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Buffalo and Williamsville, New York

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Trump is here!  

Updated weekly due to changes that are being rolled-out:  Health, Welfare, Fringe, & Retirement plan/program concerns to address now -  remember to remain flexible and fluid.  Video and summaries sent to friends / client list.  Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies)


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End of year is here!  


Health, Welfare, Fringe, & Retirement plan/program concerns to address now - effective 1/1/2017.  Video and summaries sent to friends / client list.  Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies) 

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Retirement plan concerns to address now - effective 1/1/2016.  Video and summaries sent to friends / client list.
Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies) 

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Retirement plan concerns to address now - effective 1/1/2015.  Video and summaries sent to friends / client list.

Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies) 

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Updated Video sent to clients and friends of the firm - 90-Day Waiting Periods and Full-Time Employee Status Under New Health Care Reform Guidance - Looking to 2014 - key implementation concerns/steps. 
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Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies) :)

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Video sent to clients and friends of the firm - Health Care Reform after the Supreme Court Decision - where do we go from here and key implementation concerns/steps. 

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The H-1B Category:  
Timing, Fees and Other Issues By Berardi Immigration Law 


Also available at: http://www.berardiimmigrationlaw.com/services/work-in-the-united-states/the-h-1b-category-timing-fees-and-other-issues or the main firm web page by clicking here.  

Wednesday, 04 April 2012 05:50

The H-1B is designated for individuals who work in a "specialty occupation."   This term has been defined by Citizenship & Immigration Services (“CIS”) as a position that requires both the theoretical and practical application of a body of highly specialized knowledge and traditionally requires a Bachelor’s degree.

H-1B status is granted for an initial period of three years and can be extended for an additional period of three years for a total of six. Exceptions may apply depending on an individual's immigration circumstances.  Filing fees can range from $1,525 to $2,575 and additional government fees may be incurred if the applicant requires a nonimmigrant visa.   Payment of these fees may be negotiable between employer and employee; however the certain fees must always be paid by the employer.

The H-1B visa category is subject to an annual numerical limitation, referred to as the "cap."  The cap is set to 65,000 for fiscal year 2013 which begins on October 1, 2012 and there is an additional 20,000 allotted for those with Master’s degrees.  CIS began accepting new, cap-subject H-1B petitions on Monday, April 2, 2012. While it is impossible to predict how quickly the cap will be reached, there have been years when it has been filled in as quickly as a few days.  Therefore, it is best to gauge personnel needs and file as early as possible.  Certain employers are "cap exempt" and the cap does not apply to those individuals currently holding H-1B status who seek to extend their status or change employers.

To demonstrate that an individual qualifies for H-1B status, a petition must be prepared and properly filed which includes a detailed summary of the employer-petitioner, beneficiary’s qualifications, and comprehensive supporting documentation.  Additionally, before a petition can be filed, there are several time-sensitive requirements which must be completed.  Employers must submit a Labor Condition Application ("LCA") with the Department of Labor's iCERT system which in turn verifies their Federal Employer Identification number ("FEIN").  This process takes approximately two to four business days.  The LCA must then be filed for the proffered position.  Certification of an LCA can take up to seven business days.  It is important to plan ahead, as H-1B petition preparation can often take at least two to three weeks.

CIS may conduct unannounced worksite visits which are conducted through their office of Fraud Detection and National Security ("FDNS"). These audits are conducted to verify basic facts relevant to the H-1B petition as filed.  In 2010, approximately 25,000 worksite visits were conducted.  It is imperative that employers maintain complete and accurate Public Access Files for all H-1B employees, ensure that there is an I-9 on file for every employee, enroll in DHS's E-Verify program, and have a designated "go to" person in the event of an unexpected site visit.

It should be noted that the beneficiaries of approved H-1B petitions cannot begin work until October 1st.  Since there may be up to a six-month "gap" between the time of filing and employment eligibility, it is important to plan ahead with respect to resources, maintenance of status in the U.S. and work authorization.

For more information and articles on immigration law issues and topics, visit the website for Berardi Immigration law here.

