The Hopkins Group

Patient-Centered Outcomes Research Institute Funding

2012-05-11T09:23:00.000-05:00

The Internal Revenue Service recently issued a notice of proposed rulemaking about the fee health plans will pay to fund the Patient-Centered Outcomes Research Institute (Institute).

Fully insured plans will have the fee paid by the carrier. Self-insured plans (including some HRA and health FSA plans) must calculate and pay their own fee.

Comments are also requested about the fee calculation and collection. Comments are due July 16, 2012 to the IRS.

As a business owner or executive, please review the information and submit your comments to the IRS. This is your opportunity to speak up about fees you will be required to pay, whether through your company's premiums or directly.

About the Institute:

The Institute helps people make informed health care decisions and improves health care delivery and outcomes, by producing and promoting high integrity, evidenced-based information that comes from research guided by patients, caregivers and the broader health care community. The research is intended to give patients a better understanding of the prevention, treatment and care options available, and the science that supports those options. It is governed by a paid 21-member Board of Governors and will have a staff of 30 employees according to the website’s current staff and open employment opportunities.

The Institute’s research findings cannot influence the Secretary of Health & Human Services determination of coverage, reimbursement or incentive programs unless the process is fully transparent and considers the effect on the population. In addition, the Institute’s findings cannot be the sole basis to allow the Secretary to deny coverage nor will the Institute develop a dollars-per-quality-of-life estimate as a threshold to establish effective or recommended care.

More information about the Institute can be found at their website www.pcori.org

What's wrong with this recruiting ad?

2012-04-20T11:24:00.002-05:00

What follows is not fake. Perhaps whomever wrote it and then posted it on CraigsList wrote is as a joke, but it's a poor one.

While bona fide occupational qualifications can certainly be utilized in the recruiting and hiring process, we hope that companies who have such legitimate requirements would create more professional ads. Since "attractive" was misspelled in their email address, we assume they aren't receiving many replies.

========================================================================

Date: 2012-04-19, 12:09PM CDT
Reply to: see below ^{[Errors when replying to ads?]}

Restaurant seeking a part time sales person. This position is for a VERY attractive female only. Must reply with a full body picture. This position is 10-20 hours a week. Pay is $8 per hour, mileage reimbursemen and $100 bonus for obtaining new vending accounts.

Must have an outgoing personality and the ability to deal with men. The kind of men that would visit redneck heaven and twin peaks.

Job Duties:
obtain catering orders
seek out businesses that have a need for vending machines

Please reply to attrativesales@live.com. Do not reply to this ad. Any response without pictures will not be considered.

Location: Denton Area
Principals only. Recruiters, please don't contact this job poster.
Please, no phone calls about this job!
Please do not contact job poster about other services, products or commercial interests.

PostingID: 2967288440

========================================================================

No NLRB Posting!

2012-04-17T22:42:00.000-05:00

We mentioned just yesterday that the U.S. Court of Appeals for the D.C. Circuit had an opportunity to clarify the disconnect between the two recent District Court opinions (D.C. District Court a few weeks ago and SC District Court on 4/13). They were amazingly swift, releasing a three page decision this morning granting the emergency motion for injunction, pending appeal, and setting oral arguments for September.

This means no posting requirement on or even shortly after the April 30th deadline. Given oral arguments scheduled for September, if the NLRB prevails, we most likely won't see a posting requirement until 2013.

More on the NLRB

2012-04-16T23:30:00.000-05:00

There's a saying here in Texas that if you don't like the weather, go have a cup of coffee. We're beginning to think that litigation surrounding the NLRB's latest rules change as quickly as the weather in Texas.

We posted last week about the U.S. District Court of the District of Columbia's rulings on the NLRB's posting rule. Essentially, the posting requirement was upheld, but sanctions against employers for violating the posting rule were not.

Then on Friday the 13th, the NLRB was dealt a 31-page blow from the U.S. District Court of South Carolina, invalidating the posting rule in its entirety. This was a huge win for the plaintiffs.

