Final Rule Issued to Facilitate State-Run IRA Programs.

The Employee Benefits Security Administration (EBSA) has made public a final rule that assists states in creating IRA programs for workers who do not have access to workplace savings arrangements. At the same time, in response to public comments, the department is making public a proposed rule that could facilitate a limited number of cities and other local governments to do the same.

“For workers without access to savings arrangements through their employers, this rule means a new way to secure their financial futures,” said Secretary of Labor Thomas E. Perez. “More access to retirement investments equals more saving and a bigger piece of the American dream for workers and families in the decades ahead.” (The EBSA is part of the Department of Labor.)

Eight states have already enacted legislation to create retirement savings programs for private-sector workers.  Most of those laws require employers that do not offer workplace savings arrangements to automatically enroll their employees in payroll deduction IRAs administered by the states, while other state laws create a marketplace of retirement savings options geared at employers that do not offer workplace plans. Although other states are considering similar measures, uncertainty over the application of the Employee Retirement Income Security Act’s (ERISA’s) preemption provisions has proven to be a roadblock to broader adoption of such programs.

The final rule provides guidance for states in designing programs by providing a safe harbor from ERISA coverage to reduce the risk of ERISA preemption of the relevant state laws. Importantly, the rule also protects worker rights by ensuring they have the ability to opt out of auto-enrollment arrangements. The rule will go into effect 60 days after its publication in the Federal Register.

The proposal to expand the safe harbor to include a limited number of larger cities and counties in response to comments received from members of the public will be open for 30 days of public comment after its publication in the Federal Register.


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 Grants Employee Unionization Rights to Graduate Student Assistants

In a decision today that could drastically alter the university landscape, the National Labor Relations Board (NLRB) voted 3-1 along party lines to grant employee status to graduate student assistants at Columbia University, allowing them to unionize.

The ruling, reversing a Bush-era 2004 decision, affects for-profit colleges and universities but not public institutions. The NLRB has no jurisdiction over public entities.

The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority decision today reversed Brown University, saying it had “deprived an entire category of workers of the protections of the Act without a convincing justification.”

Act in the quotation above refers to the landmark National Labor Relations Act (NLRA), which defined the rights of employees to organize.


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 Tests Expedited Whistleblower Resolution Process

The Department of Labor (DOL) is launching a new pilot process in its Western region. The “Expedited Case Processing Pilot” allows a complainant covered by certain statutes to ask the department’s Occupational Safety and Health Administration (OSHA) to cease its investigation and issue findings for the department’s Office of Administrative Law Judges to consider.

The move is possible only if the case meets certain criteria. Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, punitive damages where authorized, attorneys’ fees and reinstatement.

The department acknowledges that OSHA’s investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA’s processing of their claims.

“The ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job,” said Barbara Goto, OSHA’s regional administrator in San Francisco.

The pilot became effective Aug. 1, in the agency’s San Francisco region, which includes California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI and Guam.

Once a complainant requests expedited processing, the case will be assessed for the following criteria:

  • ­­The claim is filed under a statute that allows for de novo review by an administrative law judge.
  • Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA.
  • OSHA has interviewed the complainant.
  • Federal investigators have evaluated the complaint and the complainant’s interview to determine if the basic elements of a retaliation claim exist.
  • Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
  • The complainant has received a copy of the respondent’s submissions and had an opportunity to respond.

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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U.S. Judge in Texas Puts Hold on Obama’s Transgender School Bathroom Rule

Late Sunday, U.S. District Judge Reed O’Connor sided with Texas and 12 other states in their lawsuit against the Obama administration’s directive that transgender students be allowed to use the bathroom of their choice by placing a temporary hold on the ruling.

Judge O’Connor in essence said the directive was not interpretive of existing law but a mandate that was extralegal.

“The Guidelines are, in practice, legislative rules — not just interpretations or policy statements because they set clear legal standards,” Judge O’Connor wrote. “Although Defendants have characterized the Guidelines as interpretive … their actual legal effect prove that they are ‘compulsory in nature.’”

The judge said the proper procedure is to issue a proposed regulation and then allow public commentary on it, following the Administrative Procedures Act.

The directive, with the threat of withholding federal funds from schools that didn’t comply, was issued by the Departments of Justice and Education in May. That same month the collective lawsuit was filed.


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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HIPAA Celebrates 20th Anniversary Today

On this day (Aug. 21) in 1996, President Bill Clinton signed into law the Health Insurance Portability and Accountability Act (HIPAA), which as its title implies protects people with pre-existing conditions when they change jobs and need new health insurance.

From that date until Obamacare took over in 2014, if you left one company with a pre-existing condition, you had to obtain a Certificate of Creditable Coverage from your last employer to prove that your condition had been medically covered. After that, you had 63 days to obtain new insurance, either on your own or through an employer’s policy.

