DOL Begins Process of Defining Independent Contractor Status

After withdrawing an Obama-era “Administrator’s Interpretation” of what constitutes an independent contractor in June, the Department of Labor (DOL) a month later has begun the process of defining independent contractor status with a Field Assistance Bulletin (FAB) on nurse and caregiver registries.

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Labor Secretary Alexander Acosta

The published bulletin, titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver,” clarifies:

This Field Assistance Bulletin (FAB) provides guidance to Wage and Hour Division (WHD) field staff to help them determine whether home care, nurse, or caregiver registries (registries) are employers under the Fair Labor Standards Act (FLSA). A registry is an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titles (collectively, caregivers).

Specifically, as the quotation indicates, the bulletin advises agents in the field in determining whether registries that help nurses and caregivers find employment are employers and consequently if those they place are their employees. In doing so, the tract sheds light on how the DOL is redefining independent contractor status.

To start, if the registry conducts background investigations, offers training and connects a caregiver with a client, those acts alone do not establish an employer-employee relationship.

On the other hand, if the registry chooses the client on behalf of the caregiver, conducts visitations to do evaluations of the caregiver, defines duties for the caregiver, and/or also establishes rate of pay and time-on/time-off scheduling, then the registry is indeed an employer.

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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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Judge Rejects McDonald’s Joint Employer Settlement

An administrative law judge (ALJ) has rejected a proposed settlement by McDonald’s over a franchise employees’ lawsuit claiming they were terminated for advocating for a $15-an-hour wage.

mcdonalds-tries-to-avoid-joint-employer-labelThe ALJ — Lauren Esposito in New York — ruled that  “the proposed informal settlements are not a reasonable resolution based on the nature and scope of the violations alleged and the settlements’ limited remedial impact.”

“Fight for $15” is the name of the group for which the plaintiffs demonstrated against McDonald’s franchises starting in 2012. It is also the group behind the lawsuit.

At issue is the definition of joint employer. Throughout the lawsuit, McDonald’s has rejected the claim that, as a franchiser, it is responsible for the employment actions of its franchisees. The settlement it proposed also rejected the joint employer tag.

Now it’s back to ground zero, with the shadow of the Obama-era joint employer definition — that of “indirect control” — coming into the forefront again.  That National Labor Relations Board (NLRB) standard was set forth in its decision in a 2015 case known as Browning-Ferris, which eventually formed the basis of the McDonald’s lawsuit.

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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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DOL Rescinds the Persuader Rule

The Department of Labor (DOL) has rescinded the 2016 Persuader Rule, which exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA), according to its press release.

dol-rescinds-persuader-ruleThe Persuader Rule impinged on attorney-client privilege by requiring confidential information to be part of disclosures and was strongly condemned by many stakeholders, including the American Bar Association, according to the DOL. A federal court has also ruled that the Persuader Rule was incompatible with the law and client confidentiality.

“For decades, the department enforced an easy-to-understand regulation: Personal interactions with employees done by employers’ consultants triggered reporting obligations, but advice between a client and attorney did not,” the Office of Policy’s Deputy Assistant Secretary Nathan Mehrens remarked. “By rescinding this Rule, the department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government.”


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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CMS Says It’s ‘Modernizing’ Medicare by Reducing Paperwork

Today, the Centers for Medicare & Medicaid Services (CMS) proposed what it is calling “historic changes” that would increase the amount of time that doctors and other clinicians can spend with their patients by reducing the burden of paperwork that clinicians face when billing Medicare. The proposed rules would fundamentally improve the nation’s healthcare system and help restore the doctor-patient relationship by empowering clinicians to use their electronic health records (EHRs) to document clinically meaningful information, instead of information that is only for billing purposes.

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HHS Secretary Alex Azar

“Today’s reforms proposed by CMS bring us one step closer to a modern healthcare system that delivers better care for Americans at a lower cost,” said HHS Secretary Alex Azar. “Such a system requires empowering American patients by giving them price and quality transparency and control over their own interoperable health records, goals supported by CMS’s proposals. These proposals will also advance the successful Medicare Advantage program and accomplish a historic regulatory rollback to help physicians put patients over paperwork.”

