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Preparing for an Increase in I-9 Worksite Enforcement

Ogletree Deakins • November 17, 2017
After reviewing data related to time spent by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit on worksite enforcement, Acting Immigration and Customs Enforcement Director Thomas Homan issued a directive “to increase that [level of enforcement] by four to five times.” A review of Homeland Security Investigations (HSI statistics from the prior administration reveals that the number of employer audits reached a peak in 2013 with 3,127 nationwide, but by 2016, audits had dipped to 1,279 audits (down 59 percent). The ICE directive comes just after an announcement of the largest fine on the I-9 enforcement record, as well as the White House release of President Trump’s interior enforcement principles which include making participation in the now-voluntary E-Verify program mandatory.

Harvey Weinstein and Sexual Harassment Law: “Me Too”

Ogletree Deakins • November 17, 2017
The reports of women who went on the record to accuse Hollywood businessman Harvey Weinstein of sexual harassment, sexual assault, and other abuses, evoked the following recent Twitter message by Alyssa Milano: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” This call to action led thousands to step forward and tell their stories as the #MeToo movement—a campaign started approximately 10 years ago by activist Tarana Burke—gathered momentum and focused the public’s attention on the issue of sexual harassment and sex discrimination.

The New OFCCP Director: Trump Administration to Tap Florida City Attorney

Ogletree Deakins • November 17, 2017
We understand that the Trump administration has chosen Craig E. Leen to serve as senior adviser to U.S. Secretary of Labor Alexander Acosta. Leen, who until recently was the city attorney for Coral Gables, Florida, is anticipated to be the next director of the Office of Federal Contract Compliance Programs (OFCCP).

Beltway Buzz, November 17, 2017

Ogletree Deakins • November 17, 2017
Tax Bill or Health Bill? It’s Two Bills in One! Caught in a legislative black hole, the Affordable Care Act (ACA) cannot escape efforts to eradicate it—or at least large chunks of it. Late Thursday evening, the Senate Finance Committee passed by a 14 to 12 margin its current tax reform bill, which included—to much surprise—a controversial provision that would repeal the ACA’s individual mandate. Although the Trump administration had been pushing to eliminate the individual mandate for over two weeks, the Senate had until now feared that the politically charged measure might jeopardize passage of the entire tax bill. Supporters of the Senate bill maintain that the more than $300 billion in estimated savings over 10 years will be used to enhance tax cuts to the middle class, while critics charge that the additional savings will instead be funneled into greater tax breaks for the wealthy. Critics also fear that repealing the individual mandate might cause health insurance premiums to rise sharply and overall coverage to drop as younger and healthier Americans decline to enroll. Interestingly, despite early contrary rumors, the bipartisan Alexander-Murray bill, which would retain federal cost-sharing reduction payments to insurers for two years, did not find its way into the current draft of the Senate bill. The full Senate is expected to vote on the bill sometime during the week after Thanksgiving.

Labor Secretary Discusses DOL Priorities During House Committee Hearing

Littler Mendelson, P.C. • November 17, 2017
Labor Secretary Alexander Acosta fielded a range of questions on the DOL's priorities during a November 15 hearing before the House Committee on Education and the Workforce. Although members of the Committee inquired about past, current, and future rulemaking and other Department initiatives, the limited duration of Wednesday's hearing allowed Secretary Acosta to deliver only brief responses. The hearing did, however, provide some insight into the DOL's stance on health care, OSHA enforcement, overtime rulemaking authority, apprenticeship, and other workplace concerns.

Agency Heads Discuss Changes in Regulatory Direction During Federalist Society Panel

Littler Mendelson, P.C. • November 17, 2017
The current leaders of the Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board addressed transitions and regulatory plans at their respective agencies at a November 16 forum. The Federalist Society, a conservative think-tank, sponsored the panel discussion during which the speakers advocated a more common-sense approach to rulemaking, and supported the Trump administration's efforts to rescind or scale back some of the prior administration's more onerous rules.

eLABORate: Fifth Circuit Says Employer Not Liable for Pre-Shift Wait Time Under FLSA

Phelps Dunbar LLP • November 17, 2017
In a decision rendered on November 9, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that an employer was not liable under the Fair Labor Standards Act (“FLSA”) for failing to compensate its employees for pre-shift wait time.

