Temporary Workers Now Automatically Included in Bargaining Units, NLRB Rules

After the National Labor Relations Board (NLRB) ruling in 2015 that temporary workers are “joint employees” of both their staffing agency and the company where they work, employers feared that the next step would be to include such joint employees automatically in workplace bargaining units during unionization proceedings.

As the National Law Review notes on its website, that shoe has now dropped.

Previously, employers and staffing agencies had veto rights over allowing temporary workers to be included in bargaining units, but the NLRB on July 11 — in its Miller & Anderson Inc. decision — ruled that joint employees are to be included in the workforce for bargaining and organizing purposes.

The decision actually represents a return to the standard employed by the NLRB under Bill Clinton. The George W. Bush board then restored employer/agency veto rights. Now it’s come full circle.

Read NLRB’s Return to Sturgis Standard


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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‘Black Swan’ Unpaid Interns Case Drawing to a Close, or Not?

The Department of Labor (DOL) has long been cracking down on the use of unpaid interns to do the work of employees, and the most famous case alleging such abuse — the interns on the movie “Black Swan” who filed a lawsuit for back pay — may be drawing to a close. Or maybe not.

20th Century Fox, after losing the lawsuit in court and then winning it on appeal, is proposing a settlement that would award most of the interns $495 each — and compensate the lead plaintiffs up to $7,500 apiece.

The settlement, however, must first be approved by U.S. District Judge William Pauley, the very same judge who sided with the plaintiffs in a summary judgment in 2013.

The plaintiffs earlier sought a rehearing with the 2nd U.S. Circuit Court of Appeals, which overturned Pauley’s judgment, but were rebuffed in February. They could still appeal to the U.S. Supreme Court. The judge could also reject the terms.


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 Texas Lawsuit Filed: This One Against OSHA Electronic Reporting

Federal courts in Texas have already been the scene of lawsuits against Obama administration initiatives regarding immigration, the “Persuader Rule” and transgender bathrooms, and now another group is seeking an injunction against the Occupational Safety and Health Administration (OSHA) standard that mandates electronic reporting of injuries and illnesses beginning in 2017.

The rule requires employers to submit their Form 300A injury and illness data to OSHA in electronic format, thereafter to be published online for public access. Employers with more than 250 employees will be required to submit additional records and data.

“The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward,” said Linda Kelly, general counsel of the National Association of Manufacturers, one of the groups sponsoring the lawsuit.

“Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”

TEXO ABC/AGC v. Perez was filed July 8 in the U.S. District Court for the Northern District of Texas.


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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States Sue to Block Administration’s Transgender Bathroom and Other LGBT Directives

More than a dozen states on Wednesday asked a federal judge in Texas to block initiatives by the Obama administration designed to protect the rights of transgender individuals to use the bathroom of their choice, among other LGBT anti-discrimination provisions. The move came one day after the administration sued in North Carolina to block that state’s “bathroom bill” that was designed to thwart the administration’s efforts.

That the lawsuit originated in Texas is no coincidence, as two earlier legal efforts there led to injunctions against Obama’s immigration directives and the “persuader  rule” by the Department of Labor (DOL) that places new restrictions on employers during union organizing efforts. In the case of the immigration injunction, it became permanent when the Supreme Court tied 4-to-4 upon review. The “persuader rule” injunction is still being fought out.

The Texas lawsuit joins scores of others across the nation that arose largely in response to a directive in May from the departments of Justice and Education mandating the students be allowed to choose the bathroom that corresponds to their self-perceived gender identity rather than to their gender of birth.


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 Redoubles Effort to Fight Opioid Abuse

Health and Human Services (HHS) Secretary Sylvia M. Burwell today announced several new actions the department is taking to combat the nation’s opioid epidemic.

The actions include expanding access to buprenorphine, a medication to treat opioid use disorder; a proposal to eliminate any potential financial incentive for doctors to prescribe opioids based on patient experience survey questions; and a requirement for Indian Health Service prescribers and pharmacists to check state Prescription Drug Monitoring Program (PDMP) databases before prescribing or dispensing opioids for pain.

In addition, the department is launching more than a dozen new scientific studies on opioid misuse and pain treatment and soliciting feedback to improve and expand prescriber education and training programs.

The actions announced today build on the HHS Opioid Initiative, which was launched in March 2015 and is focused on three key priorities: 1) improving opioid prescribing practices; 2) expanding access to medication-assisted treatment (MAT) for opioid use disorder; and 3) increasing the use of naloxone to reverse opioid overdoses. They also build on the National Pain Strategy, the federal government’s first coordinated plan to reduce the burden of chronic pain in the U.S.


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-Ever Business Associate Fine for a HIPAA Violation

Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS) has agreed to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule after the theft of a CHCS mobile device compromised the protected health information (PHI) of hundreds of nursing home residents, according to the Office for Civil Rights (OCR), which enforces the HIPAA Breach, Privacy and Security rules..

CHCS provided management and information technology services as a business associate to six skilled nursing facilities. The total number of individuals affected by the combined breaches was 412.  The settlement includes a monetary payment of $650,000 and a corrective action plan.

