MLB Minor Leaguers Strike Out on Minimum Wage Lawsuit

A federal judge has decertified the collective of former minor league players suing Major League Baseball (MLB) over minimum wage claims, and he has also denied their certification as a class action. Lawyers representing the former minor leaguers vowed to appeal.

U.S. Magistrate Joseph Spero of the Northern District of California made the ruling July 21. Eight months earlier, he had provisionally allowed the collective, but this past week reversed course, finding that the plaintiffs were not “similarly situated” because of the geographic expanse of minor league camps in the U.S., among other technical requirements he found not to have been met.

(In a collective action, plaintiffs must “opt in,” while in a class action, plaintiffs must “opt out.”)

The lawsuit claimed the minor leaguers were paid below minimum wage standards because they earned as little as $3,000 to $7,000 for five months of work. MLB has long asserted the “seasonal entertainment” exclusion from minimum wage that is found in the Fair Labor Standards Act (FLSA).


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.
GoTo top Top

Administration Asks SCOTUS to Revisit Immigration Decision

The Department of Justice (DOJ), on behalf of the Obama administration, has petitioned the Supreme Court to reconsider its decision on the president’s immigration executive orders “before a full nine-member court.”

The court earlier tied 4-4 in reviewing a Texas federal judge’s injunction against the executive orders that would defer deportation and grant work permits to millions of undocumented immigrants, thus leaving the injunction standing.

Re-reviews by the Supreme Court are rare, but since the death of Antonin Scalia, the court has been one justice short, making tie votes not only possible but sometimes inevitable. Merrick Garland has been nominated to fill the vacancy (Garland, by most accounts, has never found a government regulation he didn’t like), but the Republican-held Senate has refused to hold hearings on the nomination before the upcoming presidential election.

As one legal scholar observed of the July 18 petition, “It doesn’t hurt to ask.”


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.
GoTo top Top

Under Cloud of Lawsuits, OSHA Delays Anti-Retaliation Provisions of Reporting Rule

After several lawsuits were filed in Texas over the issue, the Occupational Safety and Health Administration (OSHA) announced it is delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to conduct additional outreach and provide educational materials and guidance for employers. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016.

Under the rule, employers will be required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.


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.
GoTo top Top

MSHA Respirable Coal Mine Dust Target Largely Being Met, Sampling Finds

A federal rule to protect the nation’s miners from exposure to dangerous levels of coal mine dust is having a significantly positive impact in Phase II, a recent sampling by the Department of Labor’s Mine Safety and Health Administration (MSHA) shows.

MSHA announced July 18 that approximately 99 percent of the respirable coal mine dust samples collected from April 1, 2016, through June 30, 2016, were in compliance with the agency’s coal mine dust standards. In 2014, the department published a final rule  that closed many loopholes in the dust-sampling program that had left miners exposed to the unhealthy dust. The landmark rule also included requirements for more frequent sampling of the mine air and use of a new sampling device and other reforms.

For the recent sampling, the agency analyzed more than 20,000 underground coal mine operator samples using the new, cutting edge Continuous Personal Dust Monitor that provides miners with dust results in real time during the working shift. About 99 percent were in compliance. These results correspond to the respirable dust samples collected from Aug. 1, 2014, through Jan. 2016, during Phase I, when 87,000 dust samples were collected from surface and underground coal mines by MSHA and coal mine operators. Nearly 99 percent of those samples met the dust concentration limit.

“These positive results are due to the extraordinary efforts of MSHA and industry working to clean up the air that miners breathe and successfully implement the critical respirable dust rule to protect miners from a disease that has claimed tens of thousands of lives,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “The nation’s coal miners are better protected from debilitating and deadly black lung disease than ever before, but we still have much more work to do to prevent black lung so that miners can spend a career as a miner and not fear the disease.”

Phase III of the rule begins Aug. 1, 2016, and will lower the current respirable dust level of 2.0 mg per cubic meter to 1.5 mg per cubic meter of air. MSHA’s analysis of the sampling results from Phase I found that more than 97 percent of the samples collected would have met compliance at the lower level. The results from Phase II show that more than 98 percent would have been in compliance at the lower level.

Prolonged exposure to respirable coal mine dust causes lung diseases, such as coal workers’ pneumoconiosis, emphysema and progressive massive fibrosis. Collectively known as black lung, these diseases can lead to permanent disability and death.


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.
GoTo top Top

EEOC Publishes Revised EEO-1 Reporting Requirements

On July 14, 2016, the Equal Employment Opportunity Commission (EEOC) published a slightly revised proposed rule on W-2 wage reporting requirements on the annual EEO-1 form for companies with 100-plus employees.

This past winter the EEOC published a proposed rule that added wage reporting to the existing EEO-1 requirement for data reporting for each job category based on race, sex and ethnicity. The latest proposal changes the submission deadline from Sept. 30 of the reporting year to March 31 of the next year. It also sets forth the requirement that wage data cover the entire reporting year through Dec. 31.

The new proposal has a 30-day commentary window and provides various mechanisms for submitting comments. Please refer to the proposed rule for those methods.


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.
GoTo top Top

Annual Health Care Spending Reaches $10,000+ Per Person in the U.S.

Health care spending will hit $3.35 trillion this year, or $10,345 per man, woman and child in the United States, a record high, the Centers for Medicare and Medicaid Services (CMS) announced July 13.

The agency  also predicted that growth in health care spending will average 5.8 percent from 2015 through 2025, outpacing growth in the economy, though this year’s spending growth is a tad lower at 4.8 percent. That rate compares favorable to the 8 percent annual growth rate in the two decades prior to the Great Recession of 2008, CMS added.

“Per-capita spending and medical inflation also remain at historically very modest levels, demonstrating the importance of continuing to reform our delivery systems,” said CMS Acting Administrator Andy Slavitt. “As we look to the future we must continue our efforts that keep people healthy, providing access to affordable, quality care, while spending smarter across all categories of care delivery.”

A separate government study has found that about 5 percent of the population accounts for half of the spending.


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.
GoTo top Top

OCR Notifies 167 Covered Entities That They’re Being HIPAA-Compliant Audited

The Office for Civil Rights (OCR), in charge of enforcing the privacy, security, breach and other HIPAA rules, said yesterday it has notified 167 covered entities that they must submit all papers necessary for a remote “desk audit” within 10 days.

“Letters were delivered on Monday, July 11, 2016, via email to 167 health plans, healthcare providers and healthcare clearinghouses,” OCR confirmed.

The 167 were chosen from a much larger field of candidates, who were informed of potential audits this past spring. The emails sent Monday contained not only the document request but also a dedicated link to a submission portal. A second email requested lists of the covered entities’ business associations, as well as an invitation to a webinar explaining the whole process, OCR explained.

This round of audits follows a pilot HIPAA audit program conducted on site in 2010-2011 of 115 covered entities. Since then, the HIPAA Omnibus Final Rule of 2013 has extended compliance requirements to business associates as well as covered entities.


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.
GoTo top Top

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.
GoTo top Top

‘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.
GoTo top Top

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.
GoTo top Top