Small Breach Notifications Due by March 1

HIPAA-covered entities must report small data breaches of protected health information (PHI) affecting fewer than 500 individuals to the Office for Civil Rights (OCR) by March 1.  The law allows for 60 days to elapse at the close of a calendar year before that year’s small breaches must be reported to OCR.

When the breach itself occurs, however, the HIPAA-covered entity must report it to those affected within 60 days.

Breaches must be reported separately but can be done online.


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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Obama-Era DOL Fiduciary Rule Scores Rare Win in Texas Court

U.S. district courts in Texas have been the death knell for many Barack Obama-era regulations and executive orders — immigration reform and a new overtime rule among the most prominent — but yesterday (Feb. 8) a U.S. district judge in Texas beat back a challenge by the insurance industry against the Department of Labor (DOL) Fiduciary Rule.

The irony is that the new president and Obama successor, Donald Trump, appears to be dead set against the fiduciary rule and has already ordered it delayed by 180 days from its implementation date of April 7, 2017.

The rule would require those who give retirement savings plan advice — and sell retirement savings instruments — to put their clients’ best interest above their own self-interest, that is, not to push plans that provide them the greatest commissions.

In yesterday’s decision, U.S. District Judge Barbara Lynn denied the plaintiff’s motion for summary judgment, and upheld the DOL’s motion for summary judgment, in an 81-page opinion. The case was U.S. Chamber of Commerce v. DOL, which was consolidated with lawsuits by  the Indexed Annuity Leadership Council (“IALC”) and the American Council of Life Insurers (“ACLI”).


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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Recent Regulatory and Legal Updates You Should Be Aware Of

In the past year, covering the end of the Obama administration to the beginning of the Trump White House, several developments have taken place on the legal and regulatory fronts that employers should be aware of and comply with as needed.

Jan. 22, 2017: Revised Form I-9 use is mandated. The new employment eligibility form that must be used for all new hires comes now in both a plain paper and a digital format. I-9 versions other than the one marked 11-14-16 N can no longer be used.

Jan. 17, 2017: Walking Working Surfaces Standard in effect. Though certain parts of the slips, trips and falls standard issued by the Occupational Safety and Health Administration (OSHA) are being phased in, the rule itself took effect this January. The final rule includes revised and new provisions addressing, for example, fixed ladders; rope descent systems; fall protection systems and criteria, including personal fall protection systems; and training on fall hazards and fall protection systems.

Jan. 1, 2017: OSHA Electronic Reporting Rule takes effect. The new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Contained within the rule (see below) was an anti-retaliation provision barring employers from retaliation against employees who report injuries or illnesses.

Dec. 1, 2016: White Collar Overtime Rule blocked by court injunction. A Department of Labor (DOL) final rule raising the salary threshold for exemption from overtime pay at time-and-a-half was stopped by a judge in Texas. The issue now lies before the 5th U.S. Circuit Court of Appeals, but it’s not clear if the Trump administration will continue the appeal. The rule established the new salary threshold at $913 a week, or $47,476 a year. As of now, the old threshold of $455 a week, or $23,660, remains in effect.

Dec. 1, 2016: OSHA Anti-Retaliation Rule takes effect. As part of the new electronic reporting requirement of injuries and illnesses from certain employers, an anti-retaliation rule took effect late in 2016. The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster.

Nov. 18, 2016: EEOC Issues Guidance on National Origin Discrimination. Title VII of the Civil Rights Act of 1964 protects applicants and employees from employment discrimination based on their race, color, religion, sex, national origin, opposition to practices made unlawful by Title VII, or participation in Title VII proceedings.Title VII’s protection against national origin discrimination extends to all employees and applicants for employment in the United States, and, in some circumstances, to U.S. citizens working in other countries. The Equal Employment Opportunity Commission (EEOC), which enforces the Civil Rights Acts, in late 2016 updated and reissued its guidance on national origin discrimination.

Aug. 29, 2016: EEOC Issues Retaliation Guidance.  The EEOC in summer 2016 issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.