OCR initiated its investigation on April 17, 2014, after receiving notification that CHCS had experienced a breach of PHI involving the theft of a CHCS-issued employee iPhone.  The iPhone was unencrypted and was not password protected.  The information on the iPhone was extensive, and included social security numbers, information regarding diagnosis and treatment, medical procedures, names of family members and legal guardians, and medication information.

At the time of the incident, CHCS had no policies addressing the removal of mobile devices containing PHI from its facility or what to do in the event of a security incident; OCR also determined that CHCS had no risk analysis or risk management plan.

In determining the resolution amount, OCR considered that CHCS provides unique and much-needed services in the Philadelphia region to the elderly, developmentally disabled individuals, young adults aging out of foster care, and individuals living with HIV/AIDS.

OCR will monitor CHCS for two years as part of this settlement agreement, helping ensure that CHCS will remain compliant with its HIPAA obligations while it continues to act as a Business Associate.

Until the Department of Health and Human Services (HHS) released its Omnibus Final Rule in 2013, Business Associates were not directly responsible for HIPAA violations, making CHCS the first to be so disciplined.


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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Puerto Rico Escapes New Overtime Rule Mandate

Puerto Rico, a U.S. Territory that generally hews to this nation’s labor laws, will evade the new overtime exemptions final rule as it scrapes its way out of near financial ruin, having missed its constitutionally mandated sovereign bond payment on July 1.

The rule sets the salary threshold for overtime exemption at $47,476 a year. It currently stands at $23,660 a year.

Congress, however, has set up an Oversight Board that will review the island-nation’s finances for two years while holding the new overtime rule in abeyance.

Under terms of the Puerto Rico Oversight, Management and Economic Stability Act (POMESA), signed into law on June 20, the U.S. Comptroller General will conduct a review and report back to Congress within two years.

PROMESA dictates that the report shall take into consideration “regional, metropolitan, and non-metropolitan salary and cost-of-living differences” regarding the “white collar” overtime rule taking effect here on Dec. 1.

The deadline for the report is June 30, 2018.


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 Civil Fines for Compliance, Safety Violations Set to Rise

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. The new law directs agencies to adjust their penalties for inflation each year using a much more straightforward method than previously available, and requires agencies to publish “catch up” rules this summer to make up for lost time since the last adjustments.

As a result, the Department of Labor announced June 30 two interim final rules to adjust its penalties for inflation based on the last time each penalty was increased.

The first rule will cover the vast majority of penalties assessed by the department’s Employee Benefits Security Administration, Mine Safety and Health Administration, Occupational Safety and Health Administration, Office of Workers’ Compensation Programs, and Wage and Hour Division. The second rule will be issued jointly with the Department of Homeland Security to adjust penalties associated with the H-2B temporary guest worker program.

Under the 2015 law, agencies are directed to publish interim final rules by July 1, 2016. The department will accept public comments for 45 days to inform the publication of any final rule.

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150 percent of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

The rules published under the 2015 law will modernize some penalties that have long lost ground to inflation:

  • OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
  • OWCP’s penalty for failure to report termination of payments made under the Longshore and Harbor Workers’ Compensation Act, has only increased $10 since 1927, and will rise from $110 to $275.
  • WHD’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894.

A Fact Sheet on the Labor Department’s interim rule is available here. A list of each agency’s individual penalty adjustments is available here.


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 Wins Landmark Sexual Orientation Discrimination Settlement

The  Equal Employment Opportunity Commission (EEOC) announced that Pallet Companies, doing business as IFCO Systems, will pay $202,200 and provide significant equitable relief to settle one of EEOC’s first lawsuits alleging sex discrimination based on sexual orientation.

EEOC charged that a lesbian employee at IFCO’s Baltimore facility was repeatedly harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” according to the suit.

EEOC charged that the supervisor also made sexually suggestive gestures to her. IFCO retaliated against the female employee by firing her just days after she complained to management and called the employee hotline to report the harassment, according to the suit.

Title VII of the Civil Rights Act of 1964 prohibits both discrimination because of sex and retaliation. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. EEOC filed suit in U.S. Court for the District of Maryland, Baltimore Division (EEOC v. Pallet Companies, d/b/a IFCO, Civil Action No. Case 1:16-cv-00595-CCB).


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 Issues Injunction Against ‘Persuader Rule’

U.S. District Judge Sam R. Cummings on Monday issued a preliminary nationwide injunction against the so-called “Persuader Rule” that would force businesses during union organizing activities to reveal minute details of their preparations, specifically the sources of the information and the tactics used in their effort to “persuade” their employees not to unionize.

The so-called “Persuader Rule” was set to go into effect this Friday, July 1, but Judge Cummings issued his 86-page stay while the case of National Federation of Independent Business et al. v. Perez et al. goes forward.

The Department of Labor (DOL) rule would require the reporting of all expenditures for even “indirect persuasion” efforts, meaning that the names of the attorneys and their firms would be publicly available.

To lift the injunction, the DOL now must appeal to the U.S. 5th Circuit Court of Appeals in New Orleans or to the Supreme Court.

This is the second time that a federal judge in Texas has stopped Obama administration initiatives in their track. In 2015, Judge Andrew Haney issued a stay on President Obama’s executive orders on immigration, which was upheld by the 5th Circuit and left to stand when the Supreme Court tied on the issue.


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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