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Ch-Ch-Changes* – Immigration Updates


Sep
11

As we have seen the last two years, there are changes to the U.S. immigration system almost daily. Whether it be a new proposed regulation, case, executive order, blocking of court order, policy, or tweet, immigration has been a moving target. Some policies are proposed, suspended, and some are passed and now in place. Now more than ever it is imperative to keep up to date with the never-ending changes the immigration system is experiencing as increased scrutiny continues.

Social Security “No-Match” Letters

Social Security No-Match Letters are back again. In 1993, The Social Security Administration (SSA) began issuing notices called “Request for Employer Information” soon to be known as “No-Match Letters.” The purpose of the letters was to ensure the accuracy of earning records that are used to determine social security benefits. In 2012, the Obama Administration decided to stop issuing the letters. The No-Match Letters returned in 2019 advising employers that certain employee names and Social Security numbers on a named employee’s W-2 do not match Social Security records. The new notices now impose an affirmative duty to employers to respond to the SSA within 60 days of receipt of the notice. (See sample No-Match Letter at https://www.ssa.gov/employer/notices/EDCOR.pdf.) It is important to note that the letter is not, by itself, proof that the employee lacks employment authorization. However, total disregard of the letter combined with other evidence might establish that the employer had “constructive knowledge” that an employee does not have employment authorization. The notice imposes on employers a duty to resolve the question of whether an employee is authorized to work in the U.S. Therefore, employers must notify employees and request that they correct the discrepancy of information and provide evidence it is corrected or resolve the issue with the SSA. No specific penalties have been established on employers from failure to respond to the SSA. In fiscal year 2018, Homeland Security Investigations (HSI) opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. All of these categories surged by 300 to 750 percent over the previous fiscal year. Given the rise in compliance audits and investigations by the SSA, HSI, and ICE, it is essential to establish consistent policies of maintaining records and responding to No-Match Letters.

I-9 Compliance

Last month, USCIS announced that until further notice, employers should continue using the Form I-9 with edition date July 17, 2017, even after the expiration date of August 31, 2019, has passed. We will provide further information regarding the new Form I-9 as it is provided.

USCIS Announces Increase in Fee for H-1B Cap Petitions

In January 2019, Department of Homeland Security (DHS) amended its H-1B regulations, which now requires petitioners (employers) filing H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period, whenever that may be. Only those petitioners whose registrations are selected will be eligible to file an actual H-1B cap-subject petition. Although the rule took effect on April 1, 2019, USCIS suspended the electronic registration requirement for the FY2020 H-1B cap filing season. On September 4, 2019, USCIS proposed a rule that would require petitioners filing H-1B cap-subject petitions to pay a $10.00 fee for each electronic registration they submit to USCIS. Please note that USCIS has not yet announced whether it anticipates utilizing the H-1B registration for the upcoming FY2021 H-1B cap filing season which begins on April 1, 2020, even though it has announced the fee increase.

Form I-539 No Longer Eligible for Premium Processing

In March 2019, USCIS revised Form I-539, Application to Extend/Change Nonimmigrant Status, and published new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. The Form I-539 is used for certain nonimmigrants whom request to extend their stay or change to another nonimmigrant status. The most notable change of the revised Form I-539 is the requirement that every applicant pay an $85.00 biometrics fee and attend a biometrics appointment, regardless of age. Applicants usually receive a biometrics appointment within a few weeks after filing Form I-539. Thereafter, it takes at least another three weeks for biometrics to be completed. Due to this new biometrics requirement, Form I-539 applications are now separated from the primary applicant’s Form I-129 petition and processed on their own. Consequently, USCIS can no longer continue premium processing Form I-539 applications filed concurrently with Form I-129 petitions, such as an H-1B petition. As a result, H-4 spouses and children are now having to wait substantially longer to have their Form I-539 applications adjudicated and approved.

Changes to Immigrant and Nonimmigrant Visa Application Forms

Forms DS-160/DS-156, Nonimmigrant Visa Application are used for nonimmigrant, temporary travel to the United States and for K (fiancé(e)) visas. Form DS-260, Immigrant Visa Application is used for immigrant visa applicants. These forms are filed electronically to the Department of State. On May 31, 2019, new questions were added to the Forms DS-160/DS-156 and Form DS-260. These additional questions require applicants to disclose five years of social media and contact history when applying for a nonimmigrant or immigrant visa. Specifically, applicants are now required to disclose the social media platforms they have used within the previous five years, as well as provide their username for each platform. Please note that passwords for these accounts are not required and should not be provided. In addition, the applications request the applicant’s email addresses and phone numbers used in the past five years. Despite concerns raised by stakeholders, the Forms DS-160/156 and DS-260 have been updated to solicit this information. On September 4, 2019, DHS proposed changes to several immigration and travel forms to also collect social media information from applicants. The forms that would be affected by the new social media questions include USCIS Forms N–400, I–131, I–192, I–485, I–589, and I–751; CBP’s ESTA; and others.

