SCOTUS Won’t Review Obamacare Ruling This Term

While a district judge in Texas weighs the fate of the Affordable Care Act (ACA, or Obamacare), an appeal to the Supreme Court to review the circuit court ruling that struck down the ACA’s individual mandate has been rejected for this term. The court could choose to take it up come next October, but this effectively means that Judge Reed O’Connor — whatever he may decide — is the sole remaining arbiter of the ACA’s constitutionality before the November election.

EEOC-lawsuits-return-to-normalOn Dec. 18, the 5th U.S. Circuit Court of Appeals issued its decision from a July 9th hearing on Judge O’Connor’s 2018 ruling that the entire law is unconstitutional. The three-judge panel, however, agreed only with the judge’s ruling that the individual mandate is unconstitutional. It then ordered him to review the law in greater depth and forward his findings about what’s valid and what’s not. So the circuit court in New Orleans still holds sway over whatever he decides.

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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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D.C. Circuit Court to Decide Fate of EEO-1 Pay Data Mandate

The EEO-1 Pay Data Collection saga continues and will resurface Friday before a panel of the U.S. Court Court of Appeals for the District of Columbia.

eeoc-pay-data-collection-to-be-challengedThe Obama-era Equal Employment Opportunity Commission (EEOC) originally ordered companies to submit pay data, broken down by sex and race, as part of their annual EEO-1 Report.

(The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report.)

However, before data could be collected, the incoming Trump administration and its Office of Management and Budget (OMB) nixed the plan.

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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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CNN to pay $76 Million in Back Wages, Largest Sum in NLRB History

As part of a settlement signed this month, CNN has agreed to pay $76 million in back pay, the largest monetary remedy in the history of the National Labor Relations Board (NLRB). The back pay amount, larger than what the agency collects on average in a typical year, is expected to benefit over 300 individuals.

The dispute originated in 2003 when CNN terminated a contract with Team Video Services (TVS), a company that had been providing CNN video services in Washington, D.C., and New York City. After terminating the contract, CNN hired new employees to perform the same work without recognizing or bargaining with the two unions that had represented the TVS employees. CNN sought to operate as a nonunion workplace and conveyed to the workers that their prior employment with TVS and union affiliation disqualified them from employment.

After a lengthy hearing in 2008, an administrative law judge found that CNN’s actions violated the National Labor Relations Act (NLRA) and that CNN was a successor to, and joint employer with, TVS. In 2014, the NLRB agreed and ordered CNN to bargain with the unions and provide back pay.

Later, in 2017, a panel of the D.C. Circuit Court of Appeals, including Chief Judge Merrick Garland and then-Judge Brett Kavanaugh, adopted the majority of the board’s findings, and enforced the board’s order that CNN cease and desist from refusing to recognize and bargain with the unions.  However, the court remanded the board’s joint employer finding for further clarification, along with the issue of back pay for further consideration by the board.

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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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Little Sisters of the Poor Case Heads to SCOTUS

The Supreme Court has agreed to review a case brought by the Little Sisters of the Poor, a Catholic home for the elderly and “neediest,” against a mandate by the Obama administration that they must provide birth control services in their health insurance policies.

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Little Sisters of the Poor Philadelphia

“It is disappointing to think that as we enter a new decade, we must still defend our ministry in court,” Mother Loraine Marie Maguire of the Little Sisters of the Poor said in a statement. “We are grateful the Supreme Court has decided to weigh in, and hopeful that the Justices will reinforce their previous decision and allow us to focus on our lifelong work of serving the elderly poor once and for all.”

The 2011 Obama executive order has been the subject of more than 100 lawsuits, with the Little Sisters’ drawing the most media exposure.

In 2017, President Trump issued his own executive order countermanding Obama’s order. EO 13798 states that it “shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.”

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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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HHS Proposes Rule for Faith-Based Service Providers

The Department of Health and Human Services (HHS) has proposed a rule that implements President Trump’s Executive Order No. 13831 (May 3, 2018), removes regulatory burdens on religious organizations, and ensures that religious and non-religious organizations are treated equally in HHS-supported programs.  The proposed rule ensures that HHS-supported social service programs are implemented in a manner consistent with the Constitution and other applicable federal law.

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HHS Secretary Alex Azar

“President Trump’s administration is taking historic action to protect religious social service providers from discrimination in federal regulations,” said HHS Secretary Alex Azar. “Americans of faith play an essential role in providing healthcare and human services to so many vulnerable people and communities, and President Trump is dedicated to removing every unfair barrier that stands in the way of this important work. Americans from every walk of life deserve to be treated with dignity and respect. Our Constitution and civil rights laws ensure equal treatment and today’s action makes clear that the federal government cannot discriminate against people and institutions based on how they live out the dictates of their faith.”

Under current regulations that govern HHS-supported programs, religious providers of social services — but not other providers of social services — must make referrals under certain circumstances to alternative service providers and must post notices regarding this referral procedure.  These regulatory burdens had been required by then-President Obama’s Executive Order No. 13559 (Nov. 17, 2010).

