Manage Retaliation Risks In Response To Updated EEOC Enforcement Guidance, Rising Retaliation Claims

August 31, 2016

U.S. employers, employment agencies, unions, their benefit plans and fiduciaries, and their management and service providers should move quickly to review and strengthen their employment and other practices to guard against a foreseeable surge in employee retaliation claims and judgements likely to follow the August 30, 2016 issuance by the Equal Employment Opportunity Commission (EEOC) of its new final  EEOC Enforcement Guidance on Retaliation and Related Issues and concurrently published Question and Answer Guidance(Guidance).

Updating and superceding 2008 guidance previously set forth in the Retaliation Chapter of the EEOC Enforcement Manual, the Guidance details the EEOC’s current policy for investigating and enforcing the retaliation prohibitions under each of the equal employment opportunity (EEO) laws enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA) as well as the ADA’s separate “interference” prohibitions, which prohibit coercion, threats, or other acts that interfere with the exercise of ADA rights.  Among other things, the Guidance discusses :

  • What “retaliation means” and the scope of employee activity protected by the prohibitions against retaliation included in all laws enforced by the EEOC as well as the interference prohibitions of the ADA;
  • Legal analysis the EEOC will use to determine if evidence supports a claim of retaliation against an employer or other party;
  • Detailed examples of employer actions that the EEOC says may constitute prohibited retaliation; and
    Remedies available for retaliation.

Understanding and properly responding to the Guidance is critically important for employers and other subject to the EEO laws because in light of the substantial and growing liability exposures retaliation claims present and the likely that the issuance of the Guidance will further fuel these risks.

Even before the EEOC published the Guidance, retaliation and interference exposures were a substantial source of concern for most employers.  Employers, employment agencies and unions caught engaging in prohibited retaliation or intimidation in violation of EEO laws can incur compensatory and (except for governmental employers) punitive damage awards, back pay, front pay, reinstatement into a job or other equitable remedies, injunctive or administrative orders requiring changes in employer policies and procedures, managerial training, reporting to the EEOC and other corrective measures, as well as substantial investigation and defense costs.

These substantial liability exposures have become particularly concerning as retaliation and interference claims also have become increasingly common over the past decade. According to the EEOC, for example, EEO law retaliation charges have remained the most frequently alleged basis of charges filed with the EEOC since 2009 and in Fiscal Year 2015 accounted for 44.5 percent of all employment discrimination charges received by EEOC.
Since the EEOC’s issuance of the Retaliation Regs are likely to encourage additional retaliation or interference claims, employers, employment agencies, unions and their management, service providers and agents should quickly to evaluate the updated guidance provided in the Retaliation Reg and act to mitigate their exposure to retaliation retaliation and interference claims under these EEO laws.

Retaliation Risks Under EEO Laws

Federal EEO laws generally prohibit employers, employment agencies, or unions from punishing or taking other adverse actions against job applicants or employees for “asserting their rights” (often referred to as “protected activity”) to be free from harassment or other prohibited employment discrimination as well as certain other conduct. Such claims generally are referred to as “retaliation claims.”
Prohibited retaliation in violation of EEO laws occurs when an employer, employment agency or union takes a materially adverse action because an applicant or employee asserts rights or engages in certain other activities protected by the EEO laws.

To prevail in a retaliation claim, an applicant, employee or other individual generally must show that:

  • The individual engaged in prior protected activity;
  • The employer, employment agency or union took a materially adverse action; and
  • More likely than not, retaliation caused the adverse action by the employer, employment agency or union.

Persons Protected By EEO Retaliation Rules

EEO retaliation prohibitions protect both applicants and current and former employees (full-time, part-time, probationary, seasonal, and temporary) against retaliation under the EEO laws.  The retaliation prohibitions bar an employer from refusing to hire or otherwise taking adverse action against any current or former applicant or employee because of his EEO complaint or other protected activity under applicable EEO laws.  The EEOC interprets the retaliation rules as prohibiting an employer from giving a false negative job reference to punish a former employee for making an EEO complaint or engaging in other protected activity as well as as prohibiting an employer from refusing to hire or otherwise retaliating or discriminating against an applicant or employee based on a complaint made or other protected activity engaged against any a prior employer.  The Guidance also makes clear that the retaliation prohibitions apply regardless of an applicant or employee’s citizenship or work authorization status.

Protected Activity

“Protected activity” generally means either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.

