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U.S. DOL Issues NPR Implementing New $15 an Hour Federal Contractor Minimum Wage

22 Jul 2021 00:00:00 -0800

Today the U.S. Department of Labor issued a Notice of Proposed Rulemaking (you can find it here https://public-inspection.federalregister.gov/2021-15348.pdf ) that establishes standards to enforce President Biden’s Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors”.

EO 14026 and the DOL Rules will directly impact federal contractors in several ways:

Effective January 30, 2022, the minimum wage for workers on covered federal contracts will increase to $15 per hour,
Ensure that disabled workers on federal contracts receive at least $15 an hour,
By 2024 eliminate the tipped minimum wage for federal contract workers, and
The federal contract minimum wage will be indexed to inflation.

As a comparison, the current federal contract minimum wage is $10.95 per hour.

Since several Democrat state Attorneys General have brought criminal charges against Federal Contractors for what would have previously been classified as innocent mistakes, Federal Contactors must make doubly sure that they are complying with all Rules and Regulations regarding the compensation of workers on these types of projects.

An Overview of the New Rural Emergency Hospital Medicare Designation

22 Jul 2021 00:00:00 -0800

Over 135 rural hospitals have closed since 2010 with hundreds more identified as vulnerable based on performance levels. Despite the challenge’s rural facilities face, access to emergency services and higher-level outpatient services are necessary. A new model for rural hospitals developed by Congress aims to provide an alternative model for these hospitals.

Beginning in 2023, the Centers for Medicare & Medicaid Services (CMS) will offer a new Rural Emergency Hospital (REH) Medicare designation to facilities. This designation will be available to current Critical Access Hospitals (CAHs) and rural Prospective Payment System hospitals with fever than 50 beds. These facilities must increase their outpatient services and decrease their inpatient care – with the goal of achieving financial stability by maintain critical services for patients while reducing costly inpatient care.

Using this designation, REHs can furnish outpatient services, including around-the-clock emergency care, observation, nursing facility services and ambulances—but not inpatient services. Because they are getting rid of inpatient care, REHs must have transfer agreements with regional Level 1 or Level 2 trauma centers.

Hospitals that opt for this designation will receive a Medicare outpatient rate that is 5% higher than what “full service” hospitals receive and will receive a monthly facility payment.

Rural hospitals will have to consider whether there is a need in their community for inpatient services or whether this new REH model will be enough for the community.

Construct the Deal: NCAA Student Athletes Officially Allowed to Profit from their Name, Image, and Likeness

20 Jul 2021 00:00:00 -0800

Imagine a world where a construction company was able to hire Myles Brennan, the starting quarterback for LSU, to star in a commercial advertising the business. This world has become a reality and as of July 1, 2021, NCAA college athletes are officially allowed to profit from their Name, Image, and Likeness (“NIL”). On June 30, 2021, the NCAA governing bodies adopted a uniform interim policy to suspend the current rules prohibiting student-athletes from profiting from their NIL. This means that all college athletes will have the opportunity to enter into endorsement deals, make appearances, and be compensated for other business endeavors that they previously were prohibited from profiting from. The NCAA interim policy provides the following:

Student-athletes can engage in NIL activities that are consistent with the law of the state where the school is located.
Student-athletes who attend a school in a state without an NIL law can engage in NIL activities without violating NCAA rules related to name, image and likeness.
Student athletes can use a professional services provider for NIL activities, such as a lawyer or agent, to assist with NIL deals.
Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.

The interim policy will remain in place while the NCAA members work with Congress to adopt uniform federal legislation.

This means that a construction company can now hire a student-athlete to appear in marketing campaigns, make appearances, make posts on social media, and participate in other advertising and endorsement deals for the company.

It is important to note that while student athletes can be compensated for NIL activities, that student athletes cannot accept pay-for-play offers or other improper inducements. The current NCAA rules that prohibit pay-for-play remain in effect.

Construction companies in the state of Louisiana should pay attention to the details of the Louisiana NIL Bill, Senate Bill 60, which was signed into law in July. The bill allows student-athletes to profit from their NIL but also places limitations on the types of deals student-athletes can enter into, such as a prohibition on deals involving alcohol and gambling.

