The AAF Should’ve Been WARN’d

The Alliance of American Football (AAF), a springtime supplement to the National Football League (NFL) — which was also striving to be a “minor league” for the bigger entity — abruptly shut down in early April after eight weeks of operations and is now in bankruptcy court, listing $11.3 million in assets and $48 million in liabilities.

aaf-logoIts troubles may not stop there. When it ceased operations, the AAF gave virtually no advanced notice to its players or personnel, who have now filed two lawsuits against the owners, one alleging fraud and other abuses, the other a class action complaint based on violations of the WARN (Worker Adjustment and Retraining Notification) Act.

WARN requires employers to give 60 days’ notice of massive layoffs (defined in different ways but definitely applicable to the AAF). If no such warning is given, the employers can be liable for 60 days of wages and benefits to the let-go employees — as well as facing $500 a day in civil penalties.

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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 Releases Final Rules for 2020 Health Plans under Obamacare

After a lengthy commentary period that saw few changes from the proposed rule, the Centers for Medicare and Medicaid Serves (CMS) has released its “Notice of Benefit and Payment Parameters” for health insurance plans being sold on the Affordable Care Act (ACA or Obamacare) exchanges for 2020.

aca-unconstitutional-ruling-on-holdThe notice actually lowers user fees on the federal and state health insurance marketplaces, or exchanges, by a half a percentage point — from 3.5 to 3 percent on the federal exchange and from 3 to 2.5 percent on the state exchanges.

At the same time, it endorses what has come to be known as “silverlining” — the practice by insurance companies of raising rates and out-of-pocket limits on the Silver plans sold under Obamacare to cover the absence of cost-sharing reduction (CSR) payments, which were ended by the Trump administration in 2017.

The final rule also allows for the continuation of policy auto-renewal.

Participating insurers now have only until June 19 to submit their health plan options for 2020.


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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SCOTUS to Resolve Split on LGBT Rights under Title VII

Circuit courts have split on whether gender identity and sexual orientation are protected by Title VII of the Civil Rights Act of 1964, as have the Trump Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC). The commission maintains Title VII’s protections based on “sex” include gender identity and sexual orientation, while the DOJ hews to a strict interpretation of “the ordinary meaning of sex,” i.e., male and female.

supreme-court-to-rule-on-LGBT-rights

The U.S. Supreme Court will hear three cases on LGBT rights

The Supreme Court today agreed to take up three circuit court cases that address the issue in different ways. For instance, the 2nd U.S. Circuit Court of Appeals has ruled that Title VII does indeed protect sexual orientation, while the 11th circuit has ruled the opposite — there is no protection for sexual orientation. The 11th circuit court somehow managed to find a middle ground.

Now, it’s the Supreme Court’s turn to resolve the issue one way or the other. The hearing will not be held until the fall, however, meaning the decision likely won’t come before June 2020, the height of the electioneering season.

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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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EEOC Discrimination Filings Down from Previous Years

The Equal Employment Opportunity Commission (EEOC) today released detailed breakdowns for the 76,418 charges of workplace discrimination the agency received in fiscal year 2018 (down from 84,254 in FY 2017). The comprehensive enforcement and litigation statistics for FY 2018, which ended Sept. 30, 2018, are posted on the agency’s website, which also includes detailed breakdown of charges by state.

eeoc-report-could-be-delayedThe EEOC resolved 90,558 charges of discrimination.  Overall, the EEOC secured $505 million for victims in private sector, state and local government, and federal workplaces. The agency reduced the charge workload by 19.5 percent to 49,607. It achieved this through deploying new strategies to more efficiently prioritize charges with merit, more quickly resolve investigations, and improve the agency’s digital systems. The agency handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices, reflecting the significant public demand for the EEOC’s services.

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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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DOJ Seeks Speedy Resolution to Obamacare Ruling

On Wednesday, April 10, the 5th Circuit Court granted the Trump administration’s request for an expedited hearing, meaning all arguments will be heard in the first week of July.

The Trump Department of Justice (DOJ) on Monday urged the 5th U.S. Circuit Court of Appeals to hear all arguments in the appeal of a judge’s ruling that the Affordable Care Act (ACA, or Obamacare) is unconstitutional during the week of July 8.

doj-seeks-expedited-aca-tiralThe DOJ filed a motion to expedite oral arguments with the court and indicated that this timeline is unopposed by others in the case, including attorneys general from 16 Blue States and the District of Columbia, who are arguing in favor of the keeping the ACA intact.

On. Dec. 14, U.S. District Judge Reed O’Connor ruled that the entire ACA is unconstitutional because the individual mandate is no longer valid as a tax since the fine for not having health insurance has been reduced to zero dollars.