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Contact Information For Berardi Immigration Law:

Berardi Immigration Law
2314 Wehrle Dr.
Buffalo, NY 14221
(716) 634-1010

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Introduction to General Wellness Programs by Rogan Morton Law

Wednesday, 04 April 2012 05:36

Wellness programs are all the rage and could be the future of many employers’ benefit programs.  This is especially true given the skyrocketing costs of health care and prescription drugs, the uncertainly created due to health care reform (PPACA), and reported unhealthy behavior trends among adults in the United States.

I receive calls every week asking what are wellness programs and what should an employer be concerned about when developing, implementing, and designing such programs.  For further information, please visit my website at Rogan Morton Law.


What are Wellness Programs?


Let’s start at the beginning.  Wellness programs come in various shapes/sizes and sometimes are not even called “wellness programs.”  You may be sponsoring one at this very minute and not even know it.  For instance, wellness programs vary depending on who is covered by the program, what benefits are offered, whether the program is voluntary or mandatory, how the program is structured against the employer’s other programs, and whether there is an objective measurement required for the program criteria.

Wellness programs may be designed to address issues that have already taken place (such as employee assistance programs, disease management, etc.) or may focus on avoiding the onset of certain health issues (such as prevention programs).  Like other benefit programs, wellness programs may also be administered in-house or outsourced and they may be self-insured or offered through a carrier.

A typical wellness program may cover only employees, employees/spouses (or domestic partners), or other family members.   Benefits may range from providing limited benefits to more extensive benefits.  For instance:

Base Program:  Offering informational brochures, periodic educational sessions, seminars, workshops. 

Mid-Level Program:  Offering a Base Program, and then adding additional benefits such as preventive 
care, screenings, health risk assessments, exercise plans, and similar-type benefits. 

Extensive/Integrated Program:  Offering Base Program and Mid-Level Program benefits as well as some type of health-related communications integrated into the program with assessments, employer contributions, lower premiums/co-pays/waiver of deductibles  for medical coverage, and other rewards/incentives to raise participants’ awareness, and encourage favorable health behaviors. 

Gone are the days where wellness programs are limited to information and brochures.  Wellness programs now go further to encourage positive health behaviors and lifestyles by covering additional items, such as:  flu shots, physical examinations, screenings, nutrition counseling, wellness education, targeted communications, rewards/incentives, and similar-type benefits.


What Are the Concerns in Implementing and Designing Wellness Programs?


A complete list of potential problems associated with wellness programs is beyond the scope of this introduction; however, as with so many things in the employment and benefit fields, it is not always “what” you do, but also “how” you do it.

Depending on the type of wellness program and the benefits offered, the program could be subject to ERISA requirements.  For instance, a wellness program subject to ERISA would be required to provide a summary plan description , report to the IRS and DOL on the Form 5500, complying with certain fiduciary rules, implement claims procedures as well as meet other ERISA requirements.

Also, programs offering certain benefits, especially Mid-Level Programs and Extensive/Integrated Programs, could raise numerous legal compliance issues including the taxation of the benefits provided as well as rewards/incentives, the treatment of domestic partners, PPACA, HIPAA, COBRA, GINA, ADA, ADEA, NLRA, FMLA, Title VII, FLSA[1] (to name a few), and wellness programs may also involve state law compliance issues (such as recreational use, lawful off-duty conduct policies, privacy statutes, workers compensation,  state benefit continuation and notice requirements).

Given the tremendous flexibility in design and numerous options available to employers providing wellness programs, employers should be aware that implementing or modifying a wellness program could bring unexpected compliance issues and potential risks.  This means that employers should keep an eye out for new developments in this area, understand how their programs is impacted by the various statutes, address compliance issues and potential risks, and understand how these programs will be viewed by the various federal and state government agencies charged with regulating such programs.


The Agencies Do Not “Make It Easy”


Unfortunately, employers should also be aware that certain agencies have yet to provide significant guidance to assist employers in navigating compliance for their wellness programs in the current environment.  One example is the ADA which generally allows employers to conduct voluntary medical examinations and activities (including obtaining information from voluntary medical histories) as part of an employee wellness program as long as any medical information acquired as part of the program is kept confidential and separate from personnel records. EEOC guidance to date states that a wellness program is “voluntary” as long as the employer neither requires participation nor penalizes employees who do not participate.

However, the EEOC has not taken a position on whether, and to what extent, the ADA permits an employer to offer financial incentives for employees to participate in wellness programs that include disability related inquiries (such as questions about current health status asked as part of a health risk assessment) or medical examinations (such as blood pressure and cholesterol screening to determine whether an employee has achieved certain health outcomes).

