Two mass shootings of workers at Walmarts in Virginia in less than a month and a series of other recent workplace shootings around the country should prompt other employers to evaluate the adequacy of their own workplace violence safeguards under and other laws.

As demonstrated by the already filed state lawsuit filed by an employee of the Chesapeake, Virginia Walmart where a supervisor fatally shot six people in October, 2022, see here, businesses experiencing workplace violence events typically face OSHA and other investigations, lawsuits and critical media and public scrutiny. A well-documented and administered workplace violence safety plan can help mitigate legal and other risks.

The Occupational Safety & Health Administration (“OSHA”) generally considers protecting workers against workplace violence part of an employer’s general duty to make the workplace safe under the Occupational Safety and Health Act (“(OSH Act”).

OSHA defines “workplace violence” as including any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

Many business leaders underestimate their organization’s workplace violence risk. Workplace violence is a much more common problem than most American business leaders realize. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), reported workplace injury data reflects there were 392 workplace homicides in 2020, the most recent year for which BLS has published data. There were also 37,060 nonfatal injuries in the workplace resulting from an intentional injury by another person. The five occupational groups with the most workplace homicides in 2020 were sales and related, transportation and material moving, management, construction and extraction, and production. Homicides in sales and related occupations accounted for 23.5 percent of all workplace homicides in 2020. See here.

Research has identified factors that may increase the risk of violence for some workers at certain worksites, such as exchanging money with the public, working with volatile, unstable people, working alone or in isolated areas, providing services and care, working where alcohol is served, time of day and location of work, Among those with higher-risk are workers who exchange money with the public, delivery drivers, healthcare professionals, public service workers, customer service agents, law enforcement personnel, and those who work alone or in small groups.

In most workplaces where risk factors can be identified, the risk of assault can be prevented or minimized if employers take appropriate precautions.

OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces. Therefore, OSHA expects employers to assess their worksites to identify methods for reducing the likelihood of incidents occurring and adopt and implement an appropriate plan.

There are currently no specific OSHA standards for workplace violence. Rather the guidance contemplates each business will tailor an appropriate plan to fit its operations. OSHA provides various resources to aid employers ti DD slop their organization’s plan. The employer is responsible for tailoring an appropriate policy; the guidance strongly suggests including a zero-tolerance policy toward workplace violence covering all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

OSHA has developed Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, which provides guidance and procedures to be followed when conducting inspections and issuing citations related to the occupational exposure to workplace violence. These procedures also provide insight for employers to tailor their plans and practices. Including policies for emergency response, investigation and remediation also is advisable.

The plan can be a separate workplace violence prevention program or can be incorporated into a safety and health program, employee handbook, or manual of standard operating procedures. Employers are responsible for ensuring all workers know the policy and understand that all claims of workplace violence will be investigated and remedied promptly. In addition, OSHA encourages employers to develop additional methods as necessary to protect employees in high risk industries.

In developing and administering their workplace violence policies, employers should seek both to prevent workplace violence and build a record that can help the employer defend against or mitigate legal and other business risks in the event of an incident. Employers also should reevaluate and update their policies and practices in response to events within their own or other workplaces as necessary. Working with qualified legal counsel within the scope of attorney-client privilege may help strengthen the risk assessment and policy design, while insulating sensitive discussions and analysis with the attorney-client communication or work product privileges.

More Information

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

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

About the Author

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefits Counsel repeatedly recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” by LexisNexis® Martindale-Hubbell® as “LEGAL LEADER Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law and among the “Best Lawyers In Dallas” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for 30+ years of advising, representing and defending domestic and international public, closely held and government organizations on workforce, employee benefits, internal controls and governance, and other risk management, compliance and government relations concerns as well as her coaching, scholarship, training and legislative and public affairs advocacy on these and related areas.

Ms. Stamer helps health industry and other organizations and their management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 35 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 management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns. She also represents and defends clients in investigations, audits, enforcement actions and other dealings with the the Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and a multitude of federal, state, and locate agencies, state attorneys’ general and other federal and state agencies, public and private credentialing, licensing and accreditation bodies, as well as conducts and counsels clients on private litigation, employment and other services disputes, regulatory and public policy advocacy, training and discipline, enforcement  and other strategic and operational concerns.

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

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

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

Ms. Stamer also shares her leadership through her extensive involvement in many professional, community and civic organizations. Currently, she serves as Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR and a representative for its Annual Agency Meeting with the EEOC, Chair of the ABA Intellectual Property Section Law Practice Management Committee, Vice Chair of the ABA International Section Life Sciences Committee, Chair-Elect of the ABA Tort & Insurance Section (TIPS) Medicine and Law Committee, RPTE Section Employee Benefits Committee Welfare Plan Chair, and in various other projects and capacities. She also previously has served as an ABA Joint Committee on Employee Benefits Council Representative, Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation Group, the Society for Human Resources Management Region IV Board Chair and National Consultant’s Board Member; am Editorial Advisory Board Member and author for HR.com, Insurance ThoughtLeaders, BNA CD-Rolm, and Employee Benefits News; the Alliance for Healthcare Excellence Board President, Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, on the North Texas United Way Long Range Planning Committee Member, as a Board Member and Compliance Chair of the National Kidney Foundation of North Texas and many others.

Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. These include hundreds of highly regarded articles and workshops on health and other benefits, workforce, health care and insurance concerns.

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

About Solutions Law Press, Inc.

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

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

NOTICE:   These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc. reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc. disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.  Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.  Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein. 

©2022 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.

The filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2023, or later, opens January 1, 2023, at 12:00 a.m. Eastern Time. Employers submitting H-2B visa applications in 2023 should prepare to file the newly required Form ETA-9142-B-CAA-7, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103, and Public Law 117-180 (the “Form”).

OFLC has announced that following OFLC’s standard operating procedures, H-2B applications requesting an April 1, 2023, work start date will be denied if they are filed before January 1, 2023, at 12:00 a.m. Eastern Time. OFLC plans to randomly order for processing all H-2B applications requesting a work start date of April 1, 2023, filed during the initial three calendar days (January 1-3, 2023) using the randomization procedures published in the Federal Register on March 4, 2019. Each day, from January 3, 2023 through January 6, 2023, OFLC will publish on the Foreign Labor Application Gateway System website the number of H-2B applications it has received to date and the total number of requested worker positions on those applications. Employers, workers awaiting these visas and other stakeholders should monitor the Gateway to assess the continued availability of the allotted H-2B visas.

Meanwhile, the Department of Labor Employment and Training Administration on December 16, 2022 published a notice announcing the 2023 AEWR for herding or production of livestock on the range in the Federal Register. The AEWR for occupations involving herding or production of livestock on the range is new for the H-2A Program. AEWRs are the minimum wage rates the Department of Labor has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to help ensure the Department meets its statutory obligation to certify that the employment of H-2A foreign workers will not adversely affect the wages of agricultural workers in the U.S. similarly employed. Employers affected by this mandated minimum wage rates should account for these rates in their budgeting and compliance activities.

The Office of Foreign Labor Certification (“OFLC”) announced December 19, 2022 that employers requesting H-2B visas to hire nonimmigrant workers under the FY2023 cap increase must complete and submit the new the new Form. The Form and its instruction currently available for immediate use by employees here. Employers planning to request H-2B visas should obtain and begin preparing the Form along with their applications to be ready to file when the 2023 application window open January 1, 2023.

For Help With Comments, Investigations Or Other Needs

If your organization would like to learn more about the concerns discussed in this update or seeks assistance auditing, updating, administering or defending its human resources, compensation, benefits, corporate ethics and compliance practices, or other performance related concerns, contact management attorney and consultant Cynthia Marcotte Stamer.

An attorney Board Certified in Labor & Employment Law by Texas Board of Legal Specialization, Ms. Stamer is recognized for work helping organizations management people, operations and risk as  a Fellow in the American College of Employee Benefit Counsel, a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER” in Labor and Employment Law and Health Care Law; a “Best Lawyers” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law.”

For 35 years, Ms. Stamer’s work has focused on advising and assisting businesses and business leaders with these and other employment and other staffing, employee benefit, compensation, risk, performance and compliance management and other operational solutions and concerns. Her experience includes helping management both manage performance and manage legal risk and compliance.  While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, leave, and other labor and employment laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor, Department of Justice, SEC,  Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, and other federal and state regulators. Ms. Stamer also speaks, coaches management and publishes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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If you found this article of interest, you also may be interested in reviewing other Breaking News, articles and other resources available including:

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• Eased Opiate Prescription Guidelines Could Impact Employers & Health Plans
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• EEOC Sues Lilly USAA For Age Discrimination
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• ERISA Claims and Appeals ERISA Basics Bootcamp
• CMS Updates COVID-19 Guidance For Visiting Nursing Homes & LTC Facility Vaccination During Omicron Surge
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• Biden-Harris Administration to Expand Vaccination Requirements for Health Care and Many Other Employers

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.  If you do not wish to receive these updates in the future, unsubscribe by updating your profile here.

