HHS Proposes to Reverse Transgender Protections under Obamacare

The Affordable Care Act (ACA, or Obamacare) contains language prohibiting discrimination in health care based on sex, which was expanded under a 2016 rule by the Obama-era Department of Health and Human Services (HHS) to include gender identity. Now the Trump HHS has proposed reversing that rule and confining ACA anti-discrimination protections to only the physical definition of sex.

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OCR Director Roger Severino

The proposed rule was issued by the HHS Office for Civil Rights (OCR) this past Friday and now must undergo a 60-day public commentary period.

When the rule was announced, a reporter asked OCR Director Roger Severino what was changing, and he answered: “We’re going back to the plain meaning of those terms, which is based on biological sex.”

The Obama rule, however, had already been curtailed by a federal judge in Texas and was never allowed to take effect.

The rule is similar to actions taken by the Trump Department of Justice (DOJ) when, early on, it issued a document confining the the protections of Title VII of the Civil Rights Act of 1964 to the physical definition of sex, a stance at odds with the more expansive view of the Equal Employment Opportunity Commission (EEOC).

READ THE HHS FACT SHEET


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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ICE Raids on Record Pace — Return of the No-Match Letter

The Department of Homeland Security (DHS) and its two enforcement wings — Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) — have ramped up raids and indictments. In 2018, DHS conducted 6,850 worksite investigations compared to 1,700 the prior year. In addition, ICE made 800 criminal arrests in 2018 but just 140 in 2017.

DHS-ramps-up-worksite-raidsMost recently, 200 ICE agents raided CVE Technology Group in Allen, Texas, arresting 284 of its workers. The raid followed an earlier I-9 audit that showed “hiring irregularities.” CVE immediately blamed everything on the staffing agencies it uses to stock its workforce.

This rapid uptick in investigations and arrests reflects the emphasis of the Trump administration on controlling both illegal immigration and the employment of undocumented workers.

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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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ADA Lawsuits Soar, Especially for Website Accessibility Issues

Driven in large part by an exponential increase in legal actions over website accessibility, federal courts in 2018 entertained more than 10,000 lawsuits based on alleged violations of the Americans with Disabilities Act (ADA).

ADA-lawsuits-soarAccording to tabulations by the law firm Seyfarth Shaw, 2018 saw a record high of 10,163 federal ADA lawsuits, up 34 percent from 2017 when there were only 7,663 such cases. When the firm began tracking such lawsuits in 2013, the number was a mere 2,722.

Last year’s increase was accelerated by the number of website accessibility lawsuits, which ramped up to 2,258 from 814 in 2017 — an increase of 177 percent.

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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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Connecticut Becomes 7th State with $15-an-Hour Minimum Wage

Connecticut Gov. Ned Lamont has pledged to sign legislation passed Friday that would raise the state’s minimum wage in stages to $15 an hour in 2023. The move affects about 330,000 state workers.

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Connecticut State Capitol

The current minimum wage is $10.10 an hour. The bill increases the minimum wage to $11 on Oct. 1, $12 on Sept. 1, 2020, $13 on Aug. 1, 2021, $14 on July 1, 2022 and $15 on Oct. 15, 2023. After that, increases will be tied into the federal Employment Cost Index, which tracks wages and is less volatile than the Consumer Price Index (CPI).

The eventual minimum wage would represent about $31,000 a year for a full-time worker, as opposed to an annual wage of about $21,000 under the current standard.

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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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OSHA Nominee Withdraws on Cusp of Confirmation

Scott Mungo, poised to win confirmation as administrator of the Occupational Safety and Health Administration (OSHA) after a wait of 17 months, abruptly withdrew his name from nomination on Tuesday. No reason immediately surfaced.

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Scott Mungo

The Senate was set to take a final vote on his nomination in the next few weeks. Mungo retired from FedEx Ground and Express, where he was a vice president, when he first learned of his nomination almost a year and a half ago.

In a perhaps related event at the Department of Labor (DOL), Secretary Alexander Acosta’s chief of staff, Nicholas Geale, was forced out by the White House Monday on grounds that he was a divisive figure who often berated employees at the department.

Acosta was also rumored to be trying to talk Mungo out of his withdrawal, but sources said his decision appeared final.

The office of OSHA administrator has been vacant since Donald Trump became president.


