EBSA Increases Retirement Fund Recovery on Fewer Cases

The Employee Benefit Security Administration (EBSA) in 2017 upped its recovery of missing employee retirement contributions (including fines) to $1.1 billion from $777.5 the year before.

ebsa-increases-recovery-of-retirement-fundsAt the same time, due in great part to automation, the ERISA-enforcement wing of the Department of Labor (DOL) was able to reach the  higher recovery figure on fewer closed cases: 1,707 in 2017 compared to 2,002 in 2016. EBSA reached a peak of 3,928 civil cases closed in 2014.

The automation came about through the use of algorithms to sort through filed Forms 5500, the yearly report companies must make on their benefits programs.

Another factor in the improved recovery amount was an increase in fines that took place in August 2016. Failure to furnish a statement of benefits to employees increased from $11 to $28 per employee. The fine for failing to file Form 5500 went from $1,100 per day to $2,063. Some 14 other fines were also increased.

Of the 2017 $1.1 billion recovery figure, $682.3 million was recovered from enforcement actions; $418.7 million came from what DOL calls “informal complaint resolution”; $27.9 million was part of EBSA’s Abandoned Plan Program; and $10 million came from EBSA’s Voluntary Fiduciary Correction Program, which allows employers to avoid ERISA penalties if they comply with regulators.

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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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New Jersey Votes to Resurrect the Obamacare Individual Mandate

The New Jersey legislature has sent a bill to Gov. Phil Murphy, a Democrat, that would reinstate the expiring individual health insurance mandate of the Affordable Care Act (ACA, or Obamacare).

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New Jersey Statehouse

Under terms of the bill — New Jersey Health Insurance Market Preservation Act — those who lack health insurance would be subject to a fine of 2.5 percent of their household income or $695 per adult and $347 per children, whichever is greater. The individual mandate of the ACA expires in 2019 after Republicans in Congress eliminated all monetary penalties associated with it as part of their tax reform package.

Money collected from those without insurance would be deposited in the New Jersey Health Insurance Premium Security Fund, which would be created by a second bill. The fund would be used to cover catastrophic health insurance claims to help keep the lid on insurance premiums.

New Jersey would thus join Massachusetts as the only states with individual mandates. Massachusetts’ mandate is associated with the state’s health care system known as Romneycare, which was largely the model for Obamacare.

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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’s Acosta Argues for More Funding for His Department Because ‘Laws Matter’

During a hearing before a Senate subcommittee, Secretary Alexander Acosta argued for increased funding for the Department of Labor because, among other things, “laws matter” and the department needs additional inspectors, especially for the Occupational Safety and Health Administration (OSHA).

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Labor Secretary Acosta

In seeking his request, Acosta told the Senators that “laws matter. They have been passed by Congress. They are the laws of the land, and they need to be enforced. The men and women at the Department of Labor need the resources to enforce them.”

Among those resources are 42 new inspectors for OSHA, he later explained.

The Trump administration is seeking to cut the DOL’s budget by $1.1 billion in FY 2019. It tried to cut the budget this fiscal year by $2.4 billion, but the bipartisan budget passed March 23 allocated about $12.2 billion for labor and its incumbent agencies like OSHA and the Mine Safety and Health Administration (MSHA).

OSHA is receiving $552.8 million this fiscal year, and the Trump budget calls a decrease in 2019 to $549 million. Acosta pressed his case for a $6.1 million increase to hire additional compliance officers.

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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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WHD Opinion Letters Address FLSA and Other Issues

The  Wage and Hour Division (WHD) of the Department of Labor (DOL) announced today that it has issued three new opinion letters.

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The WHD Opinon Letter web page

“The Department of Labor has committed to protect employees, enforce the law, and ensure employers have the tools for compliance,” said Secretary of Labor Alexander Acosta. “American job creators and employees deserve to know how an agency will apply the law to a particular set of facts. By addressing the application of statutes and regulations in the specific circumstances presented by an employer, employee, or other entity, opinion letters provide clarity that helps increase compliance to the benefit of all.”

