Deputy Consul General to the Consulate-General of Japan in Houston visits Phillips Murrah

Ryuji Iwasaki and Pat Hall at the law offices of Phillips Murrah P.C.

Phillips Murrah was honored to have Deputy Consul General to the Consulate-General of Japan in Houston, Ryuji Iwasaki (left), visit the Firm during his economic and cultural tour to Oklahoma.

Mr. Iwasaki is pictured here at the law offices of Phillips Murrah P.C., on Thursday, July 22, with long-time ally and consultant to the Consulate-General of Japan in Houston, Pat Hall (right). Mr. Hall has also been a lobbyist and legislative advocate for Phillips Murrah for many years.

USDOL withdraws 2015 and 2016 informal guidance on joint employment and independent contractors

On Wednesday, June 7, 2017, the U.S. Department of Labor’s Office of Public Affairs announced the withdrawal of recent guidance regarding joint employment and independent contractors.

OPA News Release:
June 7, 2017 [link] WASHINGTON – U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

The Administrator Interpretation Letters – Fair Labor Standards Act, which have been withdrawn are:

  • FLSA 2015-1: “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors”
  • FLSA 2016-1: “Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act”

What does this mean for employers?

For employers, this means:

  • Joint employment and independent contractor status are no longer reviewed by the DOL under these previous Administrator’s Interpretations
  • Employees no longer have FLSA 2015-1 and FLSA 2016-1 to cite before the courts.

However, the Administrator’s Interpretations relied upon case law, statutes and regulations that are still good law.  Further, how the courts define joint employment and identify misclassified independent contractors has not changed because the common law, statutes and regulations are still in effect.

The definition of joint employment may depend on the state and federal Circuit Court where the employer is located. Independent contractor status is also defined by the FLSA, common law, statutes, and regulations as well as state law. Some states may have a different standard for independent contractors and joint employment.

Employers should consult with their attorney regarding questions about classifying independent contractors, joint employment and state laws that may vary. Although the removal of the DOL Administrator’s Interpretations is not a change in the law, it may indicate a change in DOL enforcement in these two areas. Stayed tuned for more information or changes from the DOL.

Directors volunteer at annual Westminster fundraiser

Marc and Nikki Edwards and Laurin and Nicholas Hickman attend a Westminster School event.

Nikki and Marc Edwards, Directors at Phillips Murrah, gave their time to help make WestxWestminster, an annual fundraising auction hosted by Westminster School, a success.

Arriving early to the April 1 event at the Bricktown Events Center, Nikki and Marc volunteered at the check-in table and worked a games table throughout the night.

“While I support many Oklahoma City and Oklahoma state causes, I’m always happy to lend my time and resources to this great cause and this top-notch school,” Nikki said.

The Edwards have an 8-year-old son who attends Westminster School in Oklahoma City.

At Phillips Murrah, Nikki heads up the Family law Practice Group where she provides objective, compassionate and experienced guidance in domestic matters that lead to separation or divorce and other family law-related matters. Marc, who leads the Firm’s Government Relations and Compliance Practice Group, represents business and public entities in a broad range of litigation, administrative proceedings and strategic legal matters, with an emphasis on public utility, public pension, governmental and administrative laws.

While not practicing law, the Edwards’ spend their free time volunteering, attending field trips, and supporting the school.

To learn ways to support Westminster, click here.

Phillips Murrah donates neckties for Tie Day

Journal Record journalist Molly Fleming holds ties donated by Phillips Murrah. She tweeted: "Just picked up 52 ties from our neighbors @PhillipsMurrah. Thanks, everyone! #tieday"

Journal Record journalist Molly Fleming holds ties donated by Phillips Murrah.

Attorneys at our Oklahoma law firm Phillips Murrah rallied overnight to help Journal Record reporter Molly Fleming collect neckties for Tie Day.

Our attorneys donated just over 52 ties, which Molly will bring to a couple of local elementary schools, where they will be given away along with lessons on how to properly tie them.

Molly tweeted:

 JR_MollzFlem – “Just picked up 52 ties from our neighbors @PhillipsMurrah. Thanks, everyone! #tieday”

You’re welcome!

You can find out more about Tie Day here.

Law & Oarder Rowing Team win at Regatta Festival

Attorneys present at PLICO Healthcare Summit

Mary Holloway Richard

Mary Holloway Richard, Renee M. Brown, and Candace Williams Lisle at the PLICO EXPLORE Healthcare Summit on August 11, 2016.

Phillips Murrah attorneys Mary Holloway Richard and Candace Williams Lisle spoke on audits in the health care industry at the PLICO EXPLORE Healthcare Summit in Norman, OK on August 11.

They presented “Driving Success: Using Internal and Payor Audits to your Benefit” with Renee M. Brown, CMIS, ACS-EM, CHA and covered:

  • regulatory reviews
  • federal health care (Medicare) contractors and oversight
  • appeals
  • external audits
  • False Claims Act
  • Medicaid
  • compliance plans, and
  • commercial payors.

For more information about the PLICO EXPLORE Healthcare Summit, click here.

Phillips Murrah attorney Doug Branch featured in The Oklahoman

Phillips Murrah attorney, Douglas A. Branch, is featured in today’s Oklahoman newspaper regarding his career in biotechnology.

Doug is one of the prime movers in the diversification of the Oklahoma City economy to include biotech. He recently accepted the position of CEO of Biolytx Pharmaceuticals, and he continues his legal practice at Phillips Murrah as an of counsel attorney.

Below, read the story, or jump to it at newsok.com here.


Phillips Murrah attorney Doug Branch

Phillips Murrah attorney Doug Branch

Oklahoma’s 1980s oil problems leads to career in biotechnology for local lawyer

By Jim Stafford For The Oklahoman| April 26, 2016

A promising career as a securities lawyer awaited Doug Branch when he graduated from the University of Oklahoma College of Law in 1982. Oklahoma was the heart of a booming energy economy with lots of oil and gas firms that needed legal work as they raised capital and dealt with regulators.

A couple of months later Penn Square Bank went belly up.

The Penn Square collapse set off a domino effect of bank failures that coincided with declining energy prices and ultimately cost the jobs of thousands of Oklahomans. By 1988, the law firm that Branch worked for was suffering along with the rest of the state.

“Our business was in the tank,” Branch said recently at the OU Research Park. “The law business in Oklahoma City was terrible, and I knew I had to change my practice.”

Fast-forward almost 30 years. Branch recently was named CEO of an up-and-coming biotechnology startup called Biolytx Pharmaceuticals Corp.

So how did a securities attorney who focuses on the energy industry make the transition to CEO of a life science company?

The evolution began in those dark days of the late 1980s. Branch committed himself to learning all he could about licensing and managing intellectual property and representing technology companies.

By 1988, the state Legislature had created the Oklahoma Center for the Advancement of Science and Technology (OCAST).

“I became familiar with OCAST,” he said. “My first technology project was working with a professor at OU in the engineering school who was developing superconducting thin films.”

That year Branch also began representing Sonic Corp., a relationship that continues in 2016 with Phillips Murrah, the Oklahoma City law firm where Branch was a partner until this year.

“I was so fortunate because if that engagement didn’t happen I would probably have been fired,” he said. “And it sustained me for the time that it took to develop my technology practice. Cliff Hudson, the CEO of Sonic, was general counsel then and he and I are still great friends.”

Immersion in biotech

Branch so completely immersed himself in technology that he joined the OCAST board in the early 1990s as its chairman. During his time on the board, the agency launched an ambitious plan to diversify the Oklahoma economy.

Centers of Excellence in manufacturing, molecular medicine, and laser technology were developed at OU and Oklahoma State University. The Oklahoma Manufacturing Alliance was created. Funding programs took off.

“OCAST invested big in those Centers of Excellence,” Branch said. “They were great investments, especially for the Oklahoma Health Center. It was a huge deal for biotechnology here.”

Branch’s involvement in biotechnology also began to expand. His clients have included high-profile startups such as Zymetx, Riley Genomics, Novazyme, Altheus Therapeutics and Cytovance Biologics, among others.

The construction and growth of the Presbyterian Health Foundation Research Park — now the OU Research Park — also added to the momentum, both for the biotech industry and for Branch.