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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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OSHA Penalties to Rise Tomorrow

According to the Inflation Adjustment Act, the Department of Labor (DOL) and its Occupational Safety and Health Administration (OSHA) each year have until Jan. 15 to adjust their penalties for inflation. Accordingly, increased penalties will take place tomorrow, Jan. 16, 2020.

dol-schedules-overtime-rule-public-sessionsThe new 2020 maximum OSHA penalties are as follows:

  • Other-than-Serious: $13,494 (increased from $13,260)
  • Serious: $13,494 (increased from $13,260)
  • Repeat : $134,937 (increased from $132,589)
  • Willful: $134,937 (increased from $132,589)

These and other DOL penalties were published today in the Federal Register.


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 Publishes Joint Employer Final Rule

The Department of Labor (DOL) today announced a final rule to update the regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA). The regulations have not been meaningfully updated in more than 60 years.

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Eugene Scalia, Secretary of Labor

Under the FLSA, an employee may have, in addition to his or her employer, one or more joint employers — additional individuals or entities that are jointly and severally liable with the employer for the employee’s wages. The FLSA requires covered employers to pay their employees at least the federal minimum wage for every hour worked and overtime for every hour worked over 40 in a workweek.

“This final rule furthers President Trump’s successful, government-wide effort to address regulations that hinder the American economy and to promote economic growth,” said Secretary of Labor Eugene Scalia. “By giving greater clarity to businesses who want to work together, we promote an entrepreneurial culture that has driven American prosperity for decades.”

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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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SECURE Act to Benefit Small Employers

The SECURE Act (Setting Every Community Up for Retirement Enhancement Act) became law as part of the year-end federal budget package signed by President Trump in December, and looks to be the most important piece of retirement legislation in a decade or more.

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The SECURE Act will help businesses adopt retirement plans.

The SECURE Act is particularly beneficial for small employers and their employees. Some of its provisions include:

Loosens plan eligibility for long-term, part-time employees. Under previous law, employers could require employees to work 1,000 hours in 12 months to be eligible to participate in the retirement plan. The new law opens up eligibility to those who work at least 500 hours in three consecutive 12-month periods. This change is effective for plan years beginning after Dec. 31, 2020.

Expands the availability of multiple employer plans (MEPs). Prior to the SECURE Act, small employers who wanted to pool retirement plans to share and save costs had to have a commonality of interest (same industry, for instance). Now, open MEPs are possibility, meaning there needn’t be any commonality of interest. This too is effective for plan years starting after Dec. 31, 2020.

Increases the income tax credit for small employers starting retirement plans. The credit for those small businesses adopting retirement plans now rises from $500 to $5,000.

Adds a new tax credit for small businesses that adopt auto-enrollment. Those small employers who adopt auto-enrollment into their retirement plans will receive a $500 tax credit for three years. Both tax credits are effective now.


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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Trader Joe’s Sued Over Excessive Fees in 401(k) Plan

Trader Joe’s, the iconic food retailer, has been sued over its retirement plan by former employees who claimed to have lost millions of dollars through the company’s mismanagement of their funds.

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Trader Joe’s, Pasadena, Calif.

At issue is the fee charged annually for the maintenance of each account. The plaintiffs’ lawyer argues that the fee rose to $140 per participant as opposed to a “reasonable” $40 record-keeping fee.

The lawsuit, filed under the provisions of the Employee Retirement Income Security Act (ERISA), claims the retailer sidestepped its “tremendous bargaining power” granted to it by its scale in assets under management — $1.6 billion — by “inappropriately” choosing relatively expensive mutual fund share classes, jacking up the percentage going to the plan maintenance firm.

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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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Blue State AGs Ask Supreme Court to Review Obamacare Ruling

UPDATE: On Jan. 7, the Supreme Court set a Friday afternoon deadline for ACA opponents to respond to the Blue State coalition’s request to expedite the case to be resolved before the November 2020 election.

Led by California, a coalition of 20 Blue State attorneys general (AGs), plus the District of Columbia, has petitioned the Supreme Court to review the December decision by the 5th U.S. Circuit Court of Appeals in the case of Texas v. U.S.

fifth-circuit-court-rejects-individual-mandateIn that ruling, a three-judge panel agreed with U.S. District Court Reed O’Connor that the individual mandate of the Affordable Care Act (ACA, aka Obamacare) is unconstitutional now that the penalty associated with not buying health insurance has been eliminated.

Recall that Chief Justice John Roberts, in the first high court review of the legality of the ACA, changed his mind at the last moment and ruled that the mandate was constitutional under Congress’s power to tax.

However, Judge O’Connor had also ruled in December 2018 that the whole law was unconstitutional and issued an injunction, which he then put on hold while appeals were filed and heard. The circuit judges refused to rule on the rest of the ACA, remanding it back to O’Connor. This put the legality of the whole ACA in limbo. Will he reopen the injunction or wait for the SCOTUS review?

Filing the Jan. 3 petition were the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota (by and through its Department of Commerce), Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, as well as the governor of Kentucky.


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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