NLRB Launches Pilot Program to Expand Use of Alternative Dispute Resolution System

Today, the National Labor Relations Board (NLRB) announced it is launching a new pilot program to enhance the use of its Alternative Dispute Resolution (ADR) program. The new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.

nlrb-seeks-overturn-of-Obama-joint-employer-standardUnder the new pilot program, the Board’s Office of the Executive Secretary will proactively engage parties with cases pending before the board to determine whether their cases are appropriate for inclusion in the ADR program. Parties may also contact the Office of the Executive Secretary and request that their case be placed in the ADR program. There are no charged fees or expenses for using the program.

Allowing parties greater control over the outcome of their cases, the NLRB’s ADR program can provide parties with more creative, flexible and customized settlements of their disputes. In addition to savings in time and money, parties who use the ADR program can broaden their resolution options, making the program particularly useful for cases where traditional settlement negotiations have been unsuccessful.

Participation in the ADR program is voluntary, and a party who enters into settlement discussions under the program may withdraw from participation at any time. A full description of the Board’s ADR program can be found on the Agency’s public website.


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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ACA Risk-Adjusted Payments Halted after Judge’s Ruling

UPDATE: On Tuesday, July 24, the Trump administration restored the risk-adjusted payments to prevent “chaos” in the health insurance market.

Risk-adjusted payments, a principal component of the Affordable Care Act (ACA, or Obamacare) that seeks to level the playing field among insurers, have been put on hold by the Centers for Medicare and Medicaid Services (CMS) following a judge’s ruling that found the plank “capricious and arbitrary.”

cms-proclaims-obamacare-death-spiralThe payments are designed to take profits from insurers who end up with more low-risk policyholders and share them with insurers who end up with more high-risk (older, sicker) policyholders. At stake are $104 billion from 2017.

“We were disappointed by the court’s recent ruling,” CMS Administrator Seema Verma said in a statement. “As a result of this litigation, billions of dollars in risk adjustment payments and collections are now on hold. CMS has asked the court to reconsider its ruling, and hopes for a prompt resolution that allows CMS to prevent more adverse impacts on Americans who receive their insurance in the individual and small group markets.”

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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 Preparing to Send 2016 Obamacare Penalty Notices

Even as many applicable large employers (ALEs) grapple with Employer Shared Responsibility Penalty (ESRP) letters from 2015, the Internal Revenue Service (IRS) is preparing to issue more such letters — known as Letter 226-J — for 2015, with still more coming later this year for 2016.

IRS-offers-small-business-SHOP-reliefStill down the road later this year, the agency is prepared to go after individual taxpayers who received subsidies on Affordable Care Act (ACA, or Obamacare) policies that they weren’t qualified for. Such subsidies are based on an “honor system” by which the policyholder lists his projected income for the year.

Employers have 30 days to dispute an ESRP claim by filing Form 14764. After IRS review, the contesting employer will receive one of five letters, depending on the progression of the appeal:

  • Letter 227-J is a simple acknowledgment that Form 14764 has been received.
  • Letter 227-K will inform the employer that the IRS was wrong in its assessment and no penalty is owed.
  • Letter 227-L indicates that the employer was partially correct but still owes a portion of the assessment.
  • Letter 227-M is a blanket rejection, leaving the employer with no choice but to pay the fine or dispute the assessment further during a hearing with the IRS.
  • Letter 227-N is issued after an in-person hearing has been held and affirms the results of that hearing, whether positive or negative.

As of June, the IRS had issued more than 30,000 ESRP claims totaling some $4.3 billion in penalties, with more letters for 2015 still to be issued, along with an upcoming Letter 226-J onslaught for 2016.


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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Paid Family Leave to Get Senate Committee Hearing

Even with the endorsement of the president in his State of the Union address, First Daughter Ivanka Trump’s paid family leave proposal seemed dead on arrival, but after working with Sen. Marco Rubio (R.-Fla.) and others, Ivanka has convinced enough people in the Senate to schedule a hearing on July 11.

