Texas Judge Who Ruled Obamacare Unconstitutional Nixes Transgender Rule

Judge Reed O’Connor of the Northern District of Texas has placed a nationwide injunction on the Obama-era regulation that prohibited insurers and health care providers who receive federal money from denying treatment to anyone based on sex, gender identity or termination of pregnancy.

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Judge Reed O’Connor

O’Connor, who last year ruled the Affordable Care Act (ACA, or Obamacare) unconstitutional, said the rule violates the Religious Freedom Restoration Act (RFRA).

“[T]he court holds that the rule, which expressly prohibits religious exemptions, substantially burdens private plaintiffs’ religious exercise in violation of RFRA,” O’Connor wrote.

The judge was acting in response to a lawsuit brought in 2016 by a group of Christian providers called the Franciscan Alliance, who were joined by five “red” states.

They argued that the rule forces insurers to pay for abortions and doctors to perform gender transition services even if they disagree with those procedures on moral or medical grounds.


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 Decision to Drop Electronic Reporting Rule Survives First Court Challenge

It’s one down and at least two to go on the legal front for the Occupational Safety and Health Administration (OSHA) and its decision to rescind electronic injury and illness reporting for companies with 250 or more employees and for smaller companies in designated high risk industries.

OSHA-form-300a-due soonThe Obama-era rule, crafted in 2016, was designed to capture digitally — and then make available to the public — the affected companies’ data from their on-site OSHA Forms 300 and 301. It was to go into effect on July 1, 2018, until the Trump-era OSHA delayed it, and finally this year issued a rule rescinding it.

The case just concluded argued that the agency failed to go through a public commentary period and thus its rule was invalid.

Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia, however, said his court lacked jurisdiction over the dispute, and the hearing was adjourned.

OSHA Form 300A must still be physically posted by Feb. 1 of each year, and data from the form will continue to be submitted to OSHA.


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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Walmart Socked $5.2 Million for Disability Discrimination

Late yesterday, a jury determined that Walmart hS violated federal law when it refused to accommodate the disabilities of a longtime employee, and awarded $5.2 million in damages, the Equal Employment Opportunity Commission (EEOC) announced today.

walmart-to-raise-minimum-wage-to-$11-an-hourAccording to the EEOC’s lawsuit, an employee, who has a developmental disability and is deaf and visually impaired, worked as a cart pusher in the Beloit, Wis., Walmart for 16 years before a new manager started at the store. In his first month, the new store manager suspended the employee and forced him to resubmit medical paperwork in order to keep his reasonable accommodations.

Prior to the suspension, the employee performed his job with the accommodation of assistance from a job coach provided by public funding. The employee’s conditions had not changed, the EEOC said.

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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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Little Sisters of the Poor Beseech SCOTUS — Again

UPDATE: On Oct. 22, the 9th U.S. Circuit Court of Appeals ruled against the Little Sisters of the Poor, refusing to grant them an exemption.

The Little Sisters of the Poor have once again filed a petition before the Supreme Court to restore their exemption from the contraceptive mandate of the Affordable Care Act (ACA).

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Little Sisters of the Poor Philadelphia

The Catholic religious group first filed suit against the ACA in 2013 to seek exemption from having to pay for or provide contraceptive services for their employees, which runs counter to the Catholic faith. The Supreme Court eventually exempted the ministry in 2016.

Then things got complicated. President Trump issued an executive order in 2018 ordering the Department of Health and Human Services (HHS) to issue a rule exempting religious groups from the mandate.

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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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DISH Network Settles Discrimination Charge for $1.25 Million

DISH Network LLC has agreed to conciliate a disability discrimination charge regarding its online assessment for applicants with the Equal Employment Opportunity Com­mission (EEOC), the federal agency announced today.

DISH Network has agreed to pay $1,250,000 to compensate the original complainant and other aggrieved applicants who claim they were denied an opportunity for employment at DISH Network due to an alleged discriminatory online application process.

In addition to the monetary settlement, DISH Network has agreed that applications will continue to contain a prominent statement regarding the company’s willingness to provide required reason­able accommoda­tions and directions on how to request such accommodations during the application process. DISH Network will also retain outside consultant(s) to conduct a job analysis and validity study, which will evaluate and revise their online assessment to ensure that questions asked on the application relate to the job.

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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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Domino’s Ruling Could Make Websites Susceptible to ADA Lawsuits

The 9th U.S. Circuit Court of Appeals recently ruled that, since it is a place of public accommodations, Domino’s Pizza and its website are required under the Americans with Disabilities Act (ADA) to provide “auxiliary aids and services,” meaning its visual materials must be accessible to visually impaired customers through screen-reading software.

dominos-sued-for-ada-accessibility-on-its-websiteThis week the U.S. Supreme Court refused to take up Domino’s challenge to the ruling, and thus a lawsuit by a blind customer can proceed.

