Category: Administrative & Regulatory

This Week in Congress – February 2, 2015 re: 2016 Budget Proposal, DHS, and more

Covington_NL

President Obama will release his Fiscal Year (FY) 2016 budget proposal today, requesting roughly $4 trillion in spending for the upcoming year and specifying the Administration’s views on how and from what sources the federal government should be raising money and how and on what it should be spending it for the fiscal year beginning October 1.  The President’s budget sets off a fiscal showdown with the Republican-led Congress, whose members generally view the Administration’s proposals as higher taxes and higher government spending.  Many of President Obama’s cabinet members will be on Capitol Hill this week and in the coming weeks, testifying before House and Senate committees as to the merits of the budget proposal and highlighting areas of potential compromise as Congress develops its own budget for FY 2016.  Treasury Secretary Jacob Lew will be before the House Ways and Means and Senate Budget Committees on Tuesday, while IRS Commissioner John Koskinen will be before the Senate Finance Committee.  On Wednesday, Shaun Donovan, Director of the Office of Management and Budget, is scheduled to appear before the House Budget Committee and Sylvia Mathews Burwell, Secretary of the Department of Health and Human Services, appears before the Senate Finance Committee.  In addition, the Senate Armed Services Committee will hold the confirmation hearing this week for Ashton Carter to serve as Secretary of Defense.  With Committee Chairman John McCain’s strong desire for increased defense spending, the budget will no doubt be front and center in that hearing as well.

The House of Representatives returns to legislative business on Monday taking up three bills concerning programs at the Department of Homeland Security.  On Tuesday, the House will vote on H.R. 596, a bill that would repeal the Affordable Care Act while directing House committees to develop alternatives.  Since the Affordable Care Act was signed into law in 2010, Congress has voted 54 times on measures to repeal, revamp, or make technical changes to it.  On Wednesday, members will consider H.R. 50, the Unfunded Mandates Information and Transparency Act of 2015, sponsored by Rep. Virginia Foxx.  This legislation, which passed the House in 2014 by a vote of 234-176, would impose stricter requirements for how and when federal agencies must disclose the cost of federal mandates and equips both Congress and the public with tools to determine the true costs of regulations.  On Thursday, the House will vote on H.R. 527, the Small Business Regulatory Flexibility Improvements Act of 2015, sponsored by Representative Steve Chabot, which requires federal agencies to consider the economic effects of regulations on small business before imposing overly burdensome mandates that prevent growth and job creation.  This legislation has also passed the Republican-controlled House in the two previous Congresses.

The Senate returns on Monday and is expected to vote on H.R. 203, the Clay Hunt Suicide Prevention for American Veterans Act, a bill that the House passed unanimously.  The bill would require annual evaluations of the Department of Veterans Affairs’ mental health and suicide prevention programs.  The Senate will then seek to turn to H.R. 240, an appropriations bill that will fund the Department of Homeland Security for the remainder of 2015; the current budget for DHS expires  Feb. 27. While the bill provides $40 in funding for DHS, it also blocks any of the funds from being used to carry out President Obama’s new immigration and deportation policy announced in an executive order last November.  President Obama has pledged to veto the measure if the immigration rider is included.  Leader McConnell is unlikely to be able to get the 60 votes needed on cloture on the motion to proceed to the appropriations bill.  Once the cloture vote fails, he will need to figure out an alternative means of considering the legislation.  He has put a clean Democratic DHS appropriations bill on the Senate Calendar under Rule 14, so moving to that bill after the failed cloture vote is one possibility.

In addition to the hearings focused on the President’s budget and on the Defense Secretary nomination, a list of other key congressional hearings this week is included below:

 Feb. 3

 House Committees

Global Threat Assessment
House Armed Services
Full Committee Hearing
Feb. 3, 10 a.m., 2118 Rayburn Bldg.

Flu Preparation and Prevention
House Energy and Commerce – Subcommittee on Oversight and Investigations
Subcommittee Hearing
Feb. 3, 10 a.m., 2123 Rayburn Bldg.

U.S. Interests in Western Hemisphere
House Foreign Affairs – Subcommittee on the Western Hemisphere
Subcommittee Hearing
Feb. 3, 11 a.m., 2172 Rayburn Bldg.