The Senate Committee on Finance — whose members include paid-leave advocates Republican Sen. Joni Ernst and Democratic Sen. Kirsten Gillibrand — will take up the measure.

Proponents are hoping to win over reluctant GOPers, typically averse to raising taxes or loading expenses on employers by the financing component of the proposal: Those taking paid leave would be able to borrow from their social security accounts, whose retirement use dates would then be pushed back by the amount of time spent on leave. This would presumably also sidetrack the requirements of Family and Medical Leave Act (FMLA) leave, such as the need to work in a company with at least 50 employees.

“Providing a national guaranteed paid-leave program — with a reasonable time limit and benefit cap — isn’t an entitlement, it’s an investment in America’s working families,” Ivanka wrote in an opinion piece in the Wall Street Journal in July 2017.

Resistance now rests on the fear that paid leave would further weaken the social security trust fund. Regardless, Sen. Rubio has vowed to introduce legislation perhaps only days after the hearing is completed.

Six states and the District of Columbia already have paid family leave legislation on the books.


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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The National Labor Relations Act (NLRA) Turns 83 Today

On this day (July 5) in 1935, President Franklin D. Roosevelt signed into law the National Labor Relations Act (NLRA), which in turn created the ever-present National Labor Relations Board (NLRB) to oversee employee rights in the workplace.

Franklin D. Roosevelt

The NLRA is also known as the Wagner Act in honor of its principal author and sponsor, Sen. Richard Wagner of New York

According to the NLRB website, the NLRA was enacted “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

Republicans and business groups were almost unanimously opposed to the legislation, which to them reeked of “socialism.” Scores of measures were introduced in Congress to gut the NLRA, but if they ever made it to Roosevelt’s desk, he would veto them without hesitation. Some of the animus was muted in 1937 when the Supreme Court upheld the constitutionality of the act.

It wasn’t until 1947 under a Republican Congress that the NLRA was reined in a bit by the Taft-Hartley Act. The NLRB site explains that “Taft-Hartley defined six additional unfair labor practices, reflecting Congress’ perception that some union conduct also needed correction. The act was amended to protect employees’ rights from these unfair practices by unions.”


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 Proclaims a ‘Death Spiral’ for Unsubsidized Obamacare Policyholders

Though the actual number of open enrollment Obamacare policyholders who paid their premiums the first month rose over 2017 by 3 percent — standing at 10.6 million people for 2018 — those seeking policies who didn’t qualify for subsidies fell by as much as one-third in many states, the Centers for Medicare and Medicaid Services (CMS) said in three reports released this week.

cms-proclaims-obamacare-death-spiral“These reports show that the high price plans on the individual market are unaffordable and forcing unsubsidized middle class consumers to drop coverage,” CMS Administrator Seema Verma said in a statement.

The reports note that Affordable Care Act (ACA) exchange-based premiums rose 21 percent between 2016 and 2017, and as a consequence average monthly enrollment dropped by 10 percent. For those who didn’t qualify for a federal subsidy — known as the Advanced Premium Tax Credit (APTC) — enrollment fell by 20 percent.

“The unsubsidized portion of some state individual markets have clearly entered a death spiral, with unsubsidized enrollment dropping by more than a third in 14 states, including an astonishing 73 percent decline in Arizona,” the agency said.

One of the reports, “The Exchanges Trends Report,” further notes: “Among all currently uninsured participants, the primary reason provided for not having health insurance continues to be that they are unable to afford it because it is too expensive (54 percent). Similar to previous results, about 15 percent of uninsured consumers indicated the reason they do not have insurance is because they are unemployed.”


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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Department of Justice Rescinds 24 Guidance Documents

Attorney General Jeff Sessions today announced that, consistent with his November 2017 memorandum prohibiting the Department of Justice (DOJ) from making rules without following the procedures required by Congress, he is rescinding 24 guidance documents that were unnecessary, outdated, inconsistent with existing law, or otherwise improper.