“I opened up my office there in 2004 and it was called Biotech Law Associates,” he said. “I went to the annual BIO (Biotechnology Industry Organization) show as a member. In fact, I went to the first BIO show at the Research Triangle Park as OCAST chairman probably in ’92 or ’93.”

Now company’s CEO

Through an association with William Hagstrom of Alpha Bio Partners, Branch became acquainted with OU professor Anne Pereira, Ph.D. Pereira had co-founded Biolytx Pharmaceuticals with Hagstrom based on her groundbreaking work in developing peptides that kill antibiotic resistant bacteria. That relationship eventually led him to his current position as CEO of the company.

“Our objectives are to develop our pipeline of peptides to the point where we can enter into collaborations with pharma companies to get through clinical trials,” Branch said. “That’s going to take time and a lot of money. It’s a great challenge, but it’s fascinating and exciting.”

As Branch looked back over the past three decades, he says he would never have predicted the rise of biotech here or his participation in the industry.

“This was inconceivable when I graduated from law school,” he said. “I mean, this industry didn’t even exist then. The notion that I would be involved in biotech, I couldn’t imagine ever doing anything like this. But I’m having the time of my life.”

Jim Stafford writes about Oklahoma innovation and research and development topics on behalf of the Oklahoma Center for the Advancement of Science & Technology.

‘Prequalifying’ Primes Pays Off for Subcontractors

By David A. Walls & A. Michelle Campney.

From The Contractor’s Compass, an educational journal of the Foundation of the American Subcontractors Association.

Published Q2 2012 – originally posted Jun 18, 2012

IN THIS ARTICLE . . .

  • Research primes’ reputations.
  • Research project liens and litigation records.
  • Investigate financial strength of prime and project financing.

Imagine that you need to fill a high-level position in your business. This position is one that will have a visible and immediate effect on your bottom line. Perhaps it is your chief estimator, COO or head of sales. Because you need this person right away, you decide not to ask any applicants for a resume or do any kind of background check. You are going to hire solely on the basis of the fact that you really need to fill the position. Sound crazy?

It is. Yet, many businesses follow this same plan when submitting bids or soliciting work from owners, developers and prime contractors — all of whom will affect their business to at least the same extent as the aforementioned employees. This is likely traceable to the difficult economic environment for the construction industry. When work is scarce, it is hard to be too picky about work. Regardless, there are some basic steps any subcontractor can and should take to assess, or “prequalify,” a prime contractor before taking on any new project.

Reputation

A great deal of information can and should be learned about a prime contractor’s business reputation before bidding a new project. This is especially true if the subcontractor has not worked for the prime contractor previously, or the project is in a state where the subcontractor has not previously worked. The Internet, and particularly social networking sites, can be a wealth of information about a prime contractor. Many businesses will list their projects and customers on their Web sites, and a few quick phone calls can provide valuable information regarding how those projects turned out. Many Web sites will also list the trade groups that a prime contractor belongs to, and these can be verified and investigated. This same type of reputation investigation should be done for the project owner and the project architect. Remember that much information can be discovered simply be speaking to other subcontractors. Questions that should be asked include:

  • What type of work is the prime contractor known for in the industry?
  • What current or recently completed projects has the prime contractor done?
  • What subcontract agreement does the prime contractor use, and can it be negotiated?
  • Can a copy of the subcontract be obtained in advance of bidding?
  • Will the prime contractor work with the subcontractors when the inevitable project challenges arise?

[Editor’s note: ASA-chapter Business Practice Interchanges are a great forum for getting objective information about prospective customers.]

Project Liens and Legal Filings

Subcontractors also should do a thorough background check on the public legal records pertaining to a prospective prime contractor partner. Many states and counties make these records available on the Internet, but at a minimum they can be checked via a quick trip to the office of the records clerk.

Typically, county records can be checked to determine if subcontractors and suppliers have filed liens on projects involving the prospective prime contractor. If a foreclosure action has resulted from the lien, it may mean that, for some reason, payment issues were serious and difficult to resolve. It is important to keep in mind that liens can be filed even when a project is going smoothly, but their existence likely warrants further inquiry.

Subcontractors can check court filings to see if the prime contractor has been involved in litigation, and if so, the nature of the lawsuits that have been filed. Unfortunately, today’s society is litigious, so the mere existence of litigation does not, in and of itself, reveal much about any business. But a large volume of litigation, or a large volume relative to the number of projects undertaken, may warrant further investigation. Moreover, lawsuit records will show the names of other businesses that can be contacted to obtain additional information.

Financial Status

A subcontractor should attempt to determine the financial liquidity of the prime contractor. Examining Uniform Commercial Code filings against the prime contractor in the county clerk’s office may provide some information in this regard. If there are many filings, most of the prime contractor’s assets may be encumbered for financing. It is even more important to investigate the financial status of the owner and the project. If the project is not fully funded, there is a real possibility the project will terminate and payment in full on the subcontract will not be made. Is the project financed with public, private or a combination of public and private funding? Publicly financed projects need scrutiny, as government agencies struggle with tight or reduced, and sometimes forecasted, funding. For example, some public projects may be funded in phases and have only partial appropriations before work commences. If the project is privately financed, the project likely has to meet requirements of the financial institution. A project financed by a public-private partnership may have project financing in place, but could lack payment assurances for subcontractors, as liens cannot be filed on public property and a payment bond may not be required. The subcontractor also should scrutinize the financial health of the industry of which the owner/ developer is a part, such as oil and gas, technology, or health care.

10 Commandments of Getting Paid

“Prequalifying” the prime contractor will help ensure that the project goes smoothly and that the subcontractor will receive full payment in a timely fashion. Follow these 10 commandments of getting paid:

 

  1. Know your customer.
  2. Know your lien rights.
  3. Know your bond rights.
  4. Calendar all deadlines to file claims.
  5. Deal with payment issues immediately.
  6. Get change orders and extra work in writing.
  7. Obtain the legal description for the property or project.
  8. Understand your backcharge rights.
  9. Know what happens if you don’t get paid.
  10. Know whether the contract has an arbitration clause or venue provision.

Taking the time up-front to protect your company will save you time and money in the end.

David A. Walls and Michelle Campney are attorneys with Phillips Murrah P.C., Oklahoma City, Okla. Walls can be reached at (405) 235-4100 or dawalls@phillipsmurrah .com. Campney can be reached at (405) 235- 4100 or amcampney@phillipsmurrah.com.


Read original article HERE.

Related Link: The Foundation of the American Subcontractors Association (FASA)

Phillips Murrah launches AM@PM Breakfast Forum series

AM@PM Event Logo for web

Jason A. Dunn

Jason A. Dunn

Bright and early Thursday morning, April 21, Oklahoma City law firm Phillips Murrah launched a new learning series called AM@PM Breakfast Forum. The hour-long presentation was held at Vast on the 50th floor of OKC’s iconic Devon Tower.

Firm Directors Jason A. Dunn and Kathyrn D. Terry each talked to attendees for about 20 minutes.

Jason addressed key considerations for identifying and protecting trade secrets and other proprietary information. This included steps to identify what processes and data have value, how to identify and defend its value, and what types of measures need to be in place to protect it from dissemination or use by employees, customers and competitors.

Kathy Terry

Kathyrn D. Terry

Kathy talked about the use of restrictive covenants and non-competes, including partnership and operating agreements. She also addressed considerations of what types of restrictive covenants that should be in place in the event of dissolution or a buy-out, what written agreements and policies effectively restrict the solicitation of a business’ customers and employees by former employees and contractors, and policies regarding electronic devices and data.

The event included breakfast prepared by Vast and a networking opportunity following the presentations. There was also a drawing for a pair of Oklahoma City Thunder Playoffs tickets.

AM@PM will be an ongoing series that will cover a range of topics that are important to businesses and individuals who wish to stay at the forefront of their industries, protect their businesses and keep informed about the ever-changing legal and regulatory landscape.

For information about the next AM@PM event, please fill out the form below.


Phillips Murrah sponsors Big Brothers Big Sisters bowling event

Assistant Marketing Director Nathan Hatcher, Chelsea Linn, Nick Potter, Administrative Assistant Cristal Bazemore, and Legal Secretary Sherree Williams take a break from bowling at Phillips Murrah’s Bowling Night.

After months of fundraising, five teams of Phillips Murrah employees, families and friends celebrated the Firm’s community efforts at Big Brothers Big Sisters’ Bowl for Kids’ Sake annual event.

