A Look at Trump’s Deregulatory Success Rate

Early in his administration, President Trump issued an executive order mandating that, for every new regulation, two existing regulations had to be eliminated. How is that mandate succeeding?

The Competitive Enterprise Institute recently ran some calculations and determined that the actual ratio of deregulation to regulation stands at 5-to-1, not 2-1; in other words, the effort is exceeding expectations.

According to the institute’s “Ten Thousand Commandments,” which tracks all things regulatory, Congress drew back 16 late-term Obama regulations through use of the Congressional Review Act (CRA). On top of that, federal agencies themselves (except for independent agencies not subject to the executive order, such as the Federal Communications Commission) achieved another 142 deregulations, while issuing only 29 new regulations.

In the recently released “Unified Agenda of Regulatory and Deregulatory Actions,” the pace quickens a bit to 6-to-1, according to institute reckoning.

To make matters easier to follow, the Trump Office of Management and Budget (OMB) has done what it calls a “system update,” so that now regulators must identify all new rules and regulations as “net regulatory” or “net deregulatory.”


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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Federal Court Rules Banning Salary History Inquiries Unconstitutional

A Philadelphia statute that bans employers from inquiring about applicants’ salary histories is unconstitutional, the U.S. District Court for the Eastern District of Pennsylvania has ruled. At the same time, it let stand that portion of the law that forbids employers from basing new hires’ salaries on their wage history.

court-rules-salary-inquiries-unconstitutional

Independence Hall in Philadelphia

Philadelphia was the first city to pass salary legislation when, in January 2017, Mayor Jim Kenney signed the Philadelphia Wage Equity Ordinance with an effective date of May 23 that year. Almost immediately, the Chamber of Commerce for Greater Philadelphia filed suit to block it. This April 30 came the answer, with the ruling that the law’s “Income Provision” was unconstitutional while its “Reliance Provision” was fine as written.

As a result, employers may now inquire about job applicants’ salary histories but cannot base their new salaries on past wages.

The chamber’s case rested on violations of First Amendment “commercial free speech” rights. The court concurred that, as written, the language for the Inquiry Provision failed to justify curtailment of First Amendment rights, writing that “more is needed” in the way of justification. On the Reliance Provision, the court agreed with the city that the provision affected only conduct, not free speech.

The case was The Chamber of Commerce for Greater Philadelphia v. The City of Philadelphia Commission on Human Relations.


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 Sides with Employers in the Use of Forced Arbitration Agreements

Voting along ideological lines, the Supreme Court today ruled 5-4 that employers can enforce signed binding arbitration agreements with their work forces, thus legally barring class action lawsuits.

supreme-court-upholds-class-waiversThe ruling allows employers to require employees to sign not only binding arbitration agreements that include class action waivers, but also non-disclosure agreements.

“The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written,” Justice Neil Gorsuch wrote for the majority. Justices John Roberts, Anthony Kennedy, Samuel Alito and Clarence Thomas concurred.

The legislation in question dates to 1925 with the passage of the Federal Arbitration Act, which states that arbitration agreements “shall be valid, irrevocable and enforceable.” Arbitration is done outside a courtroom and is quicker and cheaper and generally viewed as more employer-friendly than courtroom litigation.

The conservative majority rejected the argument that the 1935 National Labor Relations Act (NLRA), which encourages collective actions, overrides the earlier arbitration law.

“This Court has never read a right to class actions into the NLRA — and for three quarters of a century neither did the National Labor Relations Board [NLRB],” wrote Justice Gorsuch. The NLRB argued before the court in favor of employee class actions.

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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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HHS Disapproves Ohio’s Request to Eliminate ACA Individual Mandate in State

The Department of Health and Human Services (HHS) has rejected a waiver request from the Ohio Department of Insurance (ODI) to eliminate the Affordable Care Act (ACA) individual shared responsibility mandate in the state.

As originally written, that provision of the ACA requires all Americans to have health insurance or pay a fine, but as part of the GOP’s Tax Cuts and Jobs Act of 2017, the penalty part of the individual mandate, by which it is widely known, will be eliminated in 2019.

In rejecting the request, the Centers for Medicare and Medicaid Services (CMS), the wing of HHS that administers the ACA, stated  that the “application does not include a description of the reason that the state is seeking to waive IRC $50004(a),” the individual mandate provision. In addition, the rejection letter noted that each state, even when requesting a waiver, must ensure that it  provides a state plan for health insurance that is “at least as comprehensive and affordable as that provided under” the ACA.

Though the Trump administration and Republicans in Congress have tried to void the ACA, falling one vote short in the Senate, CMS has staunchly defended the provisions of the legislation. It recently rejected a request by Kansas to put a cap on enrollment in Medicaid, which was expanded as part of the ACA.

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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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IRS Resumes Sending Out ACA Penalty Notices for 2015

The Internal Revenue Service (IRS) has begun issuing new Affordable Care Act (ACA) penalty notices for calendar year 2015.