Supreme Court Agreed to Review Three Cases Challenging the End of DACA

On June 28, 2019, the Supreme Court agreed to review three cases challenging the Trump Administration’s decision to end Deferred Action for Childhood Arrivals (DACA or “Dreamers”). In total, four federal appeals courts have heard arguments on whether President Trump went through the proper procedure to end DACA. Both the Ninth Circuit and the Fourth Circuit held that Trump’s decision to end DACA was improper. Decisions are still pending in the Second Circuit and D.C. Circuit. The Supreme Court is expected to issue its decision by June 2020. This means that current DACA recipients can continue to submit their renewal applications until that decision. DACA recipients will continue to receive protection from deportation and work permits, unless and until the Supreme Court issues a decision otherwise.

What are the Numbers for H-1B Petition Denials?

The National Foundation for American Policy analyzed the report from the H-1B Employer Data Hub and found that, “Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for initial H-1B petitions never exceeded 8%, while today the rate is 3 to 4 times higher.”  Denial rates for initial H-1B petitions nearly doubled from 13% in FY 2017 to 24% in FY 2018 and climbed to 32% in the first quarter of 2019 due to Trump’s “Buy American, Hire American” Executive Order. H-1B extensions and transfers also had comparable denial increases. Petitions filed for the same workers with the same jobs that were previously approved, are now being denied. In FY 2017 the denial rate for these petitions was 5%. The rate more than doubled in FY 2018 to 13%.

Denial Rate: H-1B Petitions for Initial (New) Employment

FISCAL YEARDENIAL RATE
FY 2019*33%
FY 201824%
FY 201713%
FY 201610%
FY 20156%
FY 20148%
FY 20137%
FY 20125%
FY 20117%
FY 20108%
FY 200915%

Source: USCIS, National Foundation for American Policy. *FY 2019 data through the second quarter of FY 2019. Percentages are rounded off. Data extracted and analyzed from USCIS H-1B Employer Data Hub.

Denial Rate: H-1B Extension Petitions for Continuing Employment

FISCAL YEARDENIAL RATE
FY 2019*14%
FY 201812%
FY 20175%
FY 20164%
FY 20153%
FY 20143%
FY 20133%
FY 20123%
FY 20113%
FY 20105%
FY 20096%

Source: USCIS, National Foundation for American Policy. *FY 2019 data through the first two quarters of FY 2019. Percentages are rounded off. Data extracted and analyzed from USCIS H-1B Employer Data Hub.


* “Changes” by David Bowie (1971)


Participant Data And Fiduciary Liability: The Current Regulatory Environment, The Vanderbilt Lawsuit, And Best Practices For Benefit Plan Sponsors


Aug
30

With cybersecurity risks on the rise and increased awareness of the sophisticated ability of hackers in the modern world, many plan sponsors have expressed growing concerns that they may have fiduciary liability with respect to protection of participants’ personal information. By now, most plan sponsors have become accustomed to complying the Health Insurance Portability and Accountability Act (“HIPAA”) with respect to participant data within their employer-sponsored health plan. However, employers are not accustomed to applying such standards in the retirement plan context. Given the heightened cybersecurity risks in today’s digital society, employers serving as plan sponsors of retirement and welfare benefit plans should begin to implement policies and procedures to protect participant data and carefully monitor their service providers as they handle participant data.

In recent years, there has been a push for regulation governing protection of personally identifiable information (“PII”) in the retirement plan context. In 2011, an ERISA advisory council that serves as an advisor to the Secretary of Labor issued a report urging the Department of Labor (“DOL”) to issue guidance or regulations relating to the obligation of plan fiduciaries to protect the PII of plan participants and beneficiaries. The counsel expressed concern over insecurity of plan financial data, asking the DOL to provide guidance on whether ERISA fiduciaries must secure PII and develop educational materials for participants. Specific areas of concern included theft of PII or money from accounts, unsecured/unencrypted data, hacking into plan administration and service provider systems, outdated password protections, phishing emails, and stolen hardware. The counsel met again in 2016 and once again urged the DOL to issue guidance and hoped that the report could serve as a reference for plan sponsors to secure plan data and assets from cybersecurity risks.

To date, the DOL has issued no direct guidance on cybersecurity considerations for PII within retirement and welfare plans. However, a new argument has emerged under ERISA fiduciary standards that the “prudent man” rule, exclusive benefit rule, and the obligation to select and monitor service providers include the obligation to maintain the privacy and security of plan data and monitor service providers’ use of the data. Under ERISA, fiduciaries must act prudently, taking the course of action that a similar, prudent man would in like circumstances and with like knowledge. Furthermore, ERISA requires fiduciaries to act only for the exclusive benefit of plan participants and their beneficiaries. Finally, ERISA fiduciaries must prudently select and monitor a plan’s service providers.

