Labor and Justice Departments to Crack Down on Visa Abuse by Employers

The Civil Rights Division of the Department of Justice (DOJ) and the Department of Labor (DOL) have expanded their collaboration to better protect U.S. workers from discrimination by employers who prefer to hire temporary visa workers over qualified U.S. workers.

justice-and-labor-departments-to-fight-visa-abuseThis new partnership, finalized in a Memorandum of Understanding (MOU), establishes protocols for the agencies to share information, refer matters between them, and train each other’s employees, with the goal of better protecting U.S. workers. This partnership will enhance the Civil Rights Division’s efforts to stop companies from discriminating against U.S. workers and assist the Department of Labor’s Employment and Training Administration (ETA) in identifying noncompliance with its foreign labor certification process.

In 2017, the Civil Rights Division launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement measures against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with three employers. Since the Initiative’s inception, employers have agreed to pay or have distributed over $285,000 in back pay to affected U.S. workers. The ETA has assisted the division’s efforts under this Initiative and the new partnership expands and formalizes that relationship.

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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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Sen. Rubio Introduces Ivanka Trump’s Paid Family Leave Law

Sen. Marco Rubio (R.-Fla.) this week introduced legislation to create a paid family leave option nationwide that would use social security funds to pay for the leave in a tit-for-tat sort of way: you take two months family leave, social security pays for it, and then your social security start date is offset by two months.

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Sen. Marco Rubio

This is essentially the same plan that First Daughter Ivanka Trump has been pushing and managed to have a Senate hearing on in July.

“This is important legislation. It is also unique,” Rubio said at a news conference at the Capitol. “This is a dramatic readjustment of the way we deal with economic insecurity in the modern era.”

Democrats in the Senate — not surprisingly given the author of the bill — have already lined up solidly against the proposal.

As for author Ivanka, she downplayed the chances of the legislation’s being passed before the midterm elections:

“This was not exactly part of the Republican lexicon when we arrived in D.C. in January 2017.”

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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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Maine Receives Waiver to Establish ACA Reinsurance Plan

The Centers for Medicaid and Medicare Services (CMS) has issued a Section 1332 Waiver to Maine to allow the state to set up a reinsurance plan to help pay the medical costs of residents with certain qualifying conditions, thus helping lower the health insurance premiums of all consumers in Maine.

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Maine State House

Gov. Paul LePage has subsequently given the green light for the establishment of the non-profit Maine Guaranteed Access Reinsurance Association.

Section 1332 Waivers, which first became available on Jan. 1, 2017, allow states to innovate with provisions of the Affordable Care Act (ACA). Maine thus becomes the sixth state to set up a reinsurance program, but other states have taken up other innovations as well, according to tabulations by the National Conference of State Legislatures (NCSL).

Before the debut of the ACA in 2014, Maine ran a similar reinsurance program, but it was shut down in favor of a federal program that ran briefly under provisions of Obamacare.

The fund will cover the insurance costs of high-risk patients with one of eight conditions. It will pay 90 percent of claims between $47,000 and $77,000 and 100 percent of claims above that threshold, up to a maximum of $1 million. For more expensive claims, the program will cover any amount not picked up by a federal program.

Funding will come from reinsurance premiums, savings from already existing federal funds, and a $4 monthly assessment on individual, group and other plans.


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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Short-Term Health Plans to Be Offered Beginning in October

The departments of Health and Human Services (HHS), Labor (DOL) and the Treasury (DOT) today issued a final rule allowing for the sale and renewal of short-term, limited-duration health plans that cover longer periods than the previous maximum period of less than three months. Such coverage can now cover an initial period of less than 12 months, and, taking into account any extensions, a maximum duration of no longer than 36 months in total. Sales begin in October.

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HHS Secretary Alex Azar

This action will help increase choices for Americans faced with escalating premiums and dwindling options in the individual insurance market, according to spokespersons.

“Under the Affordable Care Act (ACA), Americans have seen insurance premiums rise and choices dwindle,” said HHS Secretary Alex Azar. “President Trump is bringing more affordable insurance options back to the market, including through allowing the renewal of short-term plans. These plans aren’t for everyone, but they can provide a much more affordable option for millions of the forgotten men and women left out by the current system.”

In a recent release of three reports on the current state of the individual insurance market, Centers for Medicare & Medicaid Services (CMS) data reveal serious problems. While enrollment data show stable enrollment for subsidized exchange coverage, the number of people enrolled in the individual market without subsidies declined by an alarming 20 percent nationally in 2017, while at the same time premiums rose by 21 percent. Many state markets experienced far more dramatic declines, with unsubsidized enrollment dropping by more than 40 percent in six states, including a 73 percent decline in Arizona.

