Employers Must Tread Carefully To Manage Foreign Worker Employment & Employment Discrimination Explosures

June 23, 2016

A $180,000 wrongful termination settlement that Foothill Packing, Inc. just paid to settle Department of Labor charges illustrates the potential Catch-22 tightrope that employers must walk when choosing between citizens and resident aliens with visas for hiring and firing decisions.

The Foothill wrongful termination settlement resolving H-2A visa rule violation charges illustrates an often overlooked side of the potential Catch-22 that U.S. employers can face when making hiring and other employment choices between work-eligible foreign and U.S. citizen employees or candidates.

Usually, we hear about employers nailed for employment discrimination against noncitizens.  This time, firing U.S. citizens and keeping foreign workers was the problem.

Employers Must Juggle Many Duties When Dealing With Foreign Applicants & Workers

The H-2A visa program requirements established by the labor provisions of the of the Immigration and Nationality Act and provisions of the Migrant and Seasonal Agricultural Worker Protection Act (H-2A visa program) allows companies and farm labor contractors to bring in foreign agricultural workers on a temporary basis when an adequate amount of qualified U.S. workers cannot be found to perform the work. As a condition to qualifying to hire foreign workers under the program, the H-2A program explicitly requires all jobs in this country must be offered to U.S. citizens before an employer may receive authorization to hire foreign workers.  To fulfill this requirement, an employer must demonstrate that it made required efforts to hire U.S. workers prior to having their visas approved.  Employers also must not give H-2A workers preferential treatment or wrongfully discharge U.S. workers.

The H-2A visa program requirement that employers offer work to available U.S. workers before seeking to employ foreign workers under a H-2A visa exists concurrent with the national origin and race discrimination prohibitions of Title VII of the Civil Rights Act.  Title VII, among other things, generally prohibits U.S. employers from discriminating in hiring or other terms and conditions of employment based on a worker’s national origin, ancestry or race. The national origin discrimination prohibitions of Title VII of the Civil Rights Act generally extend to any discriminatory employment decision by an is covered by Title VII, including recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training and apprenticeship programs, discipline and layoff and termination.

Beyond the national origin, race and other nondiscrimination requirements of Title VII, employers dealing with workers who are not U.S. citizens also generally are accountable for complying with various other nondiscrimination and other employment laws including but not limited to the following:

  • The Immigration Reform and Control Act of 1986 (IRCA), which prohibits employers with four or more employees from discriminating because of citizenship status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, referral, or discharge. IRCA also prohibits national origin discrimination by employers with between four and fourteen employees.
  • The Fair Labor Standards Act (FLSA): The FLSA requires, among other things, that covered workers, including those who are not U.S. citizens, be paid no less than the federally designated minimum wage.
  • Employment of foreign nationals under special visa programs, such as H-1B and H-2A visas, also may be subject to certain requirements related to wages, working conditions, or other aspects of employment.
  • When making employment decisions and taking hiring or other employment actions involving foreign workers on H-2A visas or otherwise, employers must understand and tread carefully to comply with all of these requirements.

DOL Chared Foothill Violated H-2A Visa Program By Retaining Foreign Workers While Terminating U.S. Citizens

According to the June 13, 2016 U.S. Department of Labor Wage and Hour Division (DOL) announcement of the Foothill settlement, DOL investigators determined that Foothill, a packing and labeling company, violated the H-2 visa program by terminating 18 workers, who were U.S. citizens, that Foothill claimed failed to meet production standards when the investigation found that many of the terminated workers consistently exceeded the production of many of the foreign workers Foothill continued to employ to the same jobs.  In reaching this finding, the DOL interpreted the H-2A visa program requirement that H-2A program’s prohibition against providing preferential treatment to foreign worker as extending to layoffs.

To resolve the charges, Foothill Packing paid $180,000 in back wages to the 18 terminated workers and also paid $55,000 in penalties for the violations of H-2A provisions of the Immigration and Nationality Act, and provisions of the Migrant and Seasonal Agricultural Worker Protection Act. The settlement agreement also requires Foothill to:

  • Designate a staff member whose primary job duties consist of monitoring and reporting the firm’s compliance with all H-2A regulatory requirements;
  • Provide annual training to all frontline supervisors involved with the H-2A program;
  • Provide detailed reasons for any future terminations to the U.S. Department of Labor; and
  • Otherwise comply with the labor provisions of the requirements of the H-2A Visa Program.

Reconciliation Of H-2A Visa Rules With Civil Rights Act Nondiscrimination Rules

The key to reconciling the H-2A visa program requirement that employers show preference to U.S. workers over H-2A visa workers in hiring and retaining workers and the race and national origin employment discrimination prohibitions of Title VII is understanding that Title VII’s protections are construed and enforced as extending to all work-eligible workers in the United States, whether born in the United States or abroad and regardless of citizenship status.

While Title VII does not prohibit citizenship discrimination per se, citizenship discrimination does violate Title VII where it has the “purpose or effect” of discriminating on the basis of national origin.  For example, a citizenship requirement would be unlawful if it is a “pretext” for national origin discrimination, or if it is part of a wider scheme of national origin discrimination.

