OSHA Nominee Withdraws on Cusp of Confirmation

Scott Mungo, poised to win confirmation as administrator of the Occupational Safety and Health Administration (OSHA) after a wait of 17 months, abruptly withdrew his name from nomination on Tuesday. No reason immediately surfaced.

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Scott Mungo

The Senate was set to take a final vote on his nomination in the next few weeks. Mungo retired from FedEx Ground and Express, where he was a vice president, when he first learned of his nomination almost a year and a half ago.

In a perhaps related event at the Department of Labor (DOL), Secretary Alexander Acosta’s chief of staff, Nicholas Geale, was forced out by the White House Monday on grounds that he was a divisive figure who often berated employees at the department.

Acosta was also rumored to be trying to talk Mungo out of his withdrawal, but sources said his decision appeared final.

The office of OSHA administrator has been vacant since Donald Trump became president.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Uber Drivers Are Not Employees, NLRB Advises

The National Labor Relations Board (NLRB), in three cases involving ride-share drivers, has issued an “Advice Memorandum” concluding that the Uber drivers who filed the charges were “independent contractors,” not employees. Therefore, the regions where the charges were filed should “dismiss the charges, absent withdrawal.”

NLRB-rules-uber-drivers-are-contractorsThe memo, written in April but released yesterday, lists ten criteria for determining independent contractor status, based upon a previous decision known as SuperShuttle.

Among the criteria are issues involving how much control “the master” (company in charge) has over the workers and whether “the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.”

The memo, written by Associate General Counsel Jayme L. Sophir, concludes:

The drivers had significant entrepreneurial opportunity by virtue of their near complete control of their cars and work schedules, together with freedom to choose log-in locations and to work for competitors of Uber. On any given day, at any free moment, drivers could decide how best to serve their economic objectives: by fulfilling ride requests through the App, working for a competing ride-share service, or pursuing a different venture altogether.

The memo released by the Trump labor board comes one day after a nationwide ride share driver strike during which thousands of Uber and Lyft drivers logged off their apps to demand better pay and working conditions.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Revises Safety and Health Standards

The Occupational Safety and Health Administration (OSHA) today issued a final rule revising 14 provisions in its recordkeeping, general industry, maritime and construction standards that it said might be “outdated, confusing or unnecessary.”

osha-revises-several-standards-May-2019The rule, as published in the Federal Register, is said to reduce “regulatory burden while maintaining or enhancing worker safety and health, and improving privacy protections.” In a press release, the agency also said the rule would “save employers an estimated $6.1 million per year.”

The new rule is part of OSHA’s Standards Improvement Project, which began in 1995 and has spawned three previous rule changes.

Among the revisions proposed by the rule are reductions in annual lung X-ray requirements, elimination of the collection of employee Social Security numbers, and the removal of feral cats from the list of “rodents” in standards for shipyard sanitation.

The rule will take effect 60 days from date of publication.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Washington State Adds Public Option Health Insurance

As “Medicare for All” becomes the mantra of several candidates for president, all progressive Democrats, Washington State on Monday inaugurated its own version of a public option health insurance plan, based on expanding the qualifications for Medicaid to 500 percent of the federal poverty line, or $62,450 a year for a single person.

washington-enacts-public-option-health-planThe agency running Medicaid for the state is being instructed to contract with a private insurer to offer a plan to meet the standards of the Affordable Care Act (ACA, or Obamacare). Those who qualify will be able to buy into the new state Medicaid option. The extent of state subsidies, if any, has yet to be announced.

Colorado has also passed legislation to create a public option, but it has yet to take effect. Other states are also looking into crafting their own versions, including Connecticut, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey and Oregon. In 2017, Nevada was the first to pass enabling legislation for a state option, but Gov. Brian Sandoval vetoed the law.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Privately Insured Pay Twice What Medicare Pays Hospitals

A Rand Corp. study has found that people with private insurance — 156 million of them with health insurance from work — pay, on average, twice more for hospital care than what those on Medicare pay.

private-insurance-pays-hospitals-twice-Medicare-ratesThe study is based on payment rates by private insurers in 25 states to 1,600 hospitals, and concludes that had the rates been the same as Medicare across the board, the nation would have saved $7.7 billion in health care costs between 2015 and 2017.

“If we want to reduce health care spending,” said Christopher Whaley, a Rand economist and one of the paper’s two authors, “we have to do something about higher hospital prices.”