“Today’s proposals deliver on the pledge to put patients over paperwork by enabling doctors to spend more time with their patients,” said CMS Administrator Seema Verma. “Physicians tell us they continue to struggle with excessive regulatory requirements and unnecessary paperwork that steal time from patient care. This Administration has listened and is taking action. The proposed changes to the Physician Fee Schedule and Quality Payment Program address those problems head-on, by streamlining documentation requirements to focus on patient care and by modernizing payment policies so seniors and others covered by Medicare can take advantage of the latest technologies to get the quality care they need.”

The proposals, part of the Physician Fee Schedule (PFS) and the Quality Payment Program (QPP), would also modernize Medicare payment policies to promote access to virtual care, saving Medicare beneficiaries time and money while improving their access to high-quality services no matter where they live. Such changes would establish Medicare payment for when beneficiaries connect with their doctor virtually using telecommunications technology (e.g., audio or video applications) to determine whether they need an in-person visit. Additionally, the QPP proposal would make changes to quality reporting requirements to focus on measures that most significantly impact health outcomes.

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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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CMS Cuts Obamacare Navigator Funding from $36M to $10M

The Affordable Care Act (ACA) Navigator program, which funds groups and individuals to help walk people through the Obamacare sign-up process, is being cut financially once again by the Trump administration, this time from $36 million to $10 million. In 2017, funding stood at $63 million.

cms-proclaims-obamacare-death-spiralRegardless of the federal outlay, the Navigator program has routinely helped fewer than 1 percent of all Obamacare insurance seekers.

“It’s time for the Navigator program to evolve, which is why we are announcing a new direction for the program today,” said CMS Administrator Seema Verma. “This decision reflects CMS’ commitment to put federal dollars for the federally-facilitated exchanges to their most cost effective use in order to better support consumers through the enrollment process.”

During grant year 2016-2017, 17 Navigators enrolled fewer than 100 people at an average cost of $5,000 per enrollee. In addition, nearly 80 percent of Navigators failed to reach their enrollment goal, according to CMS.

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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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Las Vegas Chamber Reviving Its Association Health Plan

The Las Vegas Metro Chamber of Commerce is reviving its once-thriving association health plan (AHP) under new rules released by the Department of Labor (DOL). Prior to the Affordable Care Act (ACA), the chamber’s AHP served  some 20,000 members for nearly 30 years but was forced out of business because it didn’t meet the new standards of Obamacare.

Las Vegas Metro Chamber of Commerce office location

The new plan is set to commence on Sept. 1, but the chamber is still seeking a partner, according to a report by Bloomberg Law.

The DOL, following an executive order by President Trump, issued a final rule in June that tweaks the definition of employer in the Employee Retirement Income Security Act (ERISA), enabling groups defined by industry or geography — even across state lines — to form association health plans without adhering to the requirements of the ACA.

Additionally, under the new rule, even the self-employed can join an AHP.

Because these new AHPs do not have to offer all the coverage of an ACA policy, they have been called both “skinny” plans and “substandard” plans that will mainly benefit only those who are already healthy.

AHPs are also subject to the approval of state insurance commissioners. The Nevada commissioner has yet to weigh in.


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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Attorneys General Go After Fast Food No-Poaching Agreements

A coalition of 11 state attorneys general (AGs) has launched an initiative to stop the practice of no-poaching agreements that prevent fast food workers from being hired by competing franchisees.

DOJ and AGs target fast food no-poach agreements

“Our goal through this action is to reduce barriers and empower workers to secure better-paying and higher-skill jobs,” explained Massachusetts Attorney General Maura Healey, who is spearheading the effort.

No-poach agreements occur when companies agree not to recruit or hire each other’s employees.

