the General Provisions of SSA title XI to provide for the establishment of a Center for Medicare and Medicaid Innovation within CMMS.
  • Amend SSA title XVIII to direct the Secretary to establish a shared savings program that promotes accountability for a patient population and coordinates items and services under Medicare parts A (Hospital Insurance) and B (Supplementary Medical Insurance).
  • Create a Hospital Readmissions Reduction Program.
  • Direct the Secretary to establish a Community-Based Care Transitions Program.
  • Revise requirements with respect to residents in teaching hospitals.
  • Increase the Medicare physician payment update.
  • Direct the Secretary to establish a Working Group on Access to Emergency Medical Care.
  • Extend the Medicare-Dependent Hospital Program.
  • Amend the Tax Relief and Health Care Act of 2006 with respect to the hospital wage index.
  • Establish a Medicare prescription drug discount program for brand-name drugs for beneficiaries who enroll in Medicare part D (Voluntary Prescription Drug Benefit Program) and have drug spending that falls into the coverage gap.
  • Establish an independent Medicare Commission to reduce the per capita rate of growth in Medicare spending.
  • Amend SSA title XI to add a new part D, Comparative Effectiveness Research, under which would be established a Patient-Centered Outcomes Research Institute.
  • Establish in the Department of Treasury the Patient-Centered Outcomes Research Trust Fund.
  • Establish a nationwide program for national and state background checks on direct patient access employees of long term care facilities and providers.
  • Direct the Secretary to establish new procedures for screening providers of medical or other items or services and suppliers under the Medicare, Medicaid, and CHIP programs.
  • Direct the Secretary to establish a self-referral disclosure protocol to enable health care service providers and suppliers to disclose violations.
  • Requires the Secretary to expand the number of areas included in Round Two of the durable medical equipment (DME) competitive bidding program.
  • Extend the period for collection of overpayments due to fraud.
  • Amend the Internal Revenue Code with respect to: (1) an excise tax on the excess benefit of high cost employer-sponsored health coverage; (2) distributions from health savings accounts for drugs and insulin that are prescribed drugs and insulin only; (3) a limitation on salary reduction contributions by employers to a health flexible spending arrangement; (4) expanded information reporting requirements; (5) additional qualifying requirements for charitable hospital organizations; and (6) a qualifying therapeutic discovery project tax credit.
  • Impose annual fees on: (1) manufacturers and importers of branded prescription pharmaceuticals or of medical devices; and (2) health insurance providers.
  • Prescribe a special rule to limit excessive remuneration by certain health insurance providers.
  • Exclude from an individual’s gross income the value of any qualified Indian health care benefit.

Monitoring & Responding To Health Care Reform Proposals

As was the case with HR. 3962, members of the Senate are likely to debate and weigh a variety of amendments and refinements to the provisions of S.1796 as it deliberates its enactment.  If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

  • Register for this resource at the link above;
  • Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input and join in other dialogue with others concerned about health care reform;
  • Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
  • Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here

If you have questions about or need assistance evaluating, commenting on or responding to health care or other legislative or regulatory reforms, or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment/Employee Benefits  Practice Chair Cynthia Marcotte Stamer. 

Ms. Stamer has more than 22 years of experience advising and assisting business, government and other clients to evaluate and respond to health care, pension reform, workforce and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws.  A member of the leadership council of the American Bar Association Joint Committee on Employee Benefits, Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally.  Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally.  In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally.  As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

In addition to her extensive work on health and other employee benefit matters, Ms. Stamer also is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and has continuously has advised and represented employers and others on labor and employment, compensation, employee benefit and other personnel and staffing matters throughout her career. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues.   Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association.  Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms,  please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402.  For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

Proposed Chemical Facility Anti-Terrorism Bill Would Obligate Chemical Facilities To New Background Check, HR & Other Safety & Security Safeguards

IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

House Passes Affordable Health Care For America, Health Care Reform Debate Focus Now Moves To The Senate

SHRM Tells Members Say “NO!” To Pelosi-Backed Health Care Reform

IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

OSHA Proposes To Change Hazard Communication Standard

IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

New Study Shares Data On Migrant Health Care Challenges Along The Border

Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment

Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 


IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

November 13, 2009

Employers of nonresident aliens performing services in the U.S. should review and update their existing practices for reporting and withholding income taxes on wages paid to these employees in response to impending changes in Internal Revenue Service (IRS) rules. 