So, what happens now you ask? Any of several things: The D.C. Circuit court can approve the first ruling or decline to approve it, which is what is expected. This leaves Judge Norton's ruling standing. Then the NLRB will most likely try to save face by postponing the requirement a few months while pursuing a stay of the ruling.

In conclusion, you simply need to be prepared to follow the NLRB's posting rule on April 30th, but stay tuned, as it may not be necessary to post the notice after all.

NLRB Posting Requirement - Final Deadline?

2012-04-12T13:35:00.000-05:00

The National Labor Relations Board’s (NLRB) new posting requirement was challenged in South Carolina and in the federal district court in Washington, D.C. The federal district court issued its final ruling a few weeks ago:

- essentially all private businesses (there are a few exceptions, based upon annual revenue) are required to post the new notice; this portion was upheld.

- some of the sanctions against employers were voided. The sanction providing that an employer's failure to post the notice extends or "tolls" the NLRA's six-month statute of limitations for filing an unfair labor practice charge, as well as the sanction defining any failure to post the notice as a per se unfair labor practice, were invalidated. The court's reasoning was that these sanctions were an impermissible expansion of the NLRA's scope.

As the employer, you need to:

- print out the Notice – available on the NLRB’s webite at http://www.nlrb.gov/poster

- post the Notice, as required, by April 30, 2012

- develop and communicate a lawful employee relations policy

- train your managers and supervisors on how to lawfully respond to inquiries from their employees

- review existing policies and your Employee Handbook for policies that could result in unfair labor practice charges, such as:

o harassment policies that are too broad and generic that could be “reasonably interpreted” as improperly prohibiting employees from partaking in union organizing

o blanket prohibitions against your employees speaking to the media or broad social media policies that prohibit employees from disparaging an employer on such sites

o confidentiality policies that prohibit employees from discussing their wages with co-workers or outsiders (note that the new NLRB posting expressly advises employees that they have the right to discuss their wages with co-workers and unions)

The NLRB site will also have translations of the Notice available in a number of languages. If 20% or more of your workforce is not proficient in English, then you must post the Notice in that language.

EEOC Charges for 2011

2012-04-03T16:53:00.000-05:00

The EEOC has reported that in 2011 it received a record 99,947 charges of discrimination – up slightly from the 2010 record.

· Employers paid $455.6 million (through enforcement, mediation and litigation); $51 million over 2010.

· The largest number of charges (37.4%) were based on retaliation.

· Race discrimination charges were second highest at 35.4%.

· Race and sex discrimination charges decreased from 2010; disability and age discrimination increased.

For more detailed information: http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

U.S. Supreme Court Hearing Obamacare Arguments

2012-03-28T20:55:00.000-05:00

While the U.S. Supreme Court is currently hearing arguments on the constitutionality of the Patient Protection and Affordable Healthcare Act for the next few days, we still will not have their final opinion until around June of this year.

The 2700+ page Act is caught in a tug of war between the Court's conservative and liberal justices. The conservatives said they thought a decision striking down the law's controversial individual mandate to purchase health insurance means the whole statute should fall with it.

Meanwhile, the court's liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a “wrecking operation." But she looked to be out-voted.

Stay tuned.

NLRB Posting Requirement Stands as of March 2, 2012

2012-03-13T21:26:00.000-05:00

On March 2, 2012, a Washington, D.C., federal judge affirmed the right of the National Labor Relations Board (NLRB) to require both unionized and nonunionized employers to display the poster informing employees of their right to unionize and other rights under the NLRA, effective April 30, 2012. The court's decision follows a challenge filed in the fall of 2011 to the requirement that the notice be posted in all workplaces. In a partial win for employers, the judge invalidated the blanket rule that failing to post would constitute an unfair labor practice and toll the limitations period in unfair labor practice actions. Rather, the court held that the NLRB would be required to make specific findings stemming from the circumstances of a particular case before concluding that a failure to post hindered an employee’s exercise of his/her rights.