Dust Bowl welcomed Phillips Murrah for the Firm’s Bowling Night on April 7, organized by Phillips Murrah and Big Brothers Big Sisters staff.

Phillips Murrah Director Byrona Maule spearheaded the campaign, which raised $5,437.

“Bowl For Kids’ Sake (BFKS) is the single largest fundraiser for Big Brothers Big Sisters – it’s a great way to provide financial support for matches and the bowling party is a lot of fun,” Maule said. “It is an easy decision on my part to facilitate Phillips Murrah’s participation in BFKS! “

The firm hosts a series of events and raffle drawings to garner support for the campaign and raise money to help the organization.

“I’ve seen these results first hand, as one of my Little Sisters had parents who were incarcerated,” Maule said. “These types of results make it easy to commit to supporting Big Brothers Big Sisters of Oklahoma.  I’m so glad that Phillips Murrah, through teamwork, was able to contribute.”

To learn more about Big Brothers Big Sisters of Oklahoma or to make a donation, visit their website here.

EEOC and Proposed Wellness Regulations: What is means to Health Care Providers

By Mary Holloway Richard, Attorney

shutterstock_healthcareWellness is in the news again.  Large employers have inserted wellness protocols and metrics into the workplace with great enthusiasm.  Advertisements for webinars tout the importance of clinicians and counsel getting on the wellness bandwagon, and articles on the topic appear daily in local and national newspapers.

The wellness debate continues and focuses on these issues:

  1. Financial impact
  2. High risk diseases and conditions subject to detection and prevention such as diabetes, hypertension, obesity and smoking
  3. Impact of economic status on health and ability to access to programs supporting lifestyle change (e.g., no time to attend a course or to exercise.

The Equal Employee Opportunity Commission (“EEOC”) is the federal agency charged with oversight of employer compliance with the Americans with Disability Act (“ADA”) and specifically with guiding employers in properly complying with the ADA in the context of popular wellness programs.  The ADA is, of course, statutory; supporting regulations and interpretive guidelines are issued by the agency.  While the interpretive guidelines do not have the force of law, they are regularly instructive as a window into the agency’s perspective and intent in terms of review and enforcement

Recently, the EEOC proposed a rule change in which it will reverse its own policy on whether or not employer-sponsored wellness programs discriminate against employees.  The EEOC is now saying that such programs do not necessarily discriminate against workers. The agency also indicates that such employers have yet to show the financial benefits of such programs. The EEOC’s proposed rule change would allow for employers to decrease premiums as an incentive for employees to comply with recommended health screenings and to improve their health metrics without violating federal disabilities laws.

Presented in late April, 2015, the EEOC’s  proposed wellness regulations seek to establish how such a program must be structured in order to comply with the ADA’s rule permitting disability-related inquiries and medical exams by a “voluntary health program.”[i]  The proposed regulations require:

  • A cap on an employer-incentive or penalty at 30% of the total cost of employee-only coverage under the plan. [ii] Total cost refers to employer plus employee contributions.
  • Additional requirements for employers offering a wellness program in conjunction with a group health plan, including notice to employees of the medical information to be obtained and by whom and how the information will be used and how safeguards against improper disclosure.
  • New confidentiality provisions to be applied to information obtained in wellness programs by sponsors or wellness vendor.
  • The program itself must be created in such a way as to promote health status, prevent disease and not be overly burdensome on plan participants.

This does not relieve the employers from compliance with HITECH and HIPAA and the Affordable Care Act.  In addition and importantly, employers will be faced with differing requirements by the Internal Revenue Service, the Department of Labor and the Department of Health and Human Service — the agencies responsible for implementing the Affordable Care Act. These inconsistencies may be resolved at the close of the public comment period for these new EEOC proposed regulations. The period for public comment closes on June 19, 2015.


[i] It is likely that most wellness programs will fit into this category.

[ii] The Affordable Care Act’s non-tobacco incentive is held to the same limit for wellness programs including collection of health data.  The additional cap in the proposed regulations is for the same amount for the tobacco incentive for participation-only wellness programs unless the employer does not fall within the purview of the ADA (less than 50 employees.)  The policy ramification is that the EEOC does not distinguish between a tobacco-cessation wellness program where the participants are questioned about their tobacco use from one where a nicotine test is required of them to verify tobacco use or non-use.


Mary feat img 142x177

AuthorMary Holloway Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

Click to see her  attorney profile.

Regulation focuses on financial ties between physicians and industry

Phillips Murrah healthcare attorney, Mary Holloway Richard published an article about the Sunshine Act in the May/June 2015 issue of the Oklahoma County Medical Society publication, The Bulletin.


CMS seeks to mitigate potential impact on prescribing and treatment practices

Sunshine-Act-MHRThe Physicians Payments Sunshine Act (i) (“Sunshine Act”), despite its name, currently places no direct reporting requirements on physicians. Rather, the Sunshine Act requires that certain manufacturers of prescription drugs, biologic agents, medical devices and medical supplies (“Manufacturers”) and group purchasing organizations (“GPOs”) report to Centers for Medicare and Medicaid Services (“CMS”) payments in specified amounts (ii) and other transfers of value to physicians (iii) and to teaching hospitals (iv). In addition, ownership and investment interests in applicable Manufacturers and GPOs held by physicians (and immediate family members) must be reported annually by applicable Manufacturers and GPOs. Covered payments include cash (or cash equivalent, in-kind items or services), stock (including stock options or ownership interest dividend profit or other return on investment), and other forms of payment to be determined in the future by CMS. While it is not the physician’s duty to report, the reporting requirement directly impacts physicians who receive such payments as their names appear on a list on the CMS website accessible by patients and other consumers (v).

The purpose of the Sunshine Act is to identify potential biases in physician prescribing and treatment practices, to reveal conflicts of interest for clinical researchers and educators, and to identify transactions in which payments involving potential referrals by physicians exceed fair market value. The Sunshine Act creates the Open Payments Program for the actual reporting of the financial payments and transfers of value to physicians. Currently the burden is on the Manufacturers to report payments for consulting fees, contracted services, honoraria, gifts, entertainment, food, travel, education, research, charitable contributions, royalty or license, current or prospective ownership or investment interest, grants, direct compensation for serving as faculty or speaking at a medical education program, and any other nature of payment or transfer of value as defined by the Secretary of the Department of Health and Human Services (“HHS.”) The form of the payment and the nature of the payment must be reported. See Table 1 below. Data has been collected since August, 2013, and is due to CMS by March 31 of each year. The first report was available to the public on September 30, 2014, and the 2014 report is predicted to be available on June 30, 2015 (vi).

The regulations provide for a formal dispute resolution process whereby physicians can seek to correct inaccurate information. In September, 2014, representatives of pharmaceutical and biotechnology companies and organized medicine expressed concerns about the database and its presentation of data to the public in a potentially misleading manner. CMS shut down the Open Payments system for a period of time to address these issues. On October 30, 2014, CMS announced a procedure for Manufacturers and GPOs to report information not previously accepted by the system because of data errors, and CMS extended the reporting time accordingly. CMS has provided guides for Manufacturers to use to correct records and for covered recipients to correct information submitted in compliance with the regulations (vii).

Registration with CMS to receive notifications and information submitted by Manufacturers and GPOs is voluntary. This information is now available on the CMS website, to public and regulators alike, but the website itself continues to present issues of accuracy and ease of on-line accessibility. Physicians and teaching hospital representatives have the opportunity to review and, if appropriate, dispute information reported about them in the Open Payments System (viii).

open payments graph

Source: ttps://www.cms.gov/OpenPayments/About/How-Open-Payments-Works.html

It has been necessary to resolve a number of procedural and substantive issues with the reporting requirements including initial confusion about the information that had to be reported and by whom. Example of substantive issues to be resolved may be helpful is understanding the regulatory climate. Some confusion has surrounded the CMS treatment of payments related to continuing medical education. “Direct payments” have always been included in the Sunshine Act’s reporting requirements. “Indirect payments” refers to payments by a manufacturer to a continuing education organization where the Manufacturer directs that the third party provide the payment or transfer to a covered recipient. In the October, 2014, final regulations, CMS responded to widespread criticism of its treatment of the CME by requiring reporting in 2017 payments (direct and indirect) made to continuing education organizations in 2016 as long as the speaker can be identified (ix). Further, payments to physicians for speaking at CME programs need not be reported if the following conditions are met:

  • The CME program meets accreditation/certification standards of one of the following: (1) the Accreditation Council for Continuing Medical Education; (2) the American Academy of Family Physicians ; (3) the American Dental Association’s Continuing Education Recognition Program; (4) the American Medical Association; (5) the American Osteopathic Association; and
  • The Manufacturer or GPO does not pay the speaker directly; and
  • The Manufacturer or GPO does not select the speaker or provide the third party, such as the CME vendor, with a distinct, identifiable set of individuals to be considered as speakers for the CME program (x).