Effective for wages paid on or after January 1, 2010, IRS Notice 2009-91 IRS Notice 2009-91 implements new rules for determining the amount of income tax to be withheld from the wages of nonresident alien employees performing services within the United States.  These new rules will be set forth in the new revision of Publication 15 (Circular E), Employer’s Tax Guide, and other IRS publications. Notice 2009-91 will appear in IRB 2009-48, dated Nov. 30, 2009. An advance copy of the Notice 2009-91 is available for review here.

Notice 2009 modifies the rules for employers to use in calculating income tax withholding on nonresident alien employees to reflect two tax benefits for which nonresident alien employees are not eligible: (1) the standard deduction; and (2) the Making Work Pay Tax Credit.

Beginning with wages paid on or after January 1, 2010, employers are required to calculate income tax withholding under section 3402 of the Code on wages of nonresident alien employees by making two modifications:

  • Employers need to add an amount to wages before determining withholding under the wage bracket or percentage method in order to offset the standard deduction built into the withholding tables; and
  • Employers need to determine an additional amount of withholding from a separate table applicable only to nonresident alien employees to offset the effect of the Making Work Pay Tax Credit built into the withholding tables.

The specific steps to be followed for each of these two modifications will be set forth in Publication 15 and other IRS forms or publications.

Under the Obama Administration, the IRS is placing renewed regulatory and enforcement emphasis on employer classification of worker and proper wage reporting and income and employment tax withholding and payment. In light of these liabilities, employers should ensure that their current practices are properly updated and administered.

If you have questions about or need assistance with these or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 


DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

September 4, 2009

The Department of Labor (DOL) is proposing changes to its rules governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers.

The proposed changes appear in a Notice of Proposed Rulemaking (Proposed Rule) in today’s (September 4, 2009) Federal Register here.  The Proposed Rule reexamines the process by which employers obtain a temporary labor certification from DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. DOL also proposes to amend the regulations at 29 CFR part 501 to provide for sufficient enforcement under the H-2A program so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program.

About The Author

 

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 20 years experience representing and advising businesses and government on labor and employment, internal controls, employee benefits, safety and other related matters. An ABA Joint Committee on Employee Benefits Council Member and Chair of the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer also is a highly popular speaker and widely published author.  Her insights on human resources, employee benefits and internal controls matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, and a many other national and local publications.  For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here

We hope that this information is useful to you.  If you need assistance responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Ms. Stamer here.

For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Solutions Law Press.   All rights reserved. 


New Study Shares Data On Migrant Health Care Challenges Along The Border

August 24, 2009

Health care costs, care concerns and other health care utilization and risk patterns are a common issue of discussion in the continuing health care reform discussion. Meanwhile, employers, health care providers and policy leaders in Border States or elsewhere who employ a significant number of migrant workers frequently express interest in more information about the health care and disability care and benefit needs, understanding and utilization patterns of migrant families for purposes of planning benefit and human resources practices. A new report published by the Texas Department of State Health Services may shed some light on these issues. The Texas Department of State Health Services 2007 Health Risk Factors in the Texas-Mexico Border report presents a summary of health-related risk factors and trends among residents of fifteen Texas counties along the US-Mexico border. Its findings are based on data collected through the 2007 Behavioral Risk Factor Surveillance System (BRFSS), a nation-wide telephone-based survey of randomly-selected adults that gathers information on many conditions and behaviors known to influence personal health. Data from the fifteen counties were clustered into five areas: the Lower Rio Grande Valley – commonly known as ‘The Valley’ – (Hidalgo, Starr, and Cameron Counties), Webb and Zapata Counties, Val Verde and Maverick Counties, the Big Bend area (Brewster, Culberson, Hudspeth, Jeff Davis, Pecos, Presidio, and Terrell Counties), and El Paso County. For the purposes of this analysis, “the border” refers to these five areas. Interested persons can review this report here.

