Public Comment Period Extended to March 21 for EEOC’s Proposed Enforcement Guidance on Harassment

The Equal Employment Opportunity Commission (EEOC) has extended the public commentary period on its 75-page proposed Enforcement Guidance on Harassment” to March 21.

The guidance comprises six major sections, including “Covered Bases and Causation,” “Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment,” and “Liability.” Additionally, the guidance offers employers a “best practices” section with suggestions for policies and training.

The initial public commentary period on the proposed guidance, which was released in January, was set to close on Feb. 9.


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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OMB Concludes Review of Fiduciary Rule Delay Proposal

Following an executive action by President Trump, the Department of Labor (DOL) submitted a proposal to the Office of Management and Budget (OMB) to delay implementation of its fiduciary rule by 180 days. OMB has now concluded its review, and the proposal could be opened to a public commentary period shortly.

Originally set to take effect on April 7, the fiduciary rule would place new burdens on those agents who market retirement plans, requiring them to place their customers’ best interests above their own. Not surprisingly, it has run into resistance among insurance agents and others who market retirement plans.

OMB didn’t specify a time-frame for public commentary on the proposed delay, but it did raise the proposal to the status of “economically significant.” This may result in a longer public commentary period.


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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Fate of Obama Overtime Rule to Be Determined by May 1

The 5th U.S. Circuit Court of Appeals has granted the Trump administration an additional 60 days to decide what to do about appealing an injunction placed on the Obama-era overtime rule that was set to take effect this past Dec. 1, making May 1 decision day.

The 60 days are in addition to an earlier 30-day extension, which expired yesterday (Feb. 22).

The overtime rule, issued by the Department of Labor (DOL) under President Barack Obama, would raise the salary threshold for exemption to overtime pay to $913 a week, or $47,476 a year, up from $455 and $23,660 currently.

According to the DOL, the extra time is necessary “[t]o allow incoming leadership personnel adequate time to consider the issues.” However, the department is still without a secretary after Andrew Puzder withdrew his name from consideration following a series of embarrassing revelations. Anthony Acosta, a former judge and member of the National Labor Relations Board (NLRB), is the new nominee.

If the Trump DOL decides to drop its appeal, the AFL-CIO has petitioned the court to take over the legal battle, though the court has yet to answer the labor group’s petition to do so.

The issue is still facing trial in a Texas district court, whose judge could decide to make the temporary injunction he issued in November permanent.


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 Administration Rescinds Obama-era Transgender Bathroom Use Rules

Already subject to an injunction and ongoing litigation, the joint rule by the Obama Department of Justice (DOJ) and Department of Education (DOE) mandating free bathroom choice at public schools was rescinded today by the administration of President Donald Trump.

The rule would have allowed students to choose their bathroom based on self-proclaimed gender identity.

The Trump DOJ and DOE ordered the earlier rules rescinded because they didn’t “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

The departments added that former President Barack Obama’s rules had set off “significant litigation,” in particular as courts differed over the definition of the term “sex.” The letter also emphasized the agencies’ preference that states and local school districts be given a “primary role” in setting education policy.

At a news conference, White House Press Secretary Sean Spicer explained: “The president has made it clear throughout the campaign that he is a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level.”


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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Post-Trump, the IRS Will Allow Tax Returns that Are ‘Silent’ about Health Insurance

With the passage of the Affordable Care Act (ACA) in 2010, the IRS was tasked with exacting monetary fines on individual taxpayers who do not have health insurance for the full time of the reporting period, generally a calendar year. The ACA, under a provision known as Individual Shared Responsibility, even established an escalating scale for the dollar amount to be fined.

For 2017, the IRS announced that it would no longer process returns for individuals who remain “silent” about whether they had health insurance for the year. Thus refunds would not be issued until the taxpayer proved he or she had had insurance for the whole year. If no proof of insurance, then the appropriate fine could be calculated and deducted.

Following President Trump’s executive order on Jan. 20 for all federal agencies to reduce the burden of the ACA, however, the IRS announced that it would continue to process “silent” returns as it reviews the ACA in light of the president’s executive action. On its website, the IRS announced:

Processing silent returns means that taxpayer returns are not systemically rejected by the IRS at the time of filing, allowing the returns to be processed and minimizing burden on taxpayers, including those expecting a refund. When the IRS has questions about a tax return, taxpayers may receive follow-up questions and correspondence at a future date, after the filing process is completed‎. This is similar to how we handled this in previous years, and this reflects the normal IRS post-filing compliance procedures that we follow.

