DOL Takes Rare Budgetary Haircut

President Trump today signed into law a “minibus” federal funding measure that keeps the full government running through Dec. 7 while finalizing budgets for some agencies, including the Department of Labor (DOL), which lost $128 million in budgeting from FY 2018.

In addition to the DOL and its $12.1 billion FY 2019 budget, the National Labor Relations Board (NLRB), Department of Defense (DOD) and Health and Department of Human Services (HHS) were all funded at current or higher levels.

The Trump administration had sought a deeper budget cut for the DOL, targeting it at $10.9 billion, and also a cut for the NLRB from $274 million to $249 million.

The remaining unfunded federal agencies will be kept open through Dec. 7 under terms of the minibus legislation, giving Congress time to agree on budget terms for FY 2019.


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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WeWork Reaches Settlement over Non-Compete Covenants

WeWork, an international company providing co-work office space, has reached a settlement with the New York State Attorney General over its use of non-compete agreements, which forced employees at its locations nationwide to agree not to take employment in any city where WeWork operates for a period of one year following their departure.

wework-reaches-non-compete-settlementThe agreement, reached with WeWork in New York City, frees WeWork employees nationwide from the covenant, which the Attorney General’s Office called “overly broad.”

The settlement leaves in place a less-restrictive non-complete agreement that lasts for only six months and restricts the departed employees from taking jobs within a 15-mile radius of a WeWork facility offering the same type of employment.

The New York state legislature is considering a bill that would ban companies from forcing non-compete agreements on any employee earning less than $75,000 a year.

READ FAQs on NON-COMPETES IN NEW YORK


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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Judge Restores ACA Cost-Sharing Reduction (CSR) Payments

A federal judge has ruled in favor of a Montana health insurer, which brought suit to be paid $5.3 million in cost-sharing reduction (CSR) payments it said was due for 2017 under provisions of the Affordable Care Act (ACA, or Obamacare).

judge-restores-aca-subsidiesPresident Trump ended the reimbursement program a year ago, saying the funds for the CSRs had never been authorized by Congress.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims said the lack of appropriations doesn’t matter.

“The government violated a statutory obligation created by Congress in the Affordable Care Act when it failed to provide Montana Health its full cost-sharing reduction payments for 2017,” Kaplan said, adding that Congress’ failure to appropriate funds does not wipe out the obligation.

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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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Health Care Spending Approaches 20 Percent of GDP

An analysis by the Health Care Cost Institute (HCCI) of nationwide health care spending for enrollees in employer-sponsored insurance plans shows that expenditures rose 44 percent from 2007 to 2016, putting health care on track for a 20-percent slice of Gross Domestic Product (GDP) within 10 years.

health-care-costs-average-4.1-percent-annual-increaseSpending averaged a 4.1-percent annual growth rate during the period, increasing from $3,752 per person in 2007 to $5,394 per person in 2016, according to the report released yesterday and published in Health Affairs. Out-of-pocket expenses also shot up.

About 40 million Americans get their health insurance through work, representing 30 percent of all health care consumers.

“The past decade has been a transformational time in the U.S. health care market with policy changes and innovation disrupting practice models and standards of care,” Niall Brennan, HCCI’s CEO and one of the study’s co-authors, said in a statement. “However, what is remarkable is that even within these dramatic changes, the share of spending across service areas has remained fairly consistent.”

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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 FCRA Disclosure Forms Must Be Used by Sept. 21

The Consumer Financial Protection Bureau (CFPB) has issued an interim final rule updating two model disclosures to reflect changes made to the Fair Credit Reporting Act (FCRA) by recent legislation.

fcra-disclosure-notices-updatedBeginning Friday, Sept. 21, employers and background check agencies must use the new forms or use the forms from 2012 with a sheet attached explaining the information about security freezes detailed in the following paragraphs. The revised forms can be obtained through the link at the end of this post.

In May 2018, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act, which requires nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers. The “national security freeze” restricts prospective lenders from obtaining access to a consumer’s credit report, which makes it harder for identity thieves to open accounts in the consumer’s name.