About The Author

Past Chair of the ABA Health Law Section Managed Care & Insurance Section and currently the Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Section and a Council Representative of the ABA Joint Committee On Employee Benefits, Ms. Stamer has more than 20 years experience advising health industry and other clients about labor and employment, health and other employee benefits, public policy and other health care and workforce matters. A primary drafter of the Bolivian Social Security Privatization law, Ms. Stamer also frequently provides input domestically and internationally on workforce, health care, migration and other policies. A popular lecturer and widely published author on these and other matters, she frequently writes and speaks about health and workforce issues of special populations including migrant workers, ex pats, and others.  Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications.  For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.  

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.net.

©2009 Cynthia Marcotte Stamer. All rights reserved.


Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

July 22, 2009

Businesses that fire or discipline employees increasingly face retaliation claims by disgruntled workers claiming the protection of nondiscrimination and other federal and state whistleblower and anti-retaliation laws. 

The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant vigilance to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities. While the decision specifically addressed retaliation under Title VII, the use of similar language in other federal laws regulating business conducting – including those covered by the Federal Sentencing Guidelines – makes it likely that the decision has much broader implications.

Technically, the Crawford decision specifically applied to retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) in the context of a sexual harassment complaint investigation.  However, business should anticipate that creative plaintiffs and their legal counsel soon will ask courts to apply the Crawford holding beyond sexual harassment to reach to claims brought by employees claiming injury in retaliation for statements made in relation to investigation of other federal statutes prohibiting retaliation.  A host of federal and state employment and other laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain rights legally protected rights.  Because many of these statutes use the same or similar language to the anti-retaliation provisions of Title VI, share the same or similar purpose, or both,  businesses should anticipate that certain courts will be inclined to view the Crawford  rationale, if not its holding, as applicable to retaliation claims under certain of these other federal statutory prohibitions.  Accordingly, pending further guidance, most businesses interested in minimizing exposures to retaliation claims will want to design and administer investigations to avoid the impression of illegal retaliation against witnesses in sexual harassment investigations as other investigations where similar anti-retaliation provisions may apply.  Accordingly, most U.S. businesses will treat Crawford as having potential implications both in relation to sexual harassment and other investigations under Title VII as well as investigations conducted other federal laws containing similar anti-retaliation provisions.

The Crawford Decision

In its February 2, 2009 unanimous Crawford decision, the Supreme Court ruled that the anti-retaliation provisions of Title VII protect employees against retaliation for giving a “disapproving account” of unlawful behavior when responding to questions asked during the employer’s investigation of a sexual harassment discrimination, even if the employee took no further overt action to complain about, seek to remedy or stop the misconduct.

Vicky Crawford sued the employer under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice” under Title VII.   The Crawford case arose from statements Ms. Crawford made in response questions addressed to her as part of her employer’s investigation of sexual harassment rumors.  Asked if she’d witnessed any inappropriate behavior by a supervisor, Ms. Crawford answered told the employer about a series of harassing acts by the supervisor toward herself.  Besides reporting her experience in reply to employer questions during the investigation, however, Ms. Crawford did not file a sexual harassment complaint or otherwise report her alleged sexual harassment experience to the employer.  Following the interview, the employer did not discipline the supervisor.  However, the employer subsequently fired Ms. Crawford and two other employees who also reported being harassed by the supervisor.  As part of its defense, the employer argued that Ms. Crawford’s report during the course of the investigation did not qualify as “opposition” prohibited under Title VII.  