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 Increases Fines for Posting Violations

On Tuesday, Jan. 31, the Equal Employment Opportunity Commission (EEOC) announced that it would be increasing the penalty for notice posting violations from $525 to $534. This penalty will be effective for violations occurring after March 2, 2017.

>This penalty increase of about one percent due to inflation is a great selling point for our SS1s and subscriptions. The last EEOC penalty increase was effective July 5, 2016.

It is more important than ever that employers stay in compliance with notice posting requirements now that the EEOC and Department of Labor (DOL) have increased their penalties for notice posting and other violations.

The increase is similar to the DOL’s recent penalty increases through the Inflation Adjustment Act of 2016.


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 Form 300A Must Be Posted by Feb. 1

Unless your business is on the exempted industry list or you have fewer than 10 employees, by Feb. 1 you must display your completed OSHA Form 300A Summary of Work-Related Injuries and Illnesses, even if you’ve had no injuries or illnesses in the previous year.

The Form 300A must remain on display until April 30.


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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White House Withdraws Hold on Environmental Protection Agency Grants

Shortly after inauguration on Jan. 20, President Trump and his staff ordered the Environmental Protection Agency (EPA) to cease awarding grants and contracts while they reviewed what was happening.

Late Friday, the review was completed and all grants and contracts, totaling at least $4 billion a year, were back on track, with nothing being withheld, according to the EPA’s acting administrator, Catherine McCabe.

The EPA makes grants to scientists, states and Native American groups, among others.


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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Trump Vows to Continue Protecting LGBTQ Workers’ Rights

President Trump announced today that he will continue to enforce an executive order issued by  his predecessor, Barack Obama, that protects the workplace rights of those in the LGBTQ community at businesses operating under federal contracts.

“The President is proud to have been the first-ever GOP (Republican) nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression,” the White House said in a statement.

When President Obama issued his executive order in 2014, he noted that it affected 24,000 companies employing some 28 million people, or one-fifth of the nation’s workforce.


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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Trump Orders Two Regulations Eliminated for Each New One Issued

Moving to fulfill his goal of reducing federal regulations by 75 percent, President Trump today signed an executive order mandating that two existing regulations be eliminated for each new one that’s promulgated.

“We don’t need 97 different rules to take care of one element,” Trump told a group of small-business owners meeting with him on Monday.

The order asks federal agencies to come up with a list of regulations to be cut so he and his staff can review them.

“There will be regulation, there will be control, but it will be a normalized control,” Trump later told reporters at the White House.


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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President Names Miscimarra Acting Chairman of NLRB

President Donald J. Trump has named board member Philip A. Miscimarra Acting Chairman of the National Labor Relations Board (NLRB).

“It is an honor to be named NLRB Acting Chairman by the president,” Miscimarra said. “I remain committed to the task that Congress has assigned to the board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”

Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the board. Pearce will continue as a board member in a term expiring on Aug. 27, 2018, and has served as a board member since 2010 including chairman since 2011. The board also currently includes board member Lauren McFerran, whose term expires on Dec. 16, 2019. Two board member seats are currently vacant.

Miscimarra has served as a board member since August 7, 2013. He was nominated by President Obama on April 9, 2013, and he was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions on May 22, 2013. He was confirmed by the Senate on July 30, 2013, and his current term expires on Dec. 16, 2017.

Before joining the board, Acting Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP).


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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Trump Orders Obamacare Advertising to Stop

In the few days remaining before Affordable Care Act (ACA, aka Obamacare) enrollment ends on Jan. 31, President Trump has ordered the Department of Health and Human Services (HHS) to pull all advertising for the health care program.

HHS spokespersons refused to confirm the White House order, but those speaking anonymously said the directive included pulling advertisements that have already been paid for.

Meanwhile, at a Republican confab in Philadelphia, House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell vowed that “replace and repeal” would take place in March, referring to their plans to kill the ACA program and come up with something as-yet-unspecified that’s better.


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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