“SOX” Whistleblower Provision Decision Could have Widespread Implications for Private Companies

In a recent opinion, the United States Supreme Court held that the whistleblower protection provisions of the Sarbanes-Oxley Act (“SOX”) applies to employees of private companies that act as contractors or subcontractors to public companies.  Specifically, the issue before the Court was whether SOX’s whistleblower protection provisions, found at 18 U.S.C. §1514A, forbid publicly traded companies, mutual funds, and contractors or subcontractors of such companies from discriminating or retaliating against an employees of a privately-held contractor or subcontractor of a public company because of certain protected conduct.  This decision could have widespread implications for private companies.

In Lawson, et al. v. FMR LLC, et al., decided on March 4, 2014, Petitioners Jonathan M. Zang and Jackie Hosang Lawson worked for private companies that were  subsidiaries of FMR LLC (“FMR”) and provided advising/management services to the Fidelity family of mutual funds (“Fidelity funds”).  The Fidelity funds are registered with the Securities Exchange Commission (“SEC”) and comply with the Securities Exchange Act of 1934.

Zang was an employee of FMR, Co. until July 2005, when FMR, Co. terminated his employment.  Zang alleged that he lost his job as retaliation after voicing concerns about inaccuracies in a draft registration statement that violated federal security laws.  Lawson was an employee of Fidelity Brokerage Services, LLC, a subsidiary of FMR, until 2007, when she resigned claiming that she had been constructively discharged. Lawson had filed several complaints with the companies and OSHA alleging that her employer retaliated against her for raising concerns about cost-accounting methods.

Zang and Lawson sued their respective Fidelity employers, alleging that the companies retaliated against them for reporting what they believed to be securities law violations. Section 1514A of the Sarbanes-Oxley Act protects employees of public companies from retaliation after the employee “blows the whistle” on the company. Zang and Lawson argued that § 1514A should also apply to employees of private contractors and subcontractors contracting with public companies, since these employees may be in the best position to report problems.

FMR argued that Congress only intended § 1514A to apply to public employees, and that extending coverage would result in an unmanageable amount of litigation. The First Circuit ruled that § 1514A protects only public employees, and that Congress must expand coverage if it wants to cover employees of private contractors.  The Supreme Court granted certiorari, or review.

Justice Ruth Bader Ginsburg delivered the opinion of the 6-3 majority. The Supreme Court held that whistleblower-protection provision of the Sarbanes-Oxley Act protects employees of private contractors and subcontractors just as it does employees of the public company served by the private contractors and subcontractors. Because there was no language in the Act that specifically limited the covered employees to those working for the public company, the Court held that Congress must not have intended the Act to have such a limited scope.

The legislative record supports the view that Congress was aware of the role that outside contractors can play in recognizing and reporting fraud, and that fear of retaliation can prevent them from fulfilling that role.

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Foley & Mansfield Named to Law360 Top 400

Foley & Mansfield ranked #264 among the nation’s largest law firms in the inaugural Law360 Top 400 list released this week by Law360, a LexisNexis Company.   

According to BTI Consulting Group Inc., which was cited in the Law360 announcement, the market for outside counsel in the U.S. was $60.2 billion in 2013. “The need for corporate legal services has never been larger,” says Foley & Mansfield founding partner Kyle Mansfield. “However, corporate legal departments are increasingly engaged in a balancing act between their need to utilize the focused skills and manpower of outside counsel with the need to contain costs.  Our experience and efficiencies put us in a solid position to provide exceptional value to the corporate client.”

Foley & Mansfield is a national law firm with a diverse practice of business and trial attorneys in ten offices across the U.S.  The firm continues to grow and expand services to clients across the country, adding 29 attorneys to its ranks in 2013, with an additional four joining the firm thus far in 2014. We invite you to contact us to learn more about how we can serve your business – visit us at http://www.foleymansfield.com.

 

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Minnesota Business Filings: Identical Names and Trademark Implications

The Minnesota Secretary of State recently released business filing statistics for 2013.  The total number of filings for 2013 was 58,260, down about 3% from 2012.  Other statistics from 2013:

  1. Of all Minnesota Limited Liability Companies and Minnesota Business Corporations filings, LLCs represented 83%.
  2. LLCs and Corporations filings represented 60% of all filings.
  3. Approximately 6% of the total filings were foreign registrations.
  4. Assumed Names filings were just short of 15,000, less than 50% of the business entity filings.
  5. There were only 340 Trademark filings.
  6. The number of Foreign LLCs filings(1,838) was only slightly greater than the number of Foreign Corporations filings (1,658).

