DOL to Push Overtime Rulemaking Back into 2019

In its latest regulatory agenda, the Department of Labor (DOL) confirms that its effort at creating a new overtime rule to replace the one now under a nationwide injunction is being pushed into 2019 from its original October 2018 deadline.

fifth-circuit-court-rejects-fiduciary-ruleIn late November 2015, a federal district judge put a temporary hold on the Obama administration’s effort to raise the overtime salary threshold to $47,476 a year, up from $23,660. The next year, the same judge made the injunction permanent. The Obama DOL appealed. When President Trump took over, the DOL did not withdraw the appeal but let the 5th Circuit Court of Appeals place it on hold.

The Trump DOL wants to raise the salary threshold but not as high as the Obama threshold, so it has asked the Circuit Court to clarify if it has the power to use salary as a qualifier in matters of who’s eligible for overtime pay.

That effort is now taking longer than originally anticipated.

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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 Tackle Joint Employer Rulemaking

In its latest regulatory agenda, the National Labor Relations Board (NLRB) has indicated that it intends to take on defining the standard for determining a joint employer relationship through rulemaking. This effort follows the board’s failed attempt to redefine the joint employer relationship in a case — Hy-Brand — that it had to withdraw because of a member’s conflict of interests.

nlrb-seeks-overturn-of-Obama-joint-employer-standard“Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today,” explains NLRB Chairman John F. Ring.

“The current uncertainty over the standard to be applied in determining joint-employer status under the [National Labor Relations] Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”

The current standard, stemming from the Obama era, is called “indirect control.”

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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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California Supreme Court Ruling Could Roil the Gig Economy

When is a worker an employee and when is a worker an independent contractor? The California Supreme Court answered with verve in saying that a worker is an employee until definitively proven otherwise.

california-supreme-court-defines-employeeIn its recent Dynamex decision, the court ruled that a worker is an employee when the following three conditions exist:

  • The entity exercises control over the individual’s hours, wages, or working conditions.
  • The entity “suffers,” or permits, the individual to work.
  • The entity engages the individual, thereby creating a common law employment relationship.

Further, the court posited the “ABC Test” in determining a worker’s status; to wit, all workers in California are presumed to be employees under the test. To prove otherwise, the hiring entity must establish the following:

  1. That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. That the worker performs work that is outside the usual course of the hiring entity’s business.
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

The court gave examples: A plumber doing a one-time repair job for a business is an independent contractor, while a seamstress working at home making dresses for a clothing manufacturer using that company’s designs and materials is an 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 Announces Agency’s First Rural Health Strategy

Today, the Centers for Medicare & Medicaid Services (CMS) released the agency’s first Rural Health Strategy intended to provide a proactive approach on healthcare issues to ensure that the nearly one in five individuals who live in rural America have access to high quality, affordable healthcare.

cms-sets-rural-health-strategy“For the first time, CMS is organizing and focusing our efforts to apply a rural lens to the vision and work of the agency,” said CMS Administrator Seema Verma. “The Rural Health Strategy supports CMS’ goal of putting patients first. Through its implementation and our continued stakeholder engagement, this strategy will enhance the positive impacts CMS policies have on beneficiaries who live in rural areas.”

The agency-wide Rural Health Strategy, built on input from rural providers and beneficiaries, focuses on five objectives to achieve the agency’s vision for rural health:

  • Apply a rural lens to CMS programs and policies
  • Improve access to care through provider engagement and support
  • Advance telehealth and telemedicine
  • Empower patients in rural communities to make decisions about their healthcare
  • Leverage partnerships to achieve the goals of the CMS Rural Health Strategy

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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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ACA Calorie Count Mandate for Chain Restaurants Takes Effect

After years of delay, an Affordable Care  (ACA) Act rule requiring chain restaurants to label the calories in each item on their menu — and to provide sodium and other nutritional data on request — goes in effect today, May 7.

Though some large restaurant chains have been posting calorie counts for years, and while some states are already enforcing a similar mandate, the rule’s implementation may still take a while, as the FDA (Food and Drug Administration) says it will educate rather than enforce for the first year of the mandate.

FDA Commissioner Scott Gottlieb, M.D., an early critic of the ACA, nonetheless likes the rule. “This is a meaningful, incremental step in addressing” the country’s obesity epidemic, he says.

A statement by Gottlieb on the FDA website says of the rule:

Consumers walking into eating establishments covered under the rule will know how many calories are in the foods they may want to order. This includes establishments that are chains with 20 or more locations doing business under the same name that offer substantially the same menu items consisting of restaurant-type foods. Consumers can also ask these establishments for additional nutritional information — provided, for example, as a booklet, handout or in electronic form — that includes the amount of sodium, fiber, sugars, total carbohydrates, saturated fat and protein for any standard menu item.

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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 Draws Line in Sand on Medicaid Caps

Seema Verna, administrator of the Centers for Medicare and Medicaid Services (CMS), today rejected a request by the state of Kansas to cap an individual’s Medicaid benefits at three years.

cms-loosens-rules-on-ACA-policies

CMS Administrator Seema Verna

In a letter to Kansas officials, Verna noted that only if Medicaid recipients refused to meet any work requirements would it be possible to cut people off from Medicaid.