The prohibition against an employer retaliating against an individual for “participating” in an EEO process means that an employer cannot punish an applicant or employee for filing an EEO complaint, serving as a witness, or participating in any other way in an EEO matter, even if the underlying discrimination allegation is unsuccessful or untimely. As a part of these prohibitions, the EEOC says that an employer, employment agency or union is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination. For example, depending on the facts of the particular case, it could be retaliation because of the employee’s EEO activity for an employer to:

  • Reprimand an employee or give a performance evaluation that is lower than it should be;
  • Transfer the employee to a less desirable position;
  • Engage in verbal or physical abuse;
  • Threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
  • Increase scrutiny;
  • Spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
  • Take action that makes the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

The Guidance clearly states that the EEOC views participating in any capacity in a complaint process or other protected equal employment opportunity as protected activity which is protected from retaliation under all circumstances.  The EEOC views other acts to oppose discrimination also as protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe the issue. EEOC’s view is that protections against retaliation extend to participation in an employer’s internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC. The EEOC also takes the position that participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred. While an employer is free to bring these to light in the EEO matter where it may rightly affect the outcome, the Retaliation Regs state it is unlawful retaliation for an employer to take matters into its own hands and impose consequences for participating in an EEO matter.

In addition to prohibition for participation in protected activities, EEO law also prohibits retaliation against an individual for “opposing” a perceived unlawful EEO practice.  The EEOC construes prohibition against retaliation for opposition as prohibiting an employer or other covered entity from punishing an applicant or employee for communicating or taking other action in opposition of a perceived EEO violation if the individual acted reasonably and based on a reasonable good faith belief that the conduct opposed is or could become unlawful if repeated.

According to the EEOC, opposition also can be protected even if it is informal or does not include the words “harassment,” “discrimination,” or other legal terminology. A communication or act may be protected opposition as long as the circumstances show that the individual is conveying resistance to a perceived potential EEO violation such as, for example:

  • Complaining or threatening to complain about alleged discrimination against oneself or others;
  • Taking part in an internal or external investigation of employment discrimination, including harassment;
  • Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • Communicating with a supervisor or manager about employment discrimination, including harassment;
  • Answering questions during an employer investigation of alleged harassment;
  • Refusing to follow orders that would result in discrimination;
  • Resisting sexual advances, or intervening to protect others;
  • Reporting an instance of harassment to a supervisor;
  • Requesting accommodation of a disability or for a religious practice;
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages;
  • Providing information in an employer’s internal investigation of an EEO matter;
  • Refusing to obey an order reasonably believed to be discriminatory;
  • Advising an employer on EEO compliance;
  • Resisting sexual advances or intervening to protect others;
  • Passive resistance (allowing others to express opposition);
  • Requesting reasonable accommodation for disability or religion;
  • Complaining to management about EEO-related compensation disparities;
  • Talking to coworkers to gather information or evidence in support of a potential EEO claim; or
  • Other acts of opposition.

In order for the protection against opposition to apply, however, the individual must act with a reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated.  Opposition not based on such a good faith belief is not protected. Employers should note that the EEOC takes the position that opposition by an employee could qualify as reasonable opposition protected against retaliation when an employee or applicant complains about behavior that is not yet legally harassment (i.e., even if the mistreatment has not yet become severe or pervasive) or to complain about conduct the employee believes violates the EEO laws if the EEOC has adopted that interpretation, even if some courts disagree with the EEOC on the issue.

Furthermore, an individual opposing a perceived violation of an EEO law is disqualified for protection against retaliation for his opposition unless the individual behaves in a reasonable manner when expressing his opposition. For example, threats of violence, or badgering a subordinate employee to give a witness statement, are not protected opposition.

Subject to these conditions, however, the Guidance states that retaliation for opposing perceived unlawful EEOC practices need not be applied directly to the employee to qualify for protection. If an employer, employment agency or union takes an action against someone else, such as a family member or close friend, in order to retaliate against an employee, the EEOC says both individuals would have a legal claim against the employer.

Moreover, according to the EEOC, the prohibitions against retaliation for participation and opposition apply regardless of whether the person is suffers the retaliation for acting as a witness or otherwise participating in the investigation of a prohibited practice regarding an EEO complaint brought by others, or for complaining of conduct that directly affects himself.

Materially Adverse Action

To fall within EEO law prohibitions against retaliation, the retaliatory actions must be “materially adverse,” which the Guidance defines to include any action that under the facts and circumstances might deter a reasonable person from engaging in protected activity.  This definition of “materially adverse” sweeps broadly to include more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, or other actions that can be challenged directly as employment discrimination. It also encompasses within the scope of retaliation employer action that is work-related, as well as other actions with no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity.

Whether an action is materially adverse depends on the facts and circumstances of the particular case. The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month (even though the pay was later reimbursed) were both “materially adverse actions” that could be challenged as retaliation. The Supreme Court has also said that actionable retaliation includes: the FBI’s refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.