Some have begun to use Interpretive Bulletin 96-1 as a reference point to establish a requirement of prudence in service provider selections, including the prudent selection of a service provider that securely maintains electronic plan data. Additionally, one of the arguments in a lawsuit against Vanderbilt University stated that the University failed to protect plan assets by allowing third parties to market services to participants, referring to participant and financial data held by the plan as “plan assets” protected by fiduciary obligations. In that case, the plaintiffs argued that the University allowed the plan’s recordkeeper to obtain access to participants’ private and sensitive information, including investment choices, account information, contact information, proximity to retirement, age, and more, in order to market and sell its own insurance products to participants outside the plan. The plaintiffs claimed that such an action violated the University’s fiduciary duty to work for the exclusive benefit of the participants. Unfortunately, the parties recently came to a settlement agreement before the courts had a chance to rule on whether ERISA protections will apply to personal plan information.

Although there is no direct guidance from the DOL on fiduciary standards as applied to the privacy and security of participant data, it is likely in the coming years the DOL will find that retirement and welfare plan fiduciaries have a responsibility to safeguard participant data in compliance with the prudence standard, given the common knowledge of cybersecurity risks in today’s society. Specifically, plan sponsors should be aware of their duty to monitor service providers and their security measures in place for protecting plan data. Going forward, plan sponsors should implement security policies and procedures relating to the protection of PII and participant data. Some companies have formed cybersecurity committees for purposes of implementing these procedures and increasing awareness internally about the seriousness of cybersecurity. Further, in choosing service providers, plan sponsors should exercise due diligence in questioning the providers’ security measures, breach reporting practices, and contract provisions relating to the protection of plan data.


Recent FDA Warning Letter Valuable Reminder To CBD Industry – Don’t Ignore Basic Regulatory Compliance


Aug
09

Following similar announcements by CVS and Walgreens, Kroger became the latest retailer to join the CBD craze when it announced plans to sell CBD-infused products. Sales of products containing CBD are expected to top $5 billion this year, a 700% increase from 2018, and could reach nearly $24 billion in sales by 2023, according to analysts. However, a recent warning letter from the FDA contains important reminders for the industry.

Although hemp-derived cannabidiol (CBD) was de-criminalized by the federal government in the 2018 Farm Bill, the Bill did not affect FDA or the States’ authority to regulate CBD or other cannabis or hemp products in FDA-regulated products. To date, the FDA has not approved CBD in food or drinks for humans or animals, dietary supplements or topical cosmetics and maintains its current position that it is illegal to sell a food or dietary supplement that contains added CBD in interstate commerce. Historically, however, the FDA has generally taken a passive approach to the enforcement of hemp-derived CBD products.

On July 22, 2019, FDA issued a warning letter to one of the largest producers of CBD-based products, Curaleaf, Inc. The FDA reiterated that certain hemp substances, including CBD, have a questionable regulatory and safety status in the eyes of FDA and some state governments despite the 2018 Farm Bill. But the more likely trigger for the action was the marketing claims that were associated with Curaleaf’s products.

The FDA surveyed Curaleaf’s website and social media pages, and found claims like:
• “[S]oothing tincture for chronic pain.”
• “CBD has been demonstrated to have properties that counteract the growth of spread of cancer.”
• “CBD has also been shown to be effective in treating Parkinson’s disease.”
• “CBD oil can be used in a variety of ways to help with chronic anxiety.”
• “CBD is being adopted more and more as a natural alternative to pharmaceutical-grade treatments for depression and anxiety.”

These are clear drug claims related to treating or preventing diseases, and FDA concluded that the products were misbranded and unapproved new drugs.

In response to the warning letter, the company stated that it’s removing statements from its website and social media that FDA identified as noncompliant. Also of note, following the warning letter, CVS immediately removed all Curaleaf products from its shelves, and Curaleaf’s stock tumbled.

The bottom line is that fundamental regulatory compliance matters. The full list of Curaleaf’s claims reinforce best practices for drafting and substantiating claims appearing on any food or dietary supplement labels (not just those containing CBD). And if the claim is on a product that is already under scrutiny for regulatory discretion, then compliance is especially important.

In addition to regulatory enforcement action, publicly issued warning letters may also lead to class action lawsuits based on a claim that statements are false and misleading and actionable under state consumer protection laws. While the statute the FDA is tasked with implementing (the Federal Food, Drug, and Cosmetic Act) does not include a private right of action, litigants and courts often use FDA warning letters for guidance as to whether a marketing claim is, or is not, susceptible to challenge under various consumer protection laws.

It is crucial for companies that market or sell CBD products to confirm that their marketing materials and labeling generally comply with FDA requirements and avoid making unapproved human or animal drug claims. If you currently market or are considering marketing CBD products, contact our Food and Dietary Supplement regulatory team to guide you through state and federal labeling and advertising requirements.