Lessons To Be Learned From The Breach Of Nearly 500,000 Individual Health Records Reported In September 2017

Jackson Lewis P.C. • November 17, 2017
A recent report indicates that nearly 500,000 individual health records were breached in September 2017. This figure is taken from the 39 healthcare data breaches involving more than 500 records that were reported to the Department of Health and Human Services’ Office for Civil Rights in September 2017. Healthcare providers suffered the most breaches with 27 reported incidents, followed by health plans with 10 breaches, and 2 breaches reported by business associates of covered entities. This demonstrates the need for security measures by both HIPAA Covered Entities and Business Associates.

Transportation Department Expands Drug Testing Panel to Include Certain ‘Semi-Synthetic’ Opioids

Jackson Lewis P.C. • November 17, 2017
Employers regulated by the U.S. Department of Transportation (DOT) should revise their drug and alcohol testing policies to conform to new DOT regulations that added four “semi-synthetic” opioid drugs to the DOT drug testing panel. The new regulations go into effect on January 1, 2018.

The Fight for 15: Montgomery County, Maryland, Raises the Bar

Ogletree Deakins • November 17, 2017
Montgomery County, Maryland, has approved Bill 28-17, which increases the countywide minimum wage from $11.50 to $15.00. The nine-member Montgomery County Council voted unanimously in support of the bill on November 7, 2017, and County Executive Isiah Leggett signed the measure into law on November 13, 2017.

Maine’s Governor Vetoes Bill to Regulate Commercial Sales of Marijuana

Ogletree Deakins • November 17, 2017
On November 3, 2017, Maine Governor Paul LePage announced that he had vetoed a bill sent to his desk with tepid support that would have taxed and regulated the commercial sale of recreational marijuana. The veto prolongs a somewhat odd state of affairs in Maine in which Mainers may legally possess and cultivate recreational marijuana for personal use, but the commercial sale of recreational pot has yet to be authorized. Accordingly, so-called “pot shops” have not been allowed to open in the state. In November of 2016, Maine voters approved a recreational marijuana ballot initiative that legalized the possession of up to 2.5 ounces of recreational marijuana by residents 21 years of age or older, as well as the cultivation of up to six adult marijuana plants for personal use. The ballot initiative also approved the commercial sale of recreational marijuana, but Maine’s legislature has yet to allow that to happen.

California Court Rules PAGA Plaintiffs Need Not Assert Injury, or Employer Knowledge, to Collect Penalties for Paystub Violations; Where Do Employers Go From Here?

Littler Mendelson, P.C. • November 17, 2017
A California Court of Appeal dealt another blow to employers in a recent ruling interpreting the state’s Private Attorneys General Act (PAGA). In Lopez v. Friant & Associates, the court considered the proof required for a PAGA plaintiff to succeed on a claim based on underlying violations of Labor Code section 226(a).1 In short, the court held that PAGA plaintiffs asserting such claims need not show that the violation caused “injury” or resulted from “knowing and intentional” conduct, as required for a penalty award under a related Labor Code provision.

Puerto Rico Labor Department Updates Regulations on Payment of Annual (Christmas) Bonus

Jackson Lewis P.C. • November 17, 2017
Employers in Puerto Rico must comply with updated regulations on the payment of the generally required annual bonus to eligible employees. The Puerto Rico Department of Labor (DOL) updated the regulations, effective October 18, 2017, following legislation adopted early in the year.

CDPAP Fiscal Intermediaries Must File an Application for Authorization With DOH or Cease Operations

FordHarrison LLP • November 17, 2017
Executive Summary. On November 1, 2017, the NYS DOH issued its "Application for Fiscal Intermediary Authorization" and implementation guidelines. Significantly, DOH imposed a very short timeframe, stating: "As of November 1, 2017, all existing FIs will have thirty (30) days to submit their FI Authorization application to the Department." If no filing is made, the FI must cease operating under CDPAP. Those who wish to begin operating an FI may also want to file by this date. A copy of the application can be obtained at https://www.health.ny.gov/health_care/medicaid/redesign/mrt_10003.htm
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