Allowing student athletes to profit from their NIL endeavors has been a long-awaited change and is monumental for student athletes, universities, and businesses seeking to utilize student-athletes for marketing and endorsement deals. Construction companies should take advantage of these NIL rule changes enter into marketing and endorsement deals with student-athletes. The attorneys at BSW have been following the development of the NIL rule changes and are able to assist with any matters relating to NIL.

HHS Releases New Requirements Related to Surprise Billing

20 Jul 2021 00:00:00 -0800

On July 1, 2021, the Department of Health and Human Services (HHS) released an interim final rule that aims to give patients additional protections from surprise medical bills. Specifically, the interim rule established protections from “surprise billing and excessive cost-sharing” for consumers receiving health care items and services. It also prohibits out-of-network charges for ancillary services without advance notice. The initial round of regulations applies to group health plans, health insurance issuers, health care providers and facilities, air ambulance services, among others. Most of the consumer protections included in the interim final rule take effect on January 1, 2022.

In addition to the protections for emergency services, the rule protects people from excessive out- of-pocket costs by limiting the cost sharing for out-of-network service to in-network levels. The rule will also require that any cost sharing for these services count towards in-network deductibles and out-of-pocket maximums, and even prohibits balance billing in certain circumstances.

The surprise billing protections generally apply if you get your insurance coverage through your employer, which includes the federal, state and local government, from the federal or state-based marketplaces, or an individual market health insurance issuer. This rule does not apply to those with coverage through Medicare, Medicaid, Veterans Affairs, TRICARE, or Indian Health Services, as these programs already have rules that prohibit balance billing. More information is available at: https://www.cms.gov/newsroom/fact-sheets/what-you-need-know-about-biden-harris-administrations-actions-prevent-surprise-billing

Energy Consumption Data During the Pandemic Year Reveals China's Growth

15 Jul 2021 00:00:00 -0800

2020 is a year that most people would likely soon forget, both in terms of personal impacts and the overall economic downturn caused by the pandemic. While it hopefully will prove to be an anomaly, economic and energy usage data and statistics from 2020 still provide some useful insights and glimpses of future issues. BP recently released its annual Statistical Review of World Energy, covering through the end of 2020.

The report notes that global primary energy consumption was down 4.5 percent and global carbon emissions were down 6.3 percent, which are the largest decreases in both metrics since World War II. Primary energy consumption was down about 12 percent in India, 8 percent in the US, and 5.5 percent in Russia. China, on the other hand, saw a 2.1 percent increase in energy consumption from 2019.

Although declines in use were noted for coal and natural gas, oil had the sharpest decline in global consumption: 9.1 million barrels per day, or 9.3 per cent. The decline is the largest ever seen and accounts for about three-quarters of the total decline in energy consumption. Oil demand fell the most in the US (2.3 million barrels per day), followed by the decline in the European Union of 1.5 million barrels per day. China saw an increase in oil consumption of 220,000 barrels per day.

Patterns in coal production and consumption are also interesting. Both production and consumption of coal in the US has dropped dramatically since 2010. In 2020, the US had 23 percent of the world’s proven coal reserves but accounted for only 6.7 percent of the world’s production and only 6.1 percent of the world’s consumption. These figures suggest that the US is currently exporting quite a bit of coal. It is likely going to China.

China’s production of coal has risen dramatically since 2010 and now accounts for over 50 percent of the world’s production. It is also a voracious consumer of coal, accounting for over 54 percent of the world’s consumption. India is no laggard either, accounting for over 11 percent of the world’s consumption.

Not surprisingly, the US, China, and India are also major emitters of carbon dioxide. However, US emissions have steadily dropped since 2010, mainly due to fuel switching to natural gas. By way of contrast, emissions from China and India have steadily grown. China’s emissions in 2010 were 8,145 million tons, growing to 9,899 million tons in 2020, accounting for over 30 percent of the global carbon dioxide emissions in 2020. Indeed, China’s carbon dioxide emissions actually increased from 2019 by a little less than one percent. India’s emissions in 2010 were 1,652 million tons, growing to 2,302 million tons in 2020, accounting for over 7 percent of the global carbon dioxide emissions in 2020.