The following is an explanation of one current practice in the filings process that Foley & Mansfield wants to ensure that business clients fully understand as well as the implications for company trademarks.

The Secretary of State’s Office will now accept filings with identical names if differentiated by the entity type.  That is, “Frog Burgers, Inc.” and “Frog Burgers, LLC”  can both be filed.  MS 302A.115 Subdivision 3 states that the SOS is to determine whether a name is “distinguishable.”  Apparently “Inc.” and “LLC,” as well as the other entity designations, are now distinguishing elements.  This is a fairly recent development.

Of the 35,000 business entity filings the Assumed Names filings are less than 50%. Realizing that many of the Assumed Names filings are held by older entities or by individuals, it becomes clear that relatively few of the new entity filings are also doing Assumed Name filings.  Given the lack of discrimination being applied by the SOS, the better practice should now be that all entity filings are also filed as an Assumed Name.

This name issue also increases the importance of the name as a trademark. The very low number of Trademark filings may reflect an attitude that those filings are somewhat of an unnecessary practice at the state level.  But, it also should increase our attention to the need for federal trademark searches and filings, especially in this time of increased inter-state commerce.

Paul Christensen is an attorney with Foley & Mansfield, where he assists businesses and individuals with estate, business succession and select tax matters. He can be reached at pchristensen@foleymansfield.com

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Minnesota Sales and Use Tax on Storage and Warehousing Services

The Minnesota Department of Revenue recently issued “Fact Sheet Number 178” addressing the imposition of Sales and Use Tax on Storage and Warehousing Services. Businesses using outside services should become very familiar with this new tax.

The greatest impact will be on those businesses which outsource their distribution functions, such as a manufacturer, which uses a third party to warehouse, inventory, and ship products to the customer.  This sales and use tax applies to services provided and not to bare rents paid.  Consequently, the new tax will undoubtedly lead to some creative contracts attempting to separate rents and services in this area of business.

Foley & Mansfield clients who use such services will likely be aware of the new tax, but may not be aware of its precise application.  Our attorneys stand ready to assist clients and help protect them from future surprises upon audit.

Caveat: While the “Fact Sheets” provided by the Minnesota Department of Revenue are generally reliable, it should be remembered that these documents are not “fact sheets,” but rather represent the position of the Department on the tax issues presented.

Paul Christensen is an attorney with Foley & Mansfield, where he assists businesses and individuals with estate, business succession and select tax matters. He can be reached at pchristensen@foleymansfield.com

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J. Scott Wood Named to Equity Partnership at Foley & Mansfield

Foley & Mansfield is pleased to announce that the firm has further strengthened its senior team with the addition of attorney J. Scott Wood to its equity partnership. Wood joined the firm’s Oakland office in early 2007, subsequently founding its Seattle office in 2010. He serves as managing partner of Seattle operations in addition to maintaining an active practice in California.

“Scott has proven his value as both a counselor and advocate for our clients, and has continually demonstrated the leadership qualities necessary to help us effectively manage and grow our business,” says founding partner Kyle B. Mansfield. “We are incredibly pleased with this addition to the equity partnership and with Scott’s commitment to the long-term benefit of our clients and employees,” he adds.

With nearly two decades of experience as a litigator, Scott has an extensive background advising and litigating a variety of matters, representing clients in the areas of commercial litigation, construction, products liability, premises liability, and toxic torts. His commercial litigation experience has focused specifically in the areas of real estate, real property, commercial contract, and general business disputes. He has handled trials, arbitrations, mediations/settlement conferences, and appeals for hundreds of clients ranging from individuals to large corporations.

“It’s an honor to be invited to join the equity partnership of the firm,” says Wood. “I am delighted at this opportunity to further contribute to the firm’s continued growth and diversification.”

Wood is a member of the Washington, Oregon and California State Bar Associations, the Washington Defense Trial Lawyers Association, and the Defense Research Institute (DRI).

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Foley & Mansfield Elects Two to Partnership

 Foley & Mansfield today announced that two attorneys have been elected to the partnership. Holly E. Acevedo (Los Angeles) and Elizabeth Sorenson Brotten (Minneapolis) have been associate attorneys with the firm, with a focus in toxic and mass tort litigation.