Attorney General Jeff Sessions

Perhaps most prominent in the documents rescinded were those from the Obama era urging racial quotas in admissions to achieve diversity in higher education.

“The American people deserve to have their voices heard and a government that is accountable to them,” Sessions said. “When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President. In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That’s wrong, and it’s not good government.”

In February 2017, President Donald Trump issued Executive Order 13777, which calls for agencies to establish Regulatory Reform Task Forces, chaired by a Regulatory Reform Officer, to identify existing regulations for potential repeal, replacement, or modification. The Department of Justice Task Force is chaired by Acting Associate Attorney General Jesse Panuccio.

In November 2017, the Attorney General issued a memorandum prohibiting DOJ components from using guidance documents to circumvent the rulemaking process and directed components to identify guidance documents that should be repealed, replaced, or modified.

The Task Force identified 25 guidance documents for repeal in December 2017 and has identified 24 more documents to repeal this month.  The Task Force is continuing its review of existing guidance documents to repeal, replace, or modify.

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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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July 2 Marks 54th Anniversary of Landmark 1964 Civil Rights Act

On July 2, 1964, President Lyndon B. Johnson signed the historic Civil Rights Act, which to this day protects against discrimination in  in employment, education and housing; bars racial segregation in all state-sponsored public places such as schools, buses, parks and swimming pools; and outlaws discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce, exempting only private clubs without defining the term “private.”

Lyndon Johnson in March 1964

With social media only a fantasy at the time, the nation’s three television networks covered the signing live in the East Room of the White House. President Johnson used 80 monogrammed pens to sign the legislation, he gave away as mementos of the historic occasion, in accordance with tradition.

“If government is to serve any purpose, it is to do for others what they are unable to do for themselves,” Johnson proclaimed.

The legislation had been part of John F. Kennedy’s platform when he successfully ran for president in 1960. Following Kennedy’s assassination in 1963, Johnson made civil rights a priority of his new administration, but the act had to endure an 88-day filibuster by Southern Democrats to see its way to passage.

The act was declared constitutional by a unanimous vote of the Supreme Court on Dec. 14 of the same year.

The following year saw the enactment of the Voting Rights Act, another landmark piece of legislation.


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 Judge Strikes Down Medicaid Work Requirement in Kentucky

BREAKING NEWS: Kentucky on July 2 eliminated vision and dental benefits from its Medicaid program in response to a judge’s striking down of its work requirement.

Amid the heightened tensions in the nation’s capital over filling a vacant Supreme Court seat, a federal judge has struck down Kentucky’s Medicaid requirement that the able-bodied must work, perform public service, or undertake job training to qualify for the medical services — an issue that could easily land before a reconfigured high court next year.

judge-blocks-cms-work-requirement-for-medicaidThree other states are eyeing a similar requirement, which the Trump administration green-lighted earlier this year. Meanwhile, the Kentucky governor, Republican Matt Bevin, says he will end the program if the work requirement is voided.

The state’s top health official, Adam Meier, sounded less drastic, saying that if the new rule could not be quickly implemented, “we will have no choice but to make significant benefit reductions.”

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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 on the Move Against I-9 Worksite Violations

Instructional materials, checklists and guidebooks on the I-9 verification process 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.

Immigration and Customs Enforcement (ICE) has been in the news lately but not for the main issue that employers need to be concerned with: the I-9 Verification Form and any immigration violations it may be concealing.

Already this past year, one company was fined a whopping $95 million for abusing the I-9 process, deliberately concealing true identities in order to hire undocumented workers. The ICE Acting Director, Thomas Homan, vowed earlier this year to double, triple or even quadruple I-9 worksite investigations. He’s kept his word.

From Oct. 1, 2017, through May 4, ICE and its worksite wing, Homeland Security Investigations (HSI), opened 3,510 on-site investigations, initiated 2,282 I-9 audits and made 594 criminal and 610 administrative worksite-related arrests. All those stats are up significantly year over year compared to FY2017.

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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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