Texas Federal District Judge Reed O’Connor, who a few years ago struck down the Obama-era “one-bathroom-fits-all” rule for public schools, has this day ruled that the Affordable Care Act (ACA, or Obamacare) is unconstitutional. Immediate appeals are expected, and the White House has signaled that the law will remain in effect, while at the same time voicing support for the decision.

The ruling arrives one day before open enrollment for 2019 is to end.

President Trump immediately tweeted that Congress must now pass “a STRONG law that provides GREAT healthcare … Mitch and Nancy, get it done!”

The ruling comes after the judge heard arguments over a lawsuit in September brought by Texas Attorney General Ken Paxton, who was joined by 17 other state attorneys general and two governors. Blue State attorneys general argued against the Paxton coalition.

The Red State argument hinged on the fact that the health care law survived a Supreme Court review only because Chief Justice John Roberts, in a surprise, last-minute decision, ruled Obamacare legal because the individual mandate was a “tax.” In 2017, however, Republicans in Congress took away the tax part of the mandate, giving the challengers an opportunity to argue that the law was no longer constitutional.

Judge O’Connor agreed. “The Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power and is still impermissible under the Interstate Commerce Clause — meaning the Individual Mandate is unconstitutional,” O’Connor wrote. “The Individual Mandate is essential to and inseverable from the remainder of the ACA.”

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The Dave & Buster’s restaurant-entertainment chain is on the hook for a $7.425 settlement after slashing employees’ hours to avoid providing them with health insurance as mandated by the Affordable Care Act (ACA, or Obamacare).

The ACA’s employer shared responsibility provision requires businesses with 100 or more employees to provide health insurance for all full-time workers, which is defined statutorily as anyone working at least 30 hours a week.

Dave & Buster’s, upon hearing of the mandate, decided to slash the working hours of some 1,200 employees to avoid the cost of providing health insurance.

Problem is, doing so was a violation of a provision of the Employee Retirement Income Security Act (ERISA), which prohibits anyone from interfering with an employee’s right to attain benefits.

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Audits, investigations and arrests by Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) agents in FY 2018 rocketed 300 to 750 percent over the previous fiscal year, depending on the category of enforcement.

HSI worksite investigations surged in FY 2018 to 6,846 from 1,691 the previous year (400 percent). I-9 audits rose from 1,360 to 5,981 (440 percent). Agents made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively.

In fiscal year 2018, HSI also saw 72 managers indicted compared to 71 in FY17, and 49 managers convicted in FY18 versus 55 in FY17.

“Reducing illegal employment helps build another layer of border security, and reduces the continuum of crime that illegal labor facilitates, from the human smuggling networks that facilitate illegal border crossings to the associated collateral crimes, like identity theft, document and benefit fraud and worker exploitation,” said HSI Executive Associate Director Derek N. Benner.

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Boom times equate to what the Bureau of Labor Statistics (BLS) calls “the quits rate” in an accelerated way. Roughly 3.5 million Americans quit their jobs every month in search of better pay and/or better commute times, the highest level since 2001.

Nearly one-quarter of those who have quit their job cite bad commutes as the reason.

According to the Job Openings and Labor Turnover Survey (JOLTS) issued by BLS, 2.4 percent of the workforce quit in September and 2.3 percent quit in October. The job openings rate in October stood at 4.5 percent, or 7.1 million.

In addition to the hunt for a better compensation package, a compelling reason for the high quits rate is a bad commute, time-wise. A survey by human resources consulting firm Robert Half, found that 23 percent of workers have quit a job because of a bad commute. Chicago, Miami, New York and San Francisco have the most professionals who have quit because of their commutes.

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Seattle will set the bar for minimum wage rates on Jan. 1 when a $16-per-hour legal mandate takes effect, but the rate applies only to employers with 500 or more employees (think Amazon).

Click on the image for a larger, more readable version.

New York City won’t be far behind when it boosts its legal pay rate to $15 an hour for all employers on New Year’s Eve, Dec. 31, 2018, thus beating all other states and municipalities in the minimum wage race by one day. Many other municipalities and several states will boost their rates later, on July 1.

The federal minimum wage remains stuck at $7.25 an hour, having seen its last increase in 2009.