Employers should not read this ruling as a free pass to skip posting the notice.

Congress Extends Payroll Tax Cut

2012-02-20T21:21:00.000-06:00

The Tax Relief Act of 2012 now extends the 4.2% social security tax rate for employees through the end of 2012, per Congress. The bill will now go to President Obama for his signature.

Top 10 OSHA Violations for Medical Clinics

2012-02-09T10:07:00.000-06:00

For doctors' offices and clinics, the most frequent citations are listed here. Your take-away is create your policies and plans and train your employees to those. Don't forget to document that training!

failure to implement and maintain an Exposure Control Plan under the BBP standard;
failure to train under the BBP standard;
failure to engineer out hazards/ensure hand washing under BBP standard;
poor housekeeping under the BBP standard;
failure to implement and maintain a written Hazard Communication Program;
failure to make the Hepatitis B vaccination available under the BBP standard;
failure to prepare Exposure Determinations under the BBP standard;
failure to use personal protective equipment under the BBP standard;
failure to provide post exposure Hepatitis B vaccination under the BBP standard; and
failure to train employees under the Hazard Communication standard.

OFCCP Disability Requirements

2012-02-07T21:37:00.000-06:00

The OFCCP extended the comment period on the proposed Section 503 NPRM to February 21, 2012, in response to pressure from Congress and the contractor and disability communities.

2012-01-14T10:28:00.000-06:00

The Wage and Hour Division of the Department of Labor announced a proposal to extend the Fair Labor Standards Act’s (FLSA) minimum wage and overtime regulations to most home care aides. The FLSA currently exempts workers who provide “companionship services” from the minimum wage and overtime requirements. Its proposal would narrow this exemption to cover only workers providing “fellowship” and “protections” duties. Aides providing medically-related, personal care-related or household work would not be exempt.

The deadline for comments is February 27 and you may submit comments at http://www.regulations.gov/#!documentDetail;D=WHD-2011-0003-0001.

IRS Mileage Reimbursements for 2012

2012-01-12T11:14:00.000-06:00

If you haven't seen this info from your accountant yet, the IRS standard mileage reimbursement rates for 2012 are:

$0.555 per mile for the use of a car for business miles driven
$0.23 per mile driven for medical or moving purposes
$0.14 per mile driven in service for a charitable organization

EEOC and High School Diplomas

2012-01-02T16:19:00.000-06:00

Employers are facing yet more uncertainty following the release of an “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC), posted on the Commission's website on December 2, 2011. The letter states an employer’s requirement of a high school diploma, long a standard criterion for screening potential employees, must be “job-related for the position in question and consistent with business necessity" and requiring same might violate the Americans with Disabilities Act (ADA).

The development also has some wondering whether the agency’s advice will result in an educational backlash by creating less of an incentive for some high school students to graduate.

Employers could run afoul of the ADA if their requirement of a high school diploma “ ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ ” the EEOC explained.

The Commission's advice, which does not carry the force of law, is raising alarms among employment-law professionals, who say it could carry far-reaching implications for businesses.

Maria Greco Danaher, a lawyer with the labor and employment law firm Ogletree Deakins, said the EEOC letter means that employers must determine whether job applicants whose learning disabilities kept them from obtaining diplomas can perform the essential job functions, with or without reasonable accommodation. She said the development is “worthy of notice” for employers.

“While an employer is not required to ‘prefer’ a learning-disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards,” she wrote in a blog post.

7th Circuit Determination on Retaliation

2011-12-27T16:50:00.000-06:00

On December 15, 2011, the U.S. Court of Appeals for the Seventh Circuit issued a blow to corporate defendants by determining that retaliation against an employee for reporting alleged criminal activity to law enforcement can constitute a racketeering “predicate act,” resulting in liability under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). DeGuelle v. Camilli, No. 10-2172 (7th Cir. Dec. 15, 2011). This unprecedented decision provides whistleblowers with yet another possible cause of action and expanded remedies.

