Federal Judge Denies DOL Request for a Stay on His Overtime Rule Injunction

After hearing arguments on Dec. 30, U.S. District Judge Amos L. Mazzant III yesterday (Jan. 3) rejected a request by the Department of Labor (DOL) that he halt his court’s proceedings on the issue of whether the department’s 2016 overtime pay rule is legal.

The DOL rule would raise the threshold for exemption from overtime pay from $23,660 a year to $47,476 annually in salary. Judge Mazzant only days before the rule was to take effect on Dec. 1 issued an injunction against its implementation while his court weighs a lawsuit by the attorneys general of 21 states.

The DOL requested the stay while it appeals the judge’s ruling to the U.S. Fifth Circuit Court of Appeals. That court won’t hear the appeal until after Donald Trump is sworn in on Jan. 20, so the DOL effort may die aborning.


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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Federal Judge Blocks HHS Transgender Regulation

The same federal judge who blocked a federal regulation that dictated free bathroom choice at public schools has now blocked a ruling by the Department of Health and Human Services (HHS) that required Catholic hospitals to perform gender transition services as well as abortions.

“Plaintiffs will be forced to either violate their religious beliefs or maintain their current policies, which seem to be in direct conflict with the rule and risk the severe consequences of enforcement,” U.S. District Judge Reed O’Connor wrote in blocking implementation of the regulation.

The Dec. 31 ruling by Judge O’Connor comes four months after he issued an injunction against a joint federal regulation that mandated school bathroom use be open to student choice by gender identity rather than by birth gender.

The HHS rule in question, issued in May, applied to any hospital, health insurer or health plan that accepts funding from the federal government. There was no religious exemption.


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 Issues Regulations on Affirmative Action Programs by Federal Agencies

The Equal Employment Opportunity Commission (EEOC) today published regulations explaining what federal agencies must do to comply with their legal obligation to engage in affirmative action in employment and otherwise serve as “model employers” for individuals with disabilities. The regulations do not impose any obligations on private businesses or state and local governments. EEOC has also published a question-and-answer document on the regulations.

Section 501 of the Rehabilitation Act requires federal agencies to create affirmative action plans for the employment of people with disabilities, and to submit those plans to EEOC for approval. On May 15, 2014, EEOC published an Advance Notice of Proposed Rulemaking (ANPRM) asking for public input on how the EEOC should revise its regulations to clarify what an affirmative action plan must include. On Feb. 24, 2016, the Commission proposed regulations based on the input received, and sought further public comment on their proposals in a Notice of Proposed Rulemaking (NPRM).

Today, the final regulations reaffirm the federal government’s commitment to being a model employer of people with disabilities. The rule consolidates existing requirements from a variety of sources, such as the existing requirements that federal agencies have written reasonable accommodation procedures and seek out qualified job applicants with disabilities. The regulations also include new representation goals for employees with disabilities in the federal workforce and enhanced support requirements that will enable more persons with disabilities to seek federal employment.

The regulations set goals for federal agency workforces of 12 percent representation for individuals with disabilities and 2 percent for individuals with “targeted” disabilities. Targeted disabilities are defined as disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.The goals apply at both higher and lower levels of federal employment.

The regulations also require federal agencies to provide personal assistance services to employees who need them to perform basic human activities at work, such as eating and using the restroom. These services will allow individuals with significant disabilities to enjoy the opportunity and independence of paid employment, which may reduce the amount of taxpayer funds spent on public disability benefits.

“Increasing employment rates for individuals with disabilities is a national priority for the federal government,” said EEOC Chair Jenny Yang. “These new regulations provide concrete steps and accountability mechanisms to promote employment and advancement opportunities for people with disabilities across the government. The federal government is committed to leading by example and creating a workplace where people with disabilities can thrive.”