Since the Affordable Care Act (ACA) now makes it illegal to exclude coverage for people with pre-existing conditions, that part of HIPAA has become null and void.

What survives are the Privacy, Security and Breach rules of HIPAA that offer protections for individuals not to have their medical history or illness details released without their permission. (Technically, such medical data can be shared freely among industry entities, but what can’t be shared are one’s name, address, Social Security number and the like. The data have to be “deidentified.”)


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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$5.5M Settlement Largest Ever for a HIPAA Security Violation

Advocate Health Care Network (Advocate) has agreed to a settlement with the Department of Health and Human Services (HHS), Office for Civil Rights (OCR), for multiple potential violations of the Health Insurance Portability and Accountability Act (HIPAA) involving electronic protected health information (ePHI).

Advocate has agreed to pay a settlement amount of $5.55 million and adopt a corrective action plan.  This significant settlement, the largest to-date against a single entity, is a result of the extent and duration of the alleged noncompliance (dating back to the inception of the Security Rule in some instances), the involvement of the State Attorney General in a corresponding investigation, and the large number of individuals whose information was affected by Advocate, one of the largest health systems in the country.

“We hope this settlement sends a strong message to covered entities that they must engage in a comprehensive risk analysis and risk management to ensure that individuals’ ePHI is secure,” said OCR Director Jocelyn Samuels. “This includes implementing physical, technical, and administrative security measures sufficient to reduce the risks to ePHI in all physical locations and on all portable devices to a reasonable and appropriate level.”

OCR began its investigation in 2013, when Advocate submitted three breach notification reports pertaining to separate and distinct incidents involving its subsidiary, Advocate Medical Group (“AMG”). The combined breaches affected the ePHI of approximately 4 million individuals.


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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DOL Agrees to $7 Million Settlement over Unpaid Overtime Wages

The Department of Labor (DOL) has reached a $7 million agreement to settle a longstanding dispute over unpaid overtime wages, according to the DOL’s bargaining unit, American Federation of Government Employees Local 12.

The unpaid overtime was due to employees’ being misclassified as exempt from overtime when they were not, according to attorneys for the union. Another factor was working off the clock, during lunch breaks and after normal work hours.

The overtime dispute covered the years of 2003 through 2013, during the tenures of Elaine Chao and Hilda Solis as labor secretary and George W. Bush and Barack Obama as president.

The union represents 3,100 DOL employees, but it’s not clear how many of them will share in the pot.


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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Aetna Fleeing Obamacare Exchanges in 11 of 15 States It Serves

Aetna Inc., citing losses of at least $300 million this year on Affordable Care Act (ACA) health insurance policies, announced it is abandoning the Obamacare marketplaces in 11 of the 15 states it currently serves, leaving Pinal County in Arizona with no insurer willing to offer policies.

After the move, Aetna will be offering policies in just 242 of the 778 counties it currently serves, and then only in four states: Delaware, Iowa, Nebraska and Virginia.

If no insurer steps up to offer policies in Pinal County, near Phoenix, residents there will be unable to get subsidies from the federal government for their policies. Subsidies are available only to individuals who purchase health insurance on the Obamacare exchanges.

The five largest national health insurance companies have all reported financial losses on exchange policies this year. Other insurers, focusing largely on Medicaid plans, report doing well.


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 Contractor Final Rule on Sex Discrimination Takes Effect Today

A final rule by the Office of Federal Contract Compliance Programs (OFCCP) prohibiting federal contractors from discriminating against individuals based on sex, including gender identity and sexual orientation, takes effect today, Aug. 15.

The bar for businesses to qualify has been set fairly low: Any business holding a single federal contract, subcontract or federally assisted construction contract or subcontract in excess of $10,000 is covered by the new rule. Also if any combination of federal contracts or subcontracts in a 12-month period totals $10,000 or more, that business is covered as well.

The final rule seeks to update sexual discrimination guidelines for contractors that haven’t been revisited since 1970.


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 Forced to Confront Zika Threat

At the request of Governor Alejandro García Padilla, Health and Human Services Secretary Sylvia M. Burwell has declared a public health emergency for Puerto Rico, signaling that the current spread of the Zika virus poses a significant threat to public health in the Commonwealth relating to pregnant women and children born to pregnant women with Zika.

The declaration is a tool that provides support to the government of Puerto Rico to address the outbreak on the island and underscores the public health risk of Zika, particularly to pregnant women and women of childbearing age.

Meanwhile, earlier in the week Burwell also shifted money from the National Institutes of Health (NIH) to fund Zika research, to the tune of $34 million, which is a far cry from the $1 billion requested by President Obama for the effort. Congress, now in recess, has so far reached gridlock on the issue, with Republicans’ tying the issue into ending funding for Planned Parenthood.


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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