However, legislative provisions of the ACA law are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe‎.


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 SBC Template in Effect April 1

A new Summary of Benefits and Coverage (SBC) template goes into effect April 1.

The Affordable Care Act (ACA), which may or may not be repealed this year by Republicans, requires that SBCs be distributed to policyholders each year, detailing the coverage they have under their health plan.

The April 1 deadline applies to policies coming into effect on that date or later. Thus calendar-year plans must use the new template beginning in January 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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CMS Under Trump Proposes Big Changes to Obamacare

The Centers for Medicare and Medicaid (CMS) today proposed shortening the open enrollment period for Obamacare, virtually cutting it in half, while also lowering the benefits and coverage standards for health insurers. The latter is designed to stabilize and eventually lower premiums.

The proposed new enrollment period for insurance under the Affordable Care Act (ACA) is set to run from Nov. 1 to Dec. 15, 2017. All four previous open enrollments lasted from Nov. 1 to Jan. 31.

Additionally, the rule would lower the “de minimis range used for determining the level of coverage.” The level of coverage refers to the bronze, silver and gold plans offered under the ACA on its marketplaces.

“This proposal will take steps to stabilize the marketplace, provide more flexibility to states and insurers, and give patients access to more coverage options,” said Patrick Conway, acting CMS administrator. “They will help protect Americans enrolled in the individual and small group health insurance markets while future reforms are being debated.”

Among other things, the proposed rule will allow insurers to delay yearly renewals until the policyholders catch up on any payments owed; will require more proof and documentation for those who want to sign up for ACA policies outside of the open enrollment period; and will give insurers more time to set the policy rates for 2018. On the latter, CMS said it would be releasing separate guidance.

The rule will be published in the Federal Register on Friday, Feb. 17. Meanwhile, you can download an unpublished PDF version.


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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Humana to Exit Obamacare Exchanges

Saying it is “seeing further signs of an unbalanced risk pool,” Humana announced on Tuesday that it is exiting the health insurance exchanges set up under the Affordable Care Act (ACA), which may be moot if the Republicans in Congress carry out their threat to “repeal and replace” Obamacare, though their timetable is uncertain.

Humana last year already drastically scaled back its involvement in the exchanges, as did UnitedHealth Group. In 2016, Humana announced it would limit offering individual insurance plans to “no more than 156 counties” – a reduction of 1,195 counties on and off the ACA federal marketplace – after it stopped selling ACA plans in at least four states.

Meanwhile, overall enrollment in ACA health plans dropped this year by some 500,000 persons for a total of 9.2 enrollees and rollovers, the first drop in four years of the program.


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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Business, Trade Groups Ask Congress to Overturn NLRB Joint Employer Rule

In a letter to members of the House Education and Workforce Committee Tuesday, more than 50 business and trade groups asked Congress to pass legislation to overturn the joint employer standard of the National Labor Relations Board (NLRB), which holds franchisers equally responsible with franchisees for employee workplace issues.

“The president can nominate two new board members, but those nominees will require Senate approval, which takes time,” the groups wrote in their letter. “After new members are confirmed to the board, it will take more time for an appropriate case to develop so the Board can restore the ‘direct control’ joint employer standard.”

The 50-plus groups include the International Franchise Association, the National Restaurant Association and the National Retail Federation.


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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Acting Chair Says Much Will Remain the Same at the EEOC

Victoria A. Lipnic, named by President Trump to be acting chair of the Equal Employment Opportunity Commission (EEOC), told participants in a panel discussion that the commission will continue to enforce harassment and discrimination laws but will also focus on  expanding economic opportunity and job growth.

“It is a new day and to the extent [we can] help foster employment opportunity and economic growth … that is something that we will be focused on,” Lipnic said during a panel discussion at Seyfarth Shaw LLP Feb. 9.

She vowed that much of the work accomplished in the Obama era will remain in place, including the EEOC’s recent emphasis on bystander and civility training, and that she and the agency would continue to try to reduce the backlog of cases they’re working on.


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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