In contrast, a petty slight, minor annoyance, trivial punishment, or any other action that is not likely to dissuade an employee from engaging in protected activity in the circumstances is not “materially adverse.” For example, courts have concluded on the facts of given cases that temporarily transferring an employee from an office to a cubicle was not a materially adverse action and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were not materially adverse.

The facts and circumstances of each case determine whether a particular action is retaliatory in that context. For this reason, the same action may be retaliatory in one case but not in another. Depending on the facts, other examples of “materially adverse” actions may include:

  • Work-related threats, warnings, or reprimands;
  • Negative or lowered evaluations;
  • Transfers to less prestigious or desirable work or work locations;
  • Making false reports to government authorities or in the media;
  • Filing a civil action;
  • Threatening reassignment;
  • Scrutinizing work or attendance more closely than that of other employees, without justification;
  • Removing supervisory responsibilities;
  • Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
  • Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
  • Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
  • Taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

ADA Interference Claims

In addition to the need to manage potential exposures for prohibited retaliation, employers, employment agencies and unions also should be careful to manage their exposure to potential liability arising from claims for wrongful interference and individual’s exercise of the disability rights or protections granted under the ADA.

The ADA generally prohibits disability discrimination, limits an employer’s ability to ask for medical information, requires confidentiality of medical information, and gives employees who have disabilities the right to reasonable accommodations at work absent undue hardship and like other EEO laws, prohibits retaliation. In addition to its prohibitions against retaliation, however, the ADA also more broadly prohibits “interference” with statutory rights under the ADA.

Interference is broader than retaliation. The ADA’s interference provision makes it unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights.

In addition, the ADA also prohibits employers from interfering with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert any of these rights such as using threats or other actions to discourage someone from asking for, or keeping, a reasonable accommodation; intimidating an applicant or employee into undergoing an unlawful medical examination; or pressuring an applicant or employee not to file a disability discrimination complaint.

Prohibited interference may be actionable under the ADA even if ineffective and even if the person subjected to intimidation goes on to exercise his ADA rights.

  • While acknowledging that some employer actions may be both retaliation and interference, or may overlap with unlawful denial of accommodation, the Guidance identifies the following actions as examples of interference prohibited under the ADA:
  • Coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
  • Intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
  • Threatening an employee with loss of employment or other adverse treatment if he does not “voluntarily” submit to a medical examination or inquiry that is otherwise prohibited under the statute;
  • Issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
  • Interfering with a former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
  • Subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

According to the EEOC, a threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

Strategies To Help Deter Or Rebut Retaliation Charges

Even though individuals claiming retaliation technically bear the burden of proving more likely than not that he suffered an adverse employment action more probably than not as a result of retaliation, an employer, employment agency or union charged with illegal retaliation frequently need to rebut or undermine a claimant’s evidence of retaliation by having and introducing admissible evidence that it a non-retaliatory reason for taking the challenged action such as evidence that:

  • The employer was not, in fact, aware of the protected activity;
  • There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as poor performance; inadequate qualifications for position sought; qualifications, application, or interview performance inferior to the selectee; negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual); misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); or reduction in force or other downsizing;
  • Similarly-situated applicants or employees who did not engage in protected activity were similarly treated;
  • Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive; or
  • Other credible evidence showing a legitimate, non-discriminatory and non-retalitory motive behind the action.

It is important that employer other other potential defendants in retaliation actions recognize and take appropriate steps to create and retain evidence documenting these or other legitimate business reasons justifying the action prior to taking adverse action.  Many employer or other defendants charged with discrimination or retaliation discover too late that a rule of evidence commonly referred to as the “After Acquired Evidence Doctrine” often prevents an employer or other defendant from using documentation or other evidence of motive created after the adverse action occurs.  Consequently, employer and other potential targets of retaliation claims before taking the adverse action would be wise to carefully collect, document and retain the evidence and analysis showing their adverse action was taken for a legitimate, nonretalitory, nondiscriminatory reason rather than for any retaliatory purpose.

Other Defensive Actions & Strategies

Beyond taking care to document and retain evidence of its legitimate motivations for taking an adverse employment action, employers, employment agencies and unions interested in avoiding or enhancing their defenses against retaliation or interference claims also may find it helpful to:

