NLRB to Reconsider Protections for Foul Language

The National Labor Relations Board (NLRB) on Thursday asked for feedback on exactly when workers’ offensive outbursts become egregious enough to lose the protection of federal labor law, signaling a likely shift from the Obama administration’s expansive view on employees’ rights to express themselves.

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NLRB wants to determine when protected activities go too far.

The request is in reference to a case under the Obama administration. In that case, an administrative law judge (ALJ) and the NLRB ruled that a striking worker was protected under the National Labor Relations Act (NLRA) when he hurled racist slurs at black replacement workers at Cooper Tire.

He shouted at them to ask if they had brought “enough KFC for everybody,” and said he smelled “fried chicken and watermelon.” Cooper Tire fired the employee for his taunt, but the ALJ and NLRB later ordered him restored to work status because his activity was protected.

Section 7 of the NLRA has a provision for “protected, concerted activity,” which affords protections for activities related to collective, work-related issues, such as picketing. The Trump NLRB is now revisiting how broad should those protections be.

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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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Classifying Workers as Independent Contractors Does Not Violate the NLRA, Board Rules

The National Labor Relations Board (NLRB) has ruled that misclassifying workers as independent contractors does not violate the National Labor Relations Act (NLRA).

NLRB-issues-new-strategic-planThe decision came on Aug.29 when the board reviewed the case, Velox Express, Inc. and Jeannie Edge. In 2017, an administrative law judge ruled that Velox Express had violated the NLRA by deeming its employees contractors, thus removing them from the protections — including unionizing — that the NLRA affords employees.

After hearing briefs about the case, the NLRB found that Velox Express had incorrectly labeled its employees as independent contractors, but added that the company did not commit a separate violation by classifying them wrongly. It also found that Velox Express had violated the NLRA by firing a worker (Jeannie Edge) for “raising group complaints” about the classification.

The ruling, however, does not relieve employers of their obligations under the Fair Labor Standards Act (FLSA), workers’ compensation laws,  taxation issues and unemployment compensation if they misclassify employees as independent contractors.


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 First Labor Day: Pride, Chaos and Kegs

On the morning of Sept. 5, 1882, a crowd of spectators filled the sidewalks of lower Manhattan near city hall and along Broadway. They had come early, well before the Labor Day parade marchers, to claim the best vantage points from which to view the first Labor Day parade. A newspaper account of the day described “men on horseback, men wearing regalia, men with society aprons, and men with flags, musical instruments, badges, and all the other paraphernalia of a procession.”

first-labor-day-paradeThe police, wary that a riot would break out, were out in force that morning as well. By 9 a.m., columns of police and club-wielding officers on horseback surrounded city hall.

By 10 a.m., the Grand Marshall of the parade, William McCabe, his aides and their police escort were all in place for the start of the parade. There was only one problem: none of the men had moved. The few marchers that had shown up had no music.

According to McCabe, the spectators began to suggest that he give up the idea of parading, but he was determined to start on time with the few marchers that had shown up. Suddenly, Mathew Maguire of the Central Labor Union of New York (and probably the father of Labor Day) ran across the lawn and told McCabe that two hundred marchers from the Jewelers Union of Newark Two had just crossed the ferry — and they had a band!

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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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Obamacare Rebates Totaling $1 Billion Due by Sept. 30

According to the “medical loss ratio” provision of the Affordable Care Act (ACA, or Obamacare), insurers must rebate excess premiums by Sept. 30 each year. The estimated tab for this fall is approximately $1 billion, according to estimates, as refunds are due for 2016, 2017 and 2018.

obamacare-enrollment-endsThe rebates will average about $200 for an individual and $600 for a family of three, but instead of checks, consumers will receive vouchers for future premiums. Next year, on the eve of the 2020 election, consumers could receive vouchers worth almost $5 billion, according to a report by Bloomberg Law.

Under the ACA’s medical loss ratio requirement, insurers must spend at least 80 percent of premiums in the individual and small group markets on medical claims or quality improvements. If they spend less than that, they must refund the difference to consumers.

In 2017, insurers doled out $706 million. The upcoming refunds reflect huge premium increases that insurers instituted when the Trump administration ended cost-sharing reduction (CSR)  payments and also zeroed out the individual mandate penalty.


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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USCIS Says to Keep Using Expiring Form I-9

While it works to issue a new Form I-9 — “Employment Eligibility Verification” — the United States Citizenship and Immigration Services (USCIS) is urging employees to keep using the current version dated “07/17/17,” which is set to expire on Aug. 31.

form-i-9The agency notes: “We will publish a new edition of this form soon. In the meantime, you may file using the 07/17/17 edition. You can find the edition date at the bottom of the page on the form and instructions.”

