New Overtime Rule Reportedly Sent to White House

The long-anticipated rewrite of the Obama-era overtime rule has been submitted to the White House and its Office of Management and Budget (OMB) for review prior to the issuance of a Notice of Proposed Rulemaking (NPRM), it has been reported.

dol-proposes-new-overtime-ruleThis Trump-era rule is expected to set the salary threshold at which employees can be considered exempt from overtime pay at somewhere in the mid-$30,000s-a-year. The previous rule raised the bar all the way to $47,476 annually, but it was given the kibosh by a federal district judge.

Interestingly, that rule is still under review by the 5th U.S. Circuit Court of Appeals in New Orleans, and could become law. The issuance of a new NPRM would thwart that possibility.

Observers of the Department of Labor (DOL), where the proposed rule would originate, expect the NPRM to be released sometime in March, which would open a 90-day window for review by OMB. (There is no timetable for the draft proposal sent recently to the White House.) A March release would be in keeping with the DOL’s latest regulatory agenda.

The current exemption threshold is $23,660 annually, which was established in the first term of the George W. Bush presidency. The threshold, and other overtime rules regarding work responsibilities and overtime exemption, spring from the Fair Labor Standards Act (FLSA) of 1938, also known as the Wagner Act.


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 City Tries the San Francisco Solution — and More

New York City Mayor Bill de Blasio is rolling out an initiative — with a promised $100 million-a-year investment — to guarantee all residents of his city access to health care. He calls it NYC Care.

What he envisions is not single-payer, or even a health insurance scheme, but a copycat version of the San Francisco solution — let everyone use the city’s public health facilities and pay only what they can afford. The mayor spoke of a graduated payment schedule but released no details.

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NYC Mayor de Blasio guarantees health care for all residents

“From this moment on in New York City everyone is guaranteed the right to health care,” the mayor said Tuesday (Jan. 8). “We are saying the word guarantee because we can make it happen.”

The city, with funding from the state, operates 70 public health clinics and 11 hospitals. De Blasio is chipping in $100 million from the city’s treasury for the first year of operations, but the public health care system is already on financial life-support. Two years ago the city budget office reported that the system faced a $6 billion shortfall through 2020.

San Francisco launched its model program 10 years ago, and a 2011 report touted the initiative’s success: Three-fourths of the participants visited a doctor in their first year of enrollment; visits to the emergency room correspondingly declined; and there was also a drop in preventable hospitalizations for the uninsured, according to Vox.

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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 Judges Division Issues Revised Bench Book for 2019

The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces an earlier version issued in January 2018.  The new January 2019 edition contains citations to numerous additional board and court decisions and other authorities.  It also contains several new sections, including sections addressing compliance/backpay proceedings and consolidated unfair labor practice (ULP) and representation cases. In addition, certain sections have been substantially reorganized, including those addressing privileged or protected material.

supreme-court-to-hear-adea-caseLike the 2018 edition, the new 2019 edition was edited by NLRB Administrative Law Judge (ALJ) Jeffrey Wedekind and contains a Foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.  As discussed in the Foreword, the basic sources that govern board ULP hearings are the National Labor Relations Act (NLRA), the Administrative Procedure Act (APA), the Board’s Rules and Regulations and Statements of Procedure, and Board decisions.

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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 Down to Two Members

Victoria Lipnic

The controversial renomination of Chai Feldblum to the Equal Employment Opportunity Commission (EEOC) died at noon on Jan. 3 as one Congress exited and another commenced. So too did the nominations of Daniel Gade and Janet Dhillon, leaving the 2019 board without a quorum. (Reportedly, Gade had already withdrawn his name for consideration prior to the expiration date.)

Sen. Mike Lee (R.-Utah) in early December placed a hold on Feldblum’s vote based on his disapproval of some of her views. The hold also applied to Gade and Dhillon since the three were nominated as a package.

“What a wonderful almost nine-year run I have had!” Feldblum wrote on Facebook as her term expired. “I will always be grateful for the wonderful colleagues I have served with on the commission. Thank you to everyone who worked so hard for my confirmation. We certainly gave it our best shot. Now is the time to fight even harder for diversity, safety, and equity. There is no other way!”

Feldblum joined the EEOC in April 2010. Victoria A. Lipnic, acting chair, and Charlotte A. Burrows are the only two active members left on the commission.


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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Blue State AGs Appeal Obamacare Ruling

Attorneys General from 16 Democrat-leaning states and the District of Columbia have filed an appeal to overturn U.S. District Judge Reed O’Conner’s Dec. 14 ruling that the Affordable Care Act (ACA, or Obamacare) is unconstitutional now that the individual mandate “tax” has been eliminated.

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5th U.S. Circuit Court of Appeals West Courtroom

California Attorney General Javier Becerra, leading the charge, claimed  the ruling is “reckless,” “ludicrous” and based on a “flimsy” legal theory.

At a White House Cabinet meeting the same day, President Trump declared, “That case from Texas should win in the Supreme Court.”