CCPA Doesn’t Apply To Financial Institutions? Think Again – Big Impacts On Banks Privacy Operations


Jul
12

Financial Institutions have always banked their privacy practices on the requirements under Title V of the Gramm-Leach-Bliley Act (GLBA) and its implementing regulations. That day is now over! The California Consumer Privacy Act (CCPA) is sweeping in and changing the financial privacy landscape. Many had hoped the CCPA would have an all-inclusive exemption for financial instructions already subject to compliance under GLBA; however, the California legislature has made clear that CCPA’s application will apply to portions of data held by financial institutions.

Scope of Financial Institution Exemption

CCPA exempts certain types of information that are subject to GLBA. The impact for financial institutions – all of the personal information collected today that is not subject to GLBA will be subject to CCPA (to the extent the financial institution is subject to CCPA). This includes the following information: personal information collected through general advertising and website marketing; personal information obtained from non-financial institution partners; and personal information obtained for commercial (non-personal or household) purposes.

A financial institution will be subject to CCPA if it does business in California and either (1) has at least $25 million in annual gross revenues; (2) buys, sells, shares or receives information from at least 50,000 California consumers; or (3) derives at least 50% of its annual revenue from selling California personal information.

Financial Institution Data Likely Subject to CCPA

The initial action financial institutions should take is to perform an internal data mapping exercise. Once the financial institution has determined what personal information it collects that is not subject to GLBA, the financial institution can prepare a practical and efficient CCPA compliance plan for all “non-GLBA” information.

Learn More.

As you are formulating a plan to comply with CCPA, our experienced privacy team is ready to partner with you in determining the most practical approach that minimizes disruptions to your already existing GLBA obligations. Here is a link for more information about our team: Privacy Team

Want to learn more about CCPA, click here to read Tackling The California Market From The Midwest? What A Business Needs To Know About The California Consumer Privacy Act (CCPA)


HIPAA-Covered Entity Exemption To CCPA, Don’t Be Mistaken – You May Still Have To Comply


Jul
12

With the California Consumer Privacy Act’s (CCPA) compliance deadline fast approaching (January 1, 2020), companies are preparing to comply with the additional complex data privacy and security requirements. HIPAA-Covered Entities may mistakenly overlook the fact that the CCPA does not wholly-exempt personal information collected by HIPAA-Covered Entities, but in turn only exempts information already protected by HIPAA. HIPAA, the Health Insurance Portability and Accountability Act, requires health care organizations, employer-sponsored group health plans, healthcare clearinghouses, and other Covered Entities to ensure the privacy and security of Protected Health Information (“PHI”). Although the CCPA exempts data that constitutes PHI, a HIPAA-Covered Entity or related Business Associate must still protect personal data (or even health data) that is covered by the CCPA but does not satisfy the definition of PHI under HIPAA.

HIPAA-Covered Entity Data Could Be Subject to CCPA

What type of data is governed by HIPAA and, as a result, exempt from the CCPA? PHI is defined as “individually identifiable health information” held or transmitted by a Covered Entity or its Business Associate, in any form or medium, whether electronic, paper, or oral. For example, health information, demographic data, medical histories, test results, and insurance information are forms of PHI if they can reasonably be used to identify a patient. Identifiers coupled with health information such as names, geographic locations, dates, contact information, social security numbers, and more can also constitute PHI. If the data amounts to PHI, that data is exempt from the CCPA.

Not all data collected by a HIPAA-Covered Entity amounts to PHI. For example, employment records held in the hands of an employer (rather than held by the group health plan sponsored by the employer) are not PHI. Any data collected by a HIPAA-Covered Entity that is not PHI will be subject to the CCPA (to the extent the entity is subject to the CCPA). However, the CCPA provides for an exception. When a Covered Entity or health care provider maintains health information in the same manner as PHI, even though the health information is not PHI, the CCPA rules do not apply. That being said, applying HIPAA privacy and security rules to non-PHI could be a burdensome task and cause confusion amongst a Covered Entity’s employee population.

What This Means for HIPAA-Covered Entities

Start your data mapping now. To determine what information is collected that is not protected under HIPAA and, to what extent the CCPA applies to such data, you must understand what categories of information are collected, who it is received from, what’s being done with the data and who it is shared with. From there, you can formulate a CCPA plan that correlates and flows with obligations under HIPAA to ensure efficiencies throughout your data compliance program.

As you are reviewing CCPA application to your entity, reach out to our experienced privacy and ERISA team to partner with you to develop a practical plan that minimizes risk and syncs to your already existing HIPAA obligations. Here is a link for more information about our team: Privacy Team

Want to learn more about CCPA, click here to read Tackling The California Market From The Midwest? What A Business Needs To Know About The California Consumer Privacy Act (CCPA)


Tackling The California Market From The Midwest? What A Business Needs To Know About The California Consumer Privacy Act (CCPA)


Jul
09

The data privacy regime is starting to look like more of the wild west every day. A year after companies had to focus resources on complying with Europe’s onerous requirements under the General Data Protection Regulations (GDPR), companies must once again gear-up for the first round of U.S. state efforts to tighten up data privacy rules with California’s new California Consumer Privacy Act (CCPA), which comes into effect on January 1, 2020. Whether you were able to ignore GDPR or not, CCPA sets the data privacy bar higher for most U.S. based companies.