NOTICE:  Terms. These materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice, a substitute for legal advice, an offer or commitment to provide legal advice or an admission. The information and statements in these materials may not address all relevant issues or apply to any situation or circumstances. The author reserves the right to qualify or retract any of these statements at any time. and does not necessarily address all relevant issues. Because the law evolves and in ways that subsequent developments could impact the currency and completeness of this discussion. The author disclaims and has no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstance at any time. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein. ©2022 Cynthia Marcotte Stamer. Nonexclusive right to republish granted to Solutions Law Press, Inc. All other rights reserved.

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

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

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

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

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

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

More Information

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

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

About the Author

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

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

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

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

About Solutions Law Press, Inc.

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

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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

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

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

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

Group health plans and insurers must ensure their programs don’t violate the Mental Health Parity and Addiction Equity Act (“MHPAEA”) by improperly limiting or excluding coverage for the treatment of autism or mental therapy developmental disorders.

MHPAEA requires group health plans and health insurance issuers that offer mental health benefits to ensure that mental health benefit financial requirements and nonquantitative treatment limitations are generally no more restrictive than those applied to medical/surgical benefits. The Department of Labor Employee Benefit Security Administration (“EBSA”) has identified MHPAEA autism and other mental health and substance abuse coverage enforcement as a key priority in its current fiscal year enforcement plan. Violation of its prohibitions is costly. Aside from any costs of providing wrongfully denied coverage and defense costs for resulting investigations and enforcement, violations generally also trigger that the employer is accountable for self-identifying, reporting and paying excise tax penalties imposed for MHPAEA violations under Internal Revenue Code Section 6039D to avoid even more penalties unless an exception applies.

Although many diagnosticians and courts consider autism a neurological rather than psychological disorder, EBSA often interprets and enforces MHPAEA as applicable to Applied Behavior (ABA) therapy and other treatment for autism, For instance, an EBSA Benefits Advisor stepped in to assist a Seattle family encountering difficulty communicating with their health plan regarding claims for their child the plan reprocessed the claims, resulting in an additional $20,000 of coverage. Another parent contacted an EBSA Benefits Advisor in the Dallas Regional Office for assistance with claims that had not been paid. After the Advisor contacted the plan to resolve the issue, this family received approximately $24,000 they were owed.

EBSA also has taken more formal enforcement actions in other instances. For example, EBSA’s Los Angeles Regional Office recently investigated a large service provider that excluded coverage for ABA therapy in hundreds of self-insured plans. The EBSA investigation resulted in 3 plans removing their exclusion for ABA therapy and offering coverage for that benefit moving forward, affecting more than 18,000 participants and their beneficiaries.

Meanwhile, an investigation by EBSA’s Chicago and Dallas Regional Offices into an ABA therapy exclusion resulted in a large claims administrator adding ABA therapy as a default coverage option for all of its self-insured plans. This correction resulted in the elimination of the exclusion of ABA therapy for autism for nearly one million participants.

To protect access to autism benefits, EBSA also works closely with other federal agencies, such as the U.S. Department of Health and Human Services. For example, EBSA assisted HHS’ Centers for Medicare and Medicaid Services in investigating an improper appeals process following the denial of coverage for autism treatment by a plan for a large school district. In the end, the plan reimbursed a total of $2,464 in unpaid claims to the participant.

The actions relating to ABM therapy and other autism-related treatment are part of a broader, high-priority EBSA and Department of Health and Human Services MHPAEA compliance and enforcement initiative which prioritizes enforcement of compliance by health plans and health insurers with MHPAEA’s mandates that health plans and insurance policies of covered health plans and insurers comply with its requirement of parity in the coverage provided for mental health and substance abuse care as compared to other care. To fulfill these requirements, health plans and insurers covered by MHPAEA must be prepared to produce documentation of their audit and analysis to demonstrate that any quantitative or qualitative requirements applicable to mental health or substance abuse coverage in form or operation are not greater than those applied to other comparable benefits. Meeting this burden generally requires significant documented analysis regarding the plan design and administration taking into complicated HPAEA regulations. Additionally, health plans and insurers also should ensure that their administrative practices and notifications comply with additional MHPAEA requirements applicable to claim determinations involving adverse benefit determinations for mental health or substance abuse treatment, as well as otherwise applicable Patient Protection and Affordable Care Act (“ACA”), Employee Retirement Income Security Act (“ERISA”) and for insured plans or policies, state insurance rules.

In the face of these and other enforcement actions, group health plans, their sponsors, their insurers, fiduciaries, administrators and employer and other MHPAEA-covered health benefit program sponsors, fiduciaries and administrators are urged to seek review and advice from legal counsel experienced with MHPAEA and other rules impacting autism diagnosis and treatment coverage about the adequacy and defensibility of their health program as it relates to coverage for autism and other developmental disabilities.

Additionally, employers also are reminded that autism and other developmental and neurological disorders also generally qualify as disabilities qualify for protection against discrimination and require accommodation under the Americans With Disabilities Act (“ADA”).

Along with the EBSA enforcement, private participants and beneficiaries of private employer-sponsored health plans also can bring lawsuits to recover benefits and other relief for violations of MHPAEA.  Along with the actual damages, attorneys’ fees and other costs of enforcement, a successful MHPAEA enforcement also typically will reveal the sponsoring employer or union’s failure to make the required self-disclosure and excise tax payments mandated for violations under Internal Revenue Code Section 6039D, triggering added penalties beyond the initial penalties triggered by the uncorrected violation.  Furthermore, delayed discovery of these violations also makes correction particularly costly for self-insured plans and their sponsors as deadlines for submitting expenses to qualify for stop loss reimbursement often will have passed by the time the liability comes to light.  Accordingly, employer and other health plan sponsors, their fiduciaries and adminstrators generally will want to audit and monitor their health plan’s compliance with the MHPAEA throught the calendar year and as plan year or stop loss filing deadlines approach to mitigate these exposures.  

More Information

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

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

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pandemic and other health and safety, financial, workforce and other organizational crisis, change and workforce, employee benefit, health care and other operations planning, preparedness and response for more than 30 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of change and in response to operational, health care, natural disaster, economic and other crisis and change.

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

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

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.

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

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

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

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

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

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

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

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

For More Information

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

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

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.

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

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

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.

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

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

Giving a qualifying applicant for a work opportunity in your business might translate into Work Opportunity Tax Credit (WOTC) for your business if your business meets and follows the requirements.

WOTC is a federal tax credit available to employers for hiring individuals from certain targeted groups who have consistently faced significant barriers to employment. The Consolidated Appropriation Act 2021 authorized the extension of the WOTC until December 31, 2025.

Notice 2021-43, issued on August 10, 2021, provided transition relief by extending the 28-day deadline for employers hiring individuals who are Designated Community Residents or Qualified Summer Youth Employees who begin work on or after January 1, 2021, and before October 9, 2021, to submit a completed Form 8850 to the designated local agency (DLA) no later than November 8, 2021.

Notice 2020-78, issued on December 11, 2020, provided transition relief for employers that hired certain individuals residing in empowerment zones by extending the 28-day deadline for employers who submit a certification request for an individual who began work between January 1, 2018, and December 31, 2020.

To be eligible for the transition relief under either notice, an individual must reside within an empowerment zone.

An employer may claim the WOTC for an individual who is certified as a member of any of the following targeted groups under section 51 of the Code:

• the formerly incarcerated or those previously convicted of a felony;
• recipients of state assistance under part A of title IV of the Social Security Act (SSA);
• veterans;
• residents in areas designated as empowerment zones or rural renewal counties;
• individuals referred to an employer following completion of a rehabilitation plan or program;
• individuals whose families are recipients of supplemental nutrition assistance under the Food and Nutrition Act of 2008;
• recipients of supplemental security income benefits under title XVI of the SSA;
• individuals whose families are recipients of state assistance under part A of title IV of the SSA; and
• individuals experiencing long-term unemployment.

