DOJ Asks for Delay in Overtime Rule Appeal to Reconsider Whether to Proceed

The Department of Justice (DOJ) on Jan. 25 asked the U.S. 5th Circuit Court of Appeals for a 30-day delay in submitting its brief in the ongoing appeal of a federal judge’s injunction that stopped a new overtime rule from taking effect on Dec. 1, 2016. The delay is meant to give the Trump administration time to consider its next move — whether to continue the proceedings or drop the issue.

The appeal reached the New Orleans-based circuit court after a U.S. district judge in Texas issued a nationwide injunction against the final rule by the Department of Labor (DOL). That rule would have increased the overtime-exempt salary threshold from $23,660 a year to $47,476 annually.

In response to the DOJ action, the AFL-CIO asked the court to intervene on behalf of the appeal in the government’s place.

“We intervened because we’re concerned whether or not the Trump administration will continue to support the overtime rule,” AFL-CIO lawyer Yona Rozen told Bloomberg News.


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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Lipnic Named Acting Chair of Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) has announced that President Trump named Commissioner Victoria A. Lipnic Acting Chair of EEOC. Lipnic has served as an EEOC Commissioner since 2010, having been nominated to serve by President Barack Obama, and confirmed by the Senate, initially for a term ending on July 1, 2015. President Obama nominated her to serve a second term ending on July 1, 2020, and she was confirmed by the Senate on Nov. 19, 2015.

“I am honored and humbled to be chosen by President Trump to serve as Acting Chair of EEOC, the agency which safeguards the civil rights of American workers,” Acting Chair Lipnic said. “I believe equal employment opportunity is critical to all Americans and to how we define ourselves as a nation. I look forward to working with the president, my colleagues at EEOC, Congress, and, of course, the American people in this critical task.”

Lipnic’s government experience includes service as Assistant Secretary of Labor for Employment Standards from 2002 to 2009. The Employment Standards Administration oversaw the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), the Office of Labor Management Standards and the Office of Workers Compensation Programs. During her tenure as assistant secretary, these divisions revised regulations on overtime, the Family and Medical Leave Act, and issued the first-ever regulations for OFCCP to evaluate compensation discrimination.

Before joining the Department of Labor, she was the Workforce Policy Counsel to the majority (Republican) members of the Committee on Education and the Workforce in the U.S. House of Representatives and was an attorney for labor and employment matters for the U.S. Postal Service. Lipnic also worked as special assistant for business liaison to then-Secretary of Commerce, Malcolm Baldrige.

Lipnic received her B.A. degree in Political Science and History from Allegheny College and her J.D. from George Mason University School of Law.


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 Issues Gag Order on Federal Agencies — Or Not?

Various media reports maintain that both the Environmental Protection Agency (EPA) and the Department of Agriculture have received memos from the White House forbidding them to send out press releases, make new blog posts or engage in social media. Furthermore, the EPA has been told to cease issuing grants and contracts.

It’s unclear if any other government agencies have been similarly curtailed publicly, but both the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) have not published a press release since Jan. 18, two days before President Trump’s inauguration.

However, the Department of Labor (DOL) is still publishing press releases and issuing grants, at least as of yesterday, Jan. 24.


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 Federal Hiring Freeze and Withdraws from TPP

On the first day of his first workweek in office, President Trump ordered a federal hiring freeze at all entities except the military. He also signed an order withdrawing from the Trans-Pacific Partnership (TPP), a controversial trade agreement between the U.S. and several Asian nations that both Bernie Sanders and (reluctantly) Hillary Clinton opposed in their presidential campaigns.

The hiring freeze comes after reports surfaced last week that the Trump team wants to cut federal government spending by 10 percent and reduce the federal workforce by 20 percent. The plan excludes the “military, public safety, and public health.”


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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New Form I-9 Must Be Used Starting Today

The revised “smart” version of the Employment Verification Form I-9 must be used beginning today, Jan. 22, even though it’s a Sunday and unlikely that many new hires would start work today.

Form I-9 came about as a result of the Immigration Reform and Control Act (IRCA) of 1986, when President Ronald Reagan and the Congress granted amnesty to all undocumented aliens. The vetting process under the I-9 process was supposed to stem the tide of undocumented workers.

It’s unclear if the Trump administration will include the regulation mandating use of this new form in an omnibus bill expected to pass shortly that would eliminate all regulations issued within the last 60 session days of Congress (basically since late May 2016).

