Trump Nominates Business-Friendly Attorney to NLRB

President Trump has nominated William J. Emanuel to the National Labor Relations Board (NLRB) to fill the expiring post of Vice Chair Kent Yoshiho Hirozawa. If confirmed by the Senate, Emanuel would serve a term of five years, expiring on Aug. 21, 2021.

Emanuel has argued cases before the NLRB for many years on issues such as employee class and collective action waivers. Multiple cases he was involved in have made their way before the Supreme Court. Emanuel has been described as a management-side labor attorney.


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 to Seek Public Input on Voluntary Protection Programs (VPP)

The Occupational Safety and Health Administration (OSHA) will hold a stakeholder meeting July 17, 2017, in Washington, D.C., to discuss the future direction of the agency’s Voluntary Protection Programs (VPP). The discussion will include comments and suggestions from the public on potential avenues for action.

OSHA is seeking to reshape VPP so that it continues to represent safety and health excellence, leverages partner resources, further recognizes the successes of long-term participants, and supports smart program growth. Some of the questions OSHA invites stakeholder input include:

  • What can the agency do to enhance and encourage the efforts of employers, workers and unions to identify and address workplace hazards through the VPP?
  • How can the agency support increased participation in VPP while operating with available resources and maintaining the integrity of the program?
  • How can the agency modify VPP to enhance the efforts and engagement of long-term VPP participants?
  • How might the agency modify Corporate VPP for greater leverage and effectiveness?
  • How can the agency further leverage participant resources such as Special Government Employees?

The meeting will be held July 17, 9 a.m. to 5 p.m. in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC 20210. Those wishing to attend must register by July 10 at VPP Stakeholder Meeting Registration. Attendees can choose from several levels of participation in the discussion.

For those who may not be able to attend in person, a docket has been opened to receive comments. You can provide your input and/or read others’ comments here https://www.regulations.gov/docket?D=OSHA-2017-0009. The docket closes Sept. 15, 2017.


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 Wants Salary Level to Determine Overtime Eligibility

The Department of Labor (DOL) today asked the 5th Circuit Court of Appeals to clarify its authority to establish a salary threshold for determining overtime eligibility, but did not endorse the Obama-era proposed salary level of $47,476 a year.

In a brief filed in the ongoing appeal over an injunction blocking President Obama’s effort to raise the threshold, the DOL asked the court to “address only the threshold legal question of the department’s statutory authority to set a salary level, without addressing the specific salary level set by the 2016 final rule.”

In his confirmation hearings for labor secretary, Alexander Acosta said he thought the threshold should be raised from the $23,660 established in 2004 should be raised to the $30,000 level.

“In light of this litigation contesting the department’s authority to establish any salary level test, the department has decided not to proceed immediately with issuance of a notice of proposed rulemaking to address the appropriate salary level,” the agency said in its brief.

“Instead, the department soon will publish a request for information seeking public input on several questions that will aid in the development of a proposal.

The lawsuit by 21 states that led to the injunction on the overtime final rule of 2016 questioned the authority of the DOL to establish a salary threshold, so the Trump-era DOL wants clarity on its authority.


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 Opens Up Commentary on Revision of Fiduciary Rule

The Department of Labor (DOL) has published a Request for Information (RFI) related to the fiduciary rule. The RFI is an opportunity for the public to provide data and information that may be used to revise the rule and associated exemptions.

There is a 15-day comment period regarding extending the Jan. 1, 2018 applicability date of certain aspects, and a 30-day comment period on all other issues raised in the RFI. Both begin upon publication of the RFI in an upcoming edition of the Federal Register. Complete instructions for submitting comments are found in the RFI.


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 Nominates Janet Dhillon as Chair of EEOC

janet-dhillon-eeoc-chair-nomineePresident Trump on Monday created some new beltway waves when he nominated outsider Janet Dhillon, currently an executive vice president and general counsel at Burlington Stores Inc., to be chair of the Equal Employment Opportunity Commission (EEOC).

If confirmed by the Senate, she would replace Victoria Lipnic, currently acting chair, who would remain as a commissioner.

Dhillon previously served as executive vice president and general counsel at J.C. Penny.

Dhillon got her start in law at Skadden, Arps, Slate, Meagher & Flom, working in the Washington and Los Angeles offices, and spent 13 years at the firm. She is a 1991 graduate of the UCLA School of Law.

The five-member commission currently has one vacancy that has been open since January. Commissioner Jenny Yang’s term is set to expire July 1, but Bloomberg BNA reports that she may exercise her right to stay on 60 days after her term formally expires.


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 Proposes Extension of Deadline for Electronic Reporting, Seeks Comments

The  Occupational Safety and Health Administration (SHA) has proposed a delay in the electronic reporting compliance date of the rule Improve Tracking of Workplace Injuries and Illnesses from July 1, 2017, to Dec. 1, 2017. The proposed delay will allow OSHA an opportunity to further review and consider the rule.