Required Prescreaning

An employer must pre-screen and obtain certification from the appropriate Designated Local Agency (referred to as a State Workforce Agency or SWA) that an employee is a member of a targeted group to claim the credit. To satisfy the requirement to pre-screen a job applicant, on or before the day that a job offer is made, a pre-screening notice (Form 8850, Pre-Screening Notice and Certification Request for the Work Opportunity Credit) must be completed by the job applicant and the employer. The Targeted Jobs Tax Credit (TJTC), which preceded WOTC, did not contain a pre-screening requirement. In enacting WOTC to replace the TJTC in 1996, Congress included the requirement that employers pre-screen job applicants before or on the same day the job offer is made. In doing so, Congress emphasized that the WOTC is a subsidy designed to incentivize the hiring and employment of individuals who are members of targeted groups.

On page two of Form 8850, there are four dates that must be provided before Form 8850 can be submitted to a SWA. They are the dates that the job applicant Gave information, Was offered job, Was hired, and Started the job.

To confirm that the employer pre-screens the job applicant, and obtains information provided by the job applicant on the basis of which the employer believes that the job applicant is a member of a targeted group, the date the applicant Gave information about being a targeted group member must be a date that is the same as, or before the date the applicant Was offered job. The dates that the job applicant Was hired and Started the job must be on or after the dates the applicant Gave information and Was offered job. Form 8850 including the dates entered on page two of Form 8850, must be signed under penalties of perjury and must be submitted to the SWA (or postmarked, if mailed) no later than 28 days after the date that the job applicant Started the job.

Some individuals have a Conditional Certification (DOL-ETA Form 9062) issued by partnering agencies or SWAs. Employers can contact their SWAs for more information on Conditional Certifications. If an employer does not receive a certification on or before the day that the individual begins work, the employer must request certification by submitting Form 8850, to the SWA of the state in which their business is located (where the employee works) within 28 days of the individual beginning work.

Employers should contact their SWA with any specific processing questions for Form 8850.

Other Requirements To Claim Credit

To claim the credit for a qualifying employee, the employer and the job applicant must complete Form 8850 (Pre-Screening Notice and Certification Request for the Work Opportunity Credit). The employer has 28 calendar days from the new employee’s start date to submit Form 8850 to the designated local agency located in the state in which the business is located (where the employee works). Additional forms may be required by the DOL to obtain certification. See the Instructions to Form 8850 and the DOL Employment and Training Administration’s website on WOTC for more information.

Following receipt of a certification from the designated local agency that the employee is a member of one of the 10 targeted groups, taxable employers file Form 5884 (Work Opportunity Credit) and tax-exempt employers file Form 5884-C (Work Opportunity Credit for Qualified Tax-Exempt Organizations Hiring Qualified Veterans) to claim the WOTC. See the Instructions to Form 5884 and Form 5884-C for more information. Additionally, see the LB&I and SB/SE Joint Directive on the Work Opportunity Tax Credit that the IRS issued to help certain employers affected by extended delays in the WOTC certification process.

Limitations on the Credit

The credit is limited to the amount of the business income tax liability or Social Security tax owed.

A taxable business may apply the credit against its business income tax liability. In general, taxable employers may carry the current year’s unused WOTC back one year and then forward up to 20 years. See the instructions for Form 3800, General Business Credit, for more details.

For qualified tax-exempt organizations, the credit is limited to the amount of employer Social Security tax owed on the total taxable social security wages and tips reported by the organization for the employment tax period for which the credit is claimed.

Also, employers participating in other tax credit work incentive programs should consider the potential impact on seeking the WOTC before applying. Generally, wages used to calculate the WOTC cannot be used to calculate other wage-based credits. However an employer may be able to claim more than one wage-based credit for the same employee. Provided the same wages are not used to calculate each credit, an employer may be able to claim the WOTC and another credit such as the American Rescue Plan’s Employee Retention Credit (ERC), the Empowerment Zone Employment Credit, the Employer Credit for Paid Family and Medical Leave, and the ERC for employers affected by qualified disasters, among others. For example, a small business can combine the WOTC with the American Rescue Plan’s ERC and claim both credits on wages paid to the same employee, provided that any wages used to calculate the WOTC are not also used to calculate the ERC.

For more information on the wages that can be used to determine the credit, see the instructions for Form 5884, Work Opportunity Credit and Form 5884-C, Work Opportunity Credit for Qualified Tax-Exempt Organizations Hiring Qualified Veteran

Claiming the Credit Taxable Employers

After the required certification is received, taxable employers claim the credit as a general business credit on Form 3800 against their income tax by filing the following:

• Form 5884 (with instructions) 
• Form 3800 (with instructions)
• The employer’s business’s related income tax return and instructions (for example, Forms 1040 or 1040-SR, 1041, 1120, etc.)

Procedures are different for tax-exempt versus taxable organizations. Qualified tax-exempt organizations described in IRC Section 501(c), and exempt from taxation under IRC Section 501(a), may claim the credit for qualified veterans who begin work for the organization before 2026.

After the required certification is received, tax-exempt employers claim the credit against the employer’s share of Social Security tax by separately filing Form 5884-C, Work Opportunity Credit for Qualified Tax-Exempt Organizations Hiring Qualified Veterans. Each Form 5884-C determines the cumulative credit the organization is entitled to for all periods. The amount of the cumulative credit is reduced by the previously claimed credits and increased by any previously repaid amounts to determine the credit claimed for the employment tax period for which the Form 5884-C is filed. If the credit refunded for a prior period was limited by the employer’s social security tax liability for that period, any credit not refunded will be carried forward and included in the cumulative credit determined on any subsequent Form 5884-C.

The employer files Form 5884-C after filing the related employment tax return for the period for which the credit is claimed. The IRS recommends that qualified tax-exempt employers do not reduce their required deposits in anticipation of any credit. The credit will not affect the employer’s Social Security tax liability reported on the organization’s employment tax return.

As with all tax and workforce dealings, businesses should consult with experienced legal counsel and their tax advisors to fully understand the potential implications and requirements of hiring and participating in the programs.

For More Information

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

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

About Solutions Law Press, Inc.

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

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• NLRB Order Directs Settlement Of McDonald’s Unfair Labor Practice Complaints Including Joint Employer Liability Charges Against McDonald’s USA
• College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS  
• Business Leaders Serve Jail Time For Employment Tax Crimes   
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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A newly-announced settlement agreement and corrective action plan (the “Settlement”) between a prominent New York academic medical center and the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (“OCR”) arising from disclosures and access allowed a reporter covering the COVID-19 pandemic warns health care providers, health plans, healthcare clearinghouses (“covered entities”), their business associates and workforce members (collectively, “HIPAA entities”) to prevent their organizations and workforce members not to share protected health information (“PHI”) or allow reporters or other media to access patients or PHI without first obtaining the legally required patient authorizations as well as evaluate their own organization’s potential exposure to OCR enforcement from known or suspected unauthorized disclosures of PHI by their own organizations or workforce during the COVID-19 pandemic or other events over the past two years.

While the Settlement involved a health care providers, health plans and other HIPAA entities also are subject to the same HIPAA requirements to prevent unauthorized photography, videos, or other sharing or disclosure of participant or other PHI to media in interviews or other media interactions or by workforce members, business associates or other third parties. Furthermore, since the Employee Benefit Security Administration now views HIPAA compliance and other prudent steps to protect PHI and other sensitive health information as part of fiduciaries and plan administrator’s ERISA compliance obligations, the management of these and other HIPAA obligations also is critical to ERISA compliance. Accordingly, health plans and their fiduciaries, administrators, and sponsors should confirm their continued compliance in light of the insights provided by the Settlement and related OCR guidance.

HIPAA-Compliant Authorization Required Before Media Access To Patients Or Patient Information

The HIPAA Privacy Rule prohibits SJMC and other HIPAA entities from disclosing any patient’s PHI unless::

• The individual who is the subject of the information (or the individual’s personal representative) authorizes the disclosure in writing in the form required by the Privacy Rule; or
• The Privacy Rule otherwise expressly permits or requires the disclosure.

OCR guidance makes clear that these prohibitions continue to apply when health care providers or other HIPAA entities are dealing with have print, television, or other media reporters.

SJMC Settlement

The  Settlement between OCR and St. Joseph’s Medical Center (“SJMC”) resolves potential OCR charges that SJMC violated the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule by allowing an Associated Press (“AP”) reporter to access, photograph, and review clinical information of three COVID-19 patients without appropriate HIPAA authorization.  Although the dated documents governing the Settlement reflect the parties reached the Settlement Agreement in August, OCR only made the Settlement public on November 20, 2023.