Other frequent questions concern Manufacturers providing meals and other event support and sponsorships to physicians. In this context the Open Payments program is very specific–e.g., where a Manufacturer’s sales representative brings a meal to a staff meeting or a community education event for a number of persons, the cost of the meal is divided by the number of persons who actually eat the meal and this benefit is reported only if it exceeds $10.00 per person. This does not include meals eaten by support staff. Financial support of buffet meals at large-scale medical conferences is not reportable. The “User Guide” for Open Payments published by CMS is over 350 pages long and provides additional guidance to those reporting and those reviewing reports. It is accessible on-line (xi).

The Open Payments System is expected to significantly impact historic financial support of provider, patient and community education by industry. Importantly, these regulations and reporting requirements echo federal policy designed to avoid improper payments and incentives and market influence. These are the same concerns that spawned the expansion of federal antitrust, Stark and Anti-kickback law within health care.

Ms. Richard is a health care lawyer at Phillips Murrah, P.C. in Oklahoma City and was formerly in house counsel with INTEGRIS Health, Inc.


The Natures of Payment that are of Interest to CMS

Nature of payment Definition Examples
Consulting fee Payments made to physicians for advice and expertise on a particular medical product or treatment, typically provided under a written agreement and in response to a particular business need. These payments often vary depending on the experience of the physician being consulted. Example 1: Company A has developed a drug to treat patients with a particular disease and wants advice from physicians on how to design a large study to test the drug on patients. Dr. J has a large number of patients with this disease and has experience doing research on how well medicines work for this condition. Company A asks Dr. J if he would spend about 10 hours per month to work with other physicians to create a new research study. Dr. J agrees and is paid for his time.Example 2: Company C has designed a new tool for surgeons to use when they are doing heart surgery. The company pays some physicians to give the new tool a “test drive” on a computer-simulated patient at the company headquarters. The physicians are paid an hourly fee for their time testing the tool and giving advice on how to make it work better. They are also paid for flights, hotel rooms and meals.
Compensation for services other than consulting, including serving as faculty or as a speaker at an event other than a continuing education program. Payments made to physicians for speaking, training, and education engagements that are not for continuing education. A physician who frequently prescribes a particular drug is invited by the company that makes that drug to talk about the medicine to other physicians at a local restaurant.  The physician is paid for preparation time as well as the time spent giving the talk.
Honoraria Similar to consulting fees, but generally reserved for a one-time, short duration activity. Also distinguishable in that they are generally provided for services which custom prohibits a price from being set. A medical device manufacturer representative goes to a medical meeting and asks some physicians there for an hour of their time to talk about features they would like to see to improve a particular device. This representative pays each physician a one-time honorarium.

Footnotes:

(i) The Physician Payment Sunshine Act is Section 6002 of the Patient Protection and Affordable Care Act, 42 U.S.C.§18001. The regulations can be found at: http://www.cms.gov/OpenPayments/Downloads/Affordable-Care-Act-Section-6002-Final-Rule.pdf.

(ii) There are specific reporting thresholds for applicable manufacturers and GPOs. The Open Payments reporting thresholds are adjusted based on the consumer price index. This means that for 2015 (January 1 – December 31), if a payment or other transfer of value is less than $10.21 ($10.00 for 2013, $10.18 for 2014), unless the aggregate amount transferred to, requested by, or designated on behalf of a physician or teaching hospital exceeds $102.07 in a calendar year ($100.00 for 2013, $101.75 for 2014), it is excluded from the reporting requirements under Open Payments. http://www.cms.gov/OpenPayments/Program-Participants/Applicable-Manufacturers-and-GPOs/Data-Collection.html.

(iii) This law applies to physicians and other providers, but, for the purposes of this article, we will only reference physicians. The other providers as defined in Section 1861(r) of the Social Security Act to whom this law applies include medical and osteopathic physicians, dentists, podiatrists, optometrists and chiropractors. Providers exempted include medical and osteopathic residents, physician assistants, nurse practitioners and allied health practitioners. However, in some circumstances, payments to these types of providers may be imputed to physicians, thereby triggering the Manufacturers’ obligations to report payments.

(iv) Manufacturers and GPOs may also be referred to in this paper as “covered recipients.”

(v) https://openpaymentsdata.cms.gov/.

(vi) http://www.cms.gov/OpenPayments/About/Resources.html

(vii) The American Medical Association offers a toolkit for physicians to use in reviewing and dispute reports at: http://www.ama-assn.org/ama/pub/advocacy/topics/sunshine-act-and-physician-financial-transparency-reports/sunshine-act-toolkit.page?

(viii) See Flow Chart 1 in content.

(ix) 42 C.F.R. §403.902.

(x) 42 C.F.R. §403.904(g).

(xi) www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparenct-Program/Download/Open-Payments-User-Guide-%5BJuly-2014%5D.pdf.

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The Role of Telemedicine in Meeting the Behavioral Health Needs of Oklahomans and Attendant Legal Issues

Click here to view the publication in full: “The Role of Telemedicine in Meeting the Behavioral Health Needs of Oklahomans and Attendant Legal Issues” (Oct 4, 2014)

The U.S. Oil and Gas Boom: Drilling Down on Issues, Risks and Opportunities for the Construction Industry

 


Click here to view the story in PDF format:  “The U.S. Oil and Gas Boom: Drilling Down on Issues, Risks and Opportunities for the Construction Industry” (Jul 9, 2014)

2014 ALFA INTERNATIONAL

CONSTRUCTION SEMINAR THE GROVE PARK INN

ASHEVILLE, NORTH CAROLINA

JULY 30 – AUGUST 1, 2014

THE U.S. OIL AND GAS BOOM: DRILLING DOWN ON ISSUES, RISKS AND OPPORTUNITIES FOR THE CONSTRUCTION INDUSTRY

 

 

Thomas G. Wolfe Journal Record Columns

Gavel to Gavel: Paying a Premium

By Robert J. Haupt

When given a set of facts, different people can reach different conclusions. When society demands consistent application of laws, how can individuals know what outcome to expect? Are we to rely only on the whims of a judge or jury? Our idea of common law assuages these concerns. Common law is where the theoretical intent of legislators is applied.

Congress makes laws and courts apply them, right? Well, not so fast. Think of it is as though Congress were to pass a law saying all must dress nicely for church. The question then becomes: What is nicely? A lawyer might ask: What is church?

While each of us may have individual opinions, the answer is given to us when a question has been run through the gauntlet of our judicial system – yes, lawsuits.

 

In our adversarial system, attorneys for each side advocate the positions of their respective clients. Ultimately, either a judge or a jury then rules, agreeing with one party over another. With each decision, society’s understanding of how the law is defined and applied becomes increasingly clear.

 

However, not all judges or courts will agree to the same conclusion when given the same facts. When courts rule inconsistently with another court, the question is considered by yet a higher court – appeals. Is the ultimate appellate court the Supreme Court of the United States? Only when it involves questions of federal statutory or constitutional law. Otherwise, the ultimate authority is at the Oklahoma Supreme Court.

 

This process, which first originates with legislation, then passes through the filters of litigation, judicial determination, and possibly appellate review, eventually refines the answers to questions and becomes defined as common law. This process separates our reasonable expectations of outcomes in our lives from vague hope. It gives us some expectation of predictability of the consequences to our actions.

 

This is not an inexpensive process, so why pay? Even though most of us seldom have car accidents, each month most pay a car insurance premium. Why? There is an economic value to certainty (or at least in increasing the predictability of an outcome). We ascribe value to having some idea of what limits of exposure or risk we might have. For this, we are willing to pay a premium.