The Economic Growth, Regulatory Relief, and Consumer Protection Act mandates that whenever the FCRA requires a consumer to receive either the Summary of Consumer Rights or the Summary of Consumer Identity Theft Rights, a notice regarding the new security freeze right also must be included. The Summary of Consumer Rights is a summary of rights to obtain and dispute information in consumer reports and to obtain credit scores. The Summary of Consumer Identity Theft Rights is a summary of rights of identity theft victims. The FCRA requires the bureau to write model forms of these documents. Consumer reporting agencies and other entities can use the bureau’s model forms or their own substantially similar forms.

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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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States See Surge in #MeToo Complaints

Watch Personnel Concepts’ video on Workplace Harassment Investigations.

Some states are seeing an upsurge in sexual harassment complaints as a result of the #MeToo movement, but federal statistics are less conclusive.

some-states-see-rise-in-sexual-harassment-claimsThe Associated Press reported recently that Massachusetts and New York City have seen so many complaints that they’re hiring additional investigative agents. The Connecticut Commission on Human Rights and Opportunities reports that sexual harassment complaints this year are coming in at almost twice the number as last year.

Idaho and Maine also report having trouble keeping up with the level of complaints. Florida, however, reports it has seen no large uptick.

The Equal Employment Opportunity Commission (EEOC), which enforces the nation’s anti-discrimination and harassment protections, earlier this year said there had been no increase in sexual harassment complaints following the birth of the #MeToo movement.

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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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Group Sues to Restore OSHA Electronic Reporting

Public Citizen, a consumer watchdog group, is suing to force the Occupational Safety and Health Administration (OSHA) to restore full electronic injury and illness reporting requirements and collect all data from Forms 301 and Logs 300 that were due July 1.

The electronic submissions from companies with 250 or more employees were part of a rule from the Obama administration, but the current agency on July 30 opened a rule-making commentary period, which closes Sept. 28, to rework the rule. In the meantime, it suspended the reporting requirement on all but the basic Form 300a.

Public Citizen, in its suit before the U.S. District Court for the District of Columbia filed Sept. 7, argues that OSHA’s action was “arbitrary and capricious” and ignored the legal process set forth in the Administrative Procedure Act (APA) by suspending the regulation’s requirements before going through a notice-and-commentary process.

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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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Nevada to Exit Healthcare.gov

Nevada, citing lack of consumer choice and availability of data to the state, is exiting the Affordable Care Act (ACA) online exchange — Healthcare.gov — in favor of setting up its own online exchange by 2020.

nevada-to-establish-its-own-aca-exchange

Nevada Exchange Director Heather Korbulic

Other states like Oregon, facing the technical challenge of setting up their own exchange, have gone the opposite route and scurried back to the federal mechanism.

Not Nevada. On Aug. 14, Nevada Heath Link announced a contract with GetInsured, a company that manages health insurance marketplaces in seven other states, to set up the state-run system in Nevada.

“We … believe this is a chance for us to control our own destiny by managing our own marketplace,” Nevada Health Link Executive Director Heather Korbulic explained. “We have seen the limitations that come with working with the [federal system]. There is very little flexibility given to states. Any small change we request to try to tailor the system is almost impossible to accomplish.

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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 Rule Redefines Joint Employer

Instructional materials and posters on the National Labor Relations Act (NLRA) 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.

Following a 3-to-1 vote, the National Labor Relations Board (NLRB) made good on its promise to redefine a joint employer relationship, restoring through a proposed rule the “direct control” principle that the Obama NLRB had loosened to “indirect control.”

NLRB-issues-rule-on-joint-employer-definitionThe Notice of Proposed Rulemaking (NPRM) published Sept. 14 states:

Under the proposed regulation, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.

In announcing the proposed rule, Board Chairman John F. Ring stated, “I look forward to receiving the public’s comments and to working with my colleagues to promulgate a final rule that clarifies the joint-employer standard in a way that promotes meaningful collective bargaining and advances the purposes of the act.”

The NPRM also contains 12 examples of applications of the revised definition. A public commentary period closes Nov. 13.

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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 Begin Joint Employer Rule Process

RELATED: McDonald’s struggles to shed joint employer label

The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) tomorrow (Sept. 14) in the Federal Register regarding its joint-employer standard. Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

nlrb-seeks-overturn-of-Obama-joint-employer-standardAs will be explained in the notice, rulemaking in this important area of the law would foster predictability, consistency and stability in the determination of joint-employer status, according to the board.

The proposed rule reflects the board majority’s initial view, subject to potential revision in response to public comments, that the National Labor Relations Act’s intent is best supported by a joint-employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.

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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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