Acevedo has more than 10 years of civil litigation experience. She represents a wide spectrum of product and premises defendants in all aspects of litigation, including personal injury and wrongful death cases. She also has substantial experience managing cases for equipment manufacturers in asbestos/toxic tort litigation.

Sorenson Brotten focuses her practice on the defense of product liability and toxic tort cases. A native of North Dakota, she is experienced with legal matters involving oil and gas law, including assisting clients in the negotiation of lease and easement agreements. She also has experience representing clients in general commercial litigation and appeals.
 
“Both of these women have a strong history working closely with our firm clients,” says Kyle Mansfield, co-founder of the firm. “They are extremely talented, respected, and well liked by their peers. We are excited to have them moving into leadership roles at Foley & Mansfield.” 

 

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Foley & Mansfield Named 2014 “Go-To” Law Firm for Fortune 500 Clients

Foley & Mansfield is pleased to announce that it has been selected as a 2014
“Go-To” Law Firm by American Lawyer Media (ALM). The publisher of The American Lawyer, Corporate Counsel, The Law Journal Press and The National Law Journal, ALM produces this annual guide as a primary source for referencing elite “go-to” law firms that serve corporate in-house and general counsel. As part of its research, ALM gathers data through its own research and from Fortune
500
companies’ General Counsel, to recognize elite outside counsel
delivering exceptional work.

Seven major corporations selected Foley & Mansfield as their “Go-To” firm in the areas of torts litigation, labor litigation and contracts litigation.  Learn more about our capabilities at http://www.foleymansfield.com

 

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South Florida Legal Guide Names Three Foley & Mansfield Partners to 2014 Top Lawyers List

Foley & Mansfield is pleased to announce that three attorneys from our Miami office have been named to the South Florida Legal Guide Top Lawyers list. Named Top Lawyers in South Florida are managing partner Virginia Easley Johnson for Litigation and partner Kevin O’Connor for Medical Malpractice Defense. Partner Timothy J. Ferguson was named a Top Up and Comer in Product Liability and Toxic Tort defense. All have been recognized by the guide for multiple years. 

Top Lawyers is a definitive list of ‘lawyer’s lawyers’ in South Florida, based on a peer nomination procedure.  Well regarded in the legal profession, they have many years of experience and a distinguished record of achievement. Top Up and Comers were nominated by top attorneys who were asked to evaluate younger attorneys who are already making their mark on the legal profession.

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Buy-Sell Agreements A Must for Closely-Held Businesses

Buy-Sell Agreements, also known as “Shareholder Control Agreements” or “Member Control Agreements” in the LLC context, are binding contracts of closely held companies designed to facilitate the continued operations of a business.

On a basic level, the Buy-Sell provides guidance as to how an owner can leave the business, whether that is through an offer to purchase by a third party, or for other reasons, such as death, disability and divorce. A Buy-Sell will set forth the owners’ agreement as to what types of events will trigger options of either the company or the remaining owners to buy a departing owner’s shares, how and when that purchase can take place and the value of the shares.

Owners of closely held businesses should carefully consider these matters when planning for the future in order to protect their stake in a business and the stability of the business itself. A well-drafted Buy-Sell unified with a comprehensive personal estate plan offers the best protection available for the owner of a closely held business and for ensuring the continuation of a successful business.

For information or assistance, contact Foley & Mansfield business attorney Allison Brandenburg – abrandenburg@foleymansfield.com.

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Foley & Mansfield’s Northern California Trial Teams Limits New Jersey Asbestos Damage Demand

In Kaenzig v. Whittaker Clark & Daniels (New Brunswick, NJ), Foley & Mansfield’s Northern California trial team succeeded in limiting a multi-million dollar damage demand sought by the plaintiffs in this recently decided mesothelioma TALC exposure case. On November 1, 2013, plaintiffs Steven and Linda Kaenzig were awarded damages of $1.4 MM for Mr. Kaenzig’s peritoneal mesothelioma and $200,000 for Mrs. Kaenzig’s Loss of Consortium claim.

Douglas G. Wah, Esq. of Foley Mansfield’s Northern California office represented defendant Whittaker, Clark and Daniels, Inc., with Nora Grimbergen, Esq. of Hoagland, Longo of New Brunswick, NJ, assisting. Wah, a skilled trial attorney who has successfully tried a significant number of asbestos cases to verdict in his 30+ years of practice, was contacted about this case a mere four days before trial started. Nonetheless, Wah put together a case that resulted in a positive result for his client.