The OCR investigation that prompted the settlement began shortly an AP article about SJMC’s response to the COVID-19 public health emergency containing photographs and information about three COVID-19 patients came to OCR’s attention.  The nationally distributed article included pictures of the three patients as well as details about the patients’ COVID-19 diagnoses, current medical statuses and medical prognoses, vital signs, treatment plans, and other PHI.

OCR determined from the investigation that SJMC allowed the AP reporter to observe and access clinical information of three patients receiving treatment for COVID on April 20, 2020 without first obtaining the necessary patient authorization required by HIPAA and that the disclosures were not otherwise allowed by any other exception to the Privacy Rule.

To avoid potentially much larger civil monetary penalties authorized by HIPAA, SHMC entered into the Settlement under which it agreed to pay $80,000 to OCR and agreed to develop written policies and procedures and train its workforce to comply with the HIPAA Privacy Rule. Under the Settlement, OCR also will monitor SHMC’s HIPAA compliance for two years.

Prior OCR Enforcement & Guidance Warned HIPAA Entities About Media Disclosures

OCR guidance and enforcement actions alerted SJMC and other HIPAA entities of their HIPAA responsibility not to disclose or allow access by the media or other third parties long before SJMC allowed the media access and disclosures that resulted in the new Settlement.

• 2013 Shasta Regional Medical Center Enforcement

Shasta Regional Medical Center (“SRMC”) holds the distinction of being the first covered entity punished for wrongfully disclosing PHI to the media.  Under a resolution agreement OCR announced on June 14, 2013, OCR required SRMC to pay OCR $275,000 and implement a series of corrective actions for using and disclosing to the media PHI of a patient while trying to perform public relations damage control against accusations reported in the media that SRMC had engaged in fraud or other misconduct when dealing with the patient.   That SRMC resolution Agreement followed an OCR investigating a January 4, 2012 Los Angeles Times article report that two SRMC senior leaders had met with media to discuss medical services provided to a patient.  OCR’s investigation indicated that SRMC failed to safeguard the patient’s PHI from impermissible disclosure by intentionally disclosing PHI to multiple media outlets on at least three separate occasions, without a valid written authorization. OCR’s review also revealed senior management at SRMC impermissibly shared details about the patient’s medical condition, diagnosis and treatment in an email to the entire workforce.  Further, SRMC failed to sanction its workforce members for impermissibly disclosing the patient’s records pursuant to its internal sanctions policy.

• 2016 NY-Presby Resolution Agreement & OCR Media Guidance

OCR’s next warnings to covered entities about their HIPAA responsibilities when dealing with the media came in 2016, when OCR concurrently announced a $2.2 million settlement with New York-Presbyterian Hospital and published its 2016 Frequently Asked Question (“Media FAQ”) addressing the obligation to comply with HI)PAA when dealing with the media.

According to the NY-Presby Resolution Agreement, OCR’s investigation revealed that NY-Presbyterian “blatantly” violated HIPAA when it allowed ABC film crews and staff virtually unfettered access to its health care facility.  OCR says the access NY-Presbyterian allowed ABC effectively created an environment where patients PHI could not be protected from impermissible disclosure to the ABC film crew and staff filming the episode.  While the Resolution Agreement reflects allowing the filming and other access to ABC without prior HIPAA-compliant authorization from patients in the facility itself violated HIPAA, OCR also particularly found “egregious” the facility allowing ABC film crews and staff to film a dying patient and another patient in significant distress without first obtaining a HIPAA-compliant authorization from each of those patients and even more so that NY-Presbyterian failed stop the filming even after a medical professional urged the crew to stop.

Based on its investigation, OCR charged NY-Presbyterian with violating 45 C.F.R. §§ 164.502(a) and 164.530(c) by:

• Impermissibly disclosing the PHI of two identified patients to the film crew and other staff of “NY Med;”
• Failing appropriately and reasonably to safeguard its patients’ PHI from disclosure during the filming of “NY Med” on its premises; and
• Failing to implement policies, procedures, and practices to protect the privacy of the filming of  the television show.

OCR collected $2.2 million from New York-Presbyterian Hospital as the required settlement payment under that resolution agreement.

• 2016 Media FAQ Guidance

Coincident with its announcement of the NYPH Settlement, OCR published the 2016 Media FAQ addressing HIPAA entities’ responsibilities when dealing with the media that outlined its interpretation of HIPAA as requiring HIPAA entities to protect patients and their PHI against unauthorized filming, photography, observation, and other access by news or other media or even other staff, patients or visitors. 

Among other things, the Media FAQ states that HIPAA prohibits health care providers and other HIPAA entities from inviting or allowing media personnel into treatment or other areas where patients or patient PHI will be accessible in written, electronic, oral, or other visual or audio form, or otherwise making PHI accessible to the media without prior written authorization from each patient or other subject of the PHI who is or will be in the area or whose PHI otherwise will be accessible to the media except in a very limited set of circumstances set forth in the Media FAQ.

The Media FAQ also states, “It is not sufficient for a health care provider to request or require media personnel to mask the identities of patients (using techniques such as blurring, pixelation, or voice alteration software) for whom authorization was not obtained, because the HIPAA Privacy Rule does not allow media access to the patient’s PHI, absent an authorization, in the first place.

In addition, the Media FAQ states that a health care provider also must ensure that reasonable safeguards are in place to protect against impermissible disclosures or to limit incidental disclosures of other PHI that may be in the area but for which authorization has not been obtained.

Concerning the limited circumstances when a health care provider or other HIPAA entity or business associate may disclose to the media or allow unconsented filming, photographing or use of PHI to the media or other film crews, the Media FAQ also clarifies that the HIPAA Privacy Rule does not require health care providers to prevent members of the media from entering areas of their facilities that are otherwise generally accessible to the public like public waiting areas or areas where the public enters or exits the facility.

In addition, the Media FAQ states a health care provider or other HIPAA entity may:

• Disclose limited PHI about the incapacitated patient to the media in accordance with the requirements of 45 C.F.R. 164.510(b)(1)(ii) when, in the hospital’s professional judgment, doing so is in the patient’s best interest; or
• Disclose a patient’s location in the facility and condition in general terms that do not communicate specific medical information about the individual to any person, including the media, without obtaining a HIPAA authorization where the individual has not objected to his information being included in the facility directory, and the media representative or other person asks for the individual by name as specified in 45 C.F.R. 164.510(a).

The Media FAQ also discusses circumstances where a healthcare provider or other HIPAA entity may use the services of a contract film crew to produce training videos or public relations materials on the provider’s behalf if the provider ensures that the film crew acting as a business associate enters into a HIPAA compliant business associate agreement with the HIPAA entity which among other things ensures that the film crew will safeguard the PHI it obtains, only use or disclose the PHI for the purposes provided in the agreement, and return or destroy any PHI after the work for the health care provider has been completed as required by 45 C.F.R. 164.504(e)(2). The Media FAQ also states that as a business associate, the film crew must comply with the HIPAA Security Rule and a number of provisions in the Privacy Rule, including the Rule’s restrictions on the use and disclosure of PHI.  In addition, the Media FAQ reminds HIPAA entities and business associates of the need to obtain prior authorizations from patients whose PHI is included in any materials before any of those materials are posted online, printed in brochures for the public, or otherwise publicly disseminated.

Finally, the Media FAQ states HIPAA entities can continue to inform the media of their treatment services and programs so that the media can better inform the public, provided that, in doing so, the covered entity does not share PHI with the media.

• Memorial Herrman Health System Resolution Agreement

OCR’s next media coverage-related enforcement action involved the largest not-for-profit health system in Southeast Texas, Memorial Hermann Health System (MHHS). The 2017 MHHS Resolution Agreement and Corrective Action Plan resulted from HHHS issuing a press release with the name and other PHI  about a patient arrested and charged with fraudulently obtaining health care by presenting an allegedly fraudulent identification card to MHHS office staff without first obtaining authorization from the patient.  MHHS paid OCR a $2.4 million resolution payment as well as agreed to implement a detailed corrective action plan.  See $2.4M HIPAA Settlement Warns Providers About Media Disclosures Of PHI.

• Three Resolution Agreements Following Disclosures ForBoston Trauma Reality Series

OCR followed up the next year with a concurrent announcement of resolution agreements against three unrelated hospitals for allowing ABC film crews to film in  patient treatment and other areas for the ABC medical documentary “Save My Life: Boston Trauma” series.  Under three separate settlement agreements, OCR collected a total of $999,000 from Boston Medical Center, Brigham and Women’s Hospital, and Massachusetts General Hospital for putting publicity before patient privacy by allowing ABC News documentary film crews to film patients and access other patient information for a news documentary without obtaining prior patient authorization under three separate settlement agreements with the hospitals.