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive.

 Applying the ordinary meaning of “oppose,” the Supreme Court unanimously found that “When an employee communicates to her employer a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”  Accordingly, the Supreme Court ruled that protected opposition under Title VII includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct.

Explaining its conclusions, the Supreme Court stated that a contrary rule that would require a worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage.  For example, the Court explained, one can “oppose capital punishment” without doing anything active to end it.  The Supreme Court rejected as “freakish” an interpretation of “opposition” that would protect an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

While concurring in the unanimous opinion, Justices Alito and Thomas cautioned against reading that opinion too broadly. Their opinion clarifies that in their view, covered opposition must be “active and purposive” to qualify as protected.  Consequently, they warned that the Court’s opinion should not be read to suggest that Title VII protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.

 

Other Broader Potential Implications & Lessons From Crawford

Although the report by Ms. Crawford involved her notification to the employer that she too may have been sexually harassed, the implications of the Crawford decision reach more broadly. 

Crawford specifically construed the anti-retaliation provisions of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”, or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”.  This provision of Title VII and other equal employment opportunity laws, as well as the Family & Medical Leave Act and various other employment laws commonly contain similar prohibitions against an employer or business discriminating against protected persons for opposing unlawful practices or making charges, testifying, assisting or participating in investigation of practices prohibited under the applicable employment law.  Consequently, there exists a significant probability that courts will apply the Crawford holding to retaliation claims brought by employees for testimony or other participation in investigation in other equal employment opportunity charges under Title VII and other employment laws.

It also is possible that employees ask the courts to extend the holding of Crawford to retaliation claims brought by employees claiming to have been retaliated against for participating in the investigation of or expressing opposition to illegal practices under a wide range of other statutes.  Beyond the employment context, many other federal laws incorporate similar prohibits against employer discrimination against employees for opposing practices made unlawful under their provisions or providing testimony or participating in investigations of potential violations of their provisions. For example,  in connection with its criminal prohibition of major fraud against the United States, paragraph (h) of 18 U.S.C § 1031 creates a right for individuals discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by an employer because of lawful acts done by the employee on behalf of the employee or others “in furtherance of a prosecution under this section (including investigation for, initiation of, testimony for, or assistance in such prosecution)” to recover for job and seniority reinstatement, 2 times the amount of back pay, interest, litigation costs and reasonable attorneys fees and other special damages.

Given these similarities, pending further guidance, U.S. businesses generally will want to exercise sensitivity when dealing with employees who express opposition, testify or otherwise participate in investigations or prosecutions of potential violations under Title VII and other federal laws that contain the same or similar anti-retaliation provisions. 

Read from this perspective, the Crawford decision highlights the advisability for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint.  

Businesses generally should listen carefully when conducting investigations, employee counseling and discipline meetings, and exit interviews with an eye out for the need to investigate potential legal violations, defend against retaliation charges, or both.

Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure, the Crawford decision reminds businesses not to overestimate the protection afforded by the establishment of formal reporting procedures. 

Crawford also highlights the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exist interview.   

Additionally, businesses also should seek to evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights such as taking a protected leave or the like. 

Likewise, as in the defense of other employment claims, Crawford also reflects the value and importance of businesses appropriately documenting performance concerns relating to a specific employee and legitimate business challenges motivating employment actions as they arise, in the event that it subsequently becomes necessary to present evidence of a valid performance or business justification to defend against allegations by an employee claiming to have been discharged or otherwise discriminated against in retaliation for engaging in protected conduct under Title VII or other similar federal anti-retaliation laws.

