NLRB Extends Commentary Time on Election Rule Reconsideration

To aid in the consideration of the issues involving the 2014 Election Rule, the National Labor Relations Board (NLRB) is further extending the time for filing responses to the Request for Information Regarding Representation Election Regulations published in the Federal Register.

nlrb-extends-comment-period-on-representative electionsThe submission window is currently open and interested parties may file responses on or before Wednesday, April 18, 2018. The original submission deadline was Monday, Feb. 12, 2017, which was initially extended to Monday, March 19, 2018.

On Dec.14, 2017, the National Labor Relations Board published a Request for Information in the Federal Register, asking for public input regarding the Board’s 2014 Election Rule, which modified the Board’s representation-election procedures located at 29 CFR parts 101 and 102.

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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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Another Appeals Court Says Civil Rights Act Protects LGBT Rights

In two weeks’ time, two U.S. circuit courts of appeal — the 2nd and the 6th — have ruled that the Civil Rights Act of 1964’s provision against discrimination based on sex includes protection for gender identity.

eeoc-wins-first-sexual-orientation-discrimination-lawsuitThe 6th ruled March 7 in favor of a male funeral director who was fired when he told his employer that he was going to begin presenting himself as a female. The employer argued that his religious faith would not abide by someone’s changing his birth gender, but the court rejected that argument on the grounds that a funeral home is a secular business.

The case being reviewed was EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., and in rendering its ruling, the three-judge panel unanimously overturned a district court that had issued a summary judgment in favor of the employer, who claimed he had the right to dismiss the defendant, Aimee Stephens, because of the Religious Freedom Restoration Act (RFRA).

The district court actually determined that there was “direct evidence to support a claim of employment discrimination” on the basis of sex in violation of Title VII, but nevertheless dismissed the suit, accepting the funeral home’s argument that the RFRA applied

The 6th circuit, however, rejected the RFRA argument and concluded that “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align,” and thus “[t]here is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity[.]”

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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 Blocks Idaho’s Attempt to Circumvent Obamacare

The Centers for Medicare and Medicaid (CMS) yesterday stepped in to void Idaho’s attempt to sell health insurance policies that do not meet the standards of the Affordable Care Act (ACA).

Idaho-non-aca-health-plans-nixedCMS Administrator Seema Verma sent a letter to Idaho Gov. C.L. “Butch” Otter, a Republican, and Idaho Department of Insurance Director Dean Cameron saying that the ACA remains the law and that her agency has a duty to enforce it.

Enforcement, she wrote, could force her agency to void the state insurance department of its power to regulate and fine insurance companies $100 per day for each individual covered under a non-ACA policy.

Though blocking the state’s attempt to market less expensive policies, Verma voiced sympathy for the effort. “As you know, the Patient Protection and Affordable Care Act (PPACA) is failing to deliver quality health care options to the American people and has damaged health insurance markets across the nation, including Idaho’s,” Verma wrote. She noted that rates in Idaho, post-ACA, have risen 91 percent.

Verma also suggested that, “with certain modifications,” Idaho’s proposal might be acceptable. saying the state could meaningfully implement many of the same goals legally through short-term, limited-duration plans. The administration recently issued a proposed rule looking to expand such plans and allow consumers to buy short-term plans for a full year rather than the current limit of three months.

Separately, at a health insurance conference, Health and Human Services (HHS) Secretary Alex Azar voiced support for alternative health plans.

“More broadly, we are committed to using the flexibilities we have within the law to allow insurers to offer competitive products that work for consumers,” Azar said. “We know the layers of regulation imposed by the Affordable Care Act have made this almost impossible. Consistent with the law, we want to work with you to open up new affordable and flexible options.”

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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 Launches Voluntary FLSA Violations Reconciliation System

The Wage and Hour Division (WHD) of the Department of Labor (DOL)  has announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA).