Congress has the power to rescind any regulation with a simple majority vote, no filibuster allowed in the Senate, under terms of the Congressional Review Act (CRA), provided the bill is passed and signed within 60 Congressional session days after a regulation is implemented. The Form I-9 regulation was issued in November 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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Death by a Thousand Cuts — or One Executive Action — to Obamacare

Shortly after signing an executive order barring any new regulations by federal agencies, President Donald J. Trump signed another order that mandates his agencies to “to waive, defer, grant exemptions from or delay the implementation of any provision or requirement of the [Affordable Care] Act [ACA]” that they deem to burden individuals, insurers, health-care providers, or states.”

Both the individual mandate and employer shared responsibility provisions could be watered down or eliminated entirely once the new chief of the Department of Health and Human Services (HHS) is installed.

The president cannot by executive order eliminate the ACA, so his action appears to pave the way to end the individual mandate that all Americans must purchase health insurance and the employer mandate that all businesses with 50 or more employees must provide health insurance. It also lights a road path for insurers to sell policies across state lines.

Using the budget reconciliation process, Congress can defund the ACA with no filibuster possible in the Senate. But ACA provisions embedded into many other laws — for instance, the ban against pre-existing condition exclusions and the mandate for insurers to cover adult children until age 26 — appear permanently entrenched, and Trump himself has said he plans to keep at least those two.

In a way, the new president’s executive order is reflective of the way President Obama and his agencies implemented the ACA — by regulation and executive fiat even when the law itself mandated other outcomes or deadlines — for instance, in delaying employer shared responsibility, the provision that 50-employee-plus companies must provide health insurance, by simple agency announcement.

However, with Trump nominees still undergoing the vetting process in Congress, it seems unlikely that a department like Health and Human Services (HHS) would move to gut the signature legislative achievement of Barack Obama.


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’s First Act as President Is to Delay All New Regulations

Hours after being sworn in and after having blasted the Washington, D.C., establishment in his inaugural address for having enriched themselves at the expense of American workers, President Donald J. Trump signed an executive order banning federal agencies from issuing new regulations for 60 days.

It is expected that, in his first week in office, he will issue further executive orders undoing most if not all of Barack Obama’s executive actions. Congress is also working on an omnibus bill, based on the Congressional Review Act (CRA), to rescind all regulations issued since late May 2016. The CRA allows Congress, without a Senate filibuster, to rescind any regulation issued within 60 working days of its legislative session.


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 Adjusts 2017 Penalties for Inflation

On Wednesday, Jan. 18, the Occupational Safety and Health Administration (OSHA) published a final rule to adjust its monetary fine levels for inflation, which it can do by Jan. 15 of each year under terms of 2016’s Inflation Adjustment Act. The new fines, according to the final rule, became effective on Jan. 13, 2017.

The 2017 maximum penalties are as follows:

  • Other-than-Serious: $12,675
  • Serious: $12,675
  • Repeat : $126,749
  • Willful: $126,749

The adjusted amounts are a tad over 1 percent higher than last year’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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DOL Sues Technology Giant Oracle Over Pay, Hiring Discrimination

The Department of Labor (DOL) has filed suit against the Oracle Corp. of Redwood Shores, Calif., alleging the technology giant pays white males more than female or minority employees and also favors the hiring of Asians for certain positions.

The lawsuit follows on the heels of a review of its equal employment opportunity practices that began in 2014. According to the DOL, Oracle refused to provide essential data for that review.

An Oracle spokesperson said the lawsuit is politically motivated.

The company through the years has received hundreds of millions of dollars in government contracts, putting it under the purview of the Office of Federal Contract Compliance Programs (OFCCP), which conducted the investigation.

According to the DOL, Oracle’s federal contracts will be annulled if the company does not change its hiring and pay practices and tender compensatory wages and benefits.


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 Popularity Picks Up as the End Nears

A new Wall Street Journal/NBC News poll shows for the first time that those who think the Affordable Care Act (ACA, aka Obamacare) is a “good idea” outweigh those who think it’s a “bad idea,” 45 to 41 percent. It was the first positive poll result for the health care program since it was announced back in 2009.

Worse news for the Republicans who are planning to kill the program is that 50 percent of respondents to the poll basically think they’ll screw things up.

The poll was conducted from Jan. 12 to 15 and involved 1,000 adults. The margin of error in either direction is 3.1 percent.


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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