UPS to pay $2 million to resolve nationwide EEOC disability discrimination claims

Published on August 15, 2017

The U.S. Equal Employment Opportunity Commission (EEOC) announced Aug. 8 international shipping giant United Parcel Service, Inc. (UPS) has agreed to pay $2 million to nearly 90 current and former UPS employees to resolve a nationwide disability discrimination lawsuit the EEOC filed in 2009, as well as to conciliate related administrative charges.

In the news release, the EEOC announced:

The EEOC charged that UPS violated federal law failing to provide UPS employees with disabilities reasonable accommodations that would enable them to perform their job duties. The EEOC further alleged that UPS maintained an inflexible leave policy, whereby the company fired disabled employees automatically when they reached 12 months of leave, without engaging in the interactive process required by law.

Such alleged conduct violates Americans with Disabilities Act (ADA).  The EEOC filed suit in U.S. District Court for the Northern District of Illinois (Case No. 09-cv-5291) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to providing $2 million in monetary relief, UPS has also agreed to update its policies on reasonable accommodation, improve its implementation of those policies, and conduct training for those who administer the company’s disability accommodation processes. Furthermore, the company has agreed to provide the EEOC periodic reports on the status of every accommodation request for the next three years to ensure the efficacy of its procedures.

“The ADA requires companies to make a real effort to work individually with their employees with disabilities to provide them with the necessary and reasonable accommodations that will allow them to do their jobs,” said Greg Gochanour, regional attorney of the EEOC’s Chicago District Office. “As a result of this lawsuit, UPS now has practices in place to better ensure that this happens.”

Julianne Bowman, the EEOC’s Chicago District director, added, “Having a multiple-month leave policy alone does not guarantee compliance with the ADA. Such a policy must also include the flexibility to work with employees with disabilities who may simply require a reasonable accommodation to return to work. UPS has now made changes which will allow more people to keep their jobs.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Revised Form I-9 now available

Published on August 15, 2017

On Monday, July 17, United States Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification.

Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of “11/14/16 N” through September 17.

Beginning September 18, employers must use the revised form with a revision date of “07/17/17 N.” Employers must continue following existing storage and retention rules for any previously completed Form I-9.

Revisions included the Form I-9 instructions, changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name—Immigrant and Employee Rights Section, and “the end of” was removed from the phrase “the first day of employment.”

Additional revisions were to the List of Acceptable Documents on Form I-9 including:

  • Addition of the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) were combined into selection C #2 in List C.
  • All List C documents except the Social Security card have been renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

How to Survive a Labor Law Investigation: USDOL offers free compliance assistance seminars for employers

Published on August 15, 2017

The United States Department of Labor (USDOL) is offering free seminars to educate employers about the Wage and Hour Division, its enforcement of federal labor laws, and common violations to avoid.

The USDOL encourages employers and representatives from all industries to attend. This training is provided at no cost to participants.

The seminars will cover issues regarding the Fair Labor Standards Act including minimum wage, overtime, record keeping, youth employment, exemptions, deductions, common violations, and bonuses and other payments.

Participants will be trained on the Family Medical Leave Act and issues regarding coverage, employee eligibility, qualifying conditions, employer/employee rights and responsibilities, maintenance of benefits, and notification and records requirements.

For more information and to register, follow these links:

On-site registration will begin at 12:30 PM for each seminar. Seating will be limited.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

OSHA revises online whistleblower complaint form

Published on August 15, 2017

The Occupational Safety and Health Administration (OSHA) announced revisions its online whistleblower complaint form in July in order to help users file a complaint with the appropriate agency.

The updated form provides workers with another option for submitting retaliation complaints to the U.S. Department of Labor’s OSHA.

In the news release, OSHA announced:

The updated form guides individuals as they file a complaint through the process, providing essential questions at the beginning so they can better understand and exercise their rights under relevant laws. One significant improvement to the system includes pop-up boxes with information about various agencies for individuals who indicate that they have engaged in protected activity that may be addressed by an agency other than OSHA. The new form is available in English and Spanish.

“Workers who report unsafe conditions and wrongdoing have a range of legal protections from retaliation,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “The revised online complaint form works to ensure whistleblowers file their complaints with the appropriate federal agency for prompt action.”

In addition to the online form, workers can file complaints by fax, mail, or hand-delivery. Complaints may also be filed by contacting the agency at (800) 321-6742 or by calling an OSHA regional or area office.

Read more about whistleblower rights here, and learn more about OSHA’s role in ensuring safe and healthful workplaces at www.osha.gov.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Bass Pro to pay $10.5 million to settle EEOC hiring discrimination, retaliation suit

Published on August 15, 2017

The U.S. Equal Employment Opportunity Commission (EEOC) announced July 26 that Bass Pro Outdoor World, LLC, a leading retailer of fishing, camping, and hunting equipment and apparel, has agreed to pay $10.5 million and provide other significant relief to settle a hiring discrimination and retaliation lawsuit.

The EEOC’s suit charged that the company discriminated in hiring at its retail stores, unlawfully retaliated against employees who opposed practices they believed to be unlawful, and failed to adhere to federal record-keeping laws and regulations.

The nationwide agreement seeks to strengthen and improve Bass Pro’s hiring and recruiting practices of African-Americans and Hispanics, and resolves a pattern-or-practice lawsuit filed by the EEOC on Sept. 21, 2011.

In the news release, the EEOC announced:

A central focus of the agreement is strengthening Bass Pro’s diversity efforts and its commitment to non-discriminatory hiring, including appointment of a director of diversity and inclusion, affirmative outreach efforts to increase diversity in its workforce, updated EEO policies and hiring practices, and annual EEO training for management and non-management employees.