DOES CCPA APPLY TO YOUR COMPANY?

CCPA generally will apply to any for-profit company that does business in California; and, either (1) has at least $25 million in annual gross revenues; (2) buys, sells, shares or receives information from at least 50,000 California consumers; or (3) derives at least 50% of its annual revenue from selling California personal information.

COMPLIANCE WITH GDPR DOES NOT EQUAL COMPLIANCE WITH CCPA.

While many aspects of CCPA read similar to the regulations you may have become familiar with under GDPR, there are clear differences. Like GDPR, CCPA will require companies to carefully craft specific language in their website privacy policy, including providing certain rights to California consumers, such as the right to request what personal information has been collected, the right to request that information is deleted, and the right to access information.

CCPA also includes specific disclosure requirements with respect to the “sale” of California consumer personal information and specific disclosure requirements with respect to personal information of minors. As part of the “sale” disclosures, many companies will need to add a new website opt-out option labeled “Do Not Sell My Personal Information.”

RISKS OF NONCOMPLIANCE.

CCPA is enforceable by both the California Attorney General and through limited private rights of action (specific to claims with respect to data breaches). Enforcement of CCPA will begin by the California Attorney General 6 months after the publication of final regulations or July 1, 2020, whichever is sooner. Fines can run from $2,500-$7,500 per incident (for example, a violation involving 10,000 California consumers could result in fines of $25 million to $75 million).

EXEMPTIONS – GLBA AND HIPPA.

There are specific exemptions with respect to certain types of data under CCPA. If you are a financial institution subject to Gramm-Leach-Bliley Act (GLBA) or a covered entity subject to HIPPA, certain data collected will be exempt. However, financial institutions and covered entities are still subject to CCPA with respect to data not subject to GLBA (non-NPPI) or HIPPA protection (i.e. non-PHI). It is important for companies to understand the interplay between all privacy regulations and set forth a data privacy compliance program that complies with all applicable laws.

WHERE TO START.

Analyzing the application of data privacy regulations can be daunting. McGrath North recommends companies start with data mapping to determine what information is collected, where the information is collected from, and what a company does with the information (including a list of third-parties that the information is later shared with). From here, companies can start to formulate well-thought-out compliance programs that allow them to comply with applicable data privacy laws while maintaining efficient and effective operations.

With a heightened national focus on data privacy and security, these burdensome and sometimes difficult to manage regulations are not going away. Whether you put in place a compliance program to satisfy the requirements of GDPR or not, CCPA and other U.S. state-based data privacy laws will impact almost all nationally operating entities.

McGrath North has data privacy experts to help you work through the weeds of the regulations and to partner with you to determine the most practical and efficient way for your company to implement privacy policies and procedures to ensure compliance. Here is a link for more information on our team: Privacy Team

Click here to read GDPR ONE YEAR LATER: HAS YOUR COMPANY SORTED THROUGH THE CONFUSION AND RISKS – WHAT U.S. COMPANIES NEED TO REMEMBER.


GDPR One Year Later: Has Your Company Sorted Through The Confusion And Risks – What U.S. Companies Need To Remember


Jul
09

It’s been more than 1 year since Europe’s General Data Protection Regulations (GDPR) went into effect, and the data protection regulatory front still remains confusing and difficult to trudge through for many U.S. based companies. However, it is clear, there is no slowing down when it comes to increased data privacy regulation. Below is a refresher on the basics of GDPR, as last year we saw many U.S. based companies put aside the issue of whether they needed to focus dollars and time on complying with GDPR. As the regulatory front continues to grow and there is increasing pressure from consumers, customers and vendors to pay attention to data privacy laws (like GDPR), companies who avoided GDPR should review the jurisdictional requirements to confirm their compliance obligations.

WHY CARE – HOW GDPR APPLIES TO U.S. COMPANIES?

Why should a U.S. (or local Midwest based) company pay attention to a set of regulations providing rights (in general) to residents of European nations? The answer is simple; GDPR’s extra-territorial reach allows European nations who have adopted GDPR to latch onto U.S. based companies who have no physical presence in Europe. A U.S. based company with no operations (or other establishment) in Europe will be subject to GDPR jurisdiction if the company either (1) offers goods or services to residents of European nations, or (2) monitors the behavior (i.e. through its website) of residents of European nations.

PRACTICAL WAYS TO START YOUR COMPLIANCE PLAN.

Companies who desire to start formulating a plan with respect to data privacy compliance should start with data mapping. Understanding where and who data is collected from, what the company does with the data and where and who data is shared with will help a company determine what data privacy regimes govern its operations. From there, a company can begin to pull together its data privacy compliance program (whether basic or more sophisticated) to ensure compliance with all applicable data privacy laws.

IMPLEMENTING NECESSARY CHANGES.