Form I-9 is a child of the Immigration Reform and Control Act (IRCA) of 1986 and is designed to verify the eligibility of people to work in the United States. It is required of all employees hired after the enactment of the law. Only those continuously employed since before the legislation was signed are exempt.

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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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Trump Nominates Scalia to Head DOL

President Trump has made official his nomination of Eugene Scalia, a pro-business lawyer and son of the late Supreme Court Justice Antonin Scalia, to become secretary of the Department of Labor (DOL), following the July resignation of Alexander Acosta.

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Eugene Scalia

Scalia, currently a partner at Gibson, Dunn and Crutcher LLP, is “a renowned labor, employment, and regulatory lawyer. He has previously held several positions in the Federal Government,” according to a White House statement. “Scalia is a senior fellow of the Administrative Conference of the United States, a Federal agency that makes recommendations to Congress and the Executive branch on ways to improve agency procedures.”

Acosta, who left amid widespread criticism of his handling of child molestation charges against the late billionaire Jeffrey Epstein while he was a Florida prosecutor, was viewed by many in the White House as moving too slowly on regulatory reform.

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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 Adds File Upload Option for Pay Data Submission

In addition to the web-based portal for the collection of pay and hours worked data for calendar years 2017 and 2018 which opened on July 15, 2019, a data file upload function and validation process is now open, as an alternative data collection method for employers who prefer to utilize data file upload capability. Information regarding the data file upload function is available at https://eeoccomp2.norc.org.

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EEO-1 Pay Data deadline for submission is Sept. 30.

As ordered by the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.), EEO-1 filers must submit Component 2 data for calendar year 2017, in addition to Component 2 data for calendar year 2018, by Sept. 30, 2019.

Employers, including federal contractors, are required to submit Component 2 compensation data for 2017 if they have 100 or more employees during the 2017 workforce snapshot period.

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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 Soften Privacy Restrictions to Aid in Substance Abuse Fight

The Department of Health and Human Services (HHS) has announced proposed changes to the federal regulations governing the confidentiality of patient records created by federally-assisted substance use disorder treatment programs, known as 42 CFR Part 2.

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HHS Secretary Alex Azar

The proposed rule establishes important revisions that support coordinated care among providers that treat substance use disorder (SUD), while maintaining privacy safeguards for patients seeking treatment for SUD. The proposed rule is the first of four regulations that have been identified in HHS’s Regulatory Sprint to Coordinated Care that seeks to promote value-based outcomes for patients by examining federal regulations that impede coordinated care among health providers.

“President Trump has promised Americans a healthcare system that provides affordable, high-quality, patient-centric healthcare — a system that treats you like a person, not a number. But outdated regulations have often stood in the way of delivering that kind of care, and our proposed reforms to 42 CFR Part 2 aim to change that,” said HHS Secretary Alex Azar. “These changes also reflect the high priority that the Trump Administration places on improving the quality and availability of behavioral healthcare, especially as we combat our nation’s crisis of opioid addiction and substance abuse.”

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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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Individual Health Insurance Market Continues Its Decline

From a peak of 18.8 million in 2015  — the first year of Obamacare — the number of Americans enrolled in individual marketplace health insurance policies has dropped to 13.7 million, most of the decline stemming from the non-Obamacare exchanges.

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Following the zeroing out in 2019 of the individual mandate penalty — buy insurance or pay a fine — 651,000 enrollees dropped coverage in the private exchanges, while enrollment in Affordable Care Act (ACA, or Obamacare) policies remained fairly stable at 10.6 million.

The figures were released yesterday by the Kaiser Family Foundation, which said its “analysis provides an early look at how the market is working following recent policy changes that some argued would spark dramatic upheaval among consumers who buy their own health insurance either through the Affordable Care Act’s marketplaces or through off-exchange plans..”

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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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Take Me Out to the Courtroom, Arizona Minor Leaguers Vow

The U.S. 9th Circuit Court of Appeals has ruled that minor league baseball players in Arizona can sue for minimum wage under Arizona’s governing laws. The state’s minimum wage is currently $11 an hour, rising to $12 next Jan. 1.

mlb-seeks-exemption-from-FLSAFirst-year minor leaguers are forced to sign a contract that pays them $1,100 a month, excluding the four-week spring training camp that runs each year in February and March.

The Uniform Player’s Contract that all minor leaguers sign binds them for seven years unless they quit, get released or earn a spot on a major league roster. Salaries can rise, and many of the players get signing bonuses.

Judge Richard Paez, writing for the majority, said that the contract “strongly indicates” that participation in spring training is mandatory, even though the players are not paid. He also cited the use of post-season instructional leagues, where minor leaguers are often assigned for additional training — but again with no pay.

Major League Baseball (MLB) has long argued that their players are exempt from the wage and hour requirements of the Fair Labor Standards Act (FLSA), citing the law’s “seasonal amusement” exemption.

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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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