“The EEOC is pleased to have reached what the agency believes to be a fair resolution,” said EEOC Deputy General Counsel James Lee. “We look forward to working with Bass Pro in implement­ing the consent decree.”

EEOC Houston District Office Regional Attorney Rudy Sustaita said, “The EEOC commends Bass Pro for its efforts in bringing the pending litigation to a conclusion, and for its commitment to hiring a diverse workforce.”

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

AM@PM Breakfast Forum – Real Risks in the Virtual World

Every day, businesses face increasingly dangerous challenges as a growing dependence on the Internet, electronic data storage and personal devices prevails. What are business owners and leaders expected to know and do about these digital-related threats?

Phillips Murrah has assembled an expert panel of attorneys who will discuss the following topics and provide insight on how to stay current and secure:

  • Phishing Scams & Cyber Breach – Exposure & Response
  • Data Security – How safe is your information?
  • B.Y.O.D. – Bring Your Own Device Policies
  • Electronically Stored Information & Litigation Holds

DATE & TIME:
Tuesday, August 22, 2017
7:30 – 8:30 a.m.

LOCATION:
V2 Vista Room, Devon Tower, 50th Floor
333 W. Sheridan Ave., Oklahoma City

Please join us for this insightful discussion, enjoy a delicious breakfast, the iconic view from atop the Devon Tower and a chance to win Bedlam tickets!

REGISTRATION:

Registration for AM@PM Breakfast Forum – Real Risks in the Virtual World

There is no cost to attend this event. To register, please fill out the following information:

You may also RSVP by sending an email directly to Marketing Director Dave Rhea at jdrhea@phillipsmurrah.com.

PARKING:

Parking is available in the west Devon Parking Garage, located on Harvey Ave. just south of Park Ave. Click the image below to open location in Google Maps.


Click to open in Google Maps

United States Department of Labor WHD RFI Questions

The U.S. Department of Labor announced on on Tuesday, July 25, that they will publish a Request for Information for the overtime rule on Wednesday, July 26. (See news release) 

Instructions on submitting public comments are located in the RFI, which you can view here. Comments may also be submitted electronically at http://www.regulations.gov.

RFI QUESTIONS:

1. In 2004 the Department set the standard salary level at $455 per week, which excluded from the exemption roughly the bottom 20 percent of salaried employees in the South and in the retail industry. Would updating the 2004 salary level for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used? Alternatively, would applying the 2004 methodology to current salary data (South and retail industry) be an appropriate basis for setting the salary level? Would setting the salary level using either of these methods require changes to the standard duties test and, if so, what change(s) should be made?

2. Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method? For example, should the regulations set multiple salary levels using a percentage based adjustment like that used by the federal government in the General Schedule Locality Areas to adjust for the varying cost-of-living across different parts of the United States? What would the impact of multiple standard salary levels be on particular regions or industries, and on employers with locations in more than one state?

3. Should the Department set different standard salary levels for the executive, administrative and professional exemptions as it did prior to 2004 and, if so, should there be a lower salary for executive and administrative employees as was done from 1963 until the 2004 rulemaking? What would the impact be on employers and employees?

4. In the 2016 Final Rule the Department discussed in detail the pre-2004 long and short test salary levels. To be an effective measure for determining exemption status, should the standard salary level be set within the historical range of the short test salary level, at the long test salary level, between the short and long test salary levels, or should it be based on some other methodology? Would a standard salary level based on each of these methodologies work effectively with the standard duties test or would changes to the duties test be needed?

5. Does the standard salary level set in the 2016 Final Rule work effectively with the standard duties test or, instead, does it in effect eclipse the role of the duties test in determining exemption status? At what salary level does the duties test no longer fulfill its historical role in determining exempt status?

6. To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on December 1, 2016, increase salaries of exempt employees in order retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or to track work performed during those times? Where these or other changes occurred, what has been the impact (both economic and non-economic) on the workplace for employers and employees? Did small businesses or other small entities encounter any unique challenges in preparing for the 2016 Final Rule’s effective date? Did employers make any additional changes, such as reverting salaries of exempt employees to their prior (pre-rule) levels, after the preliminary injunction was issued?

7. Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test? If so, what elements would be necessary in a duties-only test and would examination of the amount of non-exempt work performed be required?

8. Does the salary level set in the 2016 Final Rule exclude from exemption particular occupations that have traditionally been covered by the exemption and, if so, what are those occupations? Do employees in those occupations perform more than 20 percent or 40 percent non-exempt work per week?

9. The 2016 Final Rule for the first time permitted non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level. Is this an appropriate limit or should the regulations feature a different percentage cap? Is the amount of the standard salary level relevant in determining whether and to what extent such bonus payments should be credited?

10. Should there be multiple total annual compensation levels for the highly compensated employee exemption? If so, how should they be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method? For example, should the regulations set multiple total annual compensation levels using a percentage based adjustment like that used by the federal government in the General Schedule Locality Areas to adjust for the varying cost-of-living across different parts of the United States? What would the impact of multiple total annual compensation levels be on particular regions or industries?

11. Should the standard salary level and the highly compensated employee total annual compensation level be automatically updated on a periodic basis to ensure that they remain effective, in combination with their respective duties tests, at identifying exempt employees? If so, what mechanism should be used for the automatic update, should automatic updates be delayed during periods of negative economic growth, and what should the time period be between updates to reflect long term economic conditions?

Jim A. Roth Journal Record Columns

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.

Protected: Cornerstone Credit Union League Presentation

This content is password protected. To view it please enter your password below:

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.