Group Sues to Restore OSHA Electronic Reporting

Public Citizen, a consumer watchdog group, is suing to force the Occupational Safety and Health Administration (OSHA) to restore full electronic injury and illness reporting requirements and collect all data from Forms 301 and Logs 300 that were due July 1.

The electronic submissions from companies with 250 or more employees were part of a rule from the Obama administration, but the current agency on July 30 opened a rule-making commentary period, which closes Sept. 28, to rework the rule. In the meantime, it suspended the reporting requirement on all but the basic Form 300a.

Public Citizen, in its suit before the U.S. District Court for the District of Columbia filed Sept. 7, argues that OSHA’s action was “arbitrary and capricious” and ignored the legal process set forth in the Administrative Procedure Act (APA) by suspending the regulation’s requirements before going through a notice-and-commentary process.

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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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Nevada to Exit Healthcare.gov

Nevada, citing lack of consumer choice and availability of data to the state, is exiting the Affordable Care Act (ACA) online exchange — Healthcare.gov — in favor of setting up its own online exchange by 2020.

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Nevada Exchange Director Heather Korbulic

Other states like Oregon, facing the technical challenge of setting up their own exchange, have gone the opposite route and scurried back to the federal mechanism.

Not Nevada. On Aug. 14, Nevada Heath Link announced a contract with GetInsured, a company that manages health insurance marketplaces in seven other states, to set up the state-run system in Nevada.

“We … believe this is a chance for us to control our own destiny by managing our own marketplace,” Nevada Health Link Executive Director Heather Korbulic explained. “We have seen the limitations that come with working with the [federal system]. There is very little flexibility given to states. Any small change we request to try to tailor the system is almost impossible to accomplish.

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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 Rule Redefines Joint Employer

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.

Following a 3-to-1 vote, the National Labor Relations Board (NLRB) made good on its promise to redefine a joint employer relationship, restoring through a proposed rule the “direct control” principle that the Obama NLRB had loosened to “indirect control.”

NLRB-issues-rule-on-joint-employer-definitionThe Notice of Proposed Rulemaking (NPRM) published Sept. 14 states:

Under the proposed regulation, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.

In announcing the proposed rule, Board Chairman John F. Ring stated, “I look forward to receiving the public’s comments and to working with my colleagues to promulgate a final rule that clarifies the joint-employer standard in a way that promotes meaningful collective bargaining and advances the purposes of the act.”

The NPRM also contains 12 examples of applications of the revised definition. A public commentary period closes Nov. 13.

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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 to Begin Joint Employer Rule Process

RELATED: McDonald’s struggles to shed joint employer label

The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) tomorrow (Sept. 14) in the Federal Register regarding its joint-employer standard. Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

nlrb-seeks-overturn-of-Obama-joint-employer-standardAs will be explained in the notice, rulemaking in this important area of the law would foster predictability, consistency and stability in the determination of joint-employer status, according to the board.

The proposed rule reflects the board majority’s initial view, subject to potential revision in response to public comments, that the National Labor Relations Act’s intent is best supported by a joint-employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.

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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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Workers to Strike at McDonald’s over Sexual Harassment

Watch Personnel Concepts’ video on Workplace Harassment Investigations.

McDonald’s Corp., already embroiled in legal action over whether it is a joint employer with its franchisees, now faces the prospect of a walk-out by employees on Tuesday, Sept. 18, over sexual harassment issues.

mcdonalds-faces-strike-over-harassment-claimsThe strike, to be launched at noontime, will hit stores in 10 locations, but not every store in those cities, which are Chicago; Durham, N.C.; Kansas City, Mo.; Los Angeles; Miami; Milwaukee; New Orleans; Orlando, Fla.; San Francisco and St. Louis.

Organizers of the strike are women who filed charges with the Equal Employment Opportunity Commission (EEOC) in May, alleging sexual harassment, including groping and propositioning, at several McDonald’s branches.

The action comes on the heels of an ongoing dispute over workers who joined Fight for $15, a campaign for a higher minimum wage at McDonald’s franchisees, and were terminated for their actions. The group sued McDonald’s Corp., alleging it was a joint employer with the franchisees. The company thought it had settled individually with the wage protesters, but a judge threw out the settlement. Thus the lawsuit is ongoing.

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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 Issues Guidance on Avoiding Obamacare Tax Penalty

The Centers for Medicare and Medicaid Services (CMS) today announced a new, more streamlined way for consumers to claim a hardship exemption from the tax penalty imposed for not maintaining health coverage for 2018 on their federal income tax returns, making it easier for taxpayers across the nation to claim their exemption.

cms-issues-guidance-on-avoiding-obamacare-penaltyOf the $3 billion the Internal Revenue Service (IRS) collected from taxpayers in individual mandate penalties in 2015, over 5 million households, or nearly 80 percent, earned $50,000 a year or less. “The individual mandate penalty is yet another example of how the Affordable Care Act (ACA, or Obamacare) hurts low and middle income Americans the most, and today’s action reflects our commitment to minimize the impact of Obamacare’s failures,” according to the CMS announcement.