The BP report also notes that the rate of decline in global carbon emissions observed in 2020 (6.3 percent) is similar to what the world needs to average each and every year for the next 30 years to be on track to meet the goals of the Paris Agreement. If carbon emission did decline by that much each year, global carbon emissions would decline by around 85 percent by 2050, which is consistent with keeping warming below 1.5 degree Celsius.

Of course, entire nations shut down their economies in 2020, leading to the carbon emission decline. It is somewhat unlikely that similar global shutdowns will occur every year for the next thirty years, especially while China increases its energy consumption, suggesting that achieving the carbon goals may prove elusive. It seems clear, though, that addressing carbon dioxide emissions will have to involve decreases from China and India, who show no signs of relenting their pursuit of coal and other fossil fuel energy.

EEOC Issues Guidance Addressing Discrimination Against Transgender Employees

13 Jul 2021 00:00:00 -0800

The EEOC has issued a “technical assistance document” addressing employment discrimination based on sexual orientation or gender identity. You can find the document here: https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender .

The EEOC made clear in the guidance that employers may not discriminate against, or segregate employees based upon perceived or actual customer preference. This applies to both actual sexual preference and transgender status as well as the fact that an employee may not conform to stereotypes related to their biological sex.

The EEOC also clarified that while employers may provide separate bathrooms and locker rooms for men and women, transgender men must be allowed to use the men’s facilities and transgender women must be allowed to use the women’s facilities.

The EEOC also explained that the use of pronouns or names inconsistent with an employee’s gender identity could constitute unlawful harassment “in certain circumstances.” However, “although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”

Keep in mind that this guidance does not have the force and effect of law, and it has been publicly criticized by several states Attorneys General, including Jeff Landry.

The new guidance sheds little light on the applicability of these requirements to religious employers with sincerely held beliefs about human sexuality but notes that “courts and the EEOC consider and apply, on a case-by-case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”

Although non-binding (and harshly criticized by 21 state attorneys general), the guidance augurs in favor of additional employee and supervisor training, particularly with respect to preferred pronoun usage.

President Biden Has Not Banned Non-compete Agreements, But It Looks like He Wants To

13 Jul 2021 00:00:00 -0800

President Biden recently issued an Executive Order “Promoting Competition in the American Economy”. The EO does not ban or limit the use of non-compete agreements. But, it does direct the Federal Trade Commission (FTC) to pursue a rulemaking process that could ban or severely restrict the use of noncompete agreements as a matter of federal law.

You may recall that in 2020 the FTC held public workshops regarding the use of noncompete agreements. Although several meetings were held and papers were written, no action was taken to enact a specific rule or statue.

Unfortunately, it appears as if the challenge to an employer’s ability to use voluntary non-compete agreements may be under a more direct and realistic threat this time. President Biden has been harshly critical of noncompete agreements and has taken the position that they should be banned, or at least heavily restricted. For example, President Biden’s campaign website declared, “As president, Biden will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.”

President Biden’s EO establishes a White House Competition Council to coordinate, promote and advance seventy-two (72) different initiatives to “tackle some of the most pressing competition problems across our economy.” The Chair of the FTC will be part of the Council and is specifically “encouraged to consider work with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

It is far from assured that either the White House or the FTC will have the authority to effectively issue regulations curtailing the use of non-competes. Any action that they take will almost certainly be the subject of legal challenge. However, it appears certain that they are going to try.

Relevant Bills of the 2021 Regular Legislative Session

08 Jul 2021 00:00:00 -0800

This past Regular Session of the Louisiana Legislature has resulted in several new laws that will impact the HR professional. I have included a quick rundown of the most significant of those laws below.

House Bill 459, now Act 474: Amends LSA-R.S. 23:1660 and alters the way that employers must file information with the LWC, such as contribution and wage reports.

