Ouch! Hotel on Hook for $21.5 Million for Religious Discrimination

A jury has awarded $21.5 million in damages and front and back pay after finding the plaintiff, a former dishwasher and housekeeper for the Conrad Hotel in Miami, suffered religious discrimination.

eeoc-releases-performance-reportMarie Jean Pierre, a devout member of the Soldiers of Christ Church, told her employer when she started that her religious beliefs required that she not work on Sundays. For a few years, this request was honored. In 2009, however, she resigned when she was informed she would have to work Sundays. The hotel relented and put her back on a Sunday-free schedule, but in 2015 her supervisor put her back on a Sunday schedule and demanded she obtain a letter of explanation from her pastor.

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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 Takes Aim at ‘Protected Concerted Activity’ Definition

The National Labor Relations Board (NLRB), now with a 3-1 Republican majority, is seeking to limit the uses of the “protected concerted activity” clause of the National Labor Relations Act (NLRA).

nlrb-protected-concerted-activity-definitionIn a decision rendered Jan. 11, the majority members noted that, through the years, previous boards have “blurred the distinction between protected group action and unprotected individual action.” Further:

The applicable standard [for protected concerted activity] should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. In addition, the protection afforded by the Act to engage in protected concerted activity requires a clear standard that can be relied upon by employees who seek to engage in such activity and by employers who must determine whether particular employee conduct is within or outside the protection of the Act.

According to the decision in Allstate Maintenance, no longer will an individual employee, venting a personal gripe, be able to use the “protected concerted activity” defense just because he airs his complaint in front of other employees and a supervisor. In general, the phrase applies to truly group complaints, the board emphasized.

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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 Blocks Trump Contraceptive Rule Nationwide

After a California judge blocked it in 13 western states, a federal judge in Philadelphia on Monday put the full kibosh on the slated implementation of the Trump administration’s new contraceptive rule for Obamacare, which would allow businesses to opt out of the act’s birth control requirement based on “moral convictions.”

The Affordable Care Act (ACA, or Obamacare), which mandates free birth control as part of any health insurance policy, already made provision for religious groups to opt out of the requirement, but the Trump rule would extend the opt-out privilege to those businesses that found contraception morally objectionable.

U.S. District Judge Wendy Bettlestone ruled that the regulation — slated to go into effect the same day — would deprive up to 127,000 women of their access to no-cost contraceptives, while at the same time shifting the financial burden to the states to fill in the void.

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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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New Overtime Rule Reportedly Sent to White House

The long-anticipated rewrite of the Obama-era overtime rule has been submitted to the White House and its Office of Management and Budget (OMB) for review prior to the issuance of a Notice of Proposed Rulemaking (NPRM), it has been reported.

dol-proposes-new-overtime-ruleThis Trump-era rule is expected to set the salary threshold at which employees can be considered exempt from overtime pay at somewhere in the mid-$30,000s-a-year. The previous rule raised the bar all the way to $47,476 annually, but it was given the kibosh by a federal district judge.

Interestingly, that rule is still under review by the 5th U.S. Circuit Court of Appeals in New Orleans, and could become law. The issuance of a new NPRM would thwart that possibility.

Observers of the Department of Labor (DOL), where the proposed rule would originate, expect the NPRM to be released sometime in March, which would open a 90-day window for review by OMB. (There is no timetable for the draft proposal sent recently to the White House.) A March release would be in keeping with the DOL’s latest regulatory agenda.

The current exemption threshold is $23,660 annually, which was established in the first term of the George W. Bush presidency. The threshold, and other overtime rules regarding work responsibilities and overtime exemption, spring from the Fair Labor Standards Act (FLSA) of 1938, also known as the Wagner Act.


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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New York City Tries the San Francisco Solution — and More

New York City Mayor Bill de Blasio is rolling out an initiative — with a promised $100 million-a-year investment — to guarantee all residents of his city access to health care. He calls it NYC Care.

What he envisions is not single-payer, or even a health insurance scheme, but a copycat version of the San Francisco solution — let everyone use the city’s public health facilities and pay only what they can afford. The mayor spoke of a graduated payment schedule but released no details.

nyc-mayor-de-blasio-health-care-plan

NYC Mayor de Blasio guarantees health care for all residents

“From this moment on in New York City everyone is guaranteed the right to health care,” the mayor said Tuesday (Jan. 8). “We are saying the word guarantee because we can make it happen.”

The city, with funding from the state, operates 70 public health clinics and 11 hospitals. De Blasio is chipping in $100 million from the city’s treasury for the first year of operations, but the public health care system is already on financial life-support. Two years ago the city budget office reported that the system faced a $6 billion shortfall through 2020.

San Francisco launched its model program 10 years ago, and a 2011 report touted the initiative’s success: Three-fourths of the participants visited a doctor in their first year of enrollment; visits to the emergency room correspondingly declined; and there was also a drop in preventable hospitalizations for the uninsured, according to Vox.