Finally, businesses should keep in mind the potential value of strong documentation.  When seeking to defend against claims of discrimination or retaliation, the strength of the employer’s documentation often can play a significant role in the cost and ease of defense of the claim or charge.  Businesses should work to prepare and retain documentation not only of allegations, investigations and determinations regarding both employee performance and discipline, as well as the handling of alleged violations of equal employment opportunity or other laws.  Documentation should be prepared and retained on a systematic basis with an eye to strengthening the organization’s ability to prevent and defend against charges that the organization violated the core obligations under the applicable law as well as to defend employment decisions involving employees who may be in a position to assert retaliation claims.

The importance of good investigation and documentation practices takes on particular importance in the current tough economic environment.  While retaliation claims have been rising for many years, the recent economic downturn is fueling an increase in the number of employees seeking to claim protection in the tightening economy based on retaliation or other employment law protections.  Workforce dissention and changes in personnel also can complicate further the ability to defend these claims just as the Department of Labor and other federal regulators are turning up the enforcement heat.  As a result, appropriate investigation and documentation procedures are particularly important in the current environment.

Curran Tomko Tarski LLP Can Help

If your business needs assistance auditing, updating or defending its human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employers and others about compliance with federal and state equal employment opportunity and other labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising ad defending employers against federal and state employment discrimination and other labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.  

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on wage and hour and a diverse range of other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years.  

More Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

©2009 Cynthia Marcotte Stamer. All rights reserved.


With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Process

June 24, 2009

With the September 8, 2009 deadline for federal government contractors to begin using E-Verify to confirm the employment eligibility of new employees, the U.S. Citizenship and Immigration Services (USCIS) now is inviting comments or suggestions for improving the E-Verify Program Designated Agent Process.

August 24, 2009 is the deadline for employers and other interested parties to submit to USCIS comments or suggestions for improving the E-Verify Program Designated Agent Process under which a participating employer may choose to outsource submission of employment eligibility verification queries for newly hired employees to a Designated Agent. USCIS invited the comments in a Request For Public Comment On E-Verify Program Designated Agent Process published in the June 23, 2009 Federal Register. 

Federal government contractors and subcontractors will be required to begin using the E-Verify system to verify the eligibility of employees to work in the United States on September 8. The Obama Administration recently delayed implementation of the final rule requiring federal contractors and subcontractors to use E-Verify to confirm the eligibility of employees to work in the U.S. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. This new federal government contractor mandate to use E-Verify is fueling heightened interest and concern by these and other businesses in the existence and particulars of the E-Verify program.

 The E-Verify Program is a free employment eligibility confirmation system operated jointly by USCIS and the Social Security Administration (SSA). Under impending regulations, government contractors Recently re-extended by Congress, it is designed to determine the employment eligibility of new hires. The E-Verify Program allows participating employers to electronically confirm the employment eligibility of newly hired employees to help maintain a stable and legal workforce.

An E-Verify Designated Agent is a liaison between E-Verify and employers who choose to outsource submission of employment eligibility verification queries for newly hired employees. E-Verify Designated Agents conduct the verification process for other employers or clients. An E-Verify Designated Agent must register online and sign a Memorandum of Understanding (MOU) with SSA and DHS. Once the MOU is approved, the E-Verify Designated Agent can then begin registering employers and clients who have designated it to perform their verification services.

Since the program design for Designated Agents has changed very little over the past several years, USCIS plans to review the Designated Agent process to assess how Designated Agents provide this service to their clients. According to the Notice, the purpose of this notice is to request that Designated Agents, their clients, or others with Designated Agent experience provide their comments or suggestions for improving the Designated Agent process.

Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers and others to respond to proposed legislation and regulations and addressing other leave and other labor and employment, employee benefit, compensation, and internal controls concerns. If your organization needs assistance with assessing or responding to H.R. 2450 or assistance with leave and absence management or other labor and employment, compensation or benefit concerns or regulations, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

Other Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Curran Tomko Tarski LLP attorneys at here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here. Also stay abreast of emerging internal controls and compliance challenges by registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net. 

©2009 Cynthia Marcotte Stamer. All rights reserved.