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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Uber Drivers Are Not Employees, NLRB Advises

The National Labor Relations Board (NLRB), in three cases involving ride-share drivers, has issued an “Advice Memorandum” concluding that the Uber drivers who filed the charges were “independent contractors,” not employees. Therefore, the regions where the charges were filed should “dismiss the charges, absent withdrawal.”

NLRB-rules-uber-drivers-are-contractorsThe memo, written in April but released yesterday, lists ten criteria for determining independent contractor status, based upon a previous decision known as SuperShuttle.

Among the criteria are issues involving how much control “the master” (company in charge) has over the workers and whether “the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.”

The memo, written by Associate General Counsel Jayme L. Sophir, concludes:

The drivers had significant entrepreneurial opportunity by virtue of their near complete control of their cars and work schedules, together with freedom to choose log-in locations and to work for competitors of Uber. On any given day, at any free moment, drivers could decide how best to serve their economic objectives: by fulfilling ride requests through the App, working for a competing ride-share service, or pursuing a different venture altogether.

The memo released by the Trump labor board comes one day after a nationwide ride share driver strike during which thousands of Uber and Lyft drivers logged off their apps to demand better pay and working conditions.


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 Revises Safety and Health Standards

The Occupational Safety and Health Administration (OSHA) today issued a final rule revising 14 provisions in its recordkeeping, general industry, maritime and construction standards that it said might be “outdated, confusing or unnecessary.”

osha-revises-several-standards-May-2019The rule, as published in the Federal Register, is said to reduce “regulatory burden while maintaining or enhancing worker safety and health, and improving privacy protections.” In a press release, the agency also said the rule would “save employers an estimated $6.1 million per year.”

The new rule is part of OSHA’s Standards Improvement Project, which began in 1995 and has spawned three previous rule changes.

Among the revisions proposed by the rule are reductions in annual lung X-ray requirements, elimination of the collection of employee Social Security numbers, and the removal of feral cats from the list of “rodents” in standards for shipyard sanitation.

The rule will take effect 60 days from date of publication.


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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Washington State Adds Public Option Health Insurance

As “Medicare for All” becomes the mantra of several candidates for president, all progressive Democrats, Washington State on Monday inaugurated its own version of a public option health insurance plan, based on expanding the qualifications for Medicaid to 500 percent of the federal poverty line, or $62,450 a year for a single person.

washington-enacts-public-option-health-planThe agency running Medicaid for the state is being instructed to contract with a private insurer to offer a plan to meet the standards of the Affordable Care Act (ACA, or Obamacare). Those who qualify will be able to buy into the new state Medicaid option. The extent of state subsidies, if any, has yet to be announced.

Colorado has also passed legislation to create a public option, but it has yet to take effect. Other states are also looking into crafting their own versions, including Connecticut, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey and Oregon. In 2017, Nevada was the first to pass enabling legislation for a state option, but Gov. Brian Sandoval vetoed the law.

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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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Privately Insured Pay Twice What Medicare Pays Hospitals

A Rand Corp. study has found that people with private insurance — 156 million of them with health insurance from work — pay, on average, twice more for hospital care than what those on Medicare pay.

private-insurance-pays-hospitals-twice-Medicare-ratesThe study is based on payment rates by private insurers in 25 states to 1,600 hospitals, and concludes that had the rates been the same as Medicare across the board, the nation would have saved $7.7 billion in health care costs between 2015 and 2017.

“If we want to reduce health care spending,” said Christopher Whaley, a Rand economist and one of the paper’s two authors, “we have to do something about higher hospital prices.”

Publishing prices might give employers and health insurers more clout in negotiating better rates, but the study casts some doubt on that option.

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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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After Four Months, EEOC Has a Quorum

Janet Dhillon was approved today by the U.S. Senate on a 50-43 party-line vote to assume the role of chairperson for the Equal Employment Opportunity Commission (EEOC). The current acting chair, Victoria Lipnic, will remain as a commission member.

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Janet Dhillon, new EEOC Chair

Dhillon’s approval brings the total number of commissioners to three — out of five possible — so that the EEOC can once again issue rulings and regulations.

The tenure of Commissioner Charlotte Burrows, a Democrat, will end on July 1, however, leaving just two members once again.

Dhillon’s nomination was held up for nearly two years due to fears that she’d change the EEOC’s position on lesbian, gay, bisexual and transgender (LGBT) rights. The commission’s current view is that LGBT rights are protected under the definition of “sex” in Title VII of the Civil Rights Act of 1964.

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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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