Obamacare Subsidies, Tip-Pooling Wage Theft Out in Federal Budget Deal

BREAKING: The Senate approved the House version in the wee hours of Friday, March 23, and President Trump signed the measure the next day, averting a government shutdown.

The bill funding the federal government through September still faces a stiff deadline of Friday at midnight ET, but at least the details are now becoming clear: The measure excludes any cost sharing reduction (CSR) funds for Obamacare, and it also puts the kibosh on tip-pooling wage theft by restaurant owners.

federal-budget-bill-is-on-tight-scheduleSenators Susan Collins (R.-Me.) and Lamar Alexander (R.-Tenn.) had a proposal to restore the CSRs for health insurance companies under the Affordable Care Act (ACA), but it failed to make it into the sweeping budget measure. The proposal would also have established funds for state reinsurance programs to help offset health care costs for the sickest. (President Trump ended the CSR payments in 2017 but supported the Collins-Alexander effort).

Under a recent proposal by the Department of Labor (DOL) that would allow tip pooling at restaurants, the potential for employer wage theft loomed large, as the language of the proposal would allow them to do as they please with the tips their staff receives, including keeping it for themselves. The budget proposal, however, specifically prevents this:

“An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.”

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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 to Monitor Controlled Substance Prescriptions as Part of Opioid Abuse Program

As part of President Trump’s Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand announced March 19, the Department of Health and Human Services (HHS) will spend $10 billion to help states monitor opioid prescriptions electronically.

opioid-code-a-thon-held-winners-announced

Coders at work for HHS opioid app project.

Part of the proposal would “require states to monitor high-risk billing activity to identify and remediate abnormal prescribing and utilization patterns that may indicate abuse in the Medicaid system,” HHS Secretary Alex Azar told members of Congress this past week

Prescription drug monitoring programs (PDMPs) started at the state level have shown promising results.

After adopting a PDMP, Florida saw a 52 percent drop in deaths from oxycodone overdoses, and Kentucky experienced similar results. Encouraged by these results, Virginia and Missouri have already set in motion their own PDMPs.

According to the Centers for Disease Control (CDC):

Prescription drug monitoring programs (PDMPs) continue to be among the most promising state-level interventions to improve opioid prescribing, inform clinical practice, and protect patients at risk. Although findings are mixed, evaluations of PDMPs have illustrated changes in prescribing behaviors, use of multiple providers by patients, and decreased substance abuse treatment admissions. States have implemented a range of ways to make PDMPs easier to use and access, and these changes have significant potential for ensuring that the utility and promise of PDMPs are realized.

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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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Chipotle Workers Challenge Overtime Rule Injunction — and Now Must Pay

A group of Chipotle workers in New Jersey filed suit to be paid under the Obama overtime rule that raised the exemption threshold to $47,476 a year, and U.S. District Judge Amos Mazzant — who issued a permanent injunction against the rule — wasn’t too pleased. He ordered them to go back to work and pay Chipotle for the company’s legal fees in the case.

chipolte-workers-sue-to-get-overtime-payA little background: Judge Mazzant first temporarily blocked the new overtime rule just days before it was to become effective on Dec. 1, 2016, and then this past August made the injunction permanent on a nationwide basis, saying the Department of Labor (DOL) had overstepped its authority in issuing the overtime rule.

The Chipotle workers argued that the injunction didn’t apply to them because the company they worked for wasn’t part of the original lawsuit upon which Judge Mazzant issued his injunction.

Judge Mazzant wrote: “Respondents sued to enforce the Final Rule in direct violation of the Court’s Order. In doing so, they recklessly disregarded a duty owed to the Court — the long-standing and elementary duty to obey its orders, including a nationwide injunction.” He gave them seven days to drop the lawsuit, return to work, and pay the company’s legal expenses from the suit.

Justin Swartz, a lawyer for the workers in the New Jersey lawsuit, said his camp is evaluating how to proceed. “We respectfully disagree with the ruling and are considering our options,” Swartz told Bloomberg Law in a March 19 email after learning of the judge’s order.