Publishing prices might give employers and health insurers more clout in negotiating better rates, but the study casts some doubt on that option.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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After Four Months, EEOC Has a Quorum

Janet Dhillon was approved today by the U.S. Senate on a 50-43 party-line vote to assume the role of chairperson for the Equal Employment Opportunity Commission (EEOC). The current acting chair, Victoria Lipnic, will remain as a commission member.

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Janet Dhillon, new EEOC Chair

Dhillon’s approval brings the total number of commissioners to three — out of five possible — so that the EEOC can once again issue rulings and regulations.

The tenure of Commissioner Charlotte Burrows, a Democrat, will end on July 1, however, leaving just two members once again.

Dhillon’s nomination was held up for nearly two years due to fears that she’d change the EEOC’s position on lesbian, gay, bisexual and transgender (LGBT) rights. The commission’s current view is that LGBT rights are protected under the definition of “sex” in Title VII of the Civil Rights Act of 1964.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEO-1 Pay Data for 2017 and 2018 Due by Sept. 30

The Equal Employment Opportunity Commission (EEOC), pursuit to a federal judge’s order, has published a notice in the Federal Register stating that all affected companies must report their pay data for 2017 and 2018 (Component 2 of the EEO-1 Report) by Sept. 30, 2019.

eeoc-report-could-be-delayedBusinesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form.

On March 18, the EEOC opened the online EEO-1 reporting portal, but did not include questions concerning pay (Component 2). After a six-week legal process, the agency on Friday, May 3, posted the requirements.

The Federal Register notice states:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL: No Support ‘at This Time’ for Federal Minimum Wage Hike

While Democrats in both houses of Congress are drafting legislation to basically double the federal minimum wage — from $7.25 to $15 an hour — Department of Labor (DOL) Secretary Alexander Acosta told legislators that “we do not support a change in the federal minimum wage at this time.”

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Labor Secretary Acosta

Appearing before a hearing by the House Committee on Education and Labor, Acosta did concede that “Higher wages are a good thing,” a reference to a recent strike at Stop & Shop, which led to increased wages for the workers. “We all benefit when wages go up.”

However, he also made it clear that he and his department were in no hurry to hike the minimum wage. Acosta said an increase in the federal minimum wage would impose “a cost structure” on those states that have not raised their minimum wage rates (three-fifths of states have).

In answer to a question, the labor secretary also said his department was working with the Securities and Exchange Commission (SEC) on a new fiduciary rule.

A previous fiduciary rule — crafted by the Obama DOL — would have forced retirement investment advisers to put their clients’ best interests first rather than recommend investments that paid them the biggest commission. That rule, however, was vacated by the 5th U.S. Circuit Court of Appeals as being, in part at least, “capricious and arbitrary.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Employed Doctors Now Outnumber the Self-Employed

For the first time since the group began tracking physician employment trends, the American Medical Association (AMA) reports that the percentage of physicians who are employed — working in a hospital, for instance — now outpaces the percentage who own their own practices. According to the most recent survey, taken in September 2018, 47.4 percent of doctors are employed while 45.9 percent are in privately owned practices.

health-care-spending-to-rise-5.5%-annuallyDespite the decline in physician ownership, most doctors still work in smaller practices. “This share has fallen slowly but steadily since 2012. In 2018, 56.5 percent of physicians worked in practices with 10 or fewer physicians compared to 61.4 percent in 2012,” the study found.

Ownership tends to be higher among the specialties: surgeons own 64.5 percent of their own practices, while the percentage for those in obstetrics-gynecology sits at 53.8.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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HHS to Base HIPAA Fines on Culpability

The Department of Health and Human Services (HHS) in late April issued a notice of enforcement discretion regarding fines for violations of HIPAA (Health Insurance Portability and Accountability Act) and its privacy, security and breach rules.

hhs-resets-hipaa-finesThe fine structure was established in 2009 with a piece of legislation titled  the Health Information Technology for Economic and Clinical Health (HITECH) Act, which capped penalties for a single company at $1.5 million a year.

HHS, however, has concluded that HITECH contains “apparently inconsistent language,” leading to confusion over how much a company can be fined in a year for a continuing violation.

Thus, HHS announced, “As a matter of enforcement discretion, and pending further rulemaking, HHS will apply a different cumulative annual CMP [Civil Monetary Penalty] limit for each of the four penalties tiers in the HITECH Act.”

Further, as a result of a review by the HHS Office of General Counsel, “HHS has determined that the better reading of the HITECH Act is to apply annual limits” based on the level of culpability. (more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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