The appeal comes just days after Judge O’Conner on Sunday ruled that the ACA should stay in legal effect while the appeals process plays out.

Thursday’s legal action consisted of a one-paragraph notice of appeal filed with the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Judge O’Conner’s court in Ft. Worth, Texas. By all accounts, the 5th circuit court is a bastion of conservatism, so the case could well end up before the Supreme Court, as President Trump declared.


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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Judge Stays His Obamacare Ruling While Appeals Take Place

U.S. District Judge Reed O’Connor on Sunday put a stay on his ruling that the Affordable Care Act (ACA, or Obamacare) is unconstitutional while appeals are being prepared and heard.

aca-unconstitutional-ruling-on-holdThe Ft. Worth-based judge issued his ruling on Dec. 14, the day before the 2019 open enrollment season was to end. The decision was based on a lawsuit by 20 Republican-leaning states that argued the ACA was no longer constitutional now that the individual mandate’s tax penalty has been essentially removed.

That contention, which was argued against by attorneys general from Blue States, was based on the last-minute flip-flop by Supreme Court Chief Justice John Roberts in 2012, who used the argument that because the mandate was a tax, the overall law was constitutional.

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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 Unable to Reclaim $1B in False Obamacare Subsidy Claims

Some 87 percent of Obamacare participants receive subsidies to offset the premiums for their health insurance, with the total of subsidies claimed — based on applicants’ stated income while applying — running at $27 billion a year. In the latest accounting, $3.7 billion of that outlay was based on false or outdated claims, of which only $2.7 billion has been recovered.

But it’s not all the fault of the Internal Revenue Service (IRS), which is responsible for auditing the tax-based subsidies. The authors of the Affordable Care Act (ACA, or Obamacare) set limits on how much the IRS was allowed to claw back from subsidized policyholders, for fear that too much IRS interference might sink the entire health care program.

In 2017 the government paid $5.8 billion in overages and had to leave $3.5 billion on the table by law. So, the 2018 statistics just released by the inspector general show a bit of an improvement.

The Trump Department of Health and Human Services (HHS) has vowed to come up with a rule to thwart cheating on Obamacare applications but has yet to issue anything concrete.


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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Obama-Era Joint Employer Ruling Nixed by D.C. Appeals Court

The joint employment ruling issued by the Obama National Labor Relations Board (NLRB) has been struck down by the D.C. Circuit Court of Appeals on grounds that the 2015 Browning-Ferris decision failed to adequately define “indirect control.”

nlrb-joint-employer-issueThat decision, which the Trump NLRB has vowed to reverse and rewrite, said that, if a corporation or franchisor had even indirect control over the employment decisions of its affiliates or franchisees, then it would be responsible for those decisions as a joint employer. The ruling turned on its head the longstanding direct control standard, whereby the head company could be held liable only if it exercised direct policy- and decision-making.

The D.C. court did not, however, rule the indirect standard absolutely invalid, but sent it back to the NLRB for a more concise definition. The ruling was issued on a 2-1 vote by the court.

The current NLRB, as has been noted, does not agree with the indirect control definition and has already issued a Notice of Proposed Rulemaking (NPRM) to restore the direct control standard.


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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On This Day, Nixon Signs OSHA into Law in 1970

On Dec. 29, 1970, President Richard Nixon signed enabling legislation, the result of months of negotiation and compromise, that created the Occupational Safety and Health Administration (OSHA), the National Institute for Occupational Safety and Health (NIOSH), and the Democrats’ dream plank, the “general duty clause.”

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Richard Nixon

Unlike his predecessor, Lyndon Johnson, Nixon favored a research and advisory agency to look into workplace safety. House and Senate Democrats, however, introduced LBJ-like legislation that would create an enforcement agency, OSHA. Republicans pushed back with legislation for a research/advisory agency, NIOSH.

Not content just with creating an enforcement arm, however, House Democrats pushed for, and won, the inclusion of a “general duty clause” in the Occupational Safety and Health Act. That clause gave OSHA wide latitude both in interpreting workplace safety rules but also in enforcing them as well.

In essence, the Democrats allowed Republicans to create their advisory agency in exchange for inclusion of the general duty clause in legislation for their baby, OSHA.

The two agencies came into existence on April 28, 1971.


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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Oregon Leads Push for State-Run Retirement Plans

California, Illinois and Oregon are all actively rolling out state-run retirement plans that businesses can offer their employees without the expense of hiring a plan administrator and paying the many fees associated with running such plans. And now Oregon is leading the drive to convince other states to introduce similar programs.

The OregonSaves program mandates that, by May 2020, all businesses in the state offer some form of a retirement savings plan, whether private or run by the state.

“We want to do everything in Oregon to make sure that other states have this opportunity,” Michael Parker, executive director of the Oregon Savings Program, said.

So far, some 40 states have introduced legislation for state-sponsored plans, with 10 of them — along with the City of Seattle — already becoming operational. California, Illinois and Oregon are already enrolling employers –and employees — to get their plans under way.

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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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