The implications are huge for U.S. companies and their web presences. Domino’s predicted a win by the plaintiff would trigger a “flood of litigation into a tsunami.” (In 2018, there were already more than 10,000 website ADA lawsuits filed.)

In its appeal to the Supreme Court, Domino’s had argued that the 1990 law predates the modern Internet era and thus does not apply to websites and apps.

“Each defendant must figure out how to make every image on its website or app sufficiently accessible to the blind, how to render every video or audio file sufficiently available to the deaf, or how to provide content to those who cannot operate a computer or mobile phone,” the pizza chain had argued. “Businesses and nonprofits must maintain that accessibility as their online content constantly changes and grows through links to other content.”


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 Proposes Tip Credit Rule

The Department of Labor (DOL) announced a proposed rule for tip provisions of the Fair Labor Standards Act (FLSA) implementing provisions of the Consolidated Appropriations Act of 2018 (CAA). The proposal will also codify existing Wage and Hour Division (WHD) guidance into a rule.

DOL-proposes-tip-ruleThe CAA prohibits employers from keeping employees’ tips. During the development of those provisions, the department provided technical assistance to Members of Congress.

DOL’s proposed rule would allow employers who do not take a tip credit to establish a tip pool to be shared between workers who receive tips and are paid the full minimum wage and employees that do not traditionally receive tips, such as dishwashers and cooks.

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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 Adopts New ‘Weighting’ System to Guide Inspections

The Occupational Safety and Health Administration (OSHA) announced that it has recently implemented the OSHA Weighting System (OWS) for fiscal year (FY) 2020. OWS will encourage the appropriate allocation of resources to support OSHA’s balanced approach of promoting safe and healthy workplaces, and continue to develop and support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.

workplace-violence-falls-under-general-duty-clauseUnder the current enforcement weighting system, OSHA weights certain inspections based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. OWS recognizes that time is not the only factor to assess when considering the potential impact of an inspection.

Other factors — such as types of hazards inspected and abated, and effective targeting — also influence the impact on workplace safety and health. The new system adds enforcement initiatives such as the Site-Specific Targeting to the weighting system.

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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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Final Rule Published on Drug Testing for UI Benefits

The Department of Labor (DOL) today published a final rule that provides greater clarity and flexibility to states as they identify the occupations for which they will conduct drug testing in the unemployment insurance (UI) program.

dol-proposes-new-overtime-rule“The flexibility offered in the new rule respects state differences with regard to employment drug testing across our country,” said Assistant Secretary for Employment and Training John Pallasch. “This rule lays out a standard that states can individually meet under the facts of their specific economies and practices.”

The rule recognizes states’ diverse situations by permitting (but not requiring) them to test unemployment compensation (UC) applicants for whom suitable work is only available in an occupation where drug testing is regularly conducted. In addition to specific occupations identified in the regulation, states can identify additional occupations where employers conduct drug testing as a standard eligibility requirement for obtaining or maintaining employment in the identified occupation in their state. While the final rule also maintains that any occupation listed in the rescinded 2016 final rule is among those that are drug tested “regularly,” it provides new flexibility to states to also identify such occupations.

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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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McDonald’s Not a Joint Employer, Court Finds

In  a case with potentially sweeping implications for franchise operators everywhere, the 9th U.S. Circuit Court of Appeals — arguably the most liberal in the country — sided today with corporate behemoth McDonald’s against employees claiming it was responsible for what its franchisees did on the wage-and-hour front, ruling that it was not a joint employer.

mcdonalds-faces-strike-over-harassment-claimsThe case traces back several years to the Obama National Labor Relations Board (NLRB), which opined that McDonald’s and other corporate franchisers like it were joint employers with their franchisees, responsible for what those franchisees did vis-a-vis their employees. This official opinion thus turned on its head the longstanding understanding that a corporate entity must have “direct control” over its affiliates in wage-and-hour decisions to be held liable.

In Salazar v. McDonald’s Corp., employees had filed a class action alleging that they were denied overtime premiums, meal and rest breaks, and other benefits in violation of the California Labor Code. Plaintiff class members worked at franchises in the Bay Area operated by the Haynes Family Limited Partnership.

“Although there was arguably evidence suggesting that McDonald’s was aware that [the franchisee] was violating California’s wage-and-hour laws with respect to [the franchisee’s] employees,” the court wrote, “there was no evidence that McDonald’s had the requisite level of control over plaintiffs’ employment to render it a joint employer under applicable California precedents.”

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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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