September 8, 2009 New Deadline For Government Contractors, Subcontractors Deadline To Use E-Verify

June 9, 2009

September 8 now is the deadline for federal government contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system to verify the eligibility of employees to work in the United States. 

The Obama Administration recently delayed implementation of the final rule requiring federal contractors and subcontractors to use E-Verify to confirm the eligibility of employees to work in the U.S. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. 

As originally published November 14, 2008, the final rule requiring that federal government contractors and subcontractors agree to electronically verify the employment eligibility of their employees went into effect January 19, 2009.  However, the compliance deadline was delayed in January and again in April, 2009 by the Obama Administration.  Prior to the delay granted this month, the deadline to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system was delayed to June 30, 2009.

Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers and others to respond to proposed legislation and regulations and addressing other leave and other labor and employment, employee benefit, compensation, and internal controls concerns. If your organization needs assistance with assessing or responding to H.R. 2450 or assistance with leave and absence management or other labor and employment, compensation or benefit concerns or regulations, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

Other Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Curran Tomko Tarski LLP attorneys at here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here. Also stay abreast of emerging internal controls and compliance challenges by registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net. 

©2009 Cynthia Marcotte Stamer. All rights reserved.


Employers Must Begin using New I-9 Form April 3, 2009; Government Contractor E-Verify Rules Take Effect May 21, 2009

April 2, 2009

 

U.S. employers must begin using the revised U.S. Citizenship and Immigration Services (USCIS) Employment Eligibility Verification Form known as the I-9 (Form I-9) on April 3, 2009.  Meanwhile, certain federal contractors and subcontractors also must prepare to comply with impending requirements to use USCIS E-Verify when hiring employees scheduled to take effect May 21, 2009.

New Form I-9

The use of the new Form I-9 is required under an interim rule published by USCIS in December 2008.  The interim rule also changes the types of acceptable identity and employment authorization documents employers can accept from new hires and prohibits employees from using expired identification documents to verify their work eligibility beginning April 3, 2009.  Employers will be required to use the new Form I-9 and to secure documentation of proof of eligibility to work in accordance with the revised rules contained in the interim rule for all new hires and to reverify any employee with expiring employment authorization in accordance with the interim regulations beginning on April 3, 2009.

Employers can download a copy of the new Form I-9 at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. The interim regulations are available for review at http://edocket.access.gpo.gov/2008/E8-29874.htm.  USCIS presently is updating the Handbook for Employers, Instructions for Completing the Form I-9 (M-274). 

The new Form I-9 replaces the June 5, 2007 edition of the Form I-9 (the Old Form I-9), which will not be valid for use after April 2, 2009.  A big change in the new Form I-9 requirements is that expired documents cannot be accepted as proof of eligibility to work. All documents presented during the Form I-9 completion process now must be unexpired.  The new Form I-9 and interim regulations also add and remove certain documents to the list of documents that employers can accept of proof of identity and/or eligibility to work in the U.S.

The interim rule originally was scheduled to take effect on Feb. 2, 2009.  The Obama Administration extended the effective date to April 3, 2009 under a directive issued in January.

Federal Contractor  E-Verify Rule Scheduled To Take Effect May 21, 2009

Certain federal contractors and subcontractors also need to prepare to comply with a new federal rule that will require them to use E-Verify to verify the employment eligibility of new hires scheduled to take effect May 21, 2009.  The rule will only affect federal contractors who are awarded a new contract after May 21st that includes the Federal Acquisition Regulation (FAR) E-Verify clause.  Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause. 

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.   The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Interested persons can review the final regulation and read frequently asked questions about this new rule on the internet at the following cites:

ü      Final Regulation at http://edocket.access.gpo.gov/2008/E8-26904.htm

ü      Frequently Asked Questions at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

If you have questions or concerns about the matters discussed in this publication or other human resources, employee benefits or compensation matters, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or publication, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to Cstamer@Solutionslawyer.net. .

 

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