 

Robert Haupt is a civil litigator and former entrepreneur who serves as director and shareholder of Phillips Murrah PC in Oklahoma City. Originally printed in The Journal Record.

Red Earth Inc Names Officers to Lead Board of Directors

 

G. Calvin Sharpe

G. Calvin Sharpe

OKLAHOMA CITY, OK – A new slate of officers for FY 2014 have been elected to the Board of Directors of Red Earth, Inc, a 501 (c) 3 non-profit organization with a mission to promote American Indian arts and cultures through education, a premier festival, a museum and fine art markets. The officers will oversee the operations of the Red Earth Museum and the additional programs of the organization including the 27th annual Red Earth Festival scheduled June 7-9, 2013 in downtown Oklahoma City.

Elected to the Red Earth Board of Directors for FY 2014 are Lou C. Kerr, chairman of the board; Janet Dyke, president: Leslie Blair, president-elect; G Calvin Sharpe, past president; Beth Barnes Hall, secretary; Kimber Shoop, treasurer; and Teri Stanek, member-at-large.

Oklahoma City civic and community leader Lou C. Kerr has been re-elected Chairman of the Board.  She is a founder of the Red Earth Festival and was honored as the 2005 Red Earth Ambassador of the Year.  As an active leader in the community and state she has committed her time and expertise to numerous organizations which correspond with her beliefs and expectations.  She served as vice president of The Kerr Foundation since 1985.  In 1999 she became president and in 2004 her title became president and chair.

Tuttle resident Janet Dyke, Associate Director of AT&T Business Solutions Project Management Office, will serve a second year of a two-year term as president of the Red Earth Board of directors.  Dyke has worked in the communications industry more than 30 years.  She has served as president of the Big Brothers Big Sisters Board of Directors and on the Redlands Council of the Girl Scouts.

Leslie Blair, a native of Frederick, OK, will serve a second year of a two-year term as president-elect of the organization.  She is currently Public Information Officer for the Oklahoma Tourism and Recreation Department and previously served in the same capacity at the Oklahoma Department of Commerce.  She received her bachelor’s degree in communications from Cameron University and currently serves on the Board of the Directors for the Oklahoma County 4-H Foundation.  She is a member of the Friends of Hackberry Flatt and the Junior League of Oklahoma City.

G. Calvin Sharpe (Seminole), Oklahoma City, an attorney with Phillips Murrah PC Attorneys at Law, will serve the second of a two-year term as past-president of the Board of Directors.  Sharpe is a member of the Seminole Nation of Oklahoma and is a graduate of the University of Oklahoma College of Law, past chairman of the Oklahoma County Bar Association, graduate of Leadership Oklahoma City Class XXIV, and a member of the Board of Directors for Infant Crisis Services.

Oklahoma City resident Beth Barnes Hall is elected secretary of the Board.  Hall attended the University of Oklahoma and is currently Executive Assistant to the Executive Director of the Oklahoma Department of Commerce.  She was previously an American Airlines Flight Attendant for 26 years.  She is active as a volunteer at First Christy Church of Oklahoma City and is a school volunteer and former substitute teacher.  She enjoys golf, cooking, reading and snow skiing.  She has two children, Alexander and Bennett.

Oklahoma City resident Kimber Shoop is elected treasurer of the Board.  He has served as Senior Counsel for Oklahoma Gas & Electric for the past seven years, and was Associate Attorney with Troutman Sanders LLP in Washington D.C. for four years prior to moving back to Oklahoma in 2006.  He is a graduate of the University of Oklahoma College of Law and has worked on various political campaigns.

Teri Stanek, Oklahoma City, is elected member-at-large for the Board of Directors.  She has been involved with Red Earth as a volunteer or board member for more than 15 years. During her tenure, she has overseen volunteers, worked in various fundraisers, chaired numerous Red Earth Festival committees and served as chairman of the Red Earth 25th Silver Anniversary Gala.  She and her husband are retired and enjoy traveling in their motorhome.

Newly elected to the serve on the Red Earth Board of Directors are Harvey Pratt (Cheyenne), Jeff Hargrave (Muscogee/Creek), and David Reynolds (Muscogee/Creek).

Guthrie resident Harvey Pratt is a forensic and Native American artist who has worked more than 40 years in law enforcement, completing thousands of composite drawings and hundreds of soft tissue postmortem reconstructions. He is an award-winning, self-taught artist whose art is in permanent collections including the National Park Service, the Smithsonian Institution and the University of Oklahoma.  He accepted state appointments to the Oklahoma Arts Council by Governor Frank Keating and Governor Brad Henry.

Jeff Hargrave, of Edmond, is employed by the Whitten Newman Foundation where he is Executive Director for the Native Explorers Foundation.  He has a BA from the University of Oklahoma and his JD from Oklahoma City University School of Law.  He has a solo law practice and represents veterans pro bono via Pros 4 Vets and deprived children via Oklahoma Lawyers for Children.  He is currently a board member for Remote Area Medical of Oklahoma and the Oklahoma Brain Tumor Foundation.

David Reynolds, Oklahoma City, attended Oklahoma State University and the University of Oklahoma.  He is owner and founder of Red Eagle Construction specializing in commercial and residential construction, design and consulting in Oklahoma City.  He previously worked in Washington DC in the private and public sectors.  He is a long-time supporter of Red Earth having served on the Friends Council and Advisory Committee.

Red Earth, Inc. is recognized as the region’s premier organization for advancing the understanding and continuation of Native American traditional and contemporary culture and arts.  The Red Earth Museum hosts a diverse and changing schedule of art and historical exhibitions at its location in downtown Oklahoma City.  The museum is custodian to a permanent collection of more than 1,400 items of fine art, pottery, basketry, textiles and beadwork.

 

Will advances in offshore wind development result in onshore wind graveyards?

This article first appeared via Power Engineering on Nov. 14, 2013.


Jennifer Ivester Berry has a solid reputation in guiding real estate transactions with a focus on development, financing and energy. She represents individuals, privately-held and public companies in connection with a wide range of commercial real property matters.

By Phillips Murrah Attorney Jennifer Ivester Berry

Just over a decade ago, the mention of a “wind farm” in western Oklahoma would have raised more than a few eyebrows. Today, a number of these “farms” have sprung up across open spaces where buffalo once roamed, and more are on the horizon. Similar scenarios have played out across the U.S. since the onset of the modern wind era beginning in the 1980s. Fueled by economic incentives and a growing desire for cheaper and cleaner energy, the U.S. is the leader in land-based wind energy capacity. However, more than 50 percent of the population of the U.S. lives in coastal areas, a reality that has been one of the primary catalysts for recent efforts by the U.S. Department of Energy to develop an offshore wind industry in the U.S. If these efforts are successful, will the land-based wind farms become a thing of the past?

Having stood mostly on the sidelines during the last decade, the U.S. is getting serious about adding wind to its energy portfolio. Renewables currently make up about 5 percent of the electricity generated in the U.S., with natural gas and coal leading in overall generation. While land-based wind farms will provide a good template, the offshore turbines will operate in a much different environment and be subject to elements not found on land. This will require modifications to the subsystems of the turbine, port upgrades, transmission planning and the maneuvering through an infant regulatory system. These challenges will likely result in higher costs and difficulty securing financing. However, once the mold is created, achieving economies of scale should be a matter of time.

Many of the land-based wind farms in the U.S. are located in the heart of the wind corridor of the central plains, but the wind resources available offshore are more abundant. The U.S. coastlines are extensive, and the wind blows stronger and more consistently offshore. Projections indicate that offshore generating capacity is four times what is currently coming on the U.S. grid, and many of the cities that require large amounts of electricity are located near coastal regions so transmission issues will be reduced considerably. Offshore development could inject billions of dollars in economic activity into the U.S. through professional manufacturing, construction and engineering jobs.

The offshore wind industry is still in the early stages of development, which makes the government’s goal of having 54 GW of offshore capacity by 2030 seem pretty lofty. Currently, there are about 20 offshore projects and approximately 2,000 MW in the planning and permitting stages. The Bureau of Ocean Energy Management, Regulation and Enforcement is overseeing developments in federal waters and has recently conducted two wind lease auctions – one off the coast of Massachusetts and Rhode Island and one off the coast of Virginia. Together, these lease areas are projected to produce enough power to provide electricity to more than one million homes. Lease auctions are expected in the near future for areas off the coasts of Maryland and New Jersey.