The opinion letters released today address compliance under the Fair Labor Standards Act (FLSA) and other laws:

  • What counts as work time under the FLSA when employees travel for work
  • Whether 15-minute rest breaks required every hour by an employee’s serious health condition must be paid or may be uncompensated
  • Whether certain lump-sum payments from employers to employees are considered “earnings” for garnishment purposes under Title III of the Consumer Credit Protection Act

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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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Ring’s Appointment to NLRB Restores Republican Majority

BREAKING NEWS: The White House on Thursday, April 12, announced John Ring would become chair of the NLRB, and Marvin Kaplan would relinquish the post and remain as a member.

The Senate’s confirmation of John Ring today to the National Labor Relations Board (NLRB) restores Republicans to a 3-2 majority. The board had been deadlocked 2-2 since the expiration of the term of Philip Miscimarra in December.

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John Ring, new NLRB Chair

In the interim, the board has been forced to reverse itself on the issue of what constitutes a joint employer. With the GOP majority now back on top, they may look for another case in which they can reverse Browning-Ferring once again, having failed to do so with its retracted Hy-Brand decision.

At stake is the loose Obama-era standard for defining a joint employer known as “indirect control,” which makes virtually every franchiser responsible legally for wage and hour and other employment actions by its franchisees. In Hy-Brand, the board overturned that standard and returned it to the historic standard of “direct and immediate” control.

That decision had to be vacated when the board’s inspector general said it was tainted by the vote of GOP member William Emanuel, whose previous firm had been involved in the Browning-Ferris case.

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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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USCIS Launches E-Verify Website for Employers, Employees and General Public

U.S. Citizenship and Immigration Services (USCIS) today announced the launch of its new website, E-Verify.gov. This, says USCIS, is the authoritative source for information on electronic employment eligibility verification. E-Verify.gov is for employers, employees and the general public.

USCIS-launches-new-E-Verify-websiteThe website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. E-Verify.gov allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov.

“For the past decade, E-Verify has been the cornerstone of our continued commitment to helping employers maintain a legal workforce,” said USCIS Director L. Francis Cissna. “E-Verify.gov now allows users to better understand and navigate through the employment verification process.” (more…)


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 Final Rule Tinkers with Obamacare to Expand Options for Policy Design

The Centers for Medicare and Medicaid (CMS) today issued a final rule that seeks more elasticity in how the provisions of the Affordable Care Act (ACA, or Obamacare) are applied to allow more flexibility in policy offerings and pricing on the federal and state exchanges. The rule will be published in the Federal Register on April 17, and following a 60-day commentary period, will be implemented.

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CMS Administrator Seema Verna

“Too many Americans are facing skyrocketing premiums that they can’t afford and every year consumers are faced with the threat of fewer choices. This rule gives states new tools to stabilize their health insurance markets and empower citizens to find coverage that fits their families’ needs and budgets,” explained CMS Administrator Seema Verma.

As part of the package, individuals will be able to earn “hardship exemptions” from the individual mandate — have insurance or pay a fine — going back two years if: 1) they live in an area where only one insurer operates on the  ACA exchange or 2) they oppose abortion and the only insurer in their area offers abortion services. (Next year, the penalty goes away permanently.)

Overall, states will be given more flexibility in choosing plans for the exchanges.

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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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Coming Soon to the Web: Un-Remember Me, Thanks to GDPR

The term GDPR hasn’t really sunk in on a mass scale in the U.S., but it’s been roiling the social media giants for years as they prepare for May 25.

gdpr-takes-effect-in-MayGDPR, the initials for General Data Protection Regulation, is a product of the European Union dating to 2016. Given two years’ lead time, American giants like Amazon, Google and Facebook have been hard at work preparing for the implementation of sweeping new rules guarding individuals’ privacy online.