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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 York Leads Attorney General Coalition Fighting AHPs

Twelve “blue state” attorneys general, led by New York Attorney General Barbara Underwood, are taking the Trump administration to court over its final rule allowing the creation of newly invigorated Association Health Plans (AHPs).

attorneys-genera-sue-to-stop-association-health-plansThe coalition is targeting a final rule issued by the Department of Labor (DOL), which loosens and expands the definition of employer in the Employee Retirement Income Security Act (ERISA), which in turn enables the creation of multi-employer, multi-state association health plans (AHPs). In the past, AHPs could function within state boundaries but with strict inclusionary policies, but most were forced out by the essential health benefits (EHBs) standard of the Affordable Care Act (ACA, or Obamacare).

The new rule allows even the self-employed to join an AHP.

“The Trump administration’s AHP Rule is nothing more than an unlawful end run around the consumer protections enshrined in the Affordable Care Act — part of President Trump’s continued efforts to sabotage our health care system,” Underwood said in a statement about the suit.

“Our lawsuit today seeks to safeguard federal protections under the ACA that help guarantee access to quality, affordable health care.”

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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 Proposes Reduction in Injury/Illness Reporting for Large Employers

The Occupational Safety and Health Administration (OSHA) has issued a Notice of Proposed Rulemaking (NPRM), which it says will “better protect” personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the “Improve Tracking of Workplace Injuries and Illnesses” rule. OSHA believes this proposal maintains safety and health protections for workers, protects privacy and reduces the burdens of complying with the current rule.

Trump-OSHA-cancels-some-online-reportsThe proposed rule eliminates the requirement to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are currently required to maintain injury and illness records. These establishments would be required to electronically submit information only from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

Under the current recordkeeping rule, the deadline for electronic submission of Calendar Year (CY) 2017 information from OSHA Forms 300 and 301 was July 1, 2018. In subsequent years, the deadline is March 2. OSHA is not currently accepting the Form 300 or 301 data and will not enforce the deadlines for these two forms without further notice while this rulemaking is underway. The electronic portal collecting Form 300A data is accepting CY 2017 data, although submissions after July 1, 2018, will be marked late.

The NPRM is subject to public commentary through Sept. 28, 2018.


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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Americans with Disabilities Act (ADA) Marks 28th Anniversay

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. Thus today marks its 28th anniversary.

ada-marks-28th-anniversaryThe ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.

Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin – and Section 504 of the Rehabilitation Act of 1973 — the ADA is an “equal opportunity” law for people with disabilities.

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.


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 Targets 5,200 Businesses for I-9 Audits

Since January, United States Citizenship and Immigration Services (USCIS) — along with its Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) units — has sent out notices of pending I-9 audits to some 5,200 businesses across the nation.

ICE-carries-out-I-9-audits-nationwideA notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

From July 16 to 20, the second phase of the operation, agents served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, they served 2,540 NOIs and made 61 arrests.

“This is not a victimless crime,” said Derek N. Benner, acting executive associate director for HSI. “Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.”

While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Benner.

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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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NLRB Sets New Tone on Section 7 Workplace Rights

Instructional materials and posters on the National Labor Relations Act (NLRA) and virtually every compliance issue a business could ever face are available in our online Digital Workplace Compliance Library, a vast and invaluable resource. You could be relying on it daily if you sign up for an annual compliance plan with Personnel Concepts. Watch our YouTube video for more information.

The decision by the National Labor Relations Board (NLRB) in a case known as The Boeing Company on June 6, 2018, gave General Counsel Peter Robb the opportunity to clarify, modify and in some cases reverse guidelines issued by the Obama-era NLRB regarding employer workplace rules, or policies. Generally speaking, these rules may or may not affect, interfere or prohibit “protected, concerted activity” by employees as guaranteed by Section 7 of the National Labor Relations Act (NLRA). In a memorandum, Robb divided these rules into three categories:

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Peter Robb, NLRB General Counsel

CATEGORY 1 RULES: Rules falling into this category are generally lawful because, “when reasonably interpreted,” they do not prohibit or interfere with Section 7 rights, or because any possible adverse impact they may have is outweighed by business justifications. Examples include:

  • Civility rules
  • No photograph and no recording rules
  • Insubordination, non-cooperation and on-the-job conduct rules
  • Disruptive behavior rules
  • Confidentiality, proprietary and customer information rules
  • Defamation and misrepresentation rules
  • Speaking-for-the-company rules
  • Disloyalty, nepotism and self-enrichment rules

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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 Targeting Physical Tests that Lead to Disparate Impact

The Equal Employment Opportunity Commission (EEOC), which is controlled 2-1 by Democrats from the Obama era, is cracking down on companies that rely on pre-employment physical tests when these tests result in disparate impact, often involving female applicants.

eeoc-position-on-physical-testingRecently, Hirschbach Motor Lines was ordered to pay $3.2 million to a group of female job applicants for truck driver positions who were eliminated because of the company’s physical testing program, even after the Department of Transportation (DOT) had medically cleared them as truck drivers.

Applicants were tested for their ability to balance and stand on one leg, touch their toes while standing on one leg, and to crawl, and the results had a disparate impact on females, according to the EEOC.

According to its Strategic Enforcement Plan (SEP) released in 2017, the EEOC will continue to focus on class-based recruitment and hiring practices that disparately impact minorities, the disabled, older workers and other protected classes.

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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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