The turbines planned for these areas will not be operational for another five to 10 years, largely due to the permitting process, which will take between seven and 10 years. This delay is why some argue that development in state waters will take off at a much quicker pace, and it already has in some areas. While offshore developments within state nautical boundaries might progress at a faster pace, their close proximity to shoreline will limit their size and capacity, and the state and federal governments will have to collaborate if the U.S. is going to succeed in its renewable energy efforts via offshore wind energy.

Even with its paramount benefit of being green and clean, offshore wind development is not without its critics. Most objections stem from its high cost and the likelihood that much of the expertise needed to develop the essential technology would come from overseas. Additional objections focus on concern for the marine habitat, visual effects and noise pollution. Similar concerns existed when land-based wind projects were being developed, which gave way to certain diligence and mitigation requirements related to animal life that will certainly be applied in similar fashion to the offshore developments.

The development of offshore wind projects will no doubt be directly impacted by the advances, or lack thereof, of the coal and natural gas industries. When compared to these “established” forms of energy, wind can look much less attractive. Wind is inherently intermittent and lacks consistency in generation, partly due to the difficulty in efficiently storing the energy generated. However, development of offshore wind energy as an affordable and viable energy source will be necessary if the U.S. is going to expand and diversify its energy portfolio.

Nicholle Jones Edwards Joins Phillips Murrah to Lead Family Law Practice

Established Family Law Attorney, Nicholle Jones Edwards and Robert Campbell Join Business Law Firm, Phillips Murrah, to Serve Clients’ Personal and Professional Legal Needs

OKLAHOMA CITY, OK, NOVEMBER 4, 2013 — Phillips Murrah is pleased to announce that, attorney Nicholle Jones Edwards, has joined the firm and will chair its new Family Law Practice. Edwards, along with family-law attorneys Robert Campbell and Kenneth Tillotson, will complement the firm’s tax and estate planning practice areas, expanding the firm’s capacity to resolve personal legal matters. Though widely recognized as a firm that represents the interests of businesses, the addition of a Family Law practice provides Phillips Murrah the ability to collaboratively meet the needs of its clients, where their business and personal needs intersect.

Edwards, who brings an established, well-respected family law practice, with an emphasis in representing clients in divorce, asset valuation, and custody matters, was most-recently a partner with the Oklahoma City law firm of Mullins, Hirsch, Edwards, Heath, White, & Martinez PC. She has served as the co-chair of the Oklahoma County Bar Association’s Family Law Section and is a speaker on family law issues.

“As a family law attorney, I have the great fortune of positively influencing the lives of my clients through a period of crisis,” said Edwards. “I have an opportunity to make a difference in their lives and the lives of their children and families.”

“Through representing businesses, we develop trusted personal relationships that are highly-valued throughout our clients’ personal and professional lives. Realizing the connection between the two is key to the longevity of any firm,” said Tom Wolfe, president and managing partner of Phillips Murrah.

The Family Law Practice Group will offer services in all aspects of family law including: divorce, child custody, child visitation, alimony, child support, property division, division of retirement benefits, tax consequences of divorce, paternity, prenuptial agreements, and all ancillary matters surrounding divorce.

About Phillips Murrah
Phillips Murrah is represented by more than 65 attorneys, 20 practice areas, and is one of Oklahoma’s leading business law firms. The Firm is recognized for providing multidisciplinary legal services in matters involving virtually all aspects of business law and litigation. Our attorneys are trusted legal advisors and strategic partners, focused on our clients’ objectives, and helping them achieve their goals. For more information, visit: www.phillipsmurrah.com

Who’s Authorized to Work in the U.S.? A Guide for Employers and Foreign Nationals

By Jasmine Majid

There are numerous opportunities for employers to hire foreign nationals who are legally authorized to work in the U.S., but understanding the various eligible classifications and complying with verification procedures can be intimidating. 

Need to hire the best video gamer the world has to offer? Now you can with a P-1 visa designated for “individual athletes.” Would you like to offer an “artists in residence” to a world-renowned sculptor? That requires an O-1B visa. What about the artist’s required assistants and helpers? There’s an O-2 visa for an entourage of support resources. Needless to say, there are designations and limitations for a wide range of extraordinary and also, ordinary opportunities.

U.S. law requires that employers hire only those individuals who are legally authorized to work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. As such, employers are faced with the challenge of meeting their obligations amid evolving classifications of those who are eligible for employment and compliance with verification and documentation requirements.

Verifying Eligibility

All employers are required to complete the Form I-9 for each new hire. The I-9 is used to document the identity and eligibility of individuals hired for employment in the United States. An employee is required to confirm his or her employment authorization and present the employer with acceptable documents, from a predetermined list, evidencing identity and employment authorization. The employer must examine the documents and determine whether or not they appear to be genuine and relate to the employee and then record the document information on the Form I-9.. Employers are required to retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. At present, E-Verify is voluntary and free for private employers but is mandatory in some states and for the federal government and its contractors

Both the Form I-9 and E-Verify can only be used once the individual is hired and begins work, E-Verify cannot be used as a pre-screening tool.

Understanding Who’s Authorized to Work in the U.S.

1.  U.S. citizens (by birth or naturalization)
2.  Lawful Permanent Residents (LPRs) – Individuals with a “Green Card”
3.  Refugees – Individuals who have demonstrated that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group.
4.  Asylees – An individual who is unable to return to their country of nationality because of persecution or a well-founded fear of persecution.
5.  Individuals with temporary Visas that allow employment with specific restrictions:

  • H Visas:  Specialty workers/fashion models; temporary agricultural workers
  • L Visas:  Intra-company transferee
  • O Visas: Aliens with extraordinary ability and their support team
  • P Visas: Internationally recognized entertainers or athletes
  • Q Visas: Cultural exchange visas
  • R Visas: Religious workers
  • TN Visas:  Trade visas for Canadian & Mexican professionals via NAFTA

1.  Occupational practical training (OPT) students – allows employment under strict circumstances via CPT and upon graduation via OPT for 12 months with 17 months extension if employee has a STEM degree and employer participates in E-Verify
2.  Special Visas that allow employment in the U.S.

  • A Visas:  Diplomatic personnel
  • B Visas:  Temporary tourist/business visas
  • F Visas:  Students (academic) visas – require special permission to work
  • G Visas:  International organization Representatives
  • I Visas:   Foreign Media
  • J Visas:  Graduate medical education/training or for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.
  • K Visas:  Fiancé visas/spousal visas – allows employment until “Green Card” is issued
  • M Visas: M-1 (vocational) study visas/non-academic students
  • S Visas:  People who Provide Information to U.S. law enforcement agencies
  • T Visas:  Victims of trafficking

Although there are numerous visa types that allow foreign nationals to work in the U.S., employers should be cognizant of the limitations of each.  The temporary visas have time limitations and require intermittent filing of petitions to maintain the particular immigration status to allow continuation of employment.  Furthermore, certain temporary visas allow the foreign national to apply for a “Green Card” while other visas force the foreign national to return to his or her country of origin before returning to the U.S. again for employment.  Also, some of the visa categories have randomly selected caps rather than a more logical market-based cap.

Legal Alert: E-Verify Returns as Federal Government Reopens

By Jasmine Majid 
October 18, 2013

After the long federal government shutdown, E-Verify features and services are now available.

Information For Employers
 
Tentative Nonconfirmation (TNC)
If you received a TNC referred between September 17, 2013 and September 30, 2013 and were not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.
 
SSA Final Nonconfirmation (FNC) or DHS No Show result
If you received a FNC or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the TNC that led to the FNC result.
 
Creating Cases: Three-Day Rule 
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Contact Customer Support:  888-464-4218 OR email E-Verify@dhs.gov
 
For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov.  Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time. E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. 

Jasmine Majid is an attorney and chair of the Firm’s Immigration practice. Prior to joining Phillips Murrah, Jasmine provided policy analysis for federal regulators responsible for implementing comprehensive immigration reform.

 

Wolfe: Marketing football players

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

By Tom Wolfe, Published Sept. 4, 2013 in The Journal Record monthly legal column, Gavel to Gavel.