For a rundown on the new rates, please click on the map image to open up a larger, more readable version.

Meanwhile, if you need to update your labor law poster for 2019 to reflect the many federal and state changes that have occurred in the past year, please CLICK HERE or call Customer Service at (800) 333-3795, option 2.

The National Labor Relations Board (NLRB) is issuing its Strategic Plan for fiscal years 2019 through 2022, which is required under the Government Performance and Results Act of 2010.  The Strategic Plan contains four mission-related goals to support the vision of NLRB Chairman John Ring and General Counsel Peter Robb.

These four mission-related goals include: (1) achieving a collective 20 percent increase (5 percent over each of four years) in timeliness in case processing  of unfair labor practice charges, (2) achieving resolution of a greater number of representation cases within 100 days of the filing of an election petition, (3) achieving organizational excellence and productivity, and (4) managing agency resources efficiently and in a manner that instills public trust.

To achieve these stated goals, the Strategic Plan calls for an annual, Agency-wide 5 percent reduction in case processing time for unfair labor practice charges. This reduction includes not only case handling in the regional offices, but also the time between issuance of an Administrative Law Judge’s decision and a Board Order, and issuance of a Board Order and closure of a case.  Over the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed.  This initiative has been developed to reverse these trends.

In support of the Strategic Plan, the General Counsel has issued Memorandum GC 19-02, Reducing Case Processing Time, discussing how these goals affect the NLRB’s Divisions of Advice, Legal Counsel, Enforcement Litigation, Operations-Management and the Regional offices.

The Internal Revenue Service (IRS) is reminding small business taxpayers that changes to the tax law mean they can immediately expense more of the cost of certain business property. Many are now able to write off most depreciable assets in the year they are placed into service.

The Tax Cuts and Jobs Act (TCJA), passed in December 2017, made tax law changes that will affect virtually every business and individual in 2018 and the years ahead. Among those for business owners are tax rate changes for pass-through entities, changes to the cash accounting method for some, limits on certain deductions and more.

A taxpayer may elect to expense all or part of the cost of any Section 179 property and deduct it in the year the property is placed in service. The new law increased the maximum deduction from $500,000 to $1 million. It also increased the phase-out threshold from $2 million to $2.5 million. These changes apply to property placed in service in taxable years beginning after Dec. 31, 2017. For most businesses, this means the 2018 return they file next year.

Section 179 property includes business equipment and machinery, office equipment, livestock and, if elected, qualified real property. The TCJA also modifies the definition of qualified real property to allow the taxpayer to elect to include certain improvements made to nonresidential real property.

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The Internal Revenue Service (IRS), saying that “a substantial number of employers, insurers, and other providers of minimum essential coverage need additional time,” has extended the deadline for supplying Form 1095-B and 1095-C to individuals from Jan. 31, 2019, to March 4, 2019.

Form 1095-B is titled “Health Coverage,” while Form 1095-C is called “Employer-Provided Health Insurance Offer and Coverage.” Both are mandated by provisions of the Affordable Care Act (ACA), which requires “health insurance issuers, self-insuring employers, government agencies, and other providers of minimum essential coverage to file and furnish annual information returns and statements regarding coverage provided.”

The details of the extension can be found in IRS Notice 2018-94.

The Centers for Medicare & Medicaid Services (CMS) and the Department of the Treasury issued new guidance on Nov. 29, allowing states to move their insurance markets away from what they called the “one-size-fits-all” rules and regulations imposed by the Affordable Care Act (ACA, or Obamacare) and increase choice and competition within their insurance markets.

CMS Administrator Seema Verma

The guidance grants states more flexibility to design alternatives to the ACA and to give Americans more options to get health coverage that better meets their needs.

Under this new policy, states will be able to pursue waivers to improve their insurance markets, increase affordable coverage options for their residents, and ensure that people with pre-existing conditions are protected. These waivers are called State Relief and Empowerment Waivers to reflect this new direction and opportunity, according to a press release announcing the guidance.

“Seeing the problems the ACA created and seeing the lack of federal action to address these problems should be proof enough for why it was such a mistake to federalize so much of health care policy under the ACA,” CMS Administrator Seema Verma explained in announcing the new direction.

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