The Honorable Vincent J. LeBlon of New Brunswick, New Jersey, presided, while Moshe Maimon, Esq. and Leah Kagan, Esq. of Levy, Philips & Konigsberg, New York, NY represented the Kaenzigs. Mr. Maimon is well known for obtaining the largest asbestos compensation verdict in New Jersey history – a $30.3 million dollar award in the Mark Buttitta v. Asbestos Corp., et al. action. The verdict was upheld by the State’s Appellate Court.

A number of interesting facts emerged during the trial regarding the plaintiff’s exposure. Stephen Kaenzig, 47 years old, was diagnosed with peritoneal mesothelioma in 2012 and underwent a radical pleurectomy immediately followed by a program of aggressive chemotherapy.

His exposure was the traditional, para-occupational ‘take home’ exposure from his father’s work clothes. The plaintiff’s father worked with talc at the Shulton/Old Spice plant from 1967 to 1975. Both Kaenzig and his father testified that when the plaintiff was a child, the two would regularly wrestle on the floor upon his father’s return home from work. Plaintiff also believed he was exposed to the Whittaker, Clark & Daniels talc when his mother washed the family’s clothes – including his father’s work clothes – as he often played in the laundry room when she performed this task. There was additional testimony that Kaenzig’s parents used Shulton talcum powder products brought home from the plant when plaintiff was diapered as an infant.

Ironically, the plaintiff was and is employed as an insulator, although he claimed no asbestos exposure from this line of work. He stated that he started insulating in the 1990s which, by that time, all asbestos had been removed from the jobsites where he was working prior to his arrival.

Testifying for the plaintiffs, geologist Sean Fitzgerald told the jury that the three sites where the defendant mined talc were contaminated with actinolite, anthophylite and tremolite – all asbestos contaminants. Occupational medicine expert Dr. Jacqueline Moline in turn testified that the contaminated Whittaker talc was the significant and only factor causing the plaintiff’s mesothelioma. Further, she told the jury that plaintiff’s long-term prognosis was not good, despite his healthy appearance in court. (Mr. Kaenzig appeared in good shape physically, which is unusual for a living mesothelioma plaintiff.) Dr. Moline described the pain and suffering that the plaintiff would likely experience as his condition worsened and eventually result in his death.

The last witnesses for the plaintiffs were Mr. Kaenzig’s wife Linda and several of his four children, who range in age from 12 to 22. As expected, this testimony was highly emotional and heart rendering, causing several of the female jurors to cry during the testimony.

Only two witnesses were called by defendant Whittaker, Clark & Daniels; epidemiologist Dr. Kenneth Mundt and pathologist Dr. Michael Graham. Dr. Mundt testified that cosmetic talc – the type used by the defendant – cannot cause mesothelioma. Dr. Graham confirmed plaintiff’s disease as peritoneal mesothelioma, but added that there were no markers of exposure to asbestos. Dr. Graham stated that even if the talc had been contaminated with chrysotile asbestos, that particular fiber does not cause mesothelioma. He testified that the plaintiff’s peritoneal mesothelioma was idiopathic, i.e. a cause could not be determined.

After a jury deliberation of nearly three days, Mr. Kaenzig was awarded $1.4 million dollars in damages and his wife Linda was awarded $200,000 dollars for Loss of Consortium.  The verdict was 5 to 1 in favor of plaintiff.

While disappointed with the verdict overall, defendant Whittaker, Clark & Daniels was nonetheless satisfied with the jurors’ good judgment and the reasonable monetary award given the plaintiff.

For additional information on this and other asbestos or toxic tort matters, please contact Foley & Mansfield’s Douglas Wah at dwah@foleymansfield.com.

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F&M Wins Landmark Ruling in TCPA Litigation

In a landmark Court Ruling, the Orange County Superior Court has held in Cynthia Stockwell v. Credit Management, L.P., that in order for a defendant to be subjected to liability under the Telephone Consumer Protection Act (48 U.S.C. § 227 et seq.) (“TCPA”), the defendant’s calling technology must have a number generator.

On October 3, 2013, the Orange County Superior Court for the state of California granted judgment in favor of Credit Management, LP on this very issue.  Under the TCPA, a defendant must have been using an Automatic Telephone Dialing System (“ATDS”).  The statute defines an ATDS as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial those numbers. (47 USC § 227(a)(1).)