Gavel to Gavel: Kicking the Players

Hank Williams Jr.’s Monday night power ballad signals the start of what many sports fans consider a holiday: the start of football season. With the eve of this great time upon us, the college football season is once again marred by yet another NCAA ruling on the eligibility of the reigning Heisman trophy winner.

Following in the footsteps of Cam Newton, Johnny Manziel, aka “Johnny Football,” was in danger of losing his eligibility to play due to rules violations. In particular, he has been accused of being paid for participating in autograph sessions.

While the NCAA wants to limit what money college athletes can make, the NCAA and its constituent schools certainly have no problem marketing products with a college athlete’s image or likeness in effort to increase school spirit. Jerseys frequently change each year based on that school’s particular star player. Have you ever seen a jersey with the number of the school’s kicker?

Whether college athletes should or should not be paid for their play is up for debate (they should), but by punishing players for receiving payment for their signature, the NCAA has effectively forbid college athletes from making any money from their name. But what’s in a name?

Although generally a person’s name cannot be trademarked, this rule does not apply to all celebrities. Where an individual’s name is a brand then the name can qualify. Think Tiger Woods, Michael Jordan, Emeril Lagasse and Martha Stewart. These names are associated with a person, but are also used for branding products ranging from basketball shoes to cooking pans. They all receive compensation every time their names are used commercially to advertise or market a product, and trademark law protects these registered names.

While Johnny Manziel isn’t currently trademarked, Johnny Football was registered in early 2012. Unfortunately for the true Johnny Football, he won’t be allowed to make money off his own moniker until his eligibility in college football is over.

With Johnny Football only receiving what amounts to less than a slap on the wrist with a half-game suspension, Hank Williams’ song rings true: “Are you ready, ready/ Are you ready for some football?”

I know I am.

 

Roth: Teague good for energy and environment

By Jim Roth 
Guest Columnist | August 23, 2013

“Strong energy policy is strong environmental policy,” said Gov. Mary Fallin in a statement announcing the appointment Col. Michael Teague as the new secretary of energy and environment recently.

We can achieve balance for the sake of each. Our governor is to be commended.

Teague will replace two of Oklahoma’s finest in former Energy Secretary Michael Ming and former Environment Secretary Gary Sherrer. Under their leadership, the governor revealed Oklahoma’s first energy plan, which called for greater utilization of Oklahoma’s native energy blessings while also demonstrating that our industries truly are world-class when it comes to environmental compliance. It was under those former secretaries that greater energy efficiencies for Oklahoma were achieved, with very real tax savings for Oklahomans, in addition to spurring policies that have helped us breathe that Oklahoma air a little cleaner.

Now, Fallin, in a move to create more efficiency in government, has blended the secretary of energy and the secretary of environment into one new position. So, certainly, because it is uncharted territory, Teague has his work cut out for him to help achieve the governor’s new ambitious vision.

Yet, Teague is no stranger to challenges. As the former Tulsa District commander of the U.S. Army Corps of Engineers, he has a deep personal knowledge of how energy, infrastructure, and the environment all play together. So, in Teague, the governor has chosen someone who understands the importance of being a good steward of our state’s resources for the good of our industry and Oklahoma consumers alike.

Meanwhile, the governor has been a long-standing proponent of our state’s backbone industry: oil and gas. In fact, the governor said Teague’s “mission will be to help develop policies that encourage energy exploration and production as well as responsible environmental stewardship.” Fallin gets it, and her charge to the new secretary will no doubt continue her commitment to our native blessings, including that above-ground resource that comes sweeping down the plains.

Thankfully, our governor has been a smart advocate for all of Oklahoma’s economic opportunities in the energy industry, with the “Oklahoma First” energy plan, which includes the rapidly improving wind power industry, whose economic qualities have never been greater, helping bring more jobs and money to our state.

Here’s wishing our state’s new secretary of energy and environment much success as he picks up the baton from two former, great secretaries and a forward-looking governor with a balanced approach. Oklahoma’s energies and Oklahoma’s environment should both do well.

 

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Reproduced with permission from The Journal Record.

Roth: Nuclear Options

Nuclear energy has had a lot of challenges to its greater deployment in America. Decades of regulatory uncertainty, uncompetitive economics compared with other forms of American energy and even politics.

But after lots of political posturing from two branches of government, the executive and legislative branches, the third branch has now weighed in and may provide some much-needed clarity, and possibly some momentum.

Here’s the back story.

When Allison Macfarlane became the chairwoman of the Nuclear Regulatory Commission in July 2012, she told lawmakers that she believed that the United States could create a permanent repository for nuclear waste, eventually. However, previous to her comments, in February of 2010, Energy Secretary Steven Chu withdrew the license to construct Yucca Mountain, “with prejudice.”

Yucca Mountain in Nevada, pursuant to the Nuclear Waste Policy Act, was ultimately identified by Congress as the single site in the United States fit for permanent disposal of high-level nuclear waste. And in 2008, the Bush administration submitted to the Department of Energy a license application to construct a high-level waste repository there.

High-level radioactive nuclear waste is spent fuel that operated a nuclear reactor for at least two years, but no longer has the intensity needed to fuel a reactor. What gets lost in the politics surrounding nuclear disposal are very real policy considerations and scientific evaluations that can be troublesome. Spent fuel is highly radioactive and incredibly hot – and it just does not disappear.

Some spent fuel can be stored on site, at the nuclear power plant by being placed into water for three years, the time needed to cool the fuel and diminish its radioactive capacity. Studies do show, however, that water pool storage space is quickly running out at more than half of America’s nuclear power plants. Thus, the idea of storing fuel deep underground at Yucca Mountain does have some logic to it: uranium is from underground. Additionally, there are national security considerations with storing nuclear waste and the deeper underground it is the less likely it is to pose a terrorist threat.

But, in 2008, then Senator Obama pledged on the campaign trail to stop an underground storage facility from being a reality. Additionally, virtually every elected officially in the State of Nevada, opposes the development, including Senate Majority Leader Harry Reid. And, making good on that campaign promise, President Obama defunded the project.

However, this week, an appeals court tossed out the president’s decision as a violation of the Nuclear Waste Policy Act, which requires that a single storage site be established. In the United States today, there is an estimated 75,000 metric tons of nuclear waste – a number that is quickly growing.

This decision might jump-start the debate of Yucca all over again. But, it doesn’t have to be all bad because it hopefully won’t stall the development of new technologies that make reprocessing nuclear fuel a viable alternative. Additionally, scientists are exploring ways to isolate radioactive isotopes for advances in medicine and science. Either way, nuclear is here to stay. We just don’t yet know where “here” is.

Roth: A good idea sets sail

By Jim Roth 
Guest Columnist | August 2, 2013

We all are aware of the expanding vehicle fleets being switched to natural gas. Now liquefied natural gas, or LNG, is being used more and more for marine vessels. This exciting development covers many issues and aspects, so this week’s and next week’s columns will attempt to share the emerging details.

Harvey Gulf International Marine announced plans in mid-June to build and operate the first LNG marine fueling facility in the U.S. at its Port Fourchon, La., vessel facility.

The facility is expected to begin service in February 2014 with two docks, each with 270,000 gallons of LNG storage and the capacity to transfer 500 gallons of fuel a minute. Harvey Gulf will be the largest owner and operator of LNG-powered offshore vessels in the world.

To date, Harvey Gulf is the only company in North America that has committed $400 million to build, own and operate LNG-powered offshore support vessels as well as two LNG fueling docks.

Similar plans from numerous other companies have changed LNG-fueled ships from a novelty to a growing market.

Interlake Steamship Co., a major bulk carrier on the Great Lakes, recently struck a deal with Shell Petroleum to supply LNG to its vessels. Their goal is to convert the first vessel by the spring of 2015.

North America’s two largest ferry operators, Washington State Ferries and British Columbia Ferries, have unveiled plans to convert existing vessels to LNG. One of New York’s Staten Island ferries is also set to convert to LNG next year.

There are an estimated 30 LNG-powered vessels currently in service worldwide, with approximately another 30 in design or construction. There are almost 400 LNG carriers, many of which have a dual-fuel arrangement.

Several LNG liquefaction/storage facilities near the Central Atlantic Coast could supply fuel for 590 tugs and 246 ferries operating in the New York/New Jersey region.

An LNG liquefaction/storage facility in the Northwest Pacific Coast could support converting a total of 97 ferries, as well as 11 cruise vessels operating between Seattle and Alaska.