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 Launches Pilot Program to Help Fight Opioid Crisis

Secretary of Labor Alexander Acosta has announced a new National Health Emergency Dislocated Worker Demonstration Grant pilot program to help communities fight the opioid crisis. The Department of Labor (DOL) will initially fund seven to ten pilot programs with awards totaling $21 million. Secretary Acosta made the announcement during a visit to the Maryhaven Stabilization Center in Columbus, Ohio.

dol-announces-opioid-pilot-programThe grants may be used to help provide new skills to workers, including new entrants to the workforce, who have been or are being impacted by the opioid crisis. Additionally, funds may be used for workforce development in professions that address or prevent problems related to opioids in American communities, such as addiction treatment service providers, pain management and therapy service providers, and mental health treatment providers.

“The tragedies of opioid misuse and abuse devastate families and communities, and keep too many Americans out of the workforce,” Secretary Acosta said. “President Trump declared the opioid epidemic a national public health emergency, committing the full resources of his Administration to helping Americans impacted by the crisis. The importance of a job and work in reducing opioid abuse cannot be overstated. The Department of Labor’s grant pilot program will focus on returning individuals impacted by opioids to the workplace.”

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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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New EEOC General Counsel Nominated While Nomination for Chair Still Awaits Senate Action

President Trump’s nomination for chair of the Equal Employment Opportunity Commission (EEOC), Janet Dhillon, is still awaiting Senate action five months after being announced. Now into the mix comes the administration’s nomination for general counsel, Sharon Fast Gustafson.

The general counsel has broad power to decide which legal cases the commission will pursue.

Sharon Fast Gustafson

Sharon Gustafson

Formerly an associate at Jones Day, Gustafson is currently an independent attorney working out of Arlington, Va., and specializing in discrimination and whistleblower cases. She represents mostly employees but has done some work for employers as well. She also works on adoption issues.

Her most high-profile courtroom appearance was in Young v. UPS, a pregnancy discrimination case she argued before the Supreme Court. As a result of that case, employers must now provide pregnant workers with the same accommodations they would for the disabled, a definite employee-friendly result.

The Metropolitan Washington Employment Lawyers Association in 2016 awarded Gustafson “Lawyer of the Year” for her civil rights work, including her advocacy in the Young case, according to the White House’s nomination announcement.

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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 Joint Employer Lawsuit Set to Resume

BREAKING NEWS: A settlement has been reached with McDonald’s stipulating as part of the agreement that it is not a joint employer. An administrative law judge (ALJ) must now approve the deal, which lawyers for the plaintiffs vow to fight.

In a case that could have wide-ranging implications for America’s largest franchisers, McDonald’s Corp. is set to go back to court over allegations of workplace retaliation and wrongful termination at some franchise operations. At stake is the question of whether the corporation is a “joint employer” responsible for the actions of its individual franchisees.

mcdonalds-tries-to-avoid-joint-employer-labelThe case was halted when National Labor Relations Board (NLRB) General Counsel Peter Robb asked the judge for a delay because the definition of joint employer had once again changed, this time in favorable terms to McDonald’s and other franchisers.

In an Obama-era NLRB ruling in the case known as Browning-Ferris, the definition of joint employer was changed from one of direct control to one of indirect control. Under the direct control definition, McDonald’s could argue that it was clearly not a joint employer responsible for localized employment decisions. Under the indirect control definition, that argument loses weight.

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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 Electronic Injury-Illness Reporting Off to a Rocky Start

The Occupational Safety and Health Administration (OSHA) was expecting some 350,000 electronic filings of injury and illness reports (Form 300A) by the Dec. 31, 2017, much-delayed deadline, but instead received only 153,653 filings, according to a report by Bloomberg. On top of that, 60,992 firms that didn’t need to file did so anyway.

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Scott Mugno is still awaiting confirmation by the Senate to be head of OSHA.

