Supreme Court Limits Presidential Appointment Powers

The Supreme Court this week curtailed the appointment power of presidents by ruling that no one can be named as an acting head of a federal agency if that person has been nominated for the full position and that position requires Senate approval.

The ruling springs from an action by then-President Barack Obama, who in 2011 named Lafe Solomon as acting general counsel of the National Labor Relations Board (NLRB), while he also nominated him for the full post, which required Senate confirmation.

The ruling, written by Chief Justice John Roberts, is based on the Federal Vacancies Reform Act of 1998. The vote was 6-2, with a dissent by Justices Sonia Sotomayor and Ruth Bader Ginsburg, who argued that since that law was enacted, more than 100 persons have filled acting agency roles while awaiting confirmation for permanent jobs.

The case was National Labor Relations Board v. SW General Inc.


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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Congress Overturns OSHA 5-Year Recordkeeping Rule

Congress has rejected the so-called Volks Rule from the Occupational Safety and Health Administration (OSHA) that mandated businesses retain records of injuries and illnesses for five years instead of the six-month period of the statute of limitations in the OSH Act. Using the Congressional Review Act (CRA), the Senate completed the legislative process with a 50-48 vote yesterday. President Trump is expected to sign the repeal.

The Volks Rule came about after a federal court ruled that OSHA could not issue citations for a company’s not retaining injury and illness records after the six-month statute of limitations had expired.

According to OSHA, the rule that took effect in January was meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”

The rule took its name from the case that OSHA lost, Volks Construction v. Secretary of Labor.


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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Another Judge Upholds DOL Fiduciary Rule

Saying she found “the plaintiffs’ position on the merits unpersuasive,” U.S. District Chief Judge Barbara M.G. Lynn in Dallas has dismissed a motion for a preliminary injunction against the Department of Labor (DOL) Fiduciary Rule (aka “Conflict of Interest” rule), which is set to take effect April 10.

The request for injunction was sought by several trade groups, including the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association, and the Financial Services Institute Inc.

The Fiduciary Rule, which requires retirement investment advisers to put the best interests of their clients first, may be delayed until June 9, as the DOL is seeking a 60-day extension at the urging of the White House (which actually wanted a 180-day delay).

The DOL has already issued guidance saying that, even if the rule takes effect April 10, it will delay enforcement until June 9.

A chorus of other judges before Lynn previously declined to place an injunction on the incoming rule.


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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11th Circuit Court Holds that Title VII Does Not Cover Sexual-Orientation Discrimination

Joining every other circuit court except D.C., the 11th Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act of 1964 does not cover discrimination based on sexual orientation.

“[W]e are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court,” the three-judge panel ruled on March 10.

However,  the court affirmed that other theories of sex discrimination, such as gender non-conformity and same-sex discrimination, remain actionable.

The case involved Jameka Evans, a lesbian who identified with the male gender. Evans was a guard at a Georgia hospital, where she claimed she was harassed and denied equal pay and promotion based on her sexual orientation. She later resigned and filed suit. A magistrate judged ruled that Title VII “was not intended to cover discrimination against homosexuals.” A U.S. district court then agreed with the magistrate, and the decision was appealed.

Despite the ruling, several states and municipalities have ordinances in place outlawing discrimination based on sexual orientation


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 Secretary, CMS Administrator Reach Out to States on Improving Medicaid

Seema Verma was recently sworn in as the Administrator of the Centers for Medicare & Medicaid Services (CMS). After her swearing-in ceremony, Health and Human Services (HHS) Secretary Tom Price, M.D., and  Verma took their first joint action, cosigning a letter to the nation’s governors affirming the department’s intent to work with states to improve the Medicaid program and the lives of those it serves.

In the letter, Secretary Price and CMS Administrator Verma recognize the vital importance of the Medicaid program and the duty of government to put beneficiaries first, ensuring the highest level of quality, accessibility and choices for Americans who rely on the program. They go on to note the current impediments that the Medicaid program faces and acknowledge the obligation to taxpayers to make sure Medicaid operates in a way that best serves the most vulnerable populations.