The H-2A visa program’s requirement that an employer show preference for U.S. workers over workers whose eligibility for employment is based on a H-2A visa is based on the eligibility of the employer to work in the United States under United States immigration laws. As such, when the adverse action is taken against a worker using a H-2A visa for eligibility to work, the action is based on eligibility to work required by the I-9 verification rules, and not based on the ancestry, place or origin, race or other elements of national origin.

Whether or not dealing with a H-2A visa worker, however, employers still must tread carefully to conduct and document their employment actions with respect to workers to withstand scrutiny under both requirements in the event of a challenge on either or both fronts.  Both doing the right thing and documenting throughout the process is critical as the “after acquired evidence” rules of evidence applicable to employment discrimination claims under the Civil Rights Act could prevent an employer from presenting documentation or other evidence to support an employer’s defense of a valid, nondiscriminatory business purpose to rebut discrimination claims in the event of litigation or a government investigation or charge.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former  ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

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

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

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

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

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

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and as an editorial advisor and contributing author of many other publications. Her leadership involvements with the American Bar Association (ABA) include year’s serving many years as a Joint Committee on Employee Benefits Council representative; ABA RPTE Section current Practice Management Vice Chair and Substantive Groups & Committees Committee Member,  RPTE Employee Benefits & Other Compensation Committee Past Group Chair and Diversity Award Recipient,  current Defined Contribution Plans Committee Co-Chair, and  past Welfare Benefit Plans Committee Chair Co-Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; International Section Life Sciences Committee Policy Vice Chair; and a speaker, contributing author, comment chair and contributor to numerous Labor, Tax, RPTE, Health Law, TIPS, International and other Section publications, programs and task forces.  Other selected service involvements of note include Vice President of the North Texas Healthcare Compliance Professionals Association; past EO Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former Southwest Benefits Association Board of Directors member, Continuing Education Chair and Treasurer; former Texas Association of Business BACPAC Committee Member, Executive Committee member, Regional Chair and Dallas Chapter Chair; former Society of Human Resources Region 4 Chair and Consultants Forum Board Member and Dallas HR Public Policy Committee Chair; former National Board Member and Dallas Chapter President of Web Network of Benefit Professionals; former Dallas Business League President and others. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control 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:

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Ranching Employers: Labor Department Tightening H-2A VISA Rules For Employing Range Workers

October 19, 2015

Ranching businesses that employ foreign workers with H-2A VISAs to herd sheep, goats, cattle or other range livestock (“Herders”) should begin preparing to comply with significant changes in the Labor Department regulations governing the recruitment and employment of Herders made in the new Labor Department Final Regulation on Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range (Final Rule).

The Final Rule available for review here significantly modifies the Labor Department’s existing rules on the employment of Herders under the H-2A VISA program in ways likely to affect the practices of virtually all ranching businesses that current employ such workers.  These changes include the consolidation of the currently separate set of rules for Herders working cattle versus those working other hooved livestock into a single rule, significant changes to the wage and other employment conditions that ranching businesses must meet when employing Herders, and streamlining certain procedures employers can use to apply for H-2A visas for Herders.

Ranching businesses and other employers that presently employ or contemplate employing Herders under the H-2A VISA program will want to consult with legal counsel for assistance in evaluating the effect of these rules on the employment of Herders to adjust practices and budgets as necessary to comply with these new requirements.

  • Single Rule For All Herding Jobs

As a starting point, the new Final Rule establishes a single regulation covering all H-2A VISA jobs related to the herding or production of livestock on the range. The Department currently administers separate procedures through two distinct Training and Employment Guidance Letters; one covering the herding and production of only sheep/goats and the other covering other livestock (e.g. cattle).  The Final Rule will apply to Herders working in jobs relating to the herding of all species of domestic hooved animals customarily raised on the range under a single, integrated rule.  It generally will cover jobs typically performed on call 24 hours per day, 7 days per week.  It will apply to work:

  • Performed on the range for the majority of workdays (more than 50 percent);
  • Generally requiring the use of range (including remote, non-mobile) housing, where the work sites are not near enough to the worker’s residence or ranch to permit the worker to reasonably return to a fixed housing location; and
  • Consisting entirely of duties and activities that are, or are closely and directly related to, herding and livestock production. (An enhanced definition includes examples of duties that are and are not closely and directly related.)

For this purpose, the Final Rule defines “range” as any area located away from the ranch headquarters where the herder is required to constantly attend to the livestock, evaluated based on the totality of the circumstances using a multi-factor test. Factors include whether the land is uncultivated, involves wide expanses, such as thousands of acres, and/or is located in remote, isolated areas; and whether the work typically requires range housing to enable the herder to constantly attend to the herd.

  • Wage Requirement Changes

The Final Rule also will change the rules for determining the wages that employers must pay Range Workers.  The Final Rule mandates that employers pay a wage, that equals or exceeds the highest of the monthly AEWR (described more below), collective bargaining agreement, or applicable minimum wage set by court or law (e.g., Federal, State or local minimum wage), free and clear at least twice monthly during the entire certified period of employment.