  • Maintain a written, plain-language anti-retaliation and anti-interference policy that provides practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;
  • Send a message from top management that retaliation and interference are prohibited and will not be tolerated;
  • Ensure that top management understands and complies with policies against prohibited discrimination, retaliation and interference;
  • Consistently and fairly administer all equal employment opportunity and other policies and procedures in accordance with applicable laws in a documented, defensible manner;
  • Post and provide all required posters or other equal employment opportunity notices;
  • Timely and accurately complete and file all required EEO reports;
  • Clearly communicate orally and in writing the policy against prohibited retaliation and interference, as well as procedures for reporting, investigating and addressing concerns about potential violations of these policies in corporate policies as well as to employees complaining or participating in investigations or other protected activities;
  • Conduct documented training for all managers, supervisors and other employees and agents of the employer about policies against prohibited discrimination, retaliation, and interference including, as necessary, specific education about specific behaviors or situations that could raise retaliation or interference concerns, when and how to report or respond to such concerns and other actions to take to prevent or stop potential retaliation and interference;
  • Establish and administer clear policies and procedures for reporting and investigating claims or other indicators of potential prohibited employment discrimination, retaliation, interference including appropriate procedures for monitoring and protecting applicants and workers who have made claims of discrimination or have a record of involvement in activities that might qualify for corrective action;
  • Review performance, compensation and other criteria for potential evidence of overt or hidden bias or other evidence of potential prohibited retaliation or interference and take documented corrective action as needed to prevent improper bias from adversely corrupting decision-making process;
  • Conduct timely, well-documented investigations of all reports or other evidence of suspected discrimination, retaliation, and interference including any disciplinary, remedial or corrective action taken or foregone and the justification underlying these actions;
  • Obtain and enforce contractual reassurances from recruiting, staffing and other contractors to adhere to, and cooperate with the employer in its investigation and redress of the nondiscrimination, data collection and reporting, anti-retaliation and anti-interference requirements of equal employment opportunity and other laws;
  • Incorporate appropriate inquiries and other procedures for documented evaluating and monitoring that hiring, staffing, performance review, promotion, demotion, discipline, termination and other employment decisions and actions for evidence or other indicators of potential prohibited discrimination, retaliation, interference or other prohibited conduct and take corrective action as necessary based on the evidence developed; and
  • Designate appropriately empowered and trained members of the management of the employer to receive and investigate complaints and other potential concerns;
    Arrange for an unbiased third party review of the adverse action or the performance or other decision criteria, processes and analysis that the employer or other defendant contemplates relying on to decide and implement employment decisions for indicators of potential discriminatory, retaliatory or other illegal or undesirable biasand take corrective action as needed to address those concerns before undertaking employment actions;
  • Evaluate and allocate appropriate funds within the employer’s budget to support the employer’s compliance efforts as well as to provide for the availability of sufficient funds to investigate and defend potential charges or public or private charges of illegal discrimination, retaliation or interference through the purchase of employment practices liablity or other insurance coverages or otherwise;
  • If a manager or other party recommends an adverse action in the wake of an employee’s filing of an EEOC charge or participation in other protected activity, conducting or arranging for an another party to ndependently evaluate whether the adverse action is appropriate;
  • Proactively seek assistance from qualified legal counsel with the design and review of policies, practices and operations, investigation and analysis of internal or external complaints or other concerns about potential prohibited discrimination, retaliation or interference, review and execution of termination, discipline or other workforce events to mitigate discrimination, retaliation or interference risks as well as the defense of EEOC or private enforcement actions; and
  • Be ever diligent in your efforts to prevent, detect and redress actions or situations that could be a basis for retaliation or interference claims.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture 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  “Labor & Employment,”“Tax: Erisa & Employee Benefits” “Health Care” and “Business and Commercial Law” 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.

For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

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

April 9, 2015

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

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

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

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

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

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

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

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

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

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

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

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

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


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

April 8, 2015

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

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

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

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

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

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

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

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

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

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

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


Review & Update HR & Benefit Practices For DOL Proposed Change In FMLA Regs, Other Rules Treating Some Same-Sex Couples As Spouses

July 8, 2014

August 11, 2014 is the deadline for employers and other interested individuals to comment on the  U.S. Department of Labor’s Wage and Hour Division (DOL) June 27, 2014 Notice of Proposed Rulemaking (NPRM), which would amend the definition of spouse under the current Family and Medical Leave Act of 1993 (FMLA) regulations in light of the United States Supreme Court’s decision in United States v. Windsor, which ruled unconstitutional section 3 of the Defense of Marriage Act (DOMA).  The proposed change is one of a series of regulatory changes that the Obama Administration has proposed or adopted since the Windsor decision.

DOL intends that the NPRM will replace the current definition of “spouse” its current FMLA regulations so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

To accomplish this, the NPRM proposes to revise the current definition of spouse in the current FMLA regulations to define spouse as follows: Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Among other things, this change will:

  • Replace the current “state of residence” rule with a rule that determines spousal status based on where the marriage was entered into (sometimes referred to as “place of celebration”) rule for determining marital status;
  • Revise the definition of spouse expressly to reference same-sex marriages in addition to common law marriages, and to encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The expanded definition of spouse will broaden the range of couples that employers and plans may be required to treat as spouses for purposes of the FMLA.  This expansion also may result in the extension of rights with respect to parents or children of a same-sex partner for certain employment or employee benefit purposes.  While the historical determination of parental relationships under the FMLA regulations based on a functional, rather than legalistic, test means that the proposed change will likely have less significance in this regard, employers and plans still should evaluate the potential implications of the expanded definition of spouse on its responsibilities with respect to the employees, their same-sex partners and the parents and children of the same-sex partners.