“In every case, these incentive structures are designed to engage beneficiaries in ways that promote positive health and well-being,” she wrote.

“We seek to create a pathway out of poverty, but we also understand that people’s circumstances change, and we must ensure that our programs are sustainable and available to them when they need and qualify for them.”

Arizona and Utah are also seeking permission to place hard caps on Medicaid eligibility.

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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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DOL Issues Instructions on Enforcing Fiduciary Rule Following Court’s Vacating It

Today, the Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) concerning the fiduciary — or conflict of interest — rule vacated by the 5th U.S. Circuit Court of Appeals in March and becoming effective this week.

dol-reissues-flsa-opinion-lettersThe department had previously announced a grace field for enforcement dating from the implementation of the rule in June 2017 through July 1, 2019, and today’s FAB further solidifies that policy:

… [F]or the period from June 9, 2017, until after regulations or exemptions or other administrative guidance has been issued, the Department will not pursue prohibited transactions claims against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions” spelled forth in the original DOL fiduciary rule.

The DOL had until April 30 to appeal the decision but declined to do so, meaning that today the U.S. Court of Appeals for the 5th Circuit is expected to issue a mandate “effectuating its opinion vacating the entire fiduciary rule, the [best-interest contract] exemption, the principal transactions exemption (PTE), and related amendments to existing PTEs,” according to the Employee Benefits Security Administration (EBSA) wing of the department.

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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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House Farm Bill Contains Funds for Rural Association Health Plans

Tucked inside the massive House farm bill now under consideration is a measure to help fund rural association health plans to the tune of $65 million over four years, to be doled out at the secretary of Agriculture’s discretion.

Under the bill, starting next year, the secretary  could grant up to 10 loans of no more than $15 million each to existing associations whose members are ranchers, farmers or other agribusinesses.

The House farm bill contains funding for rural health care associations.

The Trump administration has been pushing association health plans as a means to lower insurance premiums for consumers as an outside-of-Obamacare option.

These associations at first blush might appear to be second cousins to an early effort by the Affordable Care Act (ACA, or Obamacare) to provide alternatives to the big insurers.

When the ACA first burst upon the scene in 2014, the measure funded 23 health care cooperatives, but those organizations quickly ran into trouble for a variety of reasons, including cost and lack of administrative experience. Now, almost five years later, only three co-ops remain — the Maine Community Health Options, the Montana Health Cooperative and Wisconsin’s Common Ground Healthcare Cooperative.

“The lesson of the co-ops is that insurance is a tricky business,” Dan Mendelson, chief executive of Avalere Health, told the Washington Post. “Just like you wouldn’t ask your cousin to do brain surgery on you, you probably wouldn’t ask your cousin to underwrite your health risk.”

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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 Issues Direct Final Rule on Beryllium Standard

The Occupational Safety and Health Administration (OSHA) today issued a direct final rule (DFR) clarifying aspects of the beryllium standard for general industry as it applies to processes, operations, or areas where workers may be exposed to materials containing less than 0.1% beryllium by weight.

The DFR clarifies the definitions of Beryllium Work Area, emergency, dermal contact, and beryllium contamination.  It also clarifies provisions for disposal and recycling, and provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight.

The direct final rule will become effective on July 4, 2018, unless the agency receives significant adverse comments by June 4, 2018.

The DFR states:

This DFR amends the text of the beryllium standard for general industry to clarify OSHA’s intent with respect to certain terms in the standard, including the definition of Beryllium Work Area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. It also clarifies OSHA’s intent with respect to provisions for disposal and recycling and with respect to provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight.


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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National Safety Stand-Down Begins Monday

The Occupational Safety and Health Administration (OSHA) will hold its annual National Safety Stand-Down to Prevent Falls May 7-11. The event encourages companies and workers to pause during the workday for topical discussions, safety demonstrations, and training in hazard recognition and fall prevention.

OSHA-stand-down-begins-May-7-2018Deputy Secretary of Labor Patrick Pizzella will attend a national kick-off event on May 7 at the newly constructed DC United Audi Field Stadium, where experts will talk about the importance of fall prevention, demonstrate proper fall arrest systems, and encourage workers to participate in training.

The lack of proper fall protection is the most frequently cited OSHA violation. Stand-downs provide employers and workers the opportunity to talk about hazards, protective methods, and the company’s safety policies, goals, and expectations.

To guide nationwide and international efforts, the agency’s Stand-Down webpage offers information on conducting a successful event, and educational resources in English and Spanish. Employers are encouraged to provide feedback after their events, and to obtain a personalized certificate of participation.

Organizations supporting and participating in the event include the National Institute for Occupational Safety and Health; Center for Construction Research and Training; National Occupational Research Agenda; OSHA-approved State Plans; state consultation programs; American Society of Safety Engineers; National Safety Council; National Construction Safety Executives; U.S. Air Force; and the OSHA Training Institute Education Centers, among many more. (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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