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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First-Timers Help Obamacare SIgn-Ups Soar

Of the 6.4 million Americans who signed up for health insurance on the Obamacare exchanges by the Dec. 19 deadline for coverage beginning Jan. 1, about 2 million of them were first-timers, presenting the incoming Trump administration with added challenges in not alienating a huge bloc of U.S. voters. Another 2.2 million persons were automatically renewed in the process.

The results were released this week by the Department of Health and Human Services (HHS), whose secretary, Sylvia Mathew Burwell, observed: “Some of the doomsday predictions about the marketplace are not bearing out.”

On Thursday, Dec. 15, the original deadline for coverage beginning Jan. 1 (later extended to Dec. 19), some 670,000 people signed up, the busiest day ever on HealthCare.gov, according to HHS.

Responding to Burwell’s comments, House Speaker Paul Ryan said in a statement: “Once Obamacare is repealed, we will make sure there is a stable transition period so that people don’t have the rug pulled out from under them.”


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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EBSA Rule Seeks to Clear Way for Municipal Retirement Plans

Saying that increasing access to retirement savings opportunities is the surest way to help more of America’s workers secure their financial futures, the Employee Benefits Security Administration (EBSA) has announced a final rule to assist large cities and other political subdivisions that establish payroll deduction individual retirement account savings programs for workers who do not have access to workplace savings arrangements. The rule amends a similar rule related to state savings initiatives published earlier in 2016.

“More workers saving for retirement now means more financially secure retirees in the future,” said Secretary of Labor Thomas E. Perez. “This is good for workers and families trying to build their nest eggs, and good for the long-term strength of the economy.”

The final rule provides guidance for eligible cities and other political subdivisions to help them design programs by providing a safe harbor describing circumstances in which an employer’s actions in complying with the municipal law do not result in the creation of an Employee Retirement Income Security Act (ERISA) compliant plan. The safe harbor will reduce the risk of ERISA preemption of the relevant municipal laws. By establishing a clear standard, it will also provide certainty to municipalities considering action. Importantly, the rule also protects workers’ rights by ensuring they have the ability to opt out of auto-enrollment arrangements. The rule will go into effect 30 days after its publication in the Federal Register today (Dec. 20, 2016).

Under the final rule, a limited number of cities and other political subdivisions – those with populations at least as large as that of the least populous of the 50 states, that are located in a state that does not already have a payroll deduction IRA plan of its own, that have experience sponsoring a plan for employees, and that meet other criteria laid out in the final rule – are eligible to enact such a program. Representatives from three cities – New York, Philadelphia and Seattle – have publicly expressed interest in potentially establishing programs.


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 Aims to Beat Trump by Three Days on ACA for 2018

The Centers for Medicare and Medicaid Services (CMS), which administers the health insurance marketplaces and regulates the provisions of the Affordable Care Act (ACA), on Friday threw down the gauntlet to President-elect Donald Trump and his incoming administration by issuing a final rule for the ACA for 2018 — setting its effective date three days prior to Trump’s swearing in.

Of course, any regulation issued since late May is subject to simple majority vote  kibosh by the House and Senate, both controlled by Republicans, under provisions of the Clinton-era Congressional Review Act (CRA).

Nonetheless, the ACA administrators seem undeterred by Trumpian threats to “repeal and replace” the ACA, or else they figure it doesn’t really matter. According to the notice published Friday, Dec. 16, in the Federal Register:

This final rule sets forth payment parameters and provisions related to the risk adjustment program; cost-sharing parameters and cost-sharing reductions; and user fees for Federally-facilitated Exchanges and State-based Exchanges on the Federal platform. It also provides additional guidance relating to standardized options; qualified health plans; consumer assistance tools; network adequacy; the Small Business Health Options Programs; stand-alone dental plans; fair health insurance premiums; guaranteed availability and guaranteed renewability; the medical loss ratio program; eligibility and enrollment; appeals; consumer operated and oriented plans; special enrollment periods; and other related topics.

Under Dates, the text stoically notes: “These regulations are effective January 17, 2017.” Donald Trump is slated to be sworn in on Jan. 20, 2017.