The group of state AGs sent a letter demanding copies of existing no-poach agreements by Aug. 6. Recipients of the letter include Arby’s, Burger King, Dunkin’ Donuts, Five Guys Burgers and Fries, Little Caesars, Panera Bread, Popeyes Louisiana Kitchen, and Wendy’s.

It is estimated that 80 percent of fast food franchisers have such agreements, but the practice is not limited to the food industry. In April, the Department of Justice (DOJ) settled its lawsuit with two rail equipment manufacturers who had a no-poach agreement in place. The lawsuit argued that such agreements stifle worker advancement and restrict their earning potential.

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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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DOL Targets $47M in Grants to Help Homeless Vets Get Jobs

Secretary of Labor Alexander Acosta has announced the award of 163 Homeless Veterans’ Reintegration Program (HVRP) grants totaling $47,600,000. This funding will provide workforce reintegration services to more than 18,000 homeless veterans.

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Labor Secretary Acosta

“While serving in the military, veterans learn many skills desired in today’s workforce,” said Secretary Acosta. “These grants will help thousands of homeless veterans reintegrate themselves into society and secure good jobs.”

Funds are being awarded on a competitive basis to state and local workforce investment boards; local public agencies and nonprofit organizations; tribal governments; and faith-based and community organizations. Homeless veterans may receive occupational skills training, apprenticeship opportunities, and on-the-job training, as well as job search and placement assistance.

This year’s HVRP awards provide 40 first-year grants totaling nearly $13,000,000. Previous awardees will receive first and second option year grants totaling $34,600,000.

Grantees under the HVRP program will coordinate their efforts with other federal programs, such as the Veterans Affairs Supportive Services for Veteran Families program and the Department of Housing and Urban Development Continuum of Care program.


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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SCOTUS to Start Next Term with Age Discrimination Case from Arizona

The coming term of the U.S. Supreme Court, possibly with a new justice named Brett Kavanaugh seated, will open Oct. 1 with a review of a case from Arizona involving two firefighters alleging they were terminated because of age.

supreme-court-to-hear-adea-caseIn a brief order issued yesterday, the court placed the case of John Guido and Dennis Rankin and their lawsuit against the Mount Lemmon Fire District on the day-one agenda.

The two were let go in a cost-cutting move when the district faced financial difficulties in 2009. Both had joined the department in 2000 and had risen to the rank of fire captain.  Guido was 45 and Rankin 54 when the district parted company with them, replacing them with two younger firemen, one only 28 with just six years experience.

Guido and Rankin were told they were being terminated because they had not participated in recent years in voluntary shifts fighting wildland fires. The pair immediately sued.

The first court ruled that the Age Discrimination in Employment Act (ADEA) didn’t apply to the Mount Lemmon Fire District because it had fewer than 20 employees, the threshold at which the law kicks in. A federal appeals court, however, reversed that decision, saying the ADEA specifies the 20-employee threshold only for private companies, with no threshold specified for public entities.

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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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NLRB Launches Pilot Program to Expand Use of Alternative Dispute Resolution System

Today, the National Labor Relations Board (NLRB) announced it is launching a new pilot program to enhance the use of its Alternative Dispute Resolution (ADR) program. The new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.

nlrb-seeks-overturn-of-Obama-joint-employer-standardUnder the new pilot program, the Board’s Office of the Executive Secretary will proactively engage parties with cases pending before the board to determine whether their cases are appropriate for inclusion in the ADR program. Parties may also contact the Office of the Executive Secretary and request that their case be placed in the ADR program. There are no charged fees or expenses for using the program.

Allowing parties greater control over the outcome of their cases, the NLRB’s ADR program can provide parties with more creative, flexible and customized settlements of their disputes. In addition to savings in time and money, parties who use the ADR program can broaden their resolution options, making the program particularly useful for cases where traditional settlement negotiations have been unsuccessful.

Participation in the ADR program is voluntary, and a party who enters into settlement discussions under the program may withdraw from participation at any time. A full description of the Board’s ADR program can be found on the Agency’s public website.


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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