IRS-sends-out-Obamacare-tax-penalty-noticesThe notices are officially called Employer Shared Responsibility Payment (ESRP) notices, or what the IRS refers to as Letter 226-J.

Under the ACA, Applicable Large Employers (ALEs), generally those companies with 50 or more full-time employees (or their equivalence with part-timers factored in) must provide health insurance coverage that is “affordable” and provides “minimum value” or face a fine, now known as the ESRP.

Any company receiving an ESRP notification has 30 days to dispute it, and in some — if not many — cases the IRS has in the past incorrectly identified “guilty” employers.

The IRS audits company compliance from data submitted on two forms:  ALEs are required to send health coverage information to the IRS on Form 1094-C, Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns, and Form 1095-C, Employer-Provided Health Insurance Offer and Coverage. ALEs are also required to send the Form 1095-C to each employee.

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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 Administrator Reaffirms Opposition to Medicaid Caps

At a health care symposium this week, Seema Verma, administrator of the Centers for Medicare and Medicaid Services (CMS), reaffirmed her agency’s commitment to keeping Medicaid available to its recipients without any lifetime limits or caps. Her statement follows her earlier rejection of a request by Kansas to cap Medicaid services in the state.

cms-rejects-medicaid-caps“We’ve indicated we would not approve lifetime limits, and we’ve made that pretty clear to states,” she said at the event sponsored by The Washington Post.

Four other states had been angling for Medicaid caps: Arizona, Maine, Utah and Wisconsin.

The administration, however, has allowed states to impose a work requirement on the able-bodied — get job training, do community work, or get a job if you want to stay on Medicaid.

Overall, the push has been to give the states more latitude and authority over their programs, Verma said.

“I hope to get to a new era where states are driving their programs, and they are deciding what is going to work best in their communities, because they are closest to the people they serve,” she said. “And we can hold states accountable for shaping outcomes so we can measure what they are doing.”

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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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IRS Allows Provisional Relief for Small Business Health Insurance Tax Credit

The Internal Revenue Service has issued guidance that provides relief for certain small employers who wish to claim the Small Business Health Care Tax Credit for 2017 and later years but  whose businesses reside in counties with no Obamacare small business health insurance available.

IRS-offers-small-business-SHOP-reliefThe Small Business Health Care Tax Credit can benefit certain small employers who provide health coverage to their employees. Generally, small employers must provide employees with a qualified health plan from a Small Business Health Options Program (SHOP) Marketplace to qualify for the credit. Also, small employers may only claim the credit for two consecutive years.

In general, the relief being provided helps employers who first claim the credit for all or part of 2016 or a later taxable year for coverage offered through a SHOP Marketplace, but don’t have SHOP Marketplace plans available to offer to employees for all or part of the remainder of the credit period because the county where the employer is located has no SHOP Marketplace plans.

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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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ICE Worksite Investigations Already Double Over Last Year

BREAKING NEWS: According to legal watchdog group JDSupra, ICE is planning a surge in I-9 audits this summer, to wit: “And the heightened worksite enforcement efforts will increase over the summer, according to ICE’s acting executive associate director for Homeland Security Investigations (HSI). In addition to this increase in worksite investigations, criminal and administrative arrests associated with workplace immigration laws have risen significantly as well.”

Fewer than seven months after Immigration and Customs Enforcement (ICE) Deputy Director Thomas Homan issued a directive that called for increased worksite enforcement investigations to ensure U.S. businesses maintain a culture of compliance, the agency’s Homeland Security Investigations (HSI) has already doubled the number of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year, the agency reports.

From Oct. 1, 2017, through May 4, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively. In comparison, for fiscal year 2017 – running October 2016 to September 2017 – HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

“Our worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law,” said Acting Executive Associate Director for HSI Derek N. Benner. “HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.”

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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, DOJ to Jointly Police Discrimination Against American Workers

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice (DOJ) have announced a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. This new effort improves the way the agencies share information, collaborate on cases, and train each other’s investigators.

ICE-to-target-nationwide-food-chain-for-hiring-illegal-aliensThe MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and the MOU expands upon the two agencies’ existing partnership.

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

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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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Unified Regulatory Agenda Reveals Trump Administration Priorities

The Unified Agenda of Regulatory and Deregulatory Actions, released this past week, reveals a compendium of actions — and reversals of actions — that the Trump administration’s various agencies hope to carry out in the coming months, not the least of which is a revisit to and revision of the Obama overtime rule that is currently under a nationwide injunction.

Labor Secretary Alexander Acosta has not put a dollar figure on the salary threshold for overtime, but it appears to be somewhere toward the middle between the current level of $23,660 a year and the Obama administration’s proposed $47,476 annually. Meanwhile, the Department of Labor (DOL) is still seeking clarification on the whole issue of a salary threshold from the 5th U.S. Circuit Court of Appeals, as one of the reasons a federal judge gave for issuing the injunction was that the department lacked authority to use salary as an overtime trigger.

Among other actions envisioned  in the agenda are: (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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