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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And the DOL Cuts It Even Closer: Rule Takes Effect Two Days Before Trump

The Department of Labor (DOL) announced on Friday it will publish a final rule on Monday, Dec. 19 — the day electors meet to cast their votes for the next president — that will clarify employers’ obligation to retain records of workplace injuries and illnesses for five full years.

The rule is scheduled to take effect on Jan. 18, 2017, two days before Donald Trump is to be sworn in as the 45th president of the United States. Of course, Trump and the Republicans in Congress could easily reject the rule by using the majority vote mechanism of review and repeal under the Congressional Review Act (CRA).

The announced action by the DOL’s Occupational Safety and Health Administration (OSHA) seeks to overturn a 2012 ruling by the D.C. Circuit Court of Appeals that employers are obligated only to retain OSHA records during the period of the relevant statute of limitations, not for the five years the agency mandates.

“This rule simply returns us to the standard practice of the last 40 years,” Assistant Secretary of Labor for Occupational Safety and Health David Michaels said in a statement. “It’s important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose.”

Again, this final 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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7th Circuit Court Denies College Athletes Status as Employees

The U.S. 7th Circuit Court of Appeals has affirmed a district court’s ruling that denied employee status under the Fair Labor Standards Act (FLSA) to student athletes at the University of Pennsylvania, who had filed suit to establish an employer-employee relationship.

In so ruling, the appellate court endorsed the U.S. Supreme Court’s statement in NCAA v. Board of Regents, 468 U.S. 85 (1985) that there exists “a revered tradition of amateurism in college sports.”

The case in question is Gillian Berger, et al. v. National Collegiate Athletic Association, et al. In addition to relying on the Supreme Court’s 1985 ruling, the circuit court also said the athletes lacked legal standing to sue the NCAA.

In 2015, the National Labor Relations Board (NLRB), which enforces employee-employer relationships, also denied an action by student-athletes at Northwestern University seeking employee status.


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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Obamacare Enrollment Deadline for Jan. 1 Coverage Extended to Dec. 19

Before the clock could even click toward midnight on Dec. 15, the original deadline for signing up for 2017 Obamacare policies that will take effect on Jan. 1, the Department of Health and Human Services (HHS) today extended the cutoff date to Monday, Dec. 19, at midnight.

“Millions of Americans have already signed up for coverage and tens of thousands more are in the process of getting coverage today,” Kevin Counihan, CEO of the Health Insurance Marketplace, said in a statement, adding that the marketplace had seen an “extraordinary volume of consumers contacting our call center or visiting HealthCare.gov.”

Even before enrollment commenced on Nov. 1, the department announced a provision for those whose policies were being abruptly canceled this year to enroll by Dec. 31 to avoid a lapse in coverage and any tax penalties that may ensue.

Enrollment will continue after Dec. 19, but the policies issued after that date will not start on Jan. 1 and could pose a tax liability.


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 Issues Final Rule on Family Planning Services Under Title X

The Department of Health and Human Services (HHS) today issued a final rule to clarify the regulations for family planning services under Title X of the Public Health Service Act and protect access to family planning services. Title X is the only federal program focused solely on providing family planning and related preventive services.

“This rule will strengthen access to essential services like cancer screenings and contraception for some of the most vulnerable patients in this country,” said Office of the Assistant Secretary for Health, Chief Medical Officer, Karen A. Scott, MD, MPH. “Public comments showed overwhelming support for finalizing the rule, which clarifies that all organizations able to provide these services should be eligible to compete for funds.”

Enacted in 1970 as part of the Public Health Service Act, the Title X Family Planning Program is a critical part of America’s public health safety net. For more than 40 years, Title X Family Planning Clinics have provided high quality, affordable, and cost-effective family planning and related preventive health services for women and men, with priority given to low-income patients. In 2015, through 91 grantees, a network of nearly 4,000 community-based clinics provided services to more than 4 million people each year.


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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