Both firmly believe that states know best how to care for their citizens, and in the letter Secretary Price and CMS Administrator Verma write, in part:

Today, we commit to ushering in a new era for the federal and state Medicaid partnership where states have more freedom to design programs that meet the spectrum of diverse needs of their Medicaid population. We wish to empower all states to advance the next wave of innovative solutions to Medicaid’s challenges—solutions that focus on improving quality, accessibility, and outcomes in the most cost-effective manner. States, as administrators of the program, are in the best position to assess the unique needs of their respective Medicaid-eligible populations and to drive reforms that result in better health outcome.


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 Launches Page to Explain Benefits of ACA ‘Replace and Repeal’

This week the Health and Human Services (HHS) Department launched a new page on HHS.gov highlighting the regulatory and administrative actions the department is taking to relieve the burden of the current healthcare law and support a patient-centered healthcare system.

“We’re taking action to improve choices for patients, stabilize the individual and small-group insurance markets, and expand access to more affordable coverage,” said Secretary Tom Price, M.D. “This page will be the place to go for updates on our ongoing efforts.”

The actions are part of a broader plan to repeal and replace the Affordable Care Act (ACA).

Click here to see the newly launched webpage explaining the department’s actions.

New measures will be announced as soon as is allowable by law. In particular, future actions will:

  • Lower costs and increase choices by providing relief from the burdensome regulations and fostering competition in insurance markets;
  • Work to ensure a stable transition period;
  • Offer states greater flexibility of their Medicaid programs to meet the needs of their most vulnerable populations; and
  • Increase the opportunities for patients to get the care they need when they need it.

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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Disney to Pay Costume Characters $3.8 Million in Back Wages

Walt Disney World in Florida has been hit with wage theft and other allegations and has agreed to pay $3.8 million in back wages to 16,339 of its costume characters, such as Mickey, Goofy and the like.

This comes after the Department of Labor (DOL) found that Disney was deducting the cost of the costumes from the employees’ paychecks. Such deductions are legal under the Fair Labor Standards Act (FLSA) so long as they don’t push the employees’ pay below minimum wage, which they did in Disney’s case. The DOL also found that workers at Disney World were required to perform uncompensated chores before and after normal work hours. Disney resorts also failed to keep proper payroll records.

“These violations are not uncommon and are found in other industries, as well,” Daniel White, district director for the DOL’s Wage and Hour Division (WHD) in Jacksonville, Fla., said in a press release. “Employers cannot make deductions that take workers below the minimum wage and must accurately track and pay for all the hours their employees work.”


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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Comment Period on DOL Fiduciary Rule Delay Closes

The public comment period on the proposal by the Department of Labor (DOL) to delay implementation of its Fiduciary Rule came to a close Friday afternoon, with at least 565 letters received. The proposal, if it becomes final, will push back the April 10 start date for the Fiduciary Rule by 60 days, or to June 9.

The Fiduciary Rule requires investment advisers marketing retirement plans to put the interests of their clients first rather than just promoting plans that benefit them the most.

The Trump administration originally pushed for a 180-day delay, but the DOL opted for 60 days instead.


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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E-Verify Records from 2006 to Be Purged March 31

Employers who have employee records on the E-Verify database dating to Dec 31, 2006, and earlier are advised that these records will be purged on March 31. The system is designed to purge records once they reach 10 years in age to avoid any possible compromise of information.

Through March 31, employers can download a record of the employee files that are being purged. With that record, they can write the E-Verify verification case number on the physical Form I-9 for each affected employee.

E-Verify is a free online system that employers can use to search government databases to verify information submitted on new hires’ Form I-9.


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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Amid Repeal and Replace Talk, Obamacare Enrollments Crater

The Department of Health and Human Services (HHS) confirmed this week that enrollment in Obamacare health plans dropped half a million from the year before, and came in 1.7 million below expectations, with 12.2 million enrollees by the Jan. 31 end of open enrollment. Expectations were for 13.8 million.

Four of every five who signed up for health plans received subsidies, i.e., 10.1 million of all signees.

Former Obama officials immediately cast aspersions Donald Trump’s way since one of his first acts as president was to cancel all ads for the Affordable Care Act (ACA) exchanges.

Republicans, on the other hand, were quick to call the low result proof that Obamacare needs to be repealed and replaced.


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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