Under RICO, it is unlawful for an employee of an enterprise engaged in interstate commerce to “conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” which requires the commission of at least two “predicate acts” of racketeering within a span of ten years. In enacting the Sarbanes-Oxley Act (“SOX”) in 2002, Congress added retaliation for “providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense” to the list of statutorily-defined predicate acts. To prove that predicate acts are part of a pattern under RICO, a plaintiff must demonstrate a relationship between the predicate acts and a threat of continuing activity - known as the “continuity plus relationship” test.

NLRB Postpones Implementation of Posting Requirement

2011-12-23T21:55:00.000-06:00

The National Labor Relations Board ("NLRB") has been busy before the end of this year. Besides the new election rules, they have postponed, yet again, the posting requirement for its published rule requiring private sector employers subject to the National Labor Relations Act ("NLRA") to post an official notice informing employees of their rights under the NLRA, and penalizing employers for non-compliance.

The NLRB decided to postpone implementation as a result of a request made by Judge Amy Berman Jackson of the U.S. District Court in connection with a consolidated lawsuit brought by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Fund Inc. which alleges that the NLRB does not have statutory authority to implement such a rule. The NLRB had already postponed implementation from November 14, 2011 until January 31, 2012 because of the litigation.

NLRB Publishes New Election Rules

2011-12-23T12:16:00.000-06:00

The National Labor Relations Board ("NLRB" or "Board") acted quickly to pass new election rules, which will take effect April 30, 2012. Please remember: just because you aren't a union shop, doesn't mean you should ignore this information.

With only days left in the term of NLRB Member Craig Becker, and just a few days before the Christmas holiday, the Board announced that it adopted final rules that will significantly expedite the processing of election petitions filed by unions. The new rules will:

Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation case hearing.
Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
Eliminate a party's right to have the NLRB review a decision by a regional director that directs an election.
Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period.
Eliminate a party's right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.The new rules will reduce the time for processing representation cases that require a hearing by approximately 14 days, which means that elections will be held in roughly the same time as if the parties had stipulated to an election.

Apparently many unions, and even NLRB personnel, claim that employers have abused the current election process by litigating issues merely to delay an election. In their view, many employers, rather than resolving the election issues such as eligibility of the voters and stipulating to the election, often litigate minor issues simply to gain additional time to counter the union's organizing efforts.

In addition to having a quicker election, the new rules will limit an employer's ability to raise issues and, as a consequence, may inhibit the ability to preserve them for judicial review. Although the implementing guidance has not been announced, the new rules give NLRB regional directors and hearing officers significant discretion in determining the issues that can be raised in pre-election hearings. They also give the Board more discretion in deciding what cases to review on appeal.

Although the new rules will not become effective until April 30, 2012, the National Chamber Litigation Center, in conjunction with the Coalition for a Democratic Workplace, filed a lawsuit seeking to enjoin the implementation of the rules. Even with the legal challenges, it is important for you to review your policies and strategies regarding resisting union organizing with the new rules in mind.

New DOT Rules for Commercial Drivers

2011-12-16T11:53:00.000-06:00

Effective on January 3, 2012, a new rule restricts the use of hand-held mobile telephones and devices by drivers of commercial motor vehicles (CMV). This rule was adopted by the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, which are part of the Department of Transportation. It amends both Federal Motor Carrier Safety regulations and Hazardous Materials regulations. The rule restricts CMV drivers from reaching for or holding mobile telephones while operating their vehicles, or pushing more than one button to operate the device.

Please make certain you update your company policies, employee handbook, and conduct training for your CMV drivers.

Wage and Hour Take Center Stage

2011-07-26T22:41:00.000-05:00

The U.S. Department of Labor (DOL) recently announced availability of a new timesheet application enabling your employees to independently track their hours to help determine the wages they are owed. Consequently, if your organization is still relying on manual or outdated timekeeping systems, you now face increased exposure to wage and hour audits and/or lawsuits.