On the Gulf Coast several LNG import terminals could be used to support converting 949 tugs and 63 ferries operating in the lower Mississippi River, and in Louisiana and Texas ports serving Gulf Coast marine traffic.

The Royal Academy of Engineering recently made a comprehensive survey of current and potential future marine propulsion systems, measuring them against the objectives of energy efficiency and environmental sustainability.

The reports states that LNG, with current propulsion units, is a known technology with standards already in place, is cheaper and cleaner than diesel, but requires a global infrastructure. Gas turbines are a niche and the fuel is expensive, while renewables such as wind and solar may have applications as auxiliary sources of power.

In the medium and long term, biofuels, synthetic fuels, hydrogen and a variety of fuel cells are potential direct replacements for current fuels. However there are significant investment, infrastructure, storage, handling and technological problems to be overcome.

Shipborne nuclear power, used in naval ships, would need changes in design, building and operational methods for merchant shipping,

Current battery technology may be restricted as a prime mover to smaller ships, but offers potential as an auxiliary power source.

World Shipping Council members operate approximately 90 percent of the global liner ship capacity, providing approximately 400 regularly scheduled services linking the world’s continents. Collectively, they transport about 60 percent of the value of global seaborne trade, or more than $4 trillion worth of goods annually.

Although you may not want to start converting your fishing boat, it is evident that the economic and environmental advantages of LNG make it a likely power source for marine vessels worldwide.

 

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Reproduced with permission from The Journal Record.

Roth: DOE examines climate-change effect on energy sector

By Jim Roth 
Guest Columnist | July 26, 2013

This month, the Department of Energy released a report examining current and future effects of climate change on the energy sector. The report, titled “U.S. Energy Sector Vulnerabilities to Climate Change and Extreme Weather,” also discusses potential opportunities to boost climate-resilient energy technologies.

The study supports the advancement of the Obama administration’s climate-change efforts under the Interagency Climate Adaptation Task Force and Strategic Sustainability Planning, established under executive order. It also promotes DOE energy security goals.

The report looks at recent climate trends, including high temperatures, droughts, wildfires, intense storms and heat waves. It shows that 2012 was the warmest year since 1895, when record keeping began.

Expecting the trends to continue, the report examines three major challenges for the energy sector: the rising ambient air and water temperatures, the decreasing water availability, and the growing intensity and frequency of severe storms.

The report found that rising temperatures and decreasing water availability would pose risks to thermoelectric power generation facilities by reducing their cooling efficiency.

Findings also indicate that water scarcity is a major threat to unconventional energy development, such as hydraulic fracturing and enhanced oil recovery, which require massive volumes of water.

It was noted that coastal energy infrastructure faces risks from rising sea levels and increasing storm intensity.

Renewable energy resources, including solar, wind, hydro and bioenergy, are also vulnerable to changing weather patterns. Hydroelectric power plants in Western states have already experienced reduced energy production availability due to below-average snowpack.

In addition, electricity transmission and distribution systems face risks of physical damage from weather-related events and reduced efficiency due to higher ambient temperatures.

Prolonged periods of drought and floods are affecting water infrastructure and disrupt fuel transport by rail and barge.

In Arctic Alaska, onshore operations face negative effects due to infrastructural damage from melting permafrost, while offshore operations could improve due to extended ice-free seasons.

All-in-all, this study demonstrates an alarming effect upon the world around us, as well as numerous effects on the production of energy as we know it today. Perhaps a bit of irony, if energy production must change to adjust to the climate changes most likely caused by how we in fact use today’s energies.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Reproduced with permission from The Journal Record.

Univ. of Texas v. Nassar The United States Supreme Court Limits Workplace Retaliation Claims.

The Supreme Court, in The University of Texas Southwestern Medical Center v. Nassar, No. 12-484, made it more difficult for employees to win retaliation lawsuits under Title VII. The Court decided a worker who claims retaliation must prove that retaliation was the reason the employer took the adverse action, not merely one of several motives.

The Court’s decision subjects such claims to a “but-for” causation test, as opposed to the “motivating  factor” test that applies to typical status-based discrimination claims under Title VII.

 

When Nassar, a faculty member at the University of Texas resigned, he sent a letter to several other faculty members complaining that his resignation was the result of ethnic and religious harassment and discrimination. One of Nassar’s supervisors took issue with the manner in which Nassar left, and thereafter took steps to block Nassar’s continued employment at a hospital affiliated with the university.  Nassar sued for discrimination and constructive discharge based on his ethnicity and religion, and for retaliation, alleging his former employer retaliated against him by blocking his employment at the hospital. For its part, the university defended stating that, even absent any retaliatory motive, the hospital’s employment of Nassar was a breach of the agreement between the hospital and the university – a non-discriminatory motive for its objection to Nassar’s employment.

After a jury verdict in Nassar’s favor, the university appealed.  At issue was the causation standard applicable to Nassar’s retaliation claim. There is no doubt that under Title VII, typical status-based discrimination claims are subject to the “motivating factor” causation test.  An employee must show that a discriminatory motive (like religious or ethnic bias) was merely one of the factors contributing to the challenged actions.  This test is the result of the well-known Price Waterhousecase and a resulting Congressional amendment to Title VII.

 

However, Congress did not amend the section of Title VII relating to retaliation claims. Thus, after an analysis of the differing verbiage in the various sections of Title VII, the Supreme Court held that “retaliation claims must be proven according to the traditional principles of but-for causation” and this requires proof that the alleged retaliation would not have occurred in absence of a retaliatory motive. The verdict against the University of Texas was reversed.

 

Employers have struggled with retaliation claims; they can be problematic even when no discrimination occurred in the first place.  The bottom line is the Nassaropinion will be instrumental in defending your company against bogus retaliation claims and, more importantly, gives employers a bit more comfort when making performance and disciplinary actions regarding employees who have previously challenged alleged discrimination.  Let us know what you think the implications of this decision are for your business!

Kathryn D. Terry is a director at Phillips Murrah and a member of the Firm’s Litigation Department. Kathy advises employers on employment related matters, including training, discipline and compliance, and represents them from the onset of litigation and through all appeals. Her practice also includes insurance coverage, insurance defense, civil and constitutional rights litigation.

The Supreme Court’s Decision on DOMA. An Uncertain Future for Oklahoma Employers.

Catherine L. Campbell is a director at Phillips Murrah and a member of the Firm’s Labor & Employment practice group. She represents corporations of all sizes in employment-related matters as well as law enforcement agencies in civil rights actions.


The United States Supreme Court’s recent ruling in United States v. Windsor declared the Defense of Marriage Act (“DOMA”) unconstitutional.  Windsor mandates federal recognition of same-sex marriages from the twelve states and the District of Columbia that sanction them.  While Windsor directly affects thousands of state-sanctioned same-sex spouses in other states, the ruling likely has little immediate impact in Oklahoma.  However, employers should be aware of Windsor’s future implications.

The Family Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave to, among other things, care for a seriously ill spouse.  FMLA regulations state that “spouse” means “a husband or wife” as the state of residence defines it.  29 C.F.R. § 825.122(b).  However, the Department of Labor (DOL) has taken a more restrictive view interpreting the FMLA to include the DOMA definition of “spouse” (a person of the opposite sex).

Under the DOL view, even where same-sex marriage was valid, a same-sex spouse was not a spouse for FMLA purposes.  Windsor changes that.  Now an employer must look to the law of the state of residence to determine whether a particular person is a spouse.   But, because the definition of spouse depends on the state of residence at the time the determination is made, when a same-sex couple moves from a state that recognizes their marriage to one that does not, the couple loses the protections of the FMLA.

Undecided by Windsor is whether a state that has not legalized same-sex marriage must recognize a marriage from a state that has.  Oklahoma statutorily forbids recognition of same-sex marriages performed in other states.  Okla. Stat. tit. 43, § 3.1.  However, the Tenth Circuit Court of Appeals has held that an Oklahoma statute preventing recognition of valid adoptions by same-sex couples in other states is unconstitutional under the Full Faith and Credit Clause.  Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).  Applying this analysis, § 3.1 would likely prove unconstitutional.

If Oklahoma eventually must recognize the validity of same-sex marriages performed elsewhere, a same-sex couple would be entitled to the protections of various laws including the FMLA.