DOL-launches-voluntary-FLSA-violation-reporting-programThe program’s primary objectives are to resolve such claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

The WHD offered a rather lengthy explanation to employers:

The Division will not impose penalties or liquidated damages to finalize a settlement for employers who choose to participate in the PAID program and proactively work with the Division to fix and resolve their potential compensation errors. Employers may not participate in the PAID program if they are in litigation or currently under investigation by the Division for the practices at issue. Employers likewise cannot use the pilot program repeatedly to resolve the same potential violations, as this program is designed to identify and correct potentially non-compliant practices. Settlements will be limited in scope to only the potential violations at issue. The program further requires employers to review the Division’s compliance assistance materials, carefully audit their pay practices, and agree to correct the pay practices at issue going forward. These requirements improve the employers’ compliance with their minimum wage and overtime obligations, which helps ensure employees’ rights are protected.

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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 Administration Argues for States’ Rights — in Collecting Online Taxes

The Supreme Court is reviewing a case stemming from South Dakota in which that state is demanding that web merchants pay sales tax for any transaction with its residents. A 1992 ruling imposed a “physical presence” limitation that let web retailers evade state taxes unless they physically operated in the taxing state.

trump-admin-proposes-internet-sales-tax-for-all-statesAnd surprise, surprise (or not) — the Trump administration, which just lowered taxes across the board, is in favor of letting states collect taxes from any sales made to people living within their borders.

The case in question, South Dakota v. Wayfair, will be heard on April 17. In preparation for that, the administration sent the court a brief by Solicitor General Noel Francisco, which argues: “In light of Internet retailers’ pervasive and continuous virtual presence in the states where their websites are accessible, the states have ample authority to require those retailers to collect state sales taxes owed by their customers.”

Allowing some out-of-state etailers to avoid collecting sales taxes further “imposes a competitive disadvantage on in-state retailers and encourages the state’s citizens to take their business elsewhere,” the breif continues.

Online retailers Wayfair Inc., Overstock.com Inc. and Newegg Inc. are opposing South Dakota in the court fight, saying Congress should set the rules for online taxes.

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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 Delays Enforcement of New Beryllium Standard

The Occupational Safety and Health Administration (OSHA) is delaying from March 12 to May 11 implementation of the new beryllium exposure standard, which was released in the final days of the Obama administration.

Trump-OSHA-delays-beryllium-ruleBeryllium is used in the aerospace, electronics, energy, telecommunication, medical and defense industries. Beryllium dust, a byproduct of the processing of the substance, is highly toxic and adversely affects the lungs. Workers in foundry and smelting operations, fabricating, machining, grinding beryllium metal and alloys, beryllium oxide ceramics manufacturing and dental lab work represent the majority of at-risk workers.

Therefore, the now-delayed standard restricts exposure to beryllium in certain industries from the previous level of 2.0 micrograms per cubic meter to 0.2 micrograms per cubic meter during an eight-hour period. It also limits short-term exposure to 2.0 micrograms over a maximum of 15 minutes.

In a statement regarding the delay of implementation, OSHA stated:

In January 2017, OSHA issued new comprehensive health standards addressing exposure to beryllium in all industries. In response to feedback from stakeholders, the agency is considering technical updates to the January 2017 general industry standard, which will clarify and simplify compliance with requirements. OSHA will also begin enforcing on May 11, 2018, the new lower 8-hour permissible exposure limit (PEL) and short-term (15-minute) exposure limit (STEL) for construction and shipyard industries.  In the interim, if an employer fails to meet the new PEL or STEL, OSHA will inform the employer of the exposure levels and offer assistance to assure understanding and compliance.

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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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DOJ Launches Initiative on Sexual Harassment in the Public Sector

The Civil Rights Division of the Department of Justice (DOJ) has announced a second initiative to combat sexual harassment — the Sexual Harassment in the Workplace Initiative (SHWI)                 focuses on workplace sexual harassment in the public sector.

justice-department-launches-sexual-harassment-initiativeThe Justice Department’s Civil Rights Division enforces Title VII of the Civil Rights Act of 1964 against state and local government employers. The law prohibits discrimination in employment on the basis of race, color, national origin, sex, and religion. Sexual harassment is among the conduct prohibited by the law because it is a form of sex discrimination.