The agency published the final rule on May 12, 2016, and has determined that a further delay of the compliance date is appropriate for the purpose of additional review into questions of law and policy.  The delay will also allow OSHA to provide employers the same four-month window for submitting data that the original rule would have provided.

OSHA invites the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, the Federal e-Rulemaking Portal, or by mail or facsimile. See the Federal Register notice for details. The deadline for submitting comments is July 13, 2017.


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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Private Insurers Pay Twice (or More) for Physician, Hospital Services than Medicare

At the same time that it issued its assessment of the Senate’s new health care plan, the Congressional Budget Office (CBO) released a related report comparing physician and hospital costs when paid by private insurers and when paid by Medicare and Medicare Advantage.

The CBO found the average commercial payment rate for hospital admission was $21,400 in 2013, compared to $11,400 for a Medicare patient, which was slightly more than for a Medicare Advantage patient ($10,700).

The CBO also found private insurance pays physicians much more than Medicare, particularly for brain MRIs, intensity-modulated radiation therapy, abdominal MRIs and knee arthroscopy. The highest physician payments for those services were at least 350 percent higher than Medicare payments. The average for those procedures was more than 200 owexwbr higher for private payers compared to Medicare.

Access the full report, An Analysis of Private-Sector Prices for Physician Services.


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 Reinstates Use of Opinion Letters

The Department of Labor (DOL) will reinstate the issuance of opinion letters, Secretary of Labor Alexander Acosta announced today. The action allows the department’s Wage and Hour Division (WHD) to use opinion letters as one of its methods for providing guidance to covered employers and employees.

An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion. The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.

“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

The division has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.


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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Study of Seattle Minimum Wage Hike Shows Negative Results

A study of the effects of Seattle’s effort to phase in a $15-an-hour minimum wage found that so far, with the minimum wage no higher than $13, low-wage earners have suffered an average loss of $125 a month due to decreased hours and staffing cuts.

Specifically, the 2014 bump in the minimum wage resulted in a 3 percent wage increase but was accompanied by a 9 percent reduction in hours worked, averaging out to $125 a month in losses.

“If you’re a low-skilled worker with one of those jobs, $125 a month is a sizable amount of money,” said Mark Long, a public-policy professor and one of the authors of the report. “It can be the difference between being able to pay your rent and not being able to pay your rent.”

The report also estimated that there are about 5,000 fewer low-wage jobs in the city than there would have been without the law.

Published Monday through the National Bureau of Economic Research, the study was commissioned by the Seattle City Council and conducted by University of Washington researchers.

In the years covered by the study, 2015 and 2016, the minimum wage was at most $13 an hour, depending on business size, worker benefits and tips.

“This strikes me as a study that is likely to influence people,” David Autor, an economist at the Massachusetts Institute of Technology who was not involved in the research, told the Washington Post. He called the work “very credible” and “sufficiently compelling in its design and statistical power that it can change minds.”


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 Proposes to Modify Beryllium Standard for Construction and Shipyard Sectors

The Occupational Safety and Health Administration (ISHA) has announced a proposed rule that would modify the agency’s recent beryllium standards for the construction and shipyard sectors. Representatives of the shipyards and construction industries, as well as members of Congress, raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16. This proposal provides a new opportunity to comment on the rule for those industries and the public.

The new proposal would make changes to the rule only for the shipyard and construction sectors. The general industry standard is unaffected by the proposal.

The proposal for shipyards and construction would maintain the requirements for exposure limits (permissible exposure limit of 0.2 μg/m3 and short-term exposure limit of 2.0 μg/m3), which will continue to protect workers from a serious beryllium-related lung disease known as chronic beryllium disease. The proposal instead revises the application of ancillary provisions such as housekeeping and personal protective equipment in the January 2017 final standards for the construction and shipyard industries.

OSHA has evidence that exposure in these industries is limited to a few operations and has information suggesting that requiring the ancillary provisions broadly may not improve worker protection and be redundant with overlapping protections in other standards. Accordingly, OSHA is seeking comment on, among other things, whether existing standards covering abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards provide adequate protection for workers engaged in these operations.

The Notice of Proposed Rulemaking (NPRM) for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors will be published in the Federal Register on June 27, 2017. OSHA encourages the public to participate in this rulemaking by submitting comments during the 60-day comment period.

On Jan. 9, 2017, OSHA issued a final rule that established new protections for workers who are exposed to beryllium in general industry, construction, and shipyards. Beryllium is a lightweight metal used primarily in specialty alloys and beryllium oxide ceramics. It is also present as a trace material in metal slags.

OSHA also announced it will not enforce the Jan. 9, 2017, construction and shipyard standards without further notice while determining whether to amend the Jan. 9, 2017, rule.


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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