The circumstances that resulted in the three resolution agreements announced on September 20, 2018 were strikingly similar to those underlying the NY-Presby Resolution Agreement. Notably, the investigations that resulted in the three settlement agreements all arose out of each of the respective hospital’s permitting an ABC documentary film crew filming a medical documentary to access patient areas of their hospitals. 

OCR’s investigation of MGH arose in response to an announcement about the impending filming on its website while OCR’s investigations of BMC and BWH started in response to a January 12, 2015 Boston Globe article that reported the Hospitals each separately had allowed ABC film crews filming a documentary to access PHI and film patients without obtaining patient authorization.  See Boston Medical Center Resolution Agreement (BMC Settlement Agreement);  Brigham and Women’s Hospital Resolution Agreement (BWH Settlement Agreement); and Massachusetts General Hospital Resolution Agreement (MGH Resolution Agreement)

The MGH Resolution Agreement reflects that OCR’s investigations began with an investigation of MGH on December 17, 2014 based on a news story posted to MGH’s website on October 3, 2014, indicating that ABC News would be filming a medical documentary program at MGH. The MGH Resolution Reports that the investigation revealed that before allowing the filming between October 2014 to January 2015, MGH reviewed and assessed patient privacy issues related to the filming and implemented various protections regarding patient privacy, including providing the ABC film crew with the same HIPAA privacy training received by MGH’s workforce.

Information contained in the respective settlement agreements reflect that OCR’s investigations of BMC and BWH began about a month later on January 25 and 26, 2015 respectively in response to the Boston Globe article. The BWH Settlement Agreement states that the BWH investigation revealed that like MGH, BWH reviewed and assessed patient privacy issues related to the filming and implemented various protections regarding patient privacy, including providing the ABC film crew with the same HIPAA privacy training received by BWH’s workforce before allowing the filming by the ABC film crew that occurred between October 2014 to January 2015.  The BMC Settlement Agreement does not state that OCR found BMC engaged in similar deliberations or undertook the same or other efforts to safeguard patients and their PHI.

The BMC Settlement Agreement reports that the OCR concluded based on the BMC investigation showed that BMC impermissibly disclosed PHI of patients to ABC employees during the production and filming of a television program at BMC in violation of HIPAA.  Meanwhile, while acknowledging the privacy deliberations and efforts undertaken at MGH and BWH, OCR also concluded that each of those organizations also violated HIPAA because in allowing the film crew access and to film patients and patient areas:

• The timing at which they obtained patient authorizations showed MGH and BWH impermissibly disclosed the PHI of patients to ABC employees during the production and filming of a television program at BWH; and
• Despite the various patient privacy protections in place, MGH and BWH failed to safeguard its patients’ PHI appropriately and reasonably from disclosure during a filming project conducted by ABC on its premises in 2014 and January 2015.

To resolve potential HIPAA violations, BMC has paid OCR $100,000, BWH has paid OCR $384,000, and MGH has paid OCR $515,000. In addition, each Hospital agreed to provide workforce training as part of a corrective action plan that will include OCR’s guidance on disclosures to film and media in the 2016 Media FAQ.

• Allergy Associates of Hartford, P.C. Resolution Agreement

Large institutional health care organizations are not the only HIPAA entities subjected to OCR investigation or enforcement for inappropriate sharing of PHI with the media.  In its November 2018

On November 26, 2018, OCR announced  that Allergy Associates, the three doctor health care practice Allergy Associates of Hartford, P.C. would pay OCR $125,000 and take corrective action under a  Resolution Agreement and Corrective Action Plan resolving charges stemming from comments a physician made to a reporter on a patient dispute with the practice in 2015 violated HIPAA.

According to OCR, the disclosure of patient information that prompted OCR’s HIPAA charges resulted from a physician associated with the practice commenting to a local television station reporter for a story about a disabled patient’s complaint to the station that Allergy Associates turned her away from a scheduled appointment because of her use of a service animal.  After the patient contacted the television statement to complain about being turned away by the practice when accompanied by her service animal, the station contacted the doctor for comment about the dispute between the Allergy Associates’ doctor and the patient.  Although OCR reports its investigation revealed that Allergy Associates’ Privacy Officer instructed the doctor to either not respond to the media or respond with “no comment,” the doctor nevertheless accepted the television station reporter’s invitation to comment and discussed the dispute with the reporter.

OCR learned of the physician’s unauthorized comments to the reporter when it received a copy of an October 6, 2015, HHS civil rights complaint filed on behalf of the patient with the Department of Justice, Connecticut, U.S. Attorney’s Office (DOJ) by the Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA).  In response to this complaint, OCR initiated a joint investigation with DOJ into the civil rights allegations against Allergy Associates. The complaint also alleged that Allergy Associates impermissibly disclosed the patient’s PHI in violation of HIPAA.

OCR found the physician’s discussion of the patient’s complaint without first obtaining a HIPAA-complaint authorization from the patient both violated HIPAA and demonstrated a reckless disregard for the patient’s HIPAA privacy rights.  Additionally, Resolution Agreement also states that OCR’s investigation revealed that Allergy Associates did not take any disciplinary or other corrective action against the doctor after learning of his impermissible disclosure to the media.

To resolve the HIPAA charges, Allergy Associates agrees in the Resolution Agreement and Corrective Action Plan to pay $125,000 as well as to undertake a corrective action plan that includes two years of monitoring their compliance with the HIPAA Rules.

• OCR COVID-19 HIPAA Guidance & Warnings About Media-Related HIPAA Responsibilities

With the COVID-19 pandemic fueling a torrent of media inquiries and coverage of patient, workforce and other aspects of the pandemic, OCR reminded health care providers and other HIPAA entities of HIPAA’s requirement of prior authorization before sharing PHI or allowing media to access patients or areas where media could observe patients or their PHI throughout the COVID-19 pandemic.

In its May 5, 2020 Guidance on Covered Health Care Providers and Restrictions on Media Access to Protected Health Information about Individuals in Their Facilities (“5/5 Guidance”), OCR warned covered health care providers and other HIPAA entities that the Privacy Rule prohibits HIPAA entities from giving media or film crews access to PHI including access to facilities where patients’ PHI could be accessible without the patients’ prior authorization and cautioned testing facilities and other health care providers to prevent unauthorized use, access or disclosure of test results and other PHI except as specifically allowed in the applicable HIPAA Law.  In this respect, the 5/5 Guidance quoted then OCR Director Roger Severino, as unequivocally stating “Hospitals and health care providers must get authorization from patients before giving the media access to their medical information; obscuring faces after the fact just doesn’t cut it.”

Consistent with this warning, the 5/5 Guidance described reasonable guidelines and safeguards that HIPAA entities should use to protect the privacy of patients whenever the media is granted access to facilities.  Additionally, the 5/5 Guidance specifically warned HIPAA entities among other things that:

• HIPAA does not permit covered health care providers to give the media, including film crews, access to any areas of their facilities where patients’ PHI will be accessible in any form (e.g., written, electronic, oral, or other visual or audio form), without first obtaining a written HIPAA authorization from each patient whose PHI would be accessible to the media;  
• Covered health care providers may not require a patient to sign a HIPAA authorization as a condition of receiving treatment; and
• Masking or obscuring patients’ faces or identifying information before broadcasting a recording of a patient does not sufficiently deidentify patient information to allow unauthorized disclosure.  A valid HIPAA authorization is still required before giving the media such access. 

OCR emphasized that it expected health care providers and other HIPAA entities to continue to adhere to these Privacy Rule requirements throughout the COVID-10 pandemic even as it granted temporary enforcement relief from a narrow set of other HIPAA requirements during the COVID-19 health care emergency. See e.g., 5/5 Guidance; OCR Issues Guidance on How Health Care Providers Can Contact Former COVID-19 Patients About Blood and Plasma Donation Opportunities; OCR Announces Notification of Enforcement Discretion for Community-Based Testing Sites During the COVID-19 Nationwide Public Health Emergency;  OCR Announces Notification of Enforcement Discretion to Allow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and Health Oversight Activities During The COVID-19 Nationwide Public Health Emergency; OCR Issues Bulletin on Civil Rights Laws and HIPAA Flexibilities That Apply During the COVID-19 Emergency; OCR Issues Guidance to Help Ensure First Responders and Others Receive Protected Health Information about Individuals Exposed to COVID-19; OCR Issues Guidance on Telehealth Remote Communications Following Its Notification of Enforcement Discretion; OCR Announces Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency. Also see generally HIPAA and COVID-19 | HHS.gov.