The new AEWR will be an amount set by the Labor Department on the effective date of the Final Rule or thirty days from its publication. The new AEWR will apply to all pending and future requests for prevailing wages, as well as all open certifications.  Relative to the new AEWR, the Final Rule establishes a new methodology for setting the monthly AEWR for all range occupations using the current Federal minimum wage ($7.25/hour) as the basis for an initial national monthly wage rate, calculated based on a 48-hour workweek. This initial AEWR for range occupations will be adjusted annually based on the Employment Cost Index for wages and salaries (ECI), beginning in 2017.  The Final Rule also specifies that to convert the hourly wage rate to a monthly wage rate, the Labor Department multiplies the hourly wage rate by 48 hours and 4.333 weeks.  Finally, the Final Rule provides for a a two-year transition phase in of the new AEWR starting with requiring 80 percent of the full wage from the effective date of the Final Rule through calendar year 2016, then 90 percent in calendar year 2017, and full implementation beginning in calendar year 2018.

The Department of Labor says these changes are needed to correct “wage stagnation” over the past 20 years.  In other words, employers should expect to see wage costs rise.

  • Stricter Rage Worker Housing & Other Employment Condition Requirements

The Final Rule also tightens the required housing and other employment conditions that ranchers must fulfill when employing Herders on the range.  The Labor Department says these changes are made to better protect U.S. workers doing essentially the same jobs as H-2A workers by preventing adverse effect on U.S. worker’s wages and working conditions.   For instance, the Final Rule:

  • Establishes specific standards for range housing used for range workers, identifies the circumstances in which heating equipment is required.  It also states that “range housing” includes housing that is remote, but need not be mobile and provides for SWA inspection at least every three years, while permitting SWAs to inspect more often.
  • Clarifies that the employer must disclose in the job order and provide range workers all tools, supplies, and equipment required by law, by the employer, or by the nature of the work to perform the duties assigned in the job offer safely and effectively, without charge or deposit charge. Additionally, the Final Rule continues the requirement that employers provide workers with an effective means of communicating with persons capable of responding to the worker’s needs in case of an emergency.
  • Requires employers to provide adequate food, free of charge, and adequate potable water to range workers. The Final Rule also quantifies the minimum amount of potable water the employer must provide (4.5 gallons per day for drinking and cooking purposes). Where potable water cannot be transported to the worker by motorized vehicle, the Final Rule allows the employer to rely on natural sources of water provided that it provides the worker with the means to test and render that water potable.
  • Streamlined Filing Requirements 

The Final Rule also streamlines the H-2A VISA application process by allowing employers to file H-2A applications directly with the Chicago National Processing Center (NPC) simultaneously with the H-2A Application for Temporary Employment Certification, Form ETA-9142A.  This change eliminates the current requirement that employers first file the H-2A application with the State Workforce Agency (SWA),  It also allows  and allowing agricultural associations of employers, who file as joint employers with one or more of their members in more than two contiguous states, to file a single “master application” and job order covering the workforce needs of each association-member. Identifies specific eligibility criteria for jobs covered by these procedures and provides that non-range duties and activities are governed by the general H-2A procedures and standards.

  • Changes To Recruitment Requirements

The Final Rule also modifies certain of the recruitment rules.  Some of the more notable recruitment rule changes are that the Final Rule:

  • Brings consistency to job order clearance by having job orders for all range occupations remain active until 50 percent of the work contract period has elapsed.
  • Requires that all range occupation jobs appear in the DOL’s national electronic repository until 50 percent of the work contract period for the job opportunity(ies) has elapsed, so U.S. workers may easily learn about these job openings and make themselves available for work to employers from across the nation.
  • Expands the waiver previously applied to range sheep and goat herding occupations to all range herding and livestock production occupations so that newspaper advertisement is not required.
  • Period of Need

The Final Rule specifies that employers hiring range workers for herding or production of sheep or goats may list a period of up to 364 days on the application and job order, consistent with longstanding practice.  In contrast, employers hiring range workers for herding or production of other livestock may list a maximum period of 10 months, consistent with longstanding practice.

These impending changes will require most employers of Range Workers to make significant adjustments in their practices as well as their budgets.  To help prepare for these changes and preserve valuable lead time to respond, employers of Range Workers should consult with qualified legal counsel for assistance in evaluating the implications of these new rules on their current practices and with planning to respond to these changes.

For Help With Investigations, Policy Updates Or Other Needs

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

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 28 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk.

Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance.  She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

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

Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.  Best-known for her extensive work helping health care, insurance and other highly regulated entities manage both general employment and management concerns and their highly complicated, industry specific corporate compliance, internal controls and risk management requirements, Ms. Stamer’s clients and experience also include a broad range of other businesses.  Her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes.  Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer also uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriot and medical tourism, on site medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities.

As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others.

She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large-scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

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

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications.

She also currently or previously served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

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

About Solutions Law Press, Inc.™

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

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


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