Also, many employers and employee benefit plans may be concerned about proposed language in the NPRM and other regulations requiring employers to decide if a marriage not valid in the United States could have been valid if performed within the United States.  Likewise, as the number of states where same-sex partners can qualify as spouses continues to evolve as courts and legislatures act to require recognition of these relationships, many employers and plans may feel legitimate concerns about the operational demands of administering their human resources and employee benefit plans and policies with respect to individuals involved in same-sex relationships where the legal status of the relationship may evolve due to changes of law, creating responsibilities for the employer or plan with respect to relationships that it may not know exist or the status of which may change subsequent to a determination of marital status or other relevant decision.  Employers and employee benefit plans should consider adopting practices to address these challenges to minimize the risk of incurring liability as a result of an oversight resulting from evolving status.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising employers, health plan and other employee benefit, insurance, financial services, health and other business clients about these and other matters.   As a part of this involvement, Ms. Stamer has extensive experience advising employers, employee benefit plans, insurers, health care providers and others about the implications of DOMA and other rules impacting the identification of spouses and other family status protections under the FMLA and other Federal and state employment, tax, health care and other laws.  She publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. For important information concerning this communication click here©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Employee & Other Whistleblower Complaints Common Source of HIPAA Privacy & Other Complaints

July 7, 2014

Employer and other health plan sponsors, administrators, insurers and their business associates should heed both the lesson about properly protecting health plan documents with protected health information and the more subtle lesson about the role of employees and other whistleblowers in bringing these violations to the attention of regulators contained in the latest Health Insurance Portability & Accountability Act (HIPAA) resolution agreement as well as act to manage their potential employment related liability to workforce members reporting these violations

HIPAA’s Privacy, Security and Breach Notification Rules generally prohibit  health plans, health care providers, health plans (Covered Entities) and their business associates from creating, using, accessing or disclosing protected health information except as allowed by HIPAA.  In addition, HIPAA requires covered entities both to meet detailed criteria for protecting electronic protected health information and also to take reasonable steps to protect all protected health information, as well as meet other business associate, breach notification, and individual rights requirements.

Parkview Resolution Agreement

Late last month, the Department of Health & Human Services Office of Civil Rights (HHS) announced that complaints of a retiring physician over the mishandling of her patient records by Parkview Health System, Inc. (Parkview) prompted the investigation that lead Parkview to agree to pay $800,000 to settle charges that it violated HIPAA’s Privacy Rule.

The resolution agreement settles charges lodged by HHS based on an OCR investigation into the retiring physician’s allegations that Parkview violated the HIPAA Privacy Rule by failing to properly safeguard the records when it returned them to the physician following her retirement.

As a covered entity under the HIPAA Privacy Rule, HIPAA requires that Parkview appropriately and reasonably safeguard all protected health information in its possession, from  acquisition to disposition.

In an investigation prompted by the physician’s complaint, OCR found that Parkview breached this responsibility in its handling of certain physician patient records in helping the physician to transition to retirement.

According to OCR, in September 2008, Parkview took custody of medical records of approximately 5,000 to 8,000 patients while assisting the retiring physician to transition her patients to new providers, and while considering the possibility of purchasing some of the physician’s practice.

Subsequently on June 4, 2009, Parkview employees, with notice that the physician was not at home, left 71 cardboard boxes of these medical records unattended and accessible to unauthorized persons on the driveway of the physician’s home, within 20 feet of the public road and a short distance away from a heavily trafficked public shopping venue. OCR concluded this conduct violated the Privacy Rule.

To settle OCR’s charges that these actions violated HIPAA, OCR has agreed to pay the $800,000 resolution amount and to adopt and implement a corrective action plan requiring Parkview to revise their policies and procedures, train staff, and provide an implementation report to OCR.

HIPAA Violations Carry Significant Liability

As demonstrated by the Parkview resolution agreement, violation of HIPAA  can carry significant civil and potentially even criminal liability.  The criminal provisions of HIPAA as well as the express terms of the Privacy Rules require that covered entities and their business associates adopt and administer specific compliance programs and practices to provide to compliance with HIPAA and HIPAA’s breach notification rules and the Privacy Regulations may require self-reporting of violations when and if violations occur.  Since HIPAA includes potential criminal liability, violations of its provisions can trigger organizational liability for covered entities and their business associates.  Consequently, HIPAA compliance also generally should be part of the Federal Sentencing Guideline Compliance Program of every covered entity and business associate.