GDPR includes a feature that allows users to request that certain data about them be removed online — the un-remember, or right to be forgotten option. This provision stems from a ruling by the European Court of Justice in Luxembourg.

Specifically, the court said data on individuals could still exist on web pages or in cyber-databases, but links to that information would not be allowed if a person objected. This infuriated the people at Google, but in one month, they will have to comply or face fines of up to 4 percent of annual revenue. And the GDPR goes even further than the judge in saying that individuals can demand the information or data on them be deleted entirely if it is outdated, no longer needed or relevant, or incorrect. This is technically referred to as Data Erasure.

GDPR also restricts which information on individuals a site can collect, and it bars those under 16 from social media unless they obtain parental consent. Concretely, a site cannot collect information on one’s racial or ethnic origin, sexual orientation, political opinions, religious or philosophical beliefs, trade-union membership or health, except in rare circumstances when it may be required by law.

Lest anyone think the GDPR applies only to search engines, social media giants and huge e-tailers like Amazon, the regulation makes it clear that it affects any site that EU citizens can give individual data to:

The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.

The question here is whether lawmakers here will take a cue from the GDPR in light of the covert personal data mining scandals at Facebook or other companies? (more…)


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, DOJ Turn Up the HEAT* on Health Care Fraud, Recover $2.6 Billion

Health and Human Services Secretary Alex Azar and Attorney General Jeff Sessions today released a fiscal year (FY) 2017 Health Care Fraud and Abuse Control Program report showing that for every dollar the federal government spent on healthcare related fraud and abuse investigations in the last three years, the government recovered $4. Additionally, the report shows that the departments’ FY 2017 Takedown event was the single largest healthcare fraud enforcement operation in history.

hhs-doj-recover-$2.6 billion-in-health-care-fraudIn FY 2017, the government’s healthcare fraud prevention and enforcement efforts recovered $2.6 billion in taxpayer dollars from individuals and entities attempting to defraud the federal government and Medicare and Medicaid beneficiaries. Some of these fraudulent practices include:

  • Providers operating “pill mills” out of their medical offices.
  • Providers submitting false claims to Medicare for ambulance transportation services.
  • Clinics submitting false claims to Medicare and Medicaid for physical and occupational therapy.
  • Drug companies paying kickbacks to providers to prescribe their drugs, and pharmacies soliciting and receiving kickbacks from pharmaceutical companies for promoting their drugs.
  • Companies misrepresenting capabilities of their electronic health record software to customers.

The departments of Justice (DOJ) and Health and Human Services (HHS), through the Health Care Fraud Prevention and Enforcement Action Team (*HEAT) effort, use data analytics and surveillance to crack down on, prevent and prosecute healthcare fraud. While the program continues to be very successful, the return on investment fluctuates from year to year, in part because cases resulting in large settlements take multiple years to complete. Additionally, there has been a reduction in large monetary settlements as many of the large pharmaceutical manufacturers have entered into Corporate Integrity Agreements with the HHS Office of the Inspector General to establish protections against fraudulent activities.

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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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Is Extended Leave a Reasonable Accommodation under the ADA?

This week, the Supreme Court turned down a review of a ruling by the 7th U.S. Circuit Court of Appeals that extended leave under the Americans with Disabilities Act (ADA) is not a “reasonable accommodation” under the letter of the law. Two other circuit courts — the 10th and 11th — have issued similar rulings.

extended-leave-under-the-adaAt issue in Severson v. Heartland Woodcraft Inc. was whether a “two-to-three month leave of absence, following the exhaustion of an employee’s leave entitlement under the Family and Medical Leave Act (FMLA)” was a reasonable accommodation under the ADA.

The 7th Circuit characterized the ADA as an “anti-discrimination” statute, as opposed to a “leave entitlement” statute, and affirmed a lower court ruling that such leave is not available under the ADA.

The ruling reads in part:

“[t]he term ‘reasonable accommodation’ is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”

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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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