Despite these warnings, throughout the COVID-19 health care emergency videos and other media reports often incorporated videos or other images of patients and other descriptions or details about patients containing PHI reporters or media outlets obtained from accessing facilities, interviewing workforce members, or shared with the media or others allowed to access patients or facilities, often without a HIPAA-compliant patient authorization and often by workforce members without authorization or otherwise in violation of their employing HIPAA entity’s policies.  See e.g. Ezekiel Elliott COVID-Test Disclosure Highlights Health Care Provider & Plan HIPAA & Other Privacy Risks From Medical Testing & Other Medical Information;, Health care workers express overwhelming fatigue as COVID-19 cases surge across the country; Pandemic takes its toll on health care workers; ABC News Special Coverage:  Coronavirus Pandemic.  Since the widespread media coverage makes clear SJMC was not the only health care provider or other HIPAA entity where the entity or members of its workforce allowed media access to facilities, shared or allowed the media or other third-parties to take patient photos, videos, or shared or allowed media access to other PHI, additional OCR enforcement actions or settlements arising from COVID-19 related media disclosures against other HIPAA-entities are likely.

To mitigate their own organizational exposure to potential HIPAA and other privacy-related exposures from known or as-of-yet unidentified past or future media-related HIPAA violations, all HIPAA entities should consult qualified legal counsel for advice and assistance within the scope of attorney-client privilege on investigating their organizations potential risks from any past media disclosures and opportunities for mitigating any known or uncovered HIPAA exposures by acting proactively as well as for guidance on best practices to prevent or mitigate liability from future dealings with the media.

To promote their compliance and the defensibility of their practices and efforts when compliance issues arise, HIPAA entities need conduct a well-documented assessment of their current and past compliance, policies, practices and workforce training on allowing media or others to enter, film, photograph or record within their facilities or otherwise disclosing or allowing media access to their facilities as well as their policies about when parties not involved in care of a particular patient can film, photograph, or otherwise record, observe or access areas where patients or patient PHI is or might be present without prior written consent of the patient.

Going forward, all HIPAA entities should ensure their policies clearly prohibit their entities, their business associates and their workforce from allowing film or media to film, photograph or even access areas where patients or their PHI are accessible or otherwise disclosing PHI to members of the media without first obtaining a HIPAA-compliant authorization from each patient whose presence or PHI could be observed, recorded or otherwise accessed.  Adopting the policy alone is insufficient, however, HIPAA entities also need to implement and enforce appropriate procedures and training to promote compliance with those policies and processes to monitor and respond to any violations of HIPAA’s requirements.

When considering the adequacy of their current policies, practices and training concerning filming, photography and other access and disclosure to patients, patient treatment areas and other PHI, HIPAA entities should keep in mind that the obligation to prevent unauthorized filming, photography or any other PHI access or disclosure PHI extends to “any third party not involved in patient care,” not merely those to media or film crews. Consequently, HIPAA entities should address potential risks from filming, photographs or other access and disclosure to patients, patient treatment or recordkeeping areas, or PHI by all parties within or with access to their facilities or records including but not limited to staff, business associates, contractors, other patients as well as media or other visitors. 

Recognizing that the NY-Presbyterian corrective action plan included a requirement that NY-Presbyterian require “all photography, video recording and audio recording conducted on NY-Presbyterian premises” be reviewed, preapproved and actively monitored for compliance with the Privacy Rule and NY-Presbyterian’s policies, HIPAA entities also should take steps to monitor and properly restrict and protect any filming, photography or other observations, records or other PHI by individuals within their workforce, as well as to regulate the access and activities of unrelated third parties.  In this respect, HIPAA entities are cautioned about the need to prohibit and enforce suitable prohibitions against members of their workforce and others using their own personal devices or other equipment to film, photograph, and copy or disseminate photographs, film, recordings or other records or data that qualifies as or contains PHI without authorization in accordance with established protocols. 

HIPAA entities also should take steps to ensure their policies and training make clear that these prohibitions apply whether or not the workforce member believes that identity of the patient or patient information is concealed or otherwise not discoverable. 

Moreover, even with respect to photographs, films or other recordings or records legitimately created for treatment, payment or operations purposes, HIPAA entities generally need to take steps to restrict use, access and disclosure of the photographs or other recordings to individuals legitimately involved in patient treatment, operations, payment or other activities allowed by the Privacy Rule and to safeguard those materials against use, access or disclosure to others within or outside their workforce except as allowed by HIPAA and other applicable law. .

Since HIPAA entities also are likely to be subject to other statutory, ethical, contractual or other privacy or confidentiality requirements beyond those imposed by the Privacy Rule, most HIPAA entities also will want to consider and take steps to identify and address these other potential legal or ethical responsibilities such as medical confidentiality duties applicable to physicians and other health care providers under medical ethics, professional licensure or other similar rules, contractual responsibilities, as well as common law privacy or other related exposures when conducting this review.  Additionally, most HIPAA entities also will want to take into account and manage their potential exposure to privacy, theft of likeness or other intellectual property, or other statutory or common law tort or contractual claims that might attached to the unauthorized filming, photographing, or surveillance of individuals under federal or state common or statutory laws.

Since this analysis and review in most cases will result in the uncovering or discussion of potentially legally or politically sensitive information, HIPAA entities should consider consulting with or engaging experienced legal counsel for assistance in structuring and executing these activities to maximize their ability to claim attorney-client privilege or other evidentiary protections against discovery or disclosure of certain aspects of these activities.

Finally, HIPAA entities should keep in mind that HIPAA compliance and risk management is an ongoing process requiring constant awareness and diligence.  Consequently, HIPAA entities should both monitor OCR and other regulatory and enforcement developments as well as exercise ongoing vigilance to monitor and maintain compliance within their organizations.

For More Information

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

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About the Author

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

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and VIce-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

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

About Solutions Law Press, Inc.

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• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. For information about republication, please contact the author directly. All other rights reserved.

As promoters continue to blanket businesses with promises to secure Employee Retention Credits (“ERCs”), the Internal Revenue Service (“IRS”) is warning businesses to review carefully the guidelines before trying to claim the credit before filing.

The IRS warns that the IRS and tax professionals continue to see third party promoters that charge large upfront fees or a fee contingent on the amount of the refund aggressively promoting these ERC schemes on radio, online and through telemarketing. Frequently the promoters may not inform taxpayers that wage deductions claimed on the business’ federal income tax return must be reduced by the amount of the credit.

“While this is a legitimate credit that has provided a financial lifeline to millions of businesses, there continue to be promoters who aggressively mislead people and businesses into thinking they can claim these credits,” said Acting IRS Commissioner Doug O’Donnell. “Anyone who is considering claiming this credit needs to carefully review the guidelines. If the tax professional they’re using raises questions about the accuracy of the Employee Retention Credit claim, people should listen to their advice. The IRS is actively auditing and conducting criminal investigations related to these false claims. People need to think twice before claiming this.”

The IRS has been warning about this scheme since last fall, but there continue to be attempts to claim the ERC during the 2023 tax filing season. Tax professionals note they continue to be pressured by people wanting to claim credits improperly. The IRS Office of Professional Responsibility is working on additional guidance for the tax professional community that will be available in the near future.

People and businesses can avoid this scheme, and by not filing improper claims in the first place. If the business filed an income tax return deducting qualified wages before it filed an employment tax return claiming the credit, the business should file an amended income tax return to correct any overstated wage deduction.

Businesses should be cautious of advertised schemes and direct solicitations promising tax savings that are too good to be true. Taxpayers are always responsible for the information reported on their tax returns. Improperly claiming the ERC could result in taxpayers being required to repay the credit along with penalties and interest.

What is the ERC?

The ERC is a refundable tax credit enacted as part of COVID relief designed for businesses who continued paying employees while shut down due to the COVID-19 pandemic or who had significant declines in gross receipts from March 13, 2020, to Dec. 31, 2021. Eligible taxpayers can claim the ERC on an original or amended employment tax return for a period within those dates.

To be eligible for the ERC, employers must have:

• sustained a full or partial suspension of operations due to orders from an appropriate governmental authority imiting commerce, travel or group meetings due to COVID-19 during 2020 or the first three quarters of 2021,
• experienced a significant decline in gross receipts during 2020 or a decline in gross receipts during the first three quarters of 2021, or
• qualified as a recovery startup business or the third or fourth quarters of 2021.

