The Affordable Care Act made fundamental and important changes to the way the United States finances health care. The law did not represent a radical departure from prior law or policy, however. The ACA instead worked within, rather than disrupting, existing market-based, legal and regulatory structures. It reformed, but it did not displace, the private health insurance markets; relied on, but did not displace, employer-sponsored group health coverage; and expanded, but did not displace, Medicare, Medicaid and other existing government programs. There is a simple reason for this. No wholesale departure from these existing structures is politically viable. There is not the collective political will to move to a single payer system (whether British- or Canadian-style); nor is there the collective political will to scrap all government programs in favor of a purely free-market approach (Medicare is too popular, and Medicaid, too necessary). Continue Reading The Future of the Affordable Care Act (Week 2): A Framework for Handicapping Proposals to Replace the ACA

The Affordable Care Act is the single most important piece of Federal social legislation in the United States in more than a generation, but with the election of Donald J. Trump as President its fate is now uncertain. Its core policy concerns and principal goals, i.e., to expand medical coverage, increase the quality of medical outcomes, and constrain costs, nevertheless remain. What is about to change is the “means whereby” these goals might be accomplished.

Even before the new administration takes office, there is at least one thing that seems certain: there will be no going back to the status quo ante. While the law was the subject of withering criticism by candidate Trump and his proxies, their mantra was and remains “repeal and replace.” At the end of the process, it is unlikely that we be back at March 23, 2010 (the date of the ACA’s enactment). We will instead be somewhere else. What remains to be seen is the extent to which the replacement resembles the ACA. This post and those that follow will endeavor to chart the arc of the replacement process. In the weeks and months that follow, we plan to report on, and, with the help of a roster of knowable guests, examine both the process and the outcome.

Continue Reading The Future of the Affordable Care Act (Week 1): Assessing the New Normal

Employers across the country woke up this morning to news that a Texas District Court judge has blocked the DOL’s overtime rule from taking effect on December 1, 2016.  This represents a stunning turn of events for employers. They will now be able to continue to treat as exempt from overtime “white collar” workers who are paid a salary of at least the current minimum level of $23,660 per year without raising their salary to the proposed new minimum of at least $47,476, as the new rule had required. But, anticipating the new rule taking effect on December 1, many employers had already re-classified employees as non-exempt or raised their salaries to maintain the exemption or communicated the anticipated changes to their workforce.  And even those employers who have waited until the last minute to ready themselves for compliance have been left scratching their heads as to next steps, now that the rule will not, at least for now, take effect.  This post explores the court’s decision and employer’s potential responses to it.

Continue Reading With DOL’s OT Rule Blocked, Employers Are Left Asking “What’s Next?”

In a stunning turn of events for employers, the United States District Court for the Eastern District of Texas has entered a nationwide injunction, ruling that the Department of Labor’s new overtime rule, which was slated to go into effect on December 1, is unlawful. As a result, at least for now, the rule will not take effect. This is a welcome (but perhaps temporary) victory for employers who will be able to continue to treat as exempt from overtime “white collar” workers who are paid a salary of at least the current minimum level of $23,660 per year without raising their salary to the proposed new minimum of at least $47,476. But the ruling may be unsettling for employers who already have re-classified employees or raised employees’ salaries to meet the requirements of the anticipated – – but for now dead on arrival – – new rule. Continue Reading BREAKING NEWS: New Overtime Rule Derailed; Will not Take Effect on December 1.

As all HR professionals and employment lawyers know (even those currently living under rocks), the Department of Labor’s final overtime rule is scheduled to go into effect on December 1, 2016 – less than two weeks from now.  The DOL published the rule back on May 18, 2016 providing employers with nearly 200 days to come into compliance.  Many have planned accordingly and are ready to go; others are finally focusing on this issue as the deadline nears.  At the same time, questions continue to arise over the rule’s fate.  In this post, we discuss the current state of play along with some compliance tips for employers.

Continue Reading Uncertainty Continues to Swirl Around DOL’s Overtime Rule as Employers Make Compliance Push

With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer.  This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.

Continue Reading Where Are We With the Enforceability of Class Action Waivers in Arbitration Agreements?

Last month, the Securities and Exchange Commission released new Compliance & Disclosure Interpretations (“C&DIs”) which provide guidance on the CEO pay-ratio rules.  As a reminder, the CEO pay-ratio rules were enacted in August of 2015 and generally require public companies to disclose the ratio of their CEO’s annual total compensation to that of the median annual total compensation of all other company employees.

The new C&DIs provide guidance on several aspects of these pay-ratio rules, including the determination of individuals to be included in the employee population and identification of the median employee.

For an overview of the pay-ratio rules, see this helpful post on the Securities Matters blog here.

The following provides an overview of the C&DIs:

Continue Reading SEC Releases Guidance on Pay Ratio Rules

In April of this year, the Department of Labor issued a suite of rules (i) expanding the class of persons and entities who are fiduciaries for purposes of ERISA and the Internal Revenue Code; (ii) providing two new prohibited transaction exemptions (or PTEs); and (iii) amending a handful of existing PTEs to conform to the new regulatory regime. (For a list of, and links to, the suite of final rules, please see our post of April 11, 2016.) The fiduciary definition, exemptions and amendments, and their respective preambles, occupy in total almost 1,000 pages of the Federal Register. Collectively, these items enact a sea-change in the regulation of investment advice provided to ERISA-covered retirement plans and Individual Retirement Accounts (IRAs). When the Department promulgated these rules, it promised to provide subsequent guidance—including Frequently Asked Questions (FAQs)—in response to questions that would inevitably arise.

Speaking at a trade association meeting in Boston at the end of October, a senior Department of Labor official reported that the Department was hard at work on its first set of FAQs. He said that the FAQs would reinforce some of the rule’s basic concepts that questioners seemed to struggle with and add some gloss to particular aspects of the rule that the Department felt needed additional attention. His predictions proved accurate. In this post we provide a sampling of some of the highlights of the recently issued FAQs. We have chosen three topics that fall under the heading of “basic concepts,” and three topics that elucidate particular aspects of these rules. There is, of course, a measure of editorial discretion at work in our selection to topics. Other practitioners might choose differently based on their particular needs and interests. For anyone who works with or needs to comply with these rules, we recommend reading the FAQs in their entirety.

Continue Reading Labor Department Issues FAQs Explaining Aspects of the 2016 Final Fiduciary Rule

With Election Day just a week away(!), it’s important that employers familiarize themselves with their employees’ rights to take leave to vote.  While there is no Federal law granting employees the right to voting leave, at least half the states provide this right in some form.

Continue Reading Employers Must Be Mindful of Voting Leave Rights on Election Day

On October 21, 2016, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) issued a FAQ providing indefinite relief for employers who subsidize student health insurance coverage.

Continue Reading Student Health Insurance Subsidies Catch Another Break