There is reason for concern and further guidance given that the EEOC stated in 2009 that providing a monetary incentive may cause an otherwise voluntary program to become “involuntary” and that requiring a health risk assessment to obtain health insurance would violate the ADA.  However, as recent as June 2011, the EEOC issued an information letter detailing GINA and wellness requirements and only stated that it continues to examine the ADA implications of such arrangements.


In the End…


There is no reason to shy away from wellness programs and employers can no longer ignore the benefits associated with offering wellness benefits.  However, employers should keep in mind that certain types of wellness programs may inadvertently impact other benefit programs and create significant and unexpected compliance concerns.  This means that employers should attempt to structure their wellness programs in a way to reduce risks and obtain the best return on investment given their particular employee base.

This is Part 1 in a series of articles summarizing various compliance issues associated with wellness programs.  Future articles will focus on HIPAA, GINA, ADA, and state legal requirements impacting wellness programs.

[1] These terms are defined in the Employment, Labor and Benefit Glossary found at the Glossary here


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RELEVANT TOPICS OF INTEREST


New York State (NYS) Marriage Equality Act -Executive Summary 


We will continue to update as we receive additional information.  This means it is a "work in progress" so please excuse any typos!  As always, this is not legal advice.


  1. Generally, New York will recognize as valid a marriage without regard to whether the parties are the same sex (gender) or different sex (certain exceptions apply involving religious organizations).
  2. All gender-specific language or terms must be considered gender-neutral with regard to how the government treats rights and responsibilities relating to marriage.
  3. Effective July 24, 2011 (30-days after signed into law).
  4. Employer policies/procedures and benefit programs (unless governed solely by ERISA should be examined and may be impacted by this modification).  ERISA has a broad preemption provision that arguably may preempt the new NYS Marriage Equity Act if the program is governed solely by ERISA and no exceptions apply.
  5. The most common example of certain benefits exempted from ERISA are certain insurance coverages (even if part of a wrap program including self-insured benefits).  However, it appears at this time that a policy issued/underwritten in a state other than New York may not create an issue.
  6. You may provide benefits to same-sex spouses even if not required to do so (e.g., plan/program covered solely by ERISA with no exceptions - such as a self-insured plan governed solely by ERISA).
  7. If benefits are offered to same-sex spouses, there are Federal tax issues.  For instance, certain tax exemptions and income exclusions are not allowed for an employee's same sex spouse (unless the spouse is otherwise a dependent of the employee).  Accordingly, amounts would have to be included on the employee's W-2 statement.
  8. If benefits are offered to same-sex spouses, you must ensure that insurance (general, stop-loss, etc.) is willing to provide coverage for the same-sex spouse or else the employer could end up having to self-insure/provide any promised amounts.
  9. If benefits are offered (or not offered) to same-sex spouses, the employer should review (and amend as appropriate) such arrangements to conform to law and intended results.
  10. Do not forget to address state tax issues - which are not clear at this point.
  11. Address distinctions between (and make decisions concerning) opposite sex spouses, same-sex spouses and domestic partnerships.
  12. Address distinctions between (and make decisions concerning) any differential treatment of same-sex domestic partnership versus opposite-sex domestic partnerships.
  13. Plan Document Amendments due on or before July 23, 2011!
  14. Policies and Procedural Changes to Consider (does not include all potential policies/procedures):
  • Bereavement leave for married employees (e.g., death of a spouse, or the spouse's parent or other close relative).  Most addressed this with the NYS CRL changes effective last year.
  • FMLA (generally uses state definition of spouse as well as an analysis of recent opinion letters).
  • Changes that if not made would result in claims of discrimination under New York's prohibition against discrimination based on sexual orientation (also OPM interpretation if Federal employees are involved and a preemption would likely not apply on the Federal level).
  • Employee assistance programs, voluntary programs, wellness programs, etc.
  • Employer work events.
  • Tuition assistance/educational assistance programs.
  • COBRA (which is a Federal statute and the NYS New York State "mini-COBRA" law (NYMC).  The NYMC includes folks in a same sex marriage as well as their spouses in the category of "spouse" for state law purposes.  The same cannot be said for Federal COBRA.
  • Beneficiary status.
  • Protected categories under the NY HRL (Human Rights Law).  The HRL generally applies to employers with four or more employees. The HRL then prohibits such employers from terminating an employee, refusing to hire an individual and discriminating against someone (with regard to the terms/conditions & privileges of employment) for certain protected categories - such as...the individual’s age, race, creed, color, national origin, “sexual orientation,” military status, gender, disability, predisposing genetic characteristics, “marital status,” domestic violence victim status...  Accordingly, reading the HRL and MEA together, it appears unlawful for a NYS employer in certain circumstances to terminate or not hire someone because of his/her status with regard to a same-sex marriage. 
  • Statutory and legal rights given to spouses.
  • Procedures for a fair market value determination.
  • Taxability distinctions when compared to eligibility.
  • Payroll processes.
  • NY's Workers’ Compensation Law has provisions for death benefits to be payable to a worker's spouse (if the injury causes death).  It appears MAE and the language for the WCL would include folks in same-sex marriages as “spouses” who may be entitled to such workers’ compensation death benefits.
  • Others.