House Bill 707, now Act 406: Enacts LSA-R.S. 23:291.2. This new law will preclude employers in most circumstances from requesting or considering an applicant’s arrest record or charges that did not result in a conviction if such information was received in the course of a background check. LSA-R.S. 291.1 defines a “background check” as research into the background of a prospective or current employee.

Act 406 further provides that if an employer does consider an applicant’s criminal history, it must make an individual assessment of whether the applicant’s criminal history has a “direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” The Act specifies three criteria that an employer must consider when making this decision: 1. nature/gravity of the offense; 2. time elapsed since offense/conviction and 3. nature of the job sought. These criteria are very similar to those proposed previously by the EEOC.

House Bill 151, now Act 455: This Act amends LSA-R.S. 23:1711 and increases the penalties for misclassification of an employee as an independent contractor. Act 455 also provides a series of criteria that, if met, create a rebuttable presumption that the worker is an independent contractor rather than an employee.

Senate Bill 215, now Act 393: Amends the state Pregnancy Discrimination Act, LSA-R.S. 23: 341. Act 393 expands an employer’s obligation to accommodate an applicant or employee with limitations caused by pregnancy, childbirth, or related medical conditions such as: making temporary modifications to physical conditions, altering schedules, break and food schedules, policies and transferring the employee to a less demanding position.

In order to refuse a reasonable accommodation, an employer will be required to prove that doing so would impose an undue hardship on its business operations. The Act adopts the definition of “undue hardship” used by the ADA.

Act 393 allows six weeks of protected leave for a “normal pregnancy” and up to four months if the employee is disabled on account of pregnancy, childbirth, or related medical conditions.

Last, Act 393 requires employers to provide new employees and current employees with written notice of their rights under the Act, respectively upon hire and by December 1, 2021. This notice must be posted in the workplace.

Each of these new laws goes into effect on August 1, 2021, so employers should start revising their policies and practices.

EEOC Issues Guidance on Employment Discrimination Based on Sexual Orientation and Gender Identity

07 Jul 2021 00:00:00 -0800

The EEOC recently issued a guidance regarding its current position on Title VII rights in light of the one-year anniversary of the U.S. Supreme Court’s ruling in the trilogy of cases that we commonly refer to as the Bostock ruling. The guidance contains some specific legal truisms that are worth reiterating.

Employers cannot:

· Discriminate against applicants and employees based on sexual orientation or gender identity with respect to any aspect of employment.

· Create or tolerate harassment based on sexual orientation or gender identity by anyone, including customers or clients. This may include intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.

· Allow customer preference to influence employment decisions such as hiring, assignment or work, and compensation.

· Discriminate against an applicant or employee because they do not conform to a sex-based stereotype about feminine or masculine behavior, irrespective of the individual’s sexual orientation or gender identity.

· Require a transgender employee to dress or use a bathroom in accordance with the employee’s sex assigned at birth.

· Retaliate against any employee or applicant for opposing employment conduct that the employee reasonably believes to be discriminatory.

· Discriminate, create, or tolerate harassment against straight or cisgender individuals.

· Prohibit a transgender worker from dressing or presenting consistent with that person’s gender identity, regardless of customer or co-worker preference or bias.

Action items for employers:

· If you have not already done so, revise your employee Handbooks to include these “new” protections.

· Include these protections in your routine harassment/discrimination/retaliation training. (If you do not have a documented training regimen for workers, management and HR staff, start one now.)

· Be sure that managers and HR are aware that they cannot make decisions regarding employment based upon customer or client preference to work with or be served by workers who have a different sexual orientation or gender identity.

These are admittedly evolving, hot-button issues, especially the use of restrooms, some of which the U.S. Supreme Court specifically declined to address in its Bostock ruling. “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.” My bottom-line advice to HR—stay abreast of the current law and EEOC guidance; ensure that your written policies are in compliance; train your people constantly, and consistently apply your written policies.

Management Update Newsletter Volume 10, Issue 7

01 Jul 2021 00:00:00 -0800