SubscribeOn February 28, 2022, the White House issued a fact sheet outlining several efforts aimed to increase safety, accountability, oversight and transparency in the senior services industry (Fact Sheet). Although the Fact Sheet’s initiatives have not yet been implemented, President Biden reiterated his administration’s focus on nursing home reform during his March 1, 2022, State of the Union address. Accordingly, the efforts described in the Fact Sheet provide stakeholders with a peek into the regulatory crystal ball of the governmental efforts that may be forthcoming, either through new laws, regulatory action, policy changes, enforcement activities or subregulatory guidance.
Department of Labor
H-1B Visa Rule About to Die for Good
The Biden administration is no longer defending a Trump administration H-1B visa regulation that would have made it more challenging for international students to work in the United States. As noted in this Forbes article, McDermott Partner Paul Hughes recently successfully argued on behalf of plaintiffs that the H-1B rule violated current law.
Judge Kills the Last Trump H-1B Visa Rule Left Standing
International students will have an easier time obtaining H-1B status after a federal judge ended a Trump administration regulation that made the process more difficult.
According to this Forbes article, Trump administration officials increased H-1B denial rates via memos and policies that were later ruled unlawful. McDermott Partner Paul Hughes—who represented plaintiffs in an complaint for declaratory and injunctive relief—said a Trump administration move to end H-1B via lottery violated the law.
COVID-19 Laws and Regulations: A Midyear Update
As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”
Ruling Gives Ammunition in Fights Over Health Insurer Clawbacks
A recent ruling from a New Jersey federal district court gives ammunition to providers fighting to stop insurers from engaging in cross-plan offsetting, a common billing practice where health insurers attempt to claw back overpaid claim money from one patient by withholding payment from another patient in a different health plan.
The ruling—which found that the practice violates the Employee Retirement Income Security Act (ERISA)—could lead to more lawsuits and changes to plan documents. McDermott partner Judith Wethall said in a recent Bloomberg Law article the ruling was more significant than the U.S. Court of Appeals for the Eighth Circuit’s 2019 ruling in Peterson v. UnitedHealth Group, Inc.
EBSA Privacy and Cybersecurity Guidance
Andrew C. Liazos, partner at McDermott Will & Emery, recently moderated an American Bar Association panel on the new cybersecurity guidance for retirement plan sponsors issued by the Department of Labor (DOL). The panel slides included 10 takeaways for the new DOL guidance.
As a background, the DOL’s new guidance formalized its long-held view that retirement plan fiduciaries have an obligation to ensure proper mitigation of cybersecurity risks. More specifically, the DOL expects retirement plan fiduciaries to select and monitor the cybersecurity practices of their service providers.
The DOL guidance is in three parts.
- The first part provides plan fiduciaries with a framework for reviewing a vendor’s cybersecurity practices.
- The second part provides a robust list of cybersecurity “best practices” for record keepers and other vendors responsible for plan-related IT systems and data. For example, the DOL recommends that all retirement plan vendors with critical participant data conduct a reliable annual third-party audit of their security controls.
- The third part provides security tips for participants and beneficiaries who manage their retirement accounts online.
DOL Move Bodes Well for Socially Conscious 401(k) Investing
The US Department of Labor’s decision last month to table Trump-era regulations limiting socially conscious investments by retirement plans signals that the Biden administration is considering an embrace of so-called ESG funds, which attempt to advance environmental, social and corporate governance goals.
Tabling these regulations brings “the Department of Labor into alignment with the desire of not just plan fiduciaries, but more notably, the actual plan participants to use their retirement assets in a socially conscious manner,” McDermott partner Erin Turley said in an article for Law360.
President Releases Executive Order Prohibiting Training for Contractors and Federal Grant Recipients
On September 22, 2020, US President Donald Trump issued an Executive Order, which prohibits federal contractors and recipients of federal grants from conducting certain workplace training on race and sex stereotyping. This Executive Order is likely to be challenged on various grounds, including First Amendment grounds, but all employers may wish to review their workplace training materials in anticipation of future Equal Opportunity Commission (EEOC) action for reverse discrimination.
DOL Provides Guidance on Tracking Telecommuters’ Work Hours
Employers must use reasonable diligence in tracking nonexempt telecommuters’ work hours and may do this by providing a reporting procedure for unscheduled time, the US Department of Labor (DOL) stated in August 24 guidance. The workers then must be compensated for all reported work hours, even those not requested by the employer.
In a recent article by the Society of Human Resource Management, McDermott partner Ellen Bronchetti explained that employers should have policies that prohibit working off the clock. “If an employer has an expectation that an employee was working from 8:00 am to 4:00 pm and the employee works later at night responding to emails, that could lead to wage and hour liability.”
DOL Issues Final Electronic Disclosure Rule for Retirement Plans
Under the recently published final rule issued by the US Department of Labor, retirement plan administrators can choose to deliver required disclosures electronically by complying with the conditions of a new safe harbor. The final rule represents an opportunity for retirement plans to save costs and enhance participant access to disclosure documents.