In its Summary Judgment motion, Credit Management argued and presented evidence that it does not have a number generator of any kind attached to its calling technology. Plaintiff offered no evidence in opposition and merely relied on numerous cases holding that predictive and preview dialers qualify as an ATDS.

In its ruling, the Court relied heavily on the Ninth Circuit opinion Satterfield v. Simon and Schuster, Inc. (9th Cir., 2009) 569 F.3d 946, which held that the definition of what an ATDS is, is clear and unambiguous. Thus, the Court is precluded from looking at any other source as an aide in interpreting and applying what that definition means; including the Stockwell Plaintiff’s contentions regarding predictive and preview dialers. The Court held that in order to qualify as an ATDS, the calling technology had to have a number generator and it was uncontroverted that Credit Management’s calling technology did not have a number generator.  Therefore, Credit Management does not have an ATDS and cannot be exposed to liability under the TCPA.

This is a monumental ruling in the arena of TCPA litigation as the number of filings has exploded in recent years, including class action cases that sometimes seek tens of millions of dollars in damages. Representing Credit Management, L.P., was attorney Sean P. Flynn of Foley & Mansfield’s Los Angeles office.

For additional information or assistance, comntact Sean at sflynn@foleymansfield.com

 

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Lisa Lamm Bachman Obtains Favorable Defense Verdict in MN Non-Compete Dispute

Our client worked as an operations manager for a third-party logistics transportation company for six years.  During that time, she had ongoing concerns about her employer’s long-term vision and her future prospects for advancement within the organization.   As a result, she eventually accepted a position with another company, which although in the same industry, did not initially compete for the type of business she was responsible for in her previous job.

Within two months after beginning her new job, our client’s previous employer sued her and her new employer for claims including breach of a non-compete agreement, breach of duty of loyalty, unfair competition, misappropriation of trade secrets and/or confidential information and tortious interference with prospective advantage.  The plaintiff sought more than $36M in alleged future lost profit damages.

When the lawsuit commenced, our client initially sought legal counsel from a trusted employment law advising attorney, who attempted to negotiate with the former employer.  When negotiations failed, he brought in Foley & Mansfield litigator Lisa Lamm Bachman – within less than two months before trial.  Lisa and counsel for the defendant company knew they had a strong argument regarding the circumstances of the non-compete agreement – namely, that the non-compete in and of itself was a non-issue, but convincing a judge of that was another matter altogether, as plaintiff’s  counsel raised numerous factual questions regarding the agreement.

When first accepting the job with the Plaintiff employer years prior, our client maintained that a non-compete agreement had not been discussed, let alone any specific terms disclosed, prior to her acceptance of the job.  When she began working  three weeks later,  our client was asked to sign the non-compete agreement.  However, contrary to Minnesota law, she was not provided consideration in exchange for her agreement to be bound by the terms of the non-compete.  Under cross-examination, Lisa was able to obtain an unequivocal admission from the president of the company that he made it a practice to never to discuss the terms of a non-compete with prospective employees.

Lisa was also able to disprove the allegations that our client breached her duty of loyalty, or had in fact misappropriated any trade secrets from her former employer.  After a nine day bifurcated jury trial on liability, the jury rendered a verdict in favor of our client and her current employer on all claims.  While the Plaintiff claimed $36M in future lost profits, the jury found no liability on the part of either defendant and therefore no damages were awarded.  Counsel representing the defendant employer relayed that Lisa’s diligence, savvy examination of witnesses, and overall trial experience contributed significantly to the defense verdict.

For additional information on our employment law practice, contact lbachman@foleymansfield.com.

 

 

 

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E-Verify Currently Unavailable for Employee Verification

Employers:  E-Verify is currently unavailable due to the government shutdown. While E-Verify is unavailable, you will not be able to access your E-Verify account. For details, visit http://lnkd.in/bZvg6NE.

For additional information or assistance on employment-based immigration matters, including I-9 compliance or audits, contact Mary Ellen Reihsen – mreihsen@foleymansfield.com. Also visit http://www.i-9compliancelawyers.com/  for more resources.

 

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SEC Whistleblower Award Tops $14M

In a sign that stepped-up governmental programs to address and stop fraud are proving effective, the SEC announced today the largest whistleblower award to-date.  A whistleblower whose information led to an SEC enforcement action that recovered substantial investor funds has been award more than $14 million dollars  -  Read the press release at: http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370539854258

For more information on how to identify and report fraud against the government, visit www.whistleblowerclaimscenter.com.

