On August 3, 2016, the mayor of San Diego signed a new Implementing Ordinance that will provide for several changes to the city’s new paid sick leave law.  As noted in our previous post, the San Diego City Council had considered changing the law shortly after it was passed because the ordinance seemed to create conflicting obligations with the statewide mandate.  For example, while the California Healthy Workplaces, Healthy Families Act of 2014 permits capping annual sick leave accrual and allows employers to avoid carrying over sick leave from one year to the next (under the practice of providing all required hours at the beginning of each calendar year, i.e., the “upfront method”), the San Diego Ordinance did not.  The new amendments, however, address these issues and provide additional clarity for employers seeking to comply with both laws.

Continue Reading San Diego Amends Recent Paid Sick Leave Law

The Securities and Exchange Commission (SEC) recently fined BlueLinx Holdings and Health Net, Inc. for including within severance agreements a provision designed to eliminate a former employee’s right to recover whistleblower incentives. In what is generally considered a standard provision in severance agreements, the companies’ agreements allowed for the former employees’ participation in any government investigation but required a waiver of the right to recover any incentive payments that the law provides for whistleblowers. The SEC issued substantial fines to these companies for this waiver requirement. The SEC explained that the whistleblower incentive is a key part of the SEC’s enforcement efforts and that any public company’s attempt to eliminate or limit that incentive violates the law.

Continue Reading SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements

Bass, Berry & Sims attorney Tim Garrett provided insight on the Department of Labor’s (DOL) overtime pay policy, slated to take effect on December 1, 2016 (for additional background on the DOL policy, read the firm’s blog post, “DOL Announces New Salary Level in Overtime Regulations“). As Tim points out for the article, “‘I’m not saying overtime pay shouldn’t be increased, but this should be done in more responsible manner… The regulations currently don’t recognize some unintended consequences.'” According to Tim, these consequences may include the following:

Continue Reading 3 Overtime Pay Policy Repercussions

The authors of the BVR/AHLA Guide to Healthcare Industry Finance and Valuation cited content from Bob Horton’s 2013 Member Briefing, “Restrictive Covenants in Physician Employment Relationships.” Bob’s briefing, written for the Labor & Employment and the Business Law & Governance Practice Groups of the American Health Lawyers Association (AHLA), outlines the enforceability of restrictive covenants in the healthcare industry. The BVR/AHLA Guide to Healthcare Industry Finance and Valuation covers the best practices in healthcare valuation and how the current market is effecting valuations.

To read more about the BVR/AHLA guide, please visit the Business Valuation Resources (BVR) website.

Under new federal regulations, issued in May 2016 with an initial compliance deadline of July 16, 2016, it is now illegal for any healthcare provider that receives federal funding from HHS to discriminate on the basis of sex, race, color, national origin, age and disability.  While many healthcare providers already have in place general nondiscrimination policies, it is important to point out that:  (1) Section 1557 is the first federal civil rights law to broadly prohibit healthcare providers (e.g., certain physician practices, hospitals and health insurers) from discriminating on the basis of gender, gender identity, pregnancy and sex stereotyping; and (2) it will require covered providers to comply with a whole host of new requirements, including appointing a Section 1557 compliance coordinator, adopting a grievance procedure and providing notices.  Notices must be in place by mid-October in order to be in full compliance.  Section 1557 also will require the entities take reasonable steps to provide meaningful access to healthcare services to individuals with limited English proficiency and to individuals with disabilities.

Continue Reading Impact of ACA Section 1557 on Administration of Healthcare Services

On July 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a revised version of its proposal to expand pay data collection from federal contractors and other employers with more than 100 workers. The revised proposal pushes back the date of the first required employer report to allow for the use of W-2 wage and salary reports.

The EEOC initially published its proposed rule in late January. The proposed rule expands the information certain employers must report to the federal government on an EEO-1 report. The EEOC’s proposal would add data on pay ranges and hours worked to the information currently collected.

The EEOC considered and adopted specific suggestions made by commenters during the initial 60-day comment period that ended earlier this year. For example, the EEOC moved the due date for the EEO-1 survey from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on a calendar year. In addition, the EEOC agreed to give employers the choice of reporting either a 40-hour week for full-time exempt and 20-hour week for part-time exempt workers, or in the alternative, providing an annual report for such employees. This change is in response to employer concerns for the non-standard weekly hours for this category of workers. The updated rule comes with a fresh, 30-day comment period that runs until August 15, 2016.

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On June 27, 2016, the Fair Employment and Housing Council considered a proposal to amend the Department of Fair Employment and Housing (DFEH) regulations with respect to the use of criminal history records in employment decisions. The proposed regulations would outline current law while also imposing additional restrictions that would further limit an employer’s use of such information.

Under current law, California employers are prohibited from utilizing certain criminal records and information in hiring, promotion, training, discipline, termination, and other employment decisions. In particular, when making an employment decision, employers may not consider: (1) an arrest or detention that did not result in conviction; (2) an individual’s referral to or participation in a pre-trial or post-trial diversion program; (3) a conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated; or (4) a non-felony conviction for possession of marijuana that is more than two years old.

Continue Reading Council Discusses Proposal that Would Further Restrict an Employer’s Ability to Review Criminal History

The annual filing (and fee payment) for applicable self-insured health plans and specified health insurance policies used to fund the Patient-Centered Outcomes Research Institute (the PCORI fee) is due by August 1, 2016. Internal Revenue Service (IRS) Form 720, Quarterly Federal Excise Tax Return, on which the PCORI fee is required to be reported (in Part II, IRS No. 133), typically is due by July 31 of each year; however, because that date falls on a Sunday this year, the Form 720 deadline falls on August 1 this year.

The filing rules have not changed, although the applicable rate has increased to $2.17 per covered life.

For an insured plan, the filing obligation falls on the insurer. However, for an “applicable self-insured health plan,” the filing obligation lies with the plan sponsor. Applicable self-insured health plans include self-insured major medical coverage and health reimbursement arrangements (HRAs) for both employees and retirees, but do not include “excepted benefits” (e.g., most health flexible spending arrangements (health FSAs), standalone dental or vision plans, certain employee assistance programs (EAPs) that do not provide significant benefits in the nature medical care, etc.). The IRS provides a helpful chart to help identify the plans to which the PCORI fee applies.

Continue Reading Reminder — Annual Deadline to Report and Pay PCORI Fee is Rapidly Approaching

California recently amended state law with regards to smoking in the workplace. The bill, which was signed by the governor on May 4, 2016, is intended to “prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state . . . eliminating the need of local governments to enact workplace smoking restrictions.” The former law had not applied to employers with five or fewer employees and had allowed employers to permit employees to smoke in the company break room. It had also exempted several types of workplaces and enclosed spaces from coverage, including hotel lobbies, banquet rooms, bars, taverns, and warehouses.

Continue Reading California Passes Tighter, Statewide Restrictions on Smoking in the Workplace

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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