In 2012, Chief Justice John Roberts negotiated a compromise 5-4 vote in the U.S. Supreme Court by ruling the law was constitutional under Congress’s authority to levy taxes, in this case, the ACA’s individual mandate. With the tax gone, Judge O’Connor ruled, the ACA is no longer constitutional.

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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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EEO-1 Pay Data Now Due by Sept. 30

The Equal Employment Opportunity Commission (EEOC) has told a federal judge, who previously ruled the agency must proceed with its once-suspended pay data collection, that it is extending the deadline for Component 2 (pay data) of the EEO-1 Report until Sept. 30. Component 1 (the number of employees who work for the business by job category, race, sex and ethnicity) is still due by May 31.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form.

On March 18, the EEOC opened the online EEO-1 reporting portal, but did not include questions concerning pay (Component 2). The judge then gave the agency until April 3 to submit its plan for pay data collection, which it did yesterday as requested.

The Obama administration expanded the EEO-1 report to include pay data in 2016, but when the Trump administration took over in January 2017, it suspended the requirement. Federal Judge Tanya S. Chutkan on March 4, 2019, lifted the suspension, ordering pay data to be collected as envisioned by the Obama administration. When the EEOC failed to do so when it opened the EEO-1 portal, she then gave the agency until April 3 to comply.

Judge Chutkan, however, has not yet indicated whether she would accept or reject the DOL’s new deadline.


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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HHS Releases Additional Funding to Fight Opioid Crisis

The Department of Health and Human Services (HHS) has released an additional $487 million to supplement first-year funding through its State Opioid Response (SOR) grant program. The awards to states and territories are part of HHS’s Five-Point Opioid Strategy and the Trump administration’s tireless drive to combat the opioid crisis.

hhs-opioid-programTogether with the $933 million in second-year, continuation awards to be provided under this program later this year, the total amount of SOR grants to states and territories this year will total more than $1.4 billion.

This funding will expand access to treatment that works, especially to medication-assisted treatment (MAT) with appropriate social supports.

“One year ago this week, President Trump launched his national opioid initiative, which called for expanding access to compassionate, evidence-based treatment, including MAT. This week’s funding awards to states were possible because of legislation Congress passed and President Trump signed since then,” said HHS Secretary Alex Azar. “Our strategy is beginning to produce results, thanks to so many Americans working on the ground, in their own communities, to turn the tide on this crisis.”

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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 Proposes Revised Joint Employer Definition

The Department of Labor (DOL) today announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. The department has not meaningfully revised its joint employer regulation since 1958.

whd-issues-opinion-on-fmla-leaveThe Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages. This proposal would ensure employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

“This proposal will reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections,” said Secretary of Labor Alexander Acosta. “Providing public notice and comment is the best way to move forward with another significant deregulatory proposal.”

In 2017, the department withdrew the previous administrations sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment.

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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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Judge Strikes Down Expansion of Association Health Plans (AHPs)

In the same week that the Trump administration doubled down on its legal opposition to Obamacare, a federal judge Thursday blocked as an “end-run” around the requirements of the Affordable Care Act (ACA, or Obamacare) the expansion of Association Health Plans (AHPs) sought by the administration.

U.S. District Judge John Bates sided with the arguments brought in a lawsuit by 11 Blue States and the District of Columbia against the plan unveiled in a June 2018 rule from the Department of Labor (DOL). AHPs under the rule do not have to adhere to the essential benefits and other requirements of the ACA.

The judge had strong language for the administration’s effort, calling the regulatory change a “magic trick” that allowed for “absurd results” undermining the intent of Congress.

The ruling comes just three days after the Department of Justice (DOJ) withdrew all support for the ACA in the review by the 5th U.S. Circuit Court of Appeals of a federal judge’s ruling that the entire health care law is unconstitutional.

And it comes one day after a federal judge in Kentucky blocked the implementation of Medicaid work requirements for able-bodied recipients in both Kentucky and Arkansas.


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 Proposes Changes in Calculating What Comprises Rate of Pay

The Department of Labor (DOL) today announced a proposed rule to clarify and update the regulations governing regular rate requirements for the first time in more than 50 years.

dol-schedules-overtime-rule-public-sessionsRegular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

Under current rules, employers are discouraged from offering more perks to their employees as it may be unclear whether those perks must be included in the calculation of an employees’ regular rate of pay.  The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices, according to the proposal’s announcement.

“The regular rate proposal would provide clarity for employers to allow them to add more benefits to their employees without unknown overtime consequences or litigation,” said Keith Sonderling, acting administrator for the department’s Wage and Hour Division (WHD). “This proposed rule offers a positive path forward to employers and employees alike.”

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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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