The HITECH Act tightened certain rules applicable to the use, access or disclosure of protected health information by covered entities and their business associates.  In addition, the HITECH Act added breach notification rules, extended direct responsibility for compliance with HIPAA to business associates, increased penalties for noncompliance with HIPAA and made other refinements to HIPAA’s medical privacy rules and made certain other changes.  Furthermore, enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same.    When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

A series of supplemental guidance issued by the Department of Health & Human Services Office of Civil Rights (OCR) in recent weeks is giving health care providers, health plans, health care clearinghouses (Covered Entities) and their business associates even more to do in reviewing and updating their policies, practices and training for handing protected health information (PHI) beyond bringing their policies and practices into line with OCR’s restatement and update to the Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules Under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule (Omnibus Final Rule) OCR published January 25, 2013.

Covered Entities generally have been required to comply with most requirements the Omnibus Final Rule’s restated regulations restating OCR’s regulations implementing the Health Insurance Portability & Accountability Act (HIPAA) Privacy, Security and Breach Notification Rules to reflect HIPAA amendments enacted by the Health Information Technology for Economic and Clinical Health (HITECH) Act since the Omnibus Final Rule took effect on March 26, 2013 and to have updated business associate agreements in place since September 23, 2013.  Meanwhile, the Omnibus Final Rule generally has required business associates have updated business associate agreements in place and otherwise to have come into compliance with all of the applicable requirements of the Omnibus Final Rule since September 23, 2013.  Although these deadlines are long past, many Covered Entities and business associates have yet to complete the policy, process and training updates required to comply with the rule changes implemented in  the Omnibus Final Rule.

Even if a Covered Entity or business associate completed the updates required to comply with the Omnibus Final Rule, however, recent supplemental guidance published by OCR means that most organizations now have even more work to do on HIPAA compliance. This includes the following supplemental guidance on its interpretation and enforcement of HIPAA against Covered Entities and business associates published by OCR since January 1, 2014 alone:

Beyond this 2014 guidance, Covered Entities and their business associates also should look at enforcement actions and data as well as other guidance OCR issued during 2013 after publishing the Omnibus Final Rule such as:

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same.    When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

Watch & Manage Whistleblower Liability From HIPAA Violations & Compliance

Beyond illustrating the potential HIPAA-associated penalties that can result from failing to comply with HIPAA, the Parkview resolution agreement also illustrates the risks that current or former workforce members and others acting as whistleblowers play in helping OCR to identify HIPAA violations.  HIPAA and most other laws prohibited covered entities from forbidding or retaliating against a person for objecting to or reporting the concern and offer whistleblowers potential participation in the reporting and prosecution of violations.  Beyond these specific federal HIPAA protections, state courts often recognize firing or otherwise retaliating against workforce members or others for exercising rights protected by HIPAA or other federal anti-retaliation statutes as a basis for a state whistleblower or other retaliatory discharge claim.  See, e.g. Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009).  See also Court Recognizes Retaliation For Filing HIPAA Privacy Complaint As Basis For Texas Whistleblower Claim.    With retaliation and other whistleblower complaints becoming increasingly common and judgments from these claims rising, covered entities and their business associates need to include appropriate employment liability risk management processes and procedures in their HIPAA compliance processes and coordinate carefully with their human resources team and qualified employment counsel to manage the employment liability related risks associated with investigations and discipline activities under HIPAA.  Concurrently, Privacy Officers also should ensure that their organization’s human resources team understands the HIPAA rules and spot and properly refers to the privacy officer for investigation statements or other activities that may indicate that a HIPAA compliance or retaliation concern needs investigation or redress to avoid missing potential exposures hidden in the human resources processes that could reflect a practice of tolerance or retaliation unacceptable to OCR.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance often appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

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©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Statistics, OSHA Lawsuit Against AT&T Operator & Other DOL Action Highlights Rising Retaliation Exposures

February 10, 2014

A new Department of Labor (DOL) lawsuit filed in Cleveland against The Ohio Bell Telephone Company and other DOL enforcement news released today remind U.S. businesses again of the growing need to recognize and manage exposure to retaliation claims when dealing with workers who have reported injuries or other Occupational Health & Safety Act of 1974 (OSHA Laws), discrimination, wage and hour or other federal laws that include anti-retaliation or whistleblower protections.

AT&T Operator Sued Under OSHA

Filed in the U.S. District Court for the Northern District of Ohio, Eastern Division, the In the Matter of: Perez v. The Ohio Bell Telephone Company, Civil Action No. 1:14-cv-269 lawsuit charges The Ohio Bell Telephone Company, which operates as AT&T, violated the whistleblower provisions of the OSHA Laws. The complaint alleges that in 13 separate incidents, 13 employees of AT&T were disciplined and given one- to three-day unpaid suspensions for reporting injuries that occurred on the job.