As a reminder, only recovery startup businesses are eligible for the ERC in the fourth quarter of 2021. Additionally, for any quarter, eligible employers cannot claim the ERC on wages that were reported as payroll costs in obtaining PPP loan forgiveness or that were used to claim certain other tax credits.

To report tax-related illegal activities relating to ERC claims, submit by fax or mail a completed Form 14242, Report Suspected Abusive Tax Promotions or Preparers and any supporting materials to the IRS Lead Development Center in the Office of Promoter Investigations.

Mail: Internal Revenue Service Lead Development Center
Stop MS5040
24000 Avila Road
Laguna Niguel, California 92677-3405
Fax: 877-477-9135

Employers should also report instances of fraud and IRS-related phishing attempts to the IRS at phishing@irs.gov and Treasury Inspector General for Tax Administration at 800-366-4484.

Go to IRS.gov to learn more about eligibility requirements and how to claim the Employee Retention Credit:

• For qualified wages paid after March 12, 2020, and before Jan. 1, 2021 – Notice 2021-20; Notice 2021-49; and Revenue Procedure 2021-33.
• For qualified wages paid after Dec. 31, 2020, and before July 1, 2021 – Notice 2021-23, Notice 2021-49 and Revenue Procedure 2021-33.
• For qualified wages paid after June 30, 2021, and before Oct. 1, 2021 – Notice 2021-49 and Revenue Procedure 2021-33;
• For qualified wages paid after Sept. 30, 2021, and before Jan. 1, 2022 – Notice 2021-49 and Notice 2021-65.

Other information and resources also include:

• Employee Retention Credit – 2020 vs 2021 Comparison Chart
• Form 941-X Instructions (April 2022 Revision)– for use in conjunction with Form 941 Instructions from relevant calendar quarter
• Form 941 Instructions (December 2021 Revision);
• Form 941 Instructions (2020 Revisions):
• Form 943, 943-X, 944, 944-X, CT-1 and CT-1-X Instructions

The bottom line of these and other IRS warnings is that taxpayers improperly claiming these credits risks penalties and other liabilities even if they act in good faith reliance on assurances by a promoter or other party. Consequently, any party filing for these credits should independently confirm eligibility. Additionally, taxpayers should get and retain copies of any opinions, advice or other analysis and authorities relied upon in case of a challenge.

For More Information

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

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

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

About the Author

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

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. At her career, she has worked extensively with healthcare and other employers to manage discrimination and other workplace and employee benefit compliance and risks. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

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

About Solutions Law Press, Inc.

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

• EEOC Sexual Harassment Suit Against Texas Car Dealership Warns Other Employers To Manage Risks
• No Surprises Act Independent Dispute Resolution Portal Fully Reopened, New Fees Announced
• No Surprises Act Dispute Resolution Portal For All Covered Health Claims
• Health Plans Warned To Prevent Phishing By 1st Phishing-Related HIPAA Settlement
• Employer’s Overzealous I-9 Documentation Demand Triggers Civil Monetary Penalty
• Brett Brenner Appointed EEOC Deputy Chief Operating Officer
• Texas Private Employer COVID-19 Vaccination Mandates Effective February 6, 2024
• Pizza Operator Faces Prison Time For Failing To Pay Employment Taxes
• New HIPAA Resolution Agreement Warns Health Plans & Other HIPAA-Covered Entities To Manage Media Relations, Access & Disclosure
• IRS Announces 2024 HFSA, MSA, HDHP & Other Tax Inflation Adjustments Impacting 2024 Benefit, Withholding & Other Tax Planning
• Reviewing Newly Released 2024 Income Tax Tables Helpful For 2024 Benefit & Withholding Planning
• IRS Announces 2024 HFSA, MSA, HDHP & Other Tax Inflation Adjustments Impacting 2024 Benefit, Withholding & Other Tax Planning
• OCR Video Touts HIPAA Compliance To Avoid Costly HIPAA Penalties & Manage Cybersecurity Risks
• Work Opportunities Tax Credit Available For Certain Hires Through 2025
• DOL Sues 7-11 Franchise Owners Association Head for FLSA Pay, Record Keeping Violations
• IRS Shares Voluntary Correction Program Updates & Tips
• Labor Department Mutual of Omaha Group Companies Warns Insurers, Plans To Timely Decide Insurability In ERISA-Covered Life, Disability & Other Plans
• $80,000 Penalty Confirms Health Plans Exposure For Violating HIPAA Access Rights
• $4.4 Million Warning About Proper Billing On Government Projects
• Fake Nurse Identity Theft Plea Warning For Health Care Employers
• Education Association Union Sued For Race Discrimination
• Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities
• Labor Department Shares Resources on PERM and H-2A Program Updates
• Trucking Cos.’ $1.25M Sex Discrimination Warns Other Employers
• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
• Don’t Get Stuck Paying Another Employer’s Overtime Or Other Backpay
• NLRB Restores Pre-Obama Era Union Dues Checkoff Rule
• $1.6M HIPAA Penalty Largely Caused By Inadequate Security Assessments & Oversight  
• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
• College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS  
• OCR Sanction Of 44th Health Care Provider For Violating HIPAA Right of Access Rules Warning To Other Covered Entities
• Medical Center’s Overtime Award Highlights FLSA Risks For Health Industry Employers
• HHS Prepares To End COVID Vaccine Mandate

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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

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

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

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

West Virginia based Ole Jose Grill & Cantina LLC, paid $167,000 in back pay and penalties to 17 tipped employees after the U.S. Department of Labor Wage and Hour Division found the employer improperly calculated their overtime under the Fair Labor Standards Act (FLSA).

FLSA & Food Service

The minimum wage, overtime, and record keeping requirements of the FLSA generally apply to all non exempt restaurant employees with some special rules.

The FLSA requires most restaurants to pay covered non-exempt workers a federal minimum wage of not less than $7.25 per hour. (State law may impose a higher minimum wage.)

An employer may take credit for food which is provided at cost. However, the employer cannot take credit for discounts given employees on food prices.

Tips received by tipped employees may be considered as part of wages, as long as the employer pays the employee not less than $2.13 an hour in direct wages and ensures that the amount of tips received is enough to meet the remainder of the minimum wage. Furthermore:

• Only employees who customarily and regularly receive more than $30 a month in tips qualify for treatment as tipped employees;
• The employer must inform the tipped employee of the provisions of FLSA section 3(m) in advance if the employer elects to use the tip credit; and
• Employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.

Additionally, restaurants must pay overtime at a rate of at least one and one-half times the employee’s regular rate of pay for each hour worked in excess of 40 hours per week.

In determining the regular rate for a tipped employee, all components of the employee’s wages must be considered including cash, board, lodging, facilities, and the tip credit.

Furthermore, deductions made from wages for items such as cash shortages, required uniforms, or customer walk-outs are illegal if the deduction reduces the employee’s wages below the minimum wage or cuts into overtime pay. Deductions made for items other than board, lodging, or other recognized facilities normally cannot be made in an overtime workweek.

Ole Jose Grill & Cantina’s Violations

A Wage and Hour Division investigation found Ole Jose Grill & Cantina violated the overtime requirements of the FLSA by paying tipped employees time and one-half their cash wage for hours over 40 in a workweek instead of time and one-half the applicable minimum wage. Additionally, the investigation found Ole Jose Grill & Cantina misclassified one tipped employee as an independent contractor, paid kitchen staff a flat rate for all hours worked with no overtime premium paid and failed to keep hours worked records for the back of house kitchen employees.

For these violations, the Wage and Hour Division ordered the employer to pay a total of $83,632 in backpay and $83,632 in penalties to 17 workers.

The award against Ole Jose Grill & Cantina warns other restaurant and food services employers to use card to properly classify, track hours of work and pay all required wages and overtime.

For More Information

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

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

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

About the Author

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

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Author of a multitude of highly regarded publications on HIPAA and other medical record and data privacy and scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

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

About Solutions Laws Press, Inc.