Among other things, GDPR requires a company to include specific disclosures in its website’s privacy policy, to have in place consent rights and disclosures with respect to the use of cookies, and to formulate various technical and operational policies and procedures with respect to the treatment and use of data.

Penalties under GDPR for noncompliance can be hefty and upwards of $20 million Euros or 4% of a company’s worldwide annual turnover (whichever is greater). Companies may also be subject to criminal penalties, suits by supervisory authorities or private rights of action by individuals. And today, various European supervisory authorities are beginning to investigate compliance among dozens of U.S. based companies.

GDPR’S NOT FOR YOU – YOUR CUSTOMERS AND VENDORS MIGHT TELL YOU OTHERWISE.

Even if a company determines that GDPR’s jurisdictional reach does not apply to its operations, many U.S. based companies are seeing their customers and services providers require them to comply with the terms of GDPR (through flow-down liability). It is important for companies to understand what they are contractually signing up for and what impact agreeing to GDPR compliance will have.

What this means for most U.S. based companies, is that if GDPR is not yet on your radar (or you subtly ignored GDPR over the last few years), today is the day to review its application and take the necessary steps to gain compliance. With the regulatory focus on data privacy and security, even if GDPR does not apply to your company, almost all U.S. based companies will be impacted by various data privacy state laws working their way through local legislation. Starting with GDPR analysis is just the beginning!

LEARN MORE.

As you are evaluating GDPR’s ongoing impact, our experienced privacy team is ready to partner with you in formulating a practical, effective and tailored compliance approach that minimizes disruptions to your company’s business plans. Here is a link for more information on our team: Privacy Team

Click here to read Tackling The California Market From The Midwest? What A Business Needs To Know About The California Consumer Privacy Act (CCPA)


Employee Benefits Statutory Civil Penalties


Apr
09

Calendar Year 2019

The following summary describes the most common penalties applicable to retirement, health, and welfare plans in 2019 through ERISA and other federal laws. This list serves as an important reminder that noncompliance with laws relating to your company’s benefit plans could result in significant penalties.

ERISA Penalties.

  • Furnish Reports. Failure to furnish reports (e.g., pension benefit statements) to certain former participants and beneficiaries or maintain records: $30 per employee.
  • COBRA. Failure to provide an initial COBRA notice or an election notice on a timely basis, as required by COBRA: $110 per day.
  • Form 5500. Failure or refusal to properly file annual Form 5500 report required by ERISA § 104: Up to $2,194 per day.
  • Notification of Benefit Restrictions. Failure to notify participants under ERISA §10(j) of certain benefit restrictions and/or limitations arising under Internal Revenue Code §436: Up to $1,736 per day.
  • Notification of Automatic Contribution Arrangement. Failure to furnish automatic contribution arrangement notice under ERISA §514(e)(3): Up to $1,736 per day.
  • Form M-1. Failure of a multiple employer welfare arrangement to file report required by regulations issued under ERISA §101(g): Up to $1,597 per day.
  • Information Requested by DOL. Failure to furnish information requested by the Secretary of Labor under ERISA §104(a)(6): Up to $156 per day, not to exceed $1,566 per request.
  • Blackout Notice. Failure to furnish a blackout notice under ERISA § 101(i): Up to $139 per day.
  • Right to Divest Notice. Failure to furnish a notice of the right to divest employer securities under ERISA § 101(m): Up to $139 per day.
  • CHIP Notice. Failure by an employer to inform employees of Children’s Health Insurance Program (CHIP) coverage opportunities (each employee is a separate violation): Up to $117 per day.
  • State Coverage Coordination. Failure by a plan administrator to timely provide to any State the information required to be disclosed regarding coverage coordination under ERISA §701(f)(3)(B)(ii); each participant/beneficiary is a separate violation: Up to $117 per day.
  • GINA.
    • Failure by any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, to meet the requirements of ERISA §§702(a)(1)(F), (b)(3), (c) or (d); or §701; or §702(b)(1) with respect to genetic information: Up to $117 per day during non-compliance period.
    • Minimum penalty for de minimis failures to meet genetic information requirements not corrected prior to notice from the Secretary of Labor: $2,919 minimum.
    • Minimum penalty for failures to meet genetic information requirements which are not corrected prior to notice from the Secretary of Labor and are not de minimis: $17,515 minimum.
    • Cap on unintentional failures to meet genetic information requirements: Up to $583,830.
  • CSEC. Failure of Cooperative and Small Employer Charity Act (CSEC) plan sponsor to establish or update a funding restoration plan: Up to $107 per day.
  • Prohibited Distribution. Distribution prohibited by ERISA §206(e): Up to $16,915 per distribution.
  • SBC Distribution. Failure to provide Summary of Benefits Coverage under Public Health Services Act §2715(f): Up to $1,156 per failure.

Multi-Employer Plans.