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws.  These whistleblower provisions generally prohibit employers from retaliating against employees who raise concerns or provide information to their employer or the government under any of these laws.

The lawsuit illustrates the difficulty that U.S. employers increasingly face when dealing with workers who have filed complaints or participated in other protected activity under the OSHA Laws or other laws with whistleblower or anti-retaliation provisions.  OSHA claims that the employer wrongfully retaliated against 13 Ohio employees who received unpaid suspensions after reporting work place injuries from 2011 to 2013.  However, the company claims that the suspensions were appropriate disciple against the impacted employees for his or her violation of a workplace safety standard.

Assuming that the lawsuit proceeds without settlement, the company can expect to face expensive and lengthy litigation to determine whose perspective wins.  Even if the company succeeds in winning the lawsuit, the expenses and other costs of the litigation will render any victory a financial loss.

Wage & Hour Retaliation

Along with the AT&T Operator OSHA action, DOL also is acting to enforce retaliation claims under the Fair Labor Standards Act (FLSA) and other laws enforced by its Wage and Hour Division as well as its other agencies.  The Wage and Hour Division makes investigation and enforcement against employers that retaliate against workers for exercising rights protected under the FLSA or other wage and hour laws a priority.    One example of this commitment to this priority is the brief the Labor Department filed in Lockheed Martin Corp. v. Administrative Review Board, where a key issue is whether substantial evidence supports the determination of the Administrative Law Judge, as as affirmed by the Administrative Review Board, that protected activity was a contributing factor in Lockheed’s constructive discharge of an employee.

Retaliation Exposure Wide-Reaching and Growing

While OSHA and the Wage and Hour Division zealously enforce the anti-retaliation provisions of the laws subject to their jurisdiction, these laws and agencies are only the tip of the iceberg.  Most federal and many state labor and employment as well as a broad range of other laws include anti-relation provisions that protect workers who report potential misconduct, participate in investigaitons or engagement in other protected activity.

U.S. Government statistics show that U.S. business risk from retaliation or other whistleblower claims is significant and rising.  Official statistics reported by the Equal Employment Opportunity Commission (EEOC) here show a steady rise in retaliation based charges.

Businesses or their leaders found guilty of retaliation often face significant liability.  When anti-retaliation laws are enforced by the Department of Labor or other agencies, businesses generally can expect to incur both restitution and correction costs as well as administrative or civil penalties.  Increasingly, employees or others reporting the claims to the agencies may receive a portion of the recovered amounts under qui tam or other similar statutes.

Damages awarded to private plaintiffs who win retaliation lawsuits also tend to be quite costly.  They typically include actual damages, attorneys’ fees and other costs of enforcement as well as punitive damages. In addition to the exposures that businesses face when found guilty of illegal retaliation, many of these statutes also may impose personal liability against management or others who engage in or condone this activity. Defending these claims often proves particularly challenging because of the heavy burdens of proof that a business ormanagement official often faces when an employee or other protected party shows detriment after engaging in protected actions.

Risk Management Needed

In the face of this growing risks, businesses should recognize and take steps to monitor and manage their exposure to retaliation or other whistleblower claims.  While an imperfect panacea to the rising risks of retaliation claims and liabilities, examples of some of the steps businesses generally will want to use to prevent and mitigate etaliation exposures include:

  • Establish and clearly communicate by word and deed that the Company prohibits retaliation.  The policy should make clear retaliation is against company policy and communicate the steps that employees concerned that they are being retaliated against should take to report suspected retailiation.
  • Train management and other workers on the retaliation policy and hold employees that engage in illegal retailiation or other prohibited conduct through appropriate discipline.
  • Communicate promptly with persons reporting suspected retaliation, acknowledging the receipt of the report and that the company takes the report seriously and will investigate.  At the same time, tell the whistleblower that the company does not tolerate retaliation and what to do if the whistleblower suspects retaliation.
  • Keep complaints confidential to reduce the risk of retaliation.
  • Document the report and the investigation.  When possible, ask the whistleblower and other witnesses provide written statements.
  • Avoid forming, and teach management and others conducting or participating in the investigation to avoid forming any conclusions or making statements or other actions that could indicate that conclusions have been reached before all the facts are completed.
  • Use exit interviews, whistleblower hotlines and other processes to help identify and manage concerns before they turn into litigation or complaints.
  • Ensure that your employee hiring, promotion, compensation, demotion, termination and other practices and policies are well designed, documented and administered.  Document personnel decisions consistently and fairly on an ongoing basis.
  • Be aware of and monitor potential retaliation exposures when conducting ongoing promotion, discharge, bonus and compensation and other day-to-day workforce actions.  When an individual who has engaged in protected activity is terminated, denied a promotion or wage or experiences an event that the worker could perceive as adverse, take steps to review the action before it is finalized to identify and correct potential retaliation.
  • Consider getting employment practices liability coverage or other protection to provide a fund to defend claims.
  • Don’t overlook exposures arising from staffing or leasing arrangements, customer or vendor relationships or other third party relationships.
  • Seek competent legal advice and assistance with using attorney-client privilege and other rules of evidence, designing policies and practices, investigating and responding to complaints or enforcement actions and other activities.

