Client Alerts

Every fall, many employers which sponsor welfare benefit plans start to turn their attention to renewing benefits for the upcoming year. As a result, the open enrollment season provides the perfect opportunity to ensure certain welfare benefit legal requirements are kept up to speed: plan documents and summary plan descriptions; annual notices; and nondiscrimination testing.

On August 31, 2015, EPA proposed a rule pursuant to the Resource Conservation and Recovery Act (RCRA) to create new management standards for discarded pharmaceuticals which are regulated as hazardous wastes. The rule will apply to pharmacies, hospitals, doctors’ offices and other health care facilities as well as reverse distributors and treatment, storage and disposal facilities that handle hazardous pharmaceuticals.

Antidumping and countervailing duty petitions are a powerful weapon for U.S. industries that find themselves materially injured by dumped or subsidized imports This was illustrated most recently on August 10th, when the US Department of Commerce issued a final order imposing countervailing duties on certain Passenger Vehicle and Light Truck Tires (“PVLT Tires”) imported from China1.

Question: Is the Department of Labor going to make more employees eligible for overtime premium pay?

Answer: Yes. The DOL has proposed revised Fair Labor Standards Act regulations that would convert many employees who are currently “exempt” under the executive, administrative, and professional (EAP) exemptions into “non-exempt” employees.

In December 2012, the State of Michigan enacted separate right-to-work statutes for the private sector, Public Act 348, and the public sector, Public Act 349. Michigan became the 24th right-to-work state at that time. Since then, labor unions have filed lawsuits to invalidate the right-to-work statutes.

Valuation discounts are commonly used in business planning. When transferring an interest in a corporation, LLC or partnership, the value of such interest can be discounted if it is a minority interest in the business or if there are any restrictions imposed on the owner in making subsequent transfers of the interest in the business. In the context of estate planning, valuation discounts play an important role in limiting the value of amounts transferred to family members through gift or sales transactions when using family LLCs or family limited partnerships.

The Michigan Court of Appeals in Pransky v. Falcon Group Inc. held that under Michigan’s Uniform Securities Act, MCL 451.2101 et seq. (“Securities Act”), finders, as defined in the Securities Act, are not required to register with the state as a “broker-dealer,” “agent” or “investment advisor.” While the Pransky Court seems to give finders a reason to rejoice, finders should remain wary since the holding in Pransky is severely limited by the facts of the case. Further, at the federal level, the Securities and Exchange Commission (“SEC”) has maintained its position that transaction-based compensation, the most typical compensation arrangement for finders, is a hallmark of broker-dealer status.

On July 28, 2015, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), will publish the third 6-month extension of its moratorium freezing enrollment of new Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The initial moratorium was effective January 30, 2014 and extended an additional 6 months in July 2014 and again in January 2015. A similar moratorium has been in place for HHAs in areas surrounding Chicago and Miami since July 2013.

Technological innovation and the world of connectivity are moving rapidly, leaving legislators and proposed legislation far behind. The “Internet of Things”—from smart refrigerators to gadgets that sit aside our foreheads and zap us to be restful or alert—includes our increasingly “smart” cars. Automobiles are now mobile devices capable of transmitting and receiving data, whether running or not. Whether a component manufacturer to an EOM or a digital provider streaming content into the vehicle, you are now on notice: new concerns surround vehicle hacking that may put drivers—and vehicle suppliers—at risk.

The Equal Employment Opportunity Commission has issued a formal decision in a federal sector case finding that discrimination based on sexual orientation is a form of illegal “sex discrimination” under Title VII of the Civil Rights Act of 1964. The case, Complainant v. Foxx, E.E.O.C., No. 0120133080, issued July 16, 2015, found that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.” Title VII applies to employers with 15 or more employees.

On June 26, 2015, the U.S. Supreme Court decided the landmark case of Obergefell v. Hodges. The case involved whether the Constitution requires a state to issue a marriage license to two people of the same sex and must recognize a same-sex marriage performed out-of-state. The Court held that “same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold-and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Thus, the Court has ruled that same sex marriage is now legal in all states. Given that Michigan previously banned same-sex marriage, this ruling will impact HR administration moving forward.

Within a one week time period, two different decisions, issued by two different governing entities, reached two different conclusions as to whether the tribal entity was subject to the National Labor Relations Act (“NLRA”). We will address each of these decisions in chronological order.

In June 2015, the Occupational Safety and Health Administration (OSHA) published the Guide to Restroom Access for Transgender Workers setting forth the “core principle” that all employees, “including transgender employees, should have access to restrooms that correspond to their gender identify.” In other words, if a company employed Caitlyn Jenner, it would have to allow her to use the women’s restroom.

These days businesses large and small are grappling with the thorny issue of whether they need to buy insurance against data breaches and other kinds of “cyber liability,” and, if so, what type of coverage to buy—and with what coverage limits. That task will be further complicated by inevitable judicial decisions interpreting new and unfamiliar language in cyber policies. The first round of those cases are beginning to land in court, giving insurance lawyers an inkling of the type of coverage disputes likely to emerge from this relatively new type of coverage.

The US Supreme Court Weighs In

Vacating the Federal Circuit’s judgment and remanding for further proceedings, the US Supreme Court held (6-2) that a defendant’s good faith belief that a patent is invalid is not a defense to induced infringement.

The Americans with Disabilities Act (“ADA”) generally prohibits employers from making disability-related inquiries or requiring medical examinations. A common exception to that general prohibition permits voluntary medical examinations as part of an employee health program. The Equal Employment Opportunity Commission (“EEOC”) recently issued a proposed update to its regulations regarding employer wellness programs. The EEOC’s proposed rule addresses: (1) the extent to which employers may offer incentives to employees to participate in wellness programs; and (2) whether employers that comply with regulations implementing the Health Insurance Portability and Accountability Act (“HIPAA”) will also be in compliance with the ADA.

Speaking at the annual Health Care Compliance Association (HCCA) Compliance Institute on Monday, April 20, 2015, Department of Health & Human Services (HHS) Inspector General Daniel Levinson announced the issuance of a new tool for healthcare boards, entitled Practical Guidance for Health Care Governing Boards on Compliance Oversight, a collaborative effort of HHS, the American Health Lawyers Association, the Association of Healthcare Internal Auditors and HCCA.

Starting in 2019, MACRA (the “Act”) creates incentives to pay physicians based on performance rewarding doctors who hit quality targets and whose patients get healthier. The Act also provides a 0.5% increase on physician Medicare fees over the next four (4) years. Congress passed and the President has signed the Act . The Act repeals the former Sustainable Growth Rate (SGR) formula for physician reimbursement and replaces it with a new approach to Medicare physician payments. Details on this fix to physician reimbursement are sketchy, so regulations will be needed to provide the details. The AMA and AARP both supported the permanent elimination of the SGR which never worked, and had been temporarily “fixed” or delayed many times over the years.

Congress just returned Monday. Much has happened this past week.

Delaware corporations have a new weapon in their arsenal of contract provisions relating to dispute resolution – the Delaware Rapid Arbitration Act.