  • Failure of a multiemployer plan to certify endangered or critical status under ERISA §305(b)(3)(C) treated as a failure to file annual report: Up to $2,194 per day.
  • Failure to furnish certain multiemployer plan financial and actuarial reports upon request under ERISA §101(k): Up to $1,736 per day.
  • Failure to furnish estimate of withdrawal liability upon request under ERISA §101(l): Up to $1,736 per day.
  • Failure by a plan sponsor of a multi-employer plan in endangered status to adopt a funding improvement plan or a multiemployer plan in critical status to adopt a rehabilitation plan. Penalty also applies to a plan sponsor of an endangered status plan (other than a seriously endangered plan) that fails to meet its benchmark by the end of the funding improvement period: Up to $1,378 per day.

Health Care Reform.

  • Failure to offer coverage to 95% of eligible full-time employees with Minimum Essential Coverage. Penalty applies if one full-time employee receives federal premium subsidy for marketplace coverage: $2,500 per full-time employee (minus the first 30).
  • Failure to offer affordable coverage (less than or equal to 9.56% in 2018 and 9.86% in 2019) or failure to provide “minimum value” coverage (60%+ of total allowed costs): $3,750 per full-time employee receiving a subsidy or $2,500 per full-time employee (minus the first 30).
  • Failure to comply with health care reform mandates: $100 per day.
  • Failure to file a correct 1094 or 1095 or failure to file the information returns on a timely basis: $270 for each return.
  • Failure to furnish correct 1095 payee statement on a timely basis or failure to include all of the information required to be shown on a payee statement or the inclusion of incorrect information: $270 for each return.

Miscellaneous Penalties.

  • MHPAEA. Failure to comply with MHPAEA requirements: $100 per day for each individual to whom a failure relates.
  • HIPAA. Failure to comply with HIPAA: Excise tax of $100 per day for each individual to whom the failure relates; civil penalties of $100 to $50,000 per violation, capped at $1.5 million per calendar year.

This summary is not intended to be a comprehensive list of all federal penalties that could apply to an employee benefit plan. Additionally, state and local law penalties are not included in this summary.


Lurking in the Shadows – Is Your Business Affected By The California Consumer Privacy Act?


Feb
13

Unless you have been paying attention to data privacy news, you may not realize that January 1, 2020, is the implementation date of the California Consumer Protection Act (CCPA) and that July 1, 2020, is the current deadline for the California Attorney General to implement regulations under CCPA.  As currently drafted, the CCPA directs the California Attorney General to forego bringing any enforcement action under the CCPA until six months after publication of such final regulations, or July 1, 2020, whichever is sooner.

The CCPA constitutes an expansion beyond California’s existing privacy laws and various provisions of the new law will apply to all businesses that do business in California:

  • With annual gross revenue greater than $25 million (not just in California),
  • That obtain or share for commercial purposes the personal information of 50,000 or more California residents, households or devices, or
  • That get 50% or more of their revenue from selling or sharing the personal information of California residents. 

Many non-California based businesses may be surprised to learn that they fall within the scope of the CCPA. 

The CCPA was passed quickly to avoid a similar voter initiative ballot measure, and as a result has numerous ambiguities and apparent inconsistencies. The law was amended on September 23, 2018, and it is very likely that the law will be changed again by amendment, and clarified through final rules and regulations, before it comes into effect on January 1, 2020.

In the meantime, it is useful to look at what the law, in its current form, will require. From a practical perspective, for businesses already following California’s existing privacy laws, some of the main differences under the new law will be: (1) allowing California residents to opt out of the sale of their personal information to third parties, (2) getting opt in consent before selling the personal information of California residents under the age of 16, (3) advising California residents, upon request and in privacy notices, what personal information the business has collected about them, how it was collected, why, and if it has been shared or sold, (4) the introduction of personal information “portability” and deletion requirements for businesses that maintain covered personal information; and (5) having a privacy policy that includes both online and offline personal information collection. 

Note that at this point, the application of the CCPA to employee data remains an open question. On its face, the CCPA appears to apply only to California “consumers.” However, the CCPA’s definition of consumer (a California resident) combined with California’s longstanding practice of protecting individual privacy rights, suggests that the CCPA also may extend to the personal information of California residents maintained as part of an employment relationship. If so, the CCPA would apply to residents of California who are job applicants, full or part time employees, temporary workers, interns, volunteers, independent contractors, and even such persons’ dependents or beneficiaries.

While the CCPA will almost certainly change again before it comes into effect on January 1, 2020, businesses may want to begin thinking now about some of the core new provisions in that law, in particular, how the business will respond to consumers’ requests for information about their personal information held by the business and such consumers’ requests to delete their personal information held by the business.  Note that as presently drafted, the CCPA requires businesses to maintain a twelve (12) month look back (as early as back to January 1, 2019) of data processing activities relating to covered personal information. 