15  Actions to consider:

  • List out benefit plans/programs/practices and employment programs/policies/procedures/practices.  You will have to scour your employee handbooks, plan documentation/amendments, summary plan descriptions/modifications, policies, procedures, forms, administrative procedures, etc.
  • Determine which offer privileges/benefits to spouses.  This includes an analysis of required versus desired changes.
  • Determine if law automatically applies, excepted, preemption may apply, etc., if there are any potential discrimination claims based on current, intended and future offerings/policies/procedures.
  • Address issues associated with imposing differing eligibility/administrative processes on same-sex spouses, same-sex domestic partners and/or opposite-sex domestic partners.
  • For those where law is preempted/excepted, determine if want to provide benefit to same-sex spouses even though not required to do so.  Consider past history, employee population, company culture, employee morale, cost and tax issues, what competitors are doing to remain competitive, are multi-state sites at issue, employer specific issues, etc.
  • Confer with your payroll department regarding taxation issues.
  • Review and update spousal/domestic partner benefit policies and procedures.
  • Make decisions and document (before July 24, 2011) and be sure to communicate to employees (before July 24, 2011).
  • Clearly communicate rules and any potential modifications to employees/families.


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Not legal advice, but here are some pointers to consider based on the recent EEOC hearing on the ADA concerning medical leaves of absence and reasonable accommodations:


  1. The employer must have discussions with the employee requesting/taking the leave, reasonable accommodations, etc.
  2. Do not get comfortable thinking the EEOC will not sue - it will and it has (and been quite aggressive when it decides to initiate suit).
  3. Always do an individualized assessment concerning leave and reasonable accommodations.
  4. An automatic termination will not pass ADA scrutiny.  You cannot have a base rule that an employee out for 2 months will be administratively terminated.


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A FEW COLLECTIVE BARGAINING STRATEGIES 2011 (Among Others...)


  1. Individual Employer Negotiations (standard situation, but be careful of information requests)
  2. Multi-Employer Negotiations (one size does not always fit "all", see Retail Associates at 120 NLRB 388)
  3. Bargain to Impasse and then unilateral implementation (see American Nat'l Insurance Co., & Fetzer Television)
  4. Facility Closure - Possible Relocation (but address e.g., GC 91-9, PBGC Regs on 4062(e) and WARN issues)
  5. Corporate Restructuring (aka double breasting)
  6. Subcontracting (mid-term versus end of contract tactics and address need for close-down agreement)
  7. Potential loss of Majority Status for Union - Decertification (RD versus RM petition, one man unit cases and special 


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TOP 10 OSHA VIOLATIONS FROM 2010


  1. Scaffolding, general requirements, construction (29 CFR 1926.451)
  2. Fall protection, construction (29 CFR 1926.501)
  3. Hazard communication standard, general industry (29 CFR 1910.1200)
  4. Ladders, construction (29 CFR 1926.1053)
  5. Respiratory protection, general industry (29 CFR 1910.134)
  6. Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
  7. Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
  8. Powered industrial trucks, general industry (29 CFR 1910.178)
  9. Electrical systems design, general industry (29 CFR 1910.303)
  10. Machines, general requirements, general industry (29 CFR 1910.212)


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2011 END OF YEAR CONSIDERATIONS - Sent October 15, 2011