The ACA requires that all Americans get health coverage that qualifies as minimum essential coverage (MEC) or pay a penalty, commonly known as the individual mandate. Individuals who do not maintain enrollment in MEC or qualify for an exemption must pay a penalty. Individuals may be eligible for a hardship exemption if they experience certain circumstances that prevent them from obtaining coverage, such as homelessness or a fire, flood, or other natural disaster.

Specifically through today’s guidance, CMS is announcing additional details on how the agency is making it easier for taxpayers to claim a hardship exemption on a federal income tax return without presenting the documentary evidence or written explanation generally required for hardship exemptions.

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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 Sued Over Delay in Drug Discount Rule

Congress in 2010 passed legislation requiring transparency in drug pricing for a hospital program known as 340B, and the Obama administration issued a final rule (finally) in January 2017. Now, the Trump administration is delaying implementation at the cost of a lawsuit against the Department of Health and Human Services (HHS).

hhs-sued-over-delay-in340B-rule-implementationThe American Hospital Association (AHA) and America’s Essential Hospitals have joined five other 340B stakeholders in taking legal action to force the rule’s implementation. Their lawsuit, filed yesterday (Sept. 11) in a federal court in Washington, D.C., seeks to make the 2017 regulation effective within 30 days.

The 340B program, created in 1992 and expanded under the Affordable Care Act (ACA), requires drug manufacturers to provide outpatient drugs to eligible providers at discounts of 20 to 50 percent. The savings are then to be used to treat low-income patients, provide transportation services and offer free vaccinations.

“As prescription drug prices continue to skyrocket, the 340B program is as crucial as ever in helping hospitals and health systems provide access to healthcare services for vulnerable patients and communities,” said Rick Pollack, president and CEO of the AHA.

Critics, however, have contended that some 340B providers are gaming the system by prescribing costlier drugs and pocketing the difference.


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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Grants Awarded for Obamacare Navigators

The Centers for Medicare & Medicaid Services (CMS) has awarded $10 million in Navigator grants to 39 organizations that will serve as Navigators in Federally-facilitated Exchange states. These awards will support the work of organizations that offer assistance to consumers navigating, shopping for, and enrolling in health insurance coverage for 2019.

cms-issues-grants-for-navigators“We are committed to making sure that consumers have a positive experience. The grants announced today mark a new direction for the Navigator program aimed at providing a more cost-effective approach that takes better advantage of volunteers and other community partners,” said CMS Administrator Seema Verma.

“This new direction will increase accountability and ensure the grants are effective in helping consumers find health coverage that meets their needs. We will continue to monitor the impact of these changes with the primary goal of ensuring consumers have the resources to select a health plan that best fits their needs.”

The $10 million, however, is only one-tenth of the budget the existed under the Obama administration, critics will be quick to point out.

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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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Obamacare Premiums to Moderate for 2019 Plan Year

After double-digit increases for the past couple of years, premiums for health insurance policies purchased on the Obamacare exchanges for 2019 are expected to moderate — or even drop — in 41 states, while six states will see 10-percent-plus increases, according to a study done by Avalere Health and the Associated Press.

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Obamacare rates are expected to moderate for 2019

Nationwide, the average increase will be just 3.3 percent. In the 41 states mentioned earlier, premiums for Affordable Care Act (ACA, or Obamacare) policies will either drop or stay below the 10-percent double-digit threshold. In six other states, including Washington D.C., increases will breach the 10-percent barrier, according to the study.

In addition, some insurers that dropped out of the exchanges will be returning.

Even with the price moderation, warns Chris Sloan, an Avalere director, “This is still a market that’s unaffordable for many people who aren’t eligible for subsidies.” Nearly 90 percent of consumers who purchase policies on the exchanges qualify for subsidies, reducing their payments sometimes below $100 a month. Those who don’t qualify for subsides can end up paying steep monthly premiums.

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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 Targets Hotel Industry for Compliance with H-2B Visa Program

To ensure compliance with federal wage laws, the Department of Labor (DOL) and its Wage and Hour Division (WHD) are conducting a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa program in the hotel industry.

whd-releases-new-opinion-lettersThe initiative includes providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program. A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers.

“Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first,” said Bryan Jarrett, WHD acting administrator. “This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions.”

This past year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the hotel industry.

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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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