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

• EEOC Publish Guidance Discrimination & Accommodation Duties Applying Vaccine Mandates
• Construction Industry Urged To COVID-19 Safety & Timekeeping Protocols
• IRS Warns Of Fraudulent Promotion of COVID Employee Retention Credits
• OSHA Enforces Whistleblower Rights Of Worker Terminated For Expressing COVID-19 Safety Concerns
• Children’s Hospital Pays $45K To Resolve COVID Vaccine Religious Discrimination Suit
• Prepare Feedback! Tri-Agencies Plan To Reopen Surprise Billing Proposed Dispute Resolution Rule Comment Period
• H-2B Application Filing Window For 4/1/24 Opens 1/2/24
• EEOC Sexual Harassment Suit Against Texas Car Dealership Warns Other Employers To Manage Risks
• No Surprises Act Independent Dispute Resolution Portal Fully Reopened, New Fees Announced
• No Surprises Act Dispute Resolution Portal For All Covered Health Claims
• Health Plans Warned To Prevent Phishing By 1st Phishing-Related HIPAA Settlement
• Employer’s Overzealous I-9 Documentation Demand Triggers Civil Monetary Penalty
• Brett Brenner Appointed EEOC Deputy Chief Operating Officer
• Texas Private Employer COVID-19 Vaccination Mandates Prohibited Effective February 6, 2024
• Pizza Operator Faces Prison Time For Failing To Pay Employment Taxes;
• New HIPAA Resolution Agreement Warns Health Plans & Other HIPAA-Covered Entities To Manage Media Relations, Access & Disclosure
• IRS Announces 2024 HFSA, MSA, HDHP & Other Tax Inflation Adjustments Impacting 2024 Benefit, Withholding & Other Tax Planning
• Reviewing Newly Released 2024 Income Tax Tables Helpful For 2024 Benefit & Withholding Planning
• IRS Announces 2024 HFSA, MSA, HDHP & Other Tax Inflation Adjustments Impacting 2024 Benefit, Withholding & Other Tax Planning
• OCR Video Touts HIPAA Compliance To Avoid Costly HIPAA Penalties & Manage Cybersecurity Risks
• Work Opportunities Tax Credit Available For Certain Hires Through 2025
• DOL Sues 7-11 Franchise Owners Association Head for FLSA Pay, Record Keeping Violations
• IRS Shares Voluntary Correction Program Updates & Tips
• $80,000 Penalty Confirms Health Plans Exposure For Violating HIPAA Access Rights
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• OSHA Proposing To Expand Third Parties Allowed To Accompany Employees During Inspections
• Employers Should Prepare for Proposed DOL Rules To Disqualify Additional 4 Million Workers For FLSA Exempt Status
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• Remote Work Role Not Justification For Failure To Accommodate Deaf Applicant, EEOC Charges
• Tri-Agencies Announce New Surprise Billing IDR Fees While Continuing IDR Suspension After Federal Court Ruling
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IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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

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

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2024 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.

A slew of recent U.S. Department of Labor Wage and Hour Division (WHD) high dollar recoveries alert restaurant and other hospitality industry employers to clean up their Fair Labor Standards Act (FLSA) wage and hour, H-2B and other workforce compliance.

Popeyes Franchise- $212,000

On February 7, 2024, the Labor Department announced its recovery of $212,000 in Baxley and penalties from California Popeyes franchisee 14th St. Chicken Corp. for violations of federal child labor and wage and hour laws. The WHD says this is the third time that the it has cited the franchisee for violations of the Fair Labor Standards Act

The latest WHD investigation found the Popeyes fast-food chain franchiseedetermined the employer violated the FlSA by shortchanged workers by failing to pay overtime earnings for hours worked over 40 in a workweek.

Additionally, the investigation revealed the franchisee violated child labor rules by hiring children as young as 13-years-old and minors who worked later and longer than permitted by child labor laws at the employer’s three Oakland, Tracy and Newark locations.

Prior violations involved the Oakland and Tracy restaurants in 2003 and 2022, respectively.

For these violations, WHD

• Recovered $39,826 in unpaid overtime wages and $39,826 in damages for 15 employees;
• Imposed $121,104 in civil money penalties for child labor violations;
• Imposed $12,104 in civil money penalties for overtime violations.

In fiscal year 2023, the Wage and Hour Division found child labor violations in more than 950 investigations, resulting in more than $8 million in penalties assessed to employers. on the recoveries.

The announcement warns the Labor Department plans to continue prioritizing child labor law investigations and enforcement quoting Wage and Hour Division Assistant District Director Alberto Raymond as saying:

The U.S. Department of Labor is determined to fight child labor violations in all sectors, including the fast-food industry.”

Sails Restaurant LLC – $184,139

On February 7, 2024, the Labor Department announced its recovery of has recovered $184,139 in back wages and liquidated damages for 56 seasonal guest workers and U.S. workers of a Naples restaurant after finding multiple violations of federal nonimmigrant work program regulations and federal minimum wage and overtime regulations.

The federal H-2B visa program permits U.S. employers to temporarily hire nonimmigrants to perform nonagricultural labor or services. However, the employment must be for a limited, specific period of time, such as a one-time occurrence, seasonal, peak load or intermittent need and the employment must comply with all the conditions for hiring applicable to that program.

The WHD says it’s investigation of Sails Restaurant LLC (Sails) found multiple violations of requirements of the H-2B worker visa program including:

• Misrepresenting job requirements despite having previously used and knowing the requirements by willfully misrepresenting access to high-paid server positions with unlimited earnings potential when instead no such job existed; promotional positions out of reach for many; and shifting a dining room attendant to another job as a construction laborer;
• Imposing special experience requirements for H-2B workers to qualify for jobs;
• Failing to list all qualifications in the job order;
• Not giving proper notices related to job termination, denying H-2B workers U.S. work status rights;
• Improperly classifing jobs or excluded job tasks on work orders;
• Failing to provide job orders or notify workers of their rights; and
• Not reimbursing visa expenses for H-2B workers, despite being aware of the requirement.

WHD also found Sails violated the Fair Labor Standards Act (FLSA) by illegally keeping the tips of some H-2B and U.S. workers, failing to pay one worker their last paycheck and paying an incorrect overtime rate to tipped employees.

For these violations, WHD required Sales to pay the wrongfully denied wages and assessed $53,536 in civil money penalties.

Wage and Hour Division District Director Nicolas Ratmiroff warned, “Hospitality and food industry employers must understand that regardless of whether the employer is taking a tip credit, employers are prohibited from keeping employee tips or requiring that an employee give their tips to the employer, a supervisor, or manager.

$359,000 Retaliation Judgment

Along with complying with FLSA, child and migrant labor and other rules, employers also are cautioned to avoid retaliation against workers in violation of federal employment laws by first ever federal court order to jointly impose liability against an employer for violation of the FLSA and the Occupational Safety and Health Act (OSH Act).

In a December 15, 2023 judgment, a federal court ordered a Milford sports bar and its owner to pay employees a total of $359,485 in back pay, emotional distress damages, withheld compensation and punitive damages for violating the anti-retaliation provisions of the FLSA and The OSH Act.

The retaliation judgment resulted from a Labor Department lawsuit filed against Milford Sports Bars LLC, doing business as Champions Grill and Bar, and its owner, Loren Drotos, who is also known as Mark Roberts, Mark Drotos and Mark Lawrence.

The suit filed in the U.S. District Court for the District of Connecticut in February, 2022 alleged that in January 2022, the employers threatened an employee who asked the employer to pay him compensation earned then unlawfully terminated employees who participated in an inspection by the Occupational Safety and Health Administration.

The Labor Department also alleged that, after firing employees within days of exercising these federally protected rights, the employers sought to further chill employees from engaging in protected activities and cooperating with federal investigators by sending a message to employees that they should not talk to the Labor Department.

The District Court accepted the Labor Department’s partment’s allegations as true and issued an order granting $6,770 in back pay, $2,715 in withheld wages, $125,000 in emotional distress damages and $225,000 in punitive damages to the affected employees. The court order also prohibits the employers from future violations of the anti-retaliation provisions of the FLSA and OSH Act.

According to Regional Solicitor of Labor Maia Fisher, “The court’s award of $225,000 in punitive damages and over $359,000 in damages overall sends a clear message that the U.S. Department of Labor will not tolerate such behavior.”

Restaurant & Other Hospitality Employers Should Strengthen Compliance & Risk Management

Following on the heels of other similar enforcement actions, these Labor Department actions send a clear signal that restaurant and other hospitality employees should ensure their ability to defend their compliance with the FLSA, H-2B and other foreign labor, OSHA, anti retaliation and other laws enforced by the Labor Department.

The award against Ole Jose Grill & Cantina warns other restaurant and food services employers to use card to properly classify, track hours of work and pay all required wages and overtime.

For More Information

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

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

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About the Author

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

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Author of a multitude of highly regarded publications on HIPAA and other medical record and data privacy and scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

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

About Solutions Laws Press, Inc.

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

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©2024 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.