When planning for and administering these and other compliance and risk management processes and procedures, keep in mind that the intent to retaliate generally is not required to create liability.   Likewise, a business’ policy prohibiting retaliation is not an adequate shield against liability in most cases if in fact retaliation in violation of the policy occurs.  Nevertheless, the efforts to prevent and mitigate retaliation are worthwhile.  Not only can they prevent claims by deterring improper conduct or providing opportunities for correction and mitigation they also can help mitigate judgments and other liability in most instances.

For Assistance or More Information

If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

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

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

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting.  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.

Other Helpful Resources & Other Information

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

Recent examples of these publications include:

For important information about this communication click here.

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

Other Information & Resources

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

©2009 Cynthia Marcotte Stamer. All rights reserved.


US Labor Department Seeks $300K+ Whistleblower Recovery Against Employer For Firing Worker

October 29, 2013

Clearwater Paper Corp is facing a Department of Labor lawsuit after firing an employee who raised

A whistleblower lawsuit against Clearwater Paper Corp reminds employers dealing with workplace safety and health complaints need to use care to manage potential retaliation claims by complaining workers.

The U.S. Department of Labor whistleblower complaint  in the U.S. District Court for the District of Idaho against Clearwater Paper  Corp. in Lewiston, Idaho, alleges the company illegally retaliated against an employee who  raised workplace safety and health concerns. The Labor Department’s complaint  charges that a Clearwater Paper fired an employee in 2010 in retaliation for filing  a safety complaint with the Occupational Safety and Health Administration (OSHA). The employee was first suspended and then fired soon after OSHA  conducted an inspection to assess excessive exposure to red cedar dust at  Clearwater Paper’s sawmill in Lewiston. This facility was later sold in 2011. The Department seeks reinstatement of the employee as well as payment of more than $300,000 in  damages and fees, including back pay, compensatory damages, emotional distress  damages and punitive damages.

The Occupational Health and Safety Act (OSH Act) and most state occupational health and safety laws include provisions that prohibit retaliation against workers for making safety complaints or exercising other rights.  OSHA enforces the  whistleblower provision of the OSH Act and 21 other statutes protecting  employees who report violations of various securities, trucking, airline,  nuclear, pipeline, environmental, public transportation, workplace safety and  health, consumer product safety, health care reform and financial reform laws.  Under these laws, employers are prohibited from retaliating  against employees who raise various protected concerns or provide protected  information to the employer or to the government.

The protections and remedies for retaliation against whistleblowers reporting health and safety concerns are just one type of employee action that can trigger whistleblower or other retaliation protections under federal or state law.   Even when the complaint or report made by worker proves unfounded, good faith reports can trigger the whistleblower protections of most of these statutes.  Since the protections tend to follow the worker throughout his or her career with an employer, employers need to carefully document these reports and use care to monitor for improper retaliation risks or exposures.  If improperly managed, the whistleblower or other retaliation complaints can create significant risks for dealing with a employee who has reported health and safety concerns or engaged in other protected activities.  Employers disciplining or terminating these workers need to be prepared to defend against a potential whistleblower claim by providing sufficient documentation and other evidence to prove a valid business reason, rather than retaliation, lead to the adverse job action.   Typically this should begin by establishing and administered consistent, well-documented practices for documenting performance and discipline for all employees not those who have made safety reports or engaged in other action that could provide a basis for a whistleblower complaint.  While reviewing job discipline and terminations for potential whistleblower or other illegal bias also is a good practice, employers should use caution when conducting performance reviews or other performance or discipline activities with respect to safety or other potential whistleblowers to avoid the appearance of singling out the whistleblower for special scrutiny or heightened standards as this conduct could itself be used as potential evidence of illegal retaliation.

For Help or More Information

 If you need help understanding or dealing with reviewing or negotiating your vendor agreements, or  with other 2014 health plan decision-making or preparation, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

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

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

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting.  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.

Other Helpful Resources & Other Information

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

Recent examples of these publications include:

For important information about this communication click here.

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