The reports, according to a May 2016 OSHA rule, are to be filed by all businesses with 250 or more employees and by any high-hazard business (such as manufacturing or construction) with 20-249 employees, which OSHA estimated to comprise about 350,000 establishments overall, leaving the agency some 200,000 reports short on this first go-round.

The Dec. 31 deadline was for data from 2016. July 1 is the deadline for 2017 data. OSHA has until June 15 to inspect any operation that failed to submit data for 2016.

Form 300A is a summary of all workplace injuries and illnesses occurring in the previous calendar year. Under the new rule, the electronic results would then be published on a dedicated website for all to see, leaving critics to label this a “blame-and-shame” 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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Driven by Drug Costs, Health Care Spending Ratchets Up

The price of health care in the United States shot up 2.2 percent in February compared to 1.6 percent overall annual growth in 2016 and 2017, according to statistics gathered and released by health care consultancy Altarum. The lowest annual growth rate — 1.1 percent — came in 2015.

health-care-spending-rises-due-to-drugsAt the same same, hospital prices rose 3.8 percent, leading Altarum to note:

We are puzzling over this significant jump in hospital prices in recent months based upon the hospital producer price indexes from Bureau of Labor Statistics (BLS). Hospital prices averaged 1.6% growth in 2017, increasing to 3.5% during the first 2 months of 2018. Further, growth has accelerated for each of the three main payers: Medicare, Medicaid, and private health plans.

The company said its statistics also “suggest that national health spending grew by 4.6 percent from its 2016 level,” a rate of growth which it said is “not sustainable.”

The primary cause of the pricing increases stems from prescription drugs, whose prices rose just 1.7 percent in 2016 but 5 percent in 2017, according to Altarum.

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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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Mandatory Retirement Age a No-No Under the ADEA

A Southfield, Mich.-based oral surgery practice will pay $47,000 to settle an age discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the federal agency announced recently.

eeoc-position-on-age-discrimination-ADEAThe EEOC’s lawsuit charged that Professional Endodontics, P.C. violated federal law by firing Karen Ruerat four days after her 65th birthday. According to the EEOC’s lawsuit, Ruerat, who had worked for the company for 37 years, was terminated in January 2016 pursuant to a company policy that required employees to retire at age 65.

This alleged conduct violates the Age Discrimination in Employment Act (ADEA), which protects individuals who are 40 years of age or older from employment discrimination based on age. The EEOC filed suit (EEOC v. Professional Endodontics, P.C., Case No. 4:17-cv-13466) in U.S. District Court for the Eastern District of Michigan after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, in addition to providing for the award of monetary relief to Ruerat, prohibits any similar discrimination in the future and requires Professional Endodontics to provide anti-discrimination training to its employees. The training will include instruction on the practices made unlawful under the ADEA.

“December 2017 marked the 50th anniversary of the ADEA,” said Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office. “Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

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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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Circuit Courts Split on Validity of DOL Fiduciary Rule

The Obama-era Fiduciary Rule, requiring retirement investment advisers to place their clients’ interests first, underwent a mixed week of results in U.S. circuit courts of appeals. A few days ago, the 10th Circuit Court affirmed the rule, and yesterday the 5th Circuit deemed it “arbitrary and capricious” and vacated the rule in toto.

fifth-circuit-court-rejects-fiduciary-ruleThe 5th Circuit’s opinion was a divided one, and the agency issuing the rule — the Department of Labor (DOL) — could seek a full-court opinion (known as en banc) or appeal to the Supreme Court to resolve the split in circuit court opinions.

“Pending further review, the department will not be enforcing the 2016 Fiduciary Rule,” a DOL spokesman told Bloomberg Law.

The Trump DOL this past year, in an early move, already delayed enforcement of the Fiduciary Rule and issued a request for comments  as a preliminary step to rewrite or void the rule entirely.

Simply stated, the rule requires investment advisers to recommend retirement plans that benefit their customers most, rather than those instruments that pay them the highest commission, a somewhat common practice prior to the rule. In essence, the rule would do away with the commission structure entirely and require advisers to work on a fee-only basis.

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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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