 

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Off and Running: Federal Government Releases Final Rule For Employee Wellness Programs

New federal regulations are designed to help employers trim the fat from their employee health care programs – literally and figuratively.

In May the Obama administration released the Final Rule governing employee wellness programs under the 2010 Patient Protection and Affordable Care Act.  In an effort to reduce health care costs, an increasing number of employers are turning to programs that encourage employee wellness; in fact, the Labor Department reports that more than 90 percent of companies with 200 or more employees have programs to promote healthy behavior or prevent disease.

The Final Rule gives companies more flexibility to reward – or penalize – their employees based on certain health measures, but also includes measures to prevent discrimination against less healthy individuals.

Types of Wellness Programs

Specifically, the Final Rule addresses two main types of programs. Participatory wellness programs include arrangements that reimburse employees for all or part of the cost of gym memberships, or reward employees for undergoing diagnostic testing (to detect and treat preventable diseases) or attending health education seminars. Health contingent programs may include those that impose a premium surcharge based on tobacco use, or reward employees for attaining a healthy cholesterol or blood pressure level, or favorable weight.

The Final Rule increases the maximum permissible reward under a health-contingent wellness program from 20 percent to 30 percent of the cost of coverage.  Additionally, the maximum permissible reward is increased up to 50 percent for wellness programs designed to prevent or reduce tobacco use.

For example, suppose an employer sponsors a group health plan with an annual individual premium of $6,000 (the employer pays $4,500 annually and the employee pays $1,500).  The plan offers a health-contingent wellness program focused on exercise and maintaining a healthy weight, cholesterol, and blood pressure.  Here, the employer could offer complying employees an annual premium rebate of up to $1,800 ($6,000 x 30% = $1,800).  If the health-contingent wellness program focuses exclusively on preventing tobacco use, employees who do not smoke or successfully quit smoking could receive an annual premium rebate of up to $3,000 ($6,000 x 50% = $3,000).

Program Criteria

Under the Final Rule, health-contingent wellness programs must meet five elements:

1)  The program must give employees the opportunity to qualify for the reward at least once per year.

2)  The rewards must comply with the 30 percent/50 percent criteria.

3) The reward must be available to all similarly situated individuals, and a reasonable alternative standard must be made available to individuals who cannot satisfy the applicable standard criteria.  For example, an employer may provide an award to participants who have a body mass index (BMI) that is 26 or lower, measured shortly before the beginning of the year.   Any employee who does not meet the target BMI is given the same discount if the employee complies with an exercise program that consists of walking 150 minutes a week.  However, if an employee cannot meet the BMI threshold or comply with the walking program because of a medical condition, the employee must be given the opportunity to satisfy an alternative standard.  Here, the employer could work with the employee or the employee’s physician to develop an alternative, such as a personally-tailored diet and exercise plan.  If the employee complies with the diet and exercise plan, then he or she is eligible for the reward.

4) The program must be reasonably designed to promote health or prevent disease, and must not be overly burdensome or a subterfuge for discriminating based on a health factor.

5) The plan must disclose, in all plan materials describing the terms of the program, the availability of other means of qualifying for the reward, or the possibility of waiver of the otherwise applicable standard.

Privacy Concerns

Importantly, the Final Rule does not address the privacy and confidentiality of health information.  Therefore, employers must still abide by all state and federal laws regarding the privacy, disclosure, and confidentiality of employee (patient) health information.  Regular HIPAA Privacy and Security Rules will still apply to health plans and providers.

An experienced health care/employment attorney should be consulted when drafting criteria for a wellness plan, as “boiler plate” documents may not suffice.  Importantly, failure to comply with the Final Rule’s requirements may expose employers to liability under the Americans with Disabilities Act or other anti-discrimination laws.

The Final Rule, released May 29th, is slated to take effect for plan years beginning on or after January 1, 2014.  It is available online at:

http://www.ofr.gov/OFRUpload/OFRData/2013-12916_PI.pdf

Mercedes Varasteh Dordeski is an attorney with the Detroit and Grand Rapids offices of Foley & Mansfield, PLLP.  She is a member of the firm’s employment, health care law, and False Claims Act practice groups.  She may be reached at (248) 721-4200 or mdordeski@foleymansfield.com

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