The Justice Department also announced its first enforcement action brought under the SHWI. The department will file a lawsuit against the City of Houston, alleging that the Houston Fire Department (HFD) discriminated against two female firefighters on the basis of sex in violation of Title VII when it allowed them to be subjected to sexual harassment in the workplace.

As part of the initiative, the DOJ will continue to bring sex discrimination claims against state and local government employers with a renewed emphasis on sexual harassment charges. The department will also work to develop effective remedial measures that can be used to hold public sector employers accountable where Title VII violations have been found, including identifying changes to existing employer practices and policies that will result in safe work environments.

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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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HIPAA Violations Don’t End with the Closing of a Business, OCR Says

A receiver appointed to liquidate the assets of Filefax, Inc. has agreed to pay $100,000 out of the receivership estate to the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) in order to settle potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.

$100,000-hipaa-settlementFilefax, located in Northbrook, Ill., advertised that it provided for the storage, maintenance, and delivery of medical records for covered entities. Although Filefax shut its doors during the course of OCR’s investigation into alleged HIPAA violations, it could not escape its obligations under the law.

On Feb. 10, 2015, OCR received an anonymous complaint alleging that an individual transported medical records obtained from Filefax to a shredding and recycling facility to sell on February 6 and 9, 2015. OCR opened an investigation, which confirmed that an individual had left medical records of approximately 2,150 patients at the shredding and recycling facility, and that these medical records contained patients’ protected health information (PHI).

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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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Joint Employer Standard at Stake in NLRB Ethics Dilemma

The National Labor Relations Board (NLRB), Republican-controlled, faces a quandary now that its inspector general has ruled that member William Emanuel should not have voted in a decision that reversed the Obama-era “indirect control” joint employer standard. As a result, that standard remains standing much to the chagrin of the GOP members.

nlrb-seeks-overturn-of-Obama-joint-employer-standardThe “indirect control” standard — meaning corporations like McDonald’s could be held liable for wage, hour and labor violations by its franchisees — was the result of the Obama’s NLRB ruling in Browning-Ferris, a case in which Emanuel’s previous law firm had been involved.

Later, the Trump NLRB reversed that standard in a case known as Hy-Brand, with Emanuel casting one of the three majority votes. The inspector general, however, ruled his vote unethical because of his previous firm’s involvement in Browning-Ferris, so the board threw out Hy-Brand, leaving “indirect control” as the reigning standard.

Browning-Ferris was still under review by the D.C. Circuit Court of Appeals when the Hy-Brand decision was announced, so the Trump NLRB asked the court to forget its review. Now, in another reversal, the NLRB on Thursday asked the court to resume its review.

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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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Notice of Small HIPAA Breaches from 2017 Due Today

Official notifications of HIPAA breaches affecting fewer than 500 individuals are due today at the Department of Health and Human Services (HHS). Notices should be posted using the HHS website reporting tool. The Office for Civil Rights (OCR) within HHS handles breach oversight.

A HIPAA breach is defined as “impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information (PHI).”

HIPAA-breach-notifications-are-dueThe affected individuals were to have received their personal notices within 60 days of the breach.

The applicable HIPAA regulation (45 CFR 164.408(c)) provides:

For breaches of unsecured protected health information involving less than 500 individuals, a covered entity shall maintain a log or other documentation of such breaches and, not later than 60 days after the end of each calendar year, provide the notification required by paragraph (a) of this section for breaches discovered during the preceding calendar year, in the manner specified on the HHS web site.

Breaches affecting 500 or more individuals must be reported to HHS within 60 days and also must be reported to the media within the same time-frame.

In August 2016, HHS sent out a memo for regional offices to investigate smaller breaches, which had previously taken a back seat to over-500 breaches, writing “each office will increase its efforts to identify and obtain corrective action to address entity and systemic noncompliance related to these [smaller] breaches.”

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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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