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The Art of Using Preemption to Defend Wage-and-Hour Cases

Preemption technically means situations where federal law displaces state law: a function of the supremacy clause of the US Constitution. Often, lawyers speak of preemption even where it is one federal law displacing another or one state law displacing another. When statutory laws abut or overlap like tectonic plates, which should apply?

As large-scale cases proliferate under federal and state wage-and-hour laws, there is more and more reason to study plate tectonics for potential defenses. Thinking about preemption requires looking beyond the intricacies of the case at hand to broader issues of public policy; applying preemption as a defense requires thinking about more than the statute alleged in the complaint.

Finding preemption, like throwing the Eephus pitch, is an arcane but game-winning skill. Learn how to find it in this article from Michael Giambona.

Access the full article.

Originally published by Law360, April 2019.

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Digital Health Drives Forward – A Roadmap of Regulations

New digital health regulations arose at the federal and state level in 2018, bolstering the existing legal framework to further support and encourage digital health adoption in the context of care coordination and the move to value-based payment. McDermott’s 2018 Digital Health Year in Review: Focus on Care Coordination and Reimbursement report – the second in a four-part series – highlighted these developments within the digital health landscape. These efforts brought changes to coverage of telehealth and other virtual care services, as well as information gathering for regulatory reform, and can help bridge the gap between research, funding and implementation as regulations build a framework within which companies can deploy their products, receive reimbursement and demonstrate value to patients. Here we outline digital health developments from the second half of 2018 and how they can help drive digital health forward in 2019. For a closer look at key care coordination and reimbursement developments that shaped digital health in 2018, along with planning considerations and predictions for the digital health frontier in the year ahead, download our full report.

To view the first report in the series, 2018 Digital Health Year in Review: Focus on Data, click here.


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Conflicting Developments in Same-Sex Marriage Laws Add Complexity for Benefit Plan Sponsors

by Joe Adams, Brett Johnson, Todd Solomon and Brian Tiemann

Developments in state same-sex marriage laws have added complexity to the options and obligations of employers providing benefits for employees’ same-sex spouses and partners.  These conflicting developments—some legalizing same-sex marriage and others restricting marriage to an opposite-sex union—are occurring at an increasingly rapid pace.  Further complicating the issue is that changes are occurring by judicial action, legislative action and voter referendums.

Judicial Actions
The U.S. Court of Appeals for the Ninth Circuit ruled in February 2012 that California’s state constitutional ban on same-sex marriage violates the Equal Protection Clause of the U.S. Constitution.  Same-sex marriage was legalized in California in 2008, but was banned a few months later after state voters approved Proposition 8, an amendment to the state constitution that defines marriage as a union between a man and a woman.  Despite the court ruling, same-sex marriage remains on hold in California pending the expected appeal of the decision.

Legislative Actions
Washington and Maryland are the most recent states to legalize same-sex marriage under laws enacted by their respective state legislatures earlier this year (although voters in these states may ultimately decide whether the new laws will take effect, if opponents of the laws are able to collect enough signatures to support a voter referendum in each state).  The Illinois legislature is also currently considering a bill to legalize same-sex marriage.  Meanwhile, a bill to repeal New Hampshire’s 2009 same-sex marriage law has been introduced in the state’s legislature.  If passed, New Hampshire would be the first state in which the legislature has reversed itself on the issue of same-sex marriage.

Voter Referendums
This year voters in Maine will consider whether to legalize same-sex marriage.  Same-sex marriage was legalized by the Maine legislature in 2009, but was repealed by a previous voter referendum before the law took effect.  Meanwhile, voters in Minnesota and North Carolina will consider whether to amend their respective state constitutions to define marriage as an opposite-sex union (both states already have laws banning same-sex marriage).  Twenty-nine states have amended their constitutions to limit marriage to opposite-sex couples; an additional 12 states have enacted state laws banning same-sex marriage.

Next Steps for Employers
The rapid developments in state laws regarding marriage and other forms of same-sex unions makes providing benefits to employees’ same-sex spouses and partners an evolving challenge.  Employers should consider whether their benefit plans and procedures need to be updated to address varying state law approaches to the recognition of marriages and/or other forms of same-sex unions.  In addition, employers need to ensure their payroll systems are structured to reflect the differing federal and state tax treatment of benefits provided to employee’s same-sex spouses and partners.

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