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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 Judges Division Issues Revised Bench Book for 2019

The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces an earlier version issued in January 2018.  The new January 2019 edition contains citations to numerous additional board and court decisions and other authorities.  It also contains several new sections, including sections addressing compliance/backpay proceedings and consolidated unfair labor practice (ULP) and representation cases. In addition, certain sections have been substantially reorganized, including those addressing privileged or protected material.

supreme-court-to-hear-adea-caseLike the 2018 edition, the new 2019 edition was edited by NLRB Administrative Law Judge (ALJ) Jeffrey Wedekind and contains a Foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.  As discussed in the Foreword, the basic sources that govern board ULP hearings are the National Labor Relations Act (NLRA), the Administrative Procedure Act (APA), the Board’s Rules and Regulations and Statements of Procedure, and Board decisions.

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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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EEOC Down to Two Members

Victoria Lipnic

The controversial renomination of Chai Feldblum to the Equal Employment Opportunity Commission (EEOC) died at noon on Jan. 3 as one Congress exited and another commenced. So too did the nominations of Daniel Gade and Janet Dhillon, leaving the 2019 board without a quorum. (Reportedly, Gade had already withdrawn his name for consideration prior to the expiration date.)

Sen. Mike Lee (R.-Utah) in early December placed a hold on Feldblum’s vote based on his disapproval of some of her views. The hold also applied to Gade and Dhillon since the three were nominated as a package.

“What a wonderful almost nine-year run I have had!” Feldblum wrote on Facebook as her term expired. “I will always be grateful for the wonderful colleagues I have served with on the commission. Thank you to everyone who worked so hard for my confirmation. We certainly gave it our best shot. Now is the time to fight even harder for diversity, safety, and equity. There is no other way!”

Feldblum joined the EEOC in April 2010. Victoria A. Lipnic, acting chair, and Charlotte A. Burrows are the only two active members left on the commission.


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 Appeal Obamacare Ruling

Attorneys General from 16 Democrat-leaning states and the District of Columbia have filed an appeal to overturn U.S. District Judge Reed O’Conner’s Dec. 14 ruling that the Affordable Care Act (ACA, or Obamacare) is unconstitutional now that the individual mandate “tax” has been eliminated.

fifth-circuit-court-of-appeals

5th U.S. Circuit Court of Appeals West Courtroom

California Attorney General Javier Becerra, leading the charge, claimed  the ruling is “reckless,” “ludicrous” and based on a “flimsy” legal theory.

At a White House Cabinet meeting the same day, President Trump declared, “That case from Texas should win in the Supreme Court.”

The appeal comes just days after Judge O’Conner on Sunday ruled that the ACA should stay in legal effect while the appeals process plays out.

Thursday’s legal action consisted of a one-paragraph notice of appeal filed with the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Judge O’Conner’s court in Ft. Worth, Texas. By all accounts, the 5th circuit court is a bastion of conservatism, so the case could well end up before the Supreme Court, as President Trump declared.


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 Stays His Obamacare Ruling While Appeals Take Place

U.S. District Judge Reed O’Connor on Sunday put a stay on his ruling that the Affordable Care Act (ACA, or Obamacare) is unconstitutional while appeals are being prepared and heard.

aca-unconstitutional-ruling-on-holdThe Ft. Worth-based judge issued his ruling on Dec. 14, the day before the 2019 open enrollment season was to end. The decision was based on a lawsuit by 20 Republican-leaning states that argued the ACA was no longer constitutional now that the individual mandate’s tax penalty has been essentially removed.

That contention, which was argued against by attorneys general from Blue States, was based on the last-minute flip-flop by Supreme Court Chief Justice John Roberts in 2012, who used the argument that because the mandate was a tax, the overall law was constitutional.

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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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IRS Unable to Reclaim $1B in False Obamacare Subsidy Claims

Some 87 percent of Obamacare participants receive subsidies to offset the premiums for their health insurance, with the total of subsidies claimed — based on applicants’ stated income while applying — running at $27 billion a year. In the latest accounting, $3.7 billion of that outlay was based on false or outdated claims, of which only $2.7 billion has been recovered.

But it’s not all the fault of the Internal Revenue Service (IRS), which is responsible for auditing the tax-based subsidies. The authors of the Affordable Care Act (ACA, or Obamacare) set limits on how much the IRS was allowed to claw back from subsidized policyholders, for fear that too much IRS interference might sink the entire health care program.

In 2017 the government paid $5.8 billion in overages and had to leave $3.5 billion on the table by law. So, the 2018 statistics just released by the inspector general show a bit of an improvement.

The Trump Department of Health and Human Services (HHS) has vowed to come up with a rule to thwart cheating on Obamacare applications but has yet to issue anything concrete.


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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