Also worth watching is the law’s treatment of private rights of action. While the CCPA does not contain a private right of action for violation of any of the new disclosure or individual rights provisions, it does provide a private right of action for California consumers whose information has been compromised in a data breach resulting from inadequate security measures.  This essentially codifies the concept of negligence in California data breaches and, by imposing statutory damages ($100-$750), may largely affect the pleading and proof of damages in data breach cases, which is often the issue of greatest dispute.  From a litigation standpoint, these statutory damages plus the broad definition of “consumer” means that plaintiff’s attorneys may be gearing up to use the CCPA to bring cases against businesses that do business in California on behalf of a myriad of different groups about whom businesses typically hold personal information including, for example, end use customers, employees, shareholders and service providers and vendors.

If you have questions or would like to discuss the CCPA’s application to your business, please contact a member of the McGrath North Privacy and Data Security team.


New Flexibility For Health Reimbursement Plans


Dec
27

In an effort to reverse another aspect of the Affordable Care Act (“ACA”), the Trump Administration published a proposed rule in late October that would allow employers to reimburse employees for medical expenses through a stand-alone health reimbursement account (“HRA”).  Health care reform imposes a large excise tax on arrangements that reimburse employees for health care expenses without also providing a group health plan to employees.  The penalty was intended to drive employers to purchase group insurance plans for their employees but posed a huge challenge for small employers who saw such reimbursements as a natural alternative to offering employee health care coverage.  In the wake of rising health care costs, the Internal Revenue Service (“IRS”) recognized the burden such prohibition posed on small employers.  As a result, in 2017, the IRS chipped away at the prohibition by allowing employers with less than 50 full-time employees to offer special stand-alone HRAs, known as “Qualified Small Employer Health Reimbursement Accounts” or “QSEHRAs.”  The government now takes one step further by proposing to allow both small and mid-size employers to offer HRAs to their employees, even if they do not offer traditional group coverage.  The Proposed Rule intends to accomplish two major goals: (1) permit HRAs to be integrated with individual health insurance coverage; and (2) expand the definition of benefits in order to allow reimbursement for stand-alone dental, limited scope vision, and other plans.

i.                     The Proposed Integration Rules

HRAs are tax-free, employer-funded accounts used to pay for out-of-pocket, qualified medical expenses.  HRAs have been part of the health care market for years, but the ACA tried to discourage the use of HRAs to prevent employers from pushing employees with health risks into the individual market.  Currently, employers can only offer an HRA to their employees if it is “integrated” with a major group medical plan sponsored by the employer.  Under the new Proposed Rule, employers would be able to offer HRAs to employees with individual health insurance coverage if certain conditions are met.  For example, under the Proposed Rule, an employer cannot offer a stand-alone HRA and a traditional group health plan to the same group or class of employees.  Additionally, while HRA reimbursement amounts can vary to reflect age-based health coverage pricing, reimbursement amounts cannot vary based on the health-risk posed by the employee.  In other words, the general rule requires that the HRA integrated with individual health insurance coverage be offered on the same terms to all employees of the same class (e.g., full-time, part-time, seasonal, etc.).

ii.                   Limited Excepted Benefits under the Proposed Rule

The Proposed Rule also offers employers the opportunity to offer an HRA to its employees, even if its employees do not have any major medical coverage at all.  Under the Proposed Rule, an HRA will be considered a “limited excepted benefit” exempt from the integration rules if: (1) the HRA is not an integral part of the plan; (2) the HRA does not provide reimbursements in excess of $1,800 per year; (3) the HRA does not reimburse premiums for certain health insurance coverage; and (4) the HRA is made available under the same terms to all similarly situated individuals.  The HRA is not an “integral part of the plan” if the participant is offered the opportunity to enroll in an employer-sponsored group health plan.  Additionally, the HRA cannot reimburse the participant for premiums for individual health insurance coverage, coverage under a group health plan, or Medicare parts B or D.  Rather, the HRA could reimburse employees for premiums for dental plans, limited scope vision plans, or other “excepted benefits.”

iii.                  The Proposed Rule and QSEHRAs

HRAs under the Proposed Rule are different from QSEHRAs.  QSEHRAs have specific, stringent requirements and only apply to employers with less than 50 full-time employees.  However, QSEHRAs have a higher statutory dollar limit on reimbursements.  While an employer-sponsored QSEHRA can reimburse employees up to $5,050 for individuals and $10,250 for families, a stand-alone HRA under the new Proposed Rule can only reimburse employees for up to $1,800 worth of medical expenses.  In other words, some small employers hoping to reimburse employees up to the highest dollar amount available might find that QSEHRAs are a more attractive option.  Another difference between QSEHRAs and the stand-alone HRAs under the Proposed Rule is the ACA consequences applicable to employers.  Under the Proposed Rule, if group health plan coverage is unaffordable for an employee enrolled in the stand-alone HRA, the employer will be subject to ACA penalties if the employee opts out of coverage and qualifies for a premium tax credit subsidy.  In contrast, QSEHRAs do not impose penalties on employers if the reimbursements do not make health coverage “affordable,” because small employers eligible to establish QSEHRAs are not subject to the pay-or-play mandate.

If you have any questions about the HRAs, QSEHRAs, or the new Proposed Rule, please contact one of our employee benefits attorneys.


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