Immigration Law Assessment
House Judiciary
Full Committee Hearing
Feb. 3, 11 a.m., 2141 Rayburn Bldg.

Inspectors General Oversight
House Oversight and Government Reform
Full Committee Hearing
Feb. 3, 10:15 a.m., 2154 Rayburn Bldg.

NSF Research Facility Oversight
House Science, Space and Technology – Subcommittee on Oversight; House Science, Space and Technology – Subcommittee on Research and Technology
Committee Joint Hearing
Feb. 3, 10 a.m., 2318 Rayburn Bldg.

Energy and Transportation Issues
House Transportation and Infrastructure – Subcommittee on Railroads, Pipelines and Hazardous Materials
Subcommittee Hearing
Feb. 3, 10 a.m., 2167 Rayburn Bldg.

Fiscal 2016 Budget Issues – Treasury Secretary Jacob Lew
House Ways and Means
Full Committee Hearing
Feb. 3, 10 a.m., 1300 Longworth Bldg.

Airport Access Control Measures
House Homeland Security – Subcommittee on Transportation Security
Subcommittee Hearing
Feb. 3, 2 p.m., 311 Cannon Bldg.

Wounded Warrior Program
House Armed Services – Subcommittee on Military Personnel
Subcommittee Hearing
Feb. 3, 3:30 p.m., 2118 Rayburn Bldg.

Senate Committees

Military Compensation and Retirement Modernization Commission
Senate Armed Services
Full Committee Hearing
Feb. 3, 9:30 a.m., G-50 Dirksen Bldg.

Fiscal 2016 Budget – Treasury Secretary Jacob Lew
Senate Budget
Full Committee Hearing
Feb. 3, 10 a.m., 608 Dirksen Bldg.

U.S.-Cuba Relations
Senate Foreign Relations – Subcommittee on Western Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights and Global Women’s Issues
Subcommittee Hearing
Feb. 3, 10 a.m., 419 Dirksen Bldg.

IRS Fiscal 2016 Budget Request – John Koskinen, Commissioner, Internal Revenue Service
Senate Finance
Full Committee Hearing
Feb. 3, 10:30 a.m., 215 Dirksen Bldg.

No Child Left Behind and Student Needs
Senate Health, Education, Labor and Pensions
Full Committee Hearing
Feb. 3, 10 a.m., 216 Hart Bldg.

Joint Committees
Veterans Affairs Issues
House Veterans’ Affairs; Senate Veterans’ Affairs
Committee Other Event
Feb. 3 TBA, Veterans Affairs, 810 Vermont Ave. NW

Feb. 4

House Committees

Military Compensation and Retirement Commission
House Armed Services
Full Committee Hearing
Feb. 4, 10 a.m., 2118 Rayburn Bldg.

Fiscal 2016 Budget Issues – Shaun L.S. Donovan, Director, Office of Management and Budget
House Budget
Full Committee Hearing
Feb. 4, 10:30 a.m., 210 Cannon Bldg.

U.S. Schools and Workplaces
House Education and the Workforce
Full Committee Hearing
Feb. 4, 10 a.m., 2175 Rayburn Bldg.

HUD Ethical Oversight
House Financial Services – Subcommittee on Oversight and Investigations
Subcommittee Hearing
Feb. 4, 10 a.m., 2167 Rayburn Bldg.

U.S.-Cuba Policy Assessment
House Foreign Affairs
Full Committee Hearing
Feb. 4, 10 a.m., 2172 Rayburn Bldg.

Legal Workforce Act
House Judiciary – Subcommittee on Immigration and Border Security
Subcommittee Hearing
Feb. 4, 10 a.m., 2141 Rayburn Bldg.

Furthering Asbestos Claim Transparency Act
House Judiciary – Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Subcommittee Hearing
Feb. 4, 1 p.m., 2141 Rayburn Bldg.

Palestinian Authority and International Criminal Court
House Foreign Affairs – Subcommittee on the Middle East and North Africa
Subcommittee Hearing
Feb. 4, 2 p.m., 2172 Rayburn Bldg.

Senate Committees

Secretary of Defense Nomination
Senate Armed Services
Full Committee Confirmation Hearing
Feb. 4, 9:30 a.m., G-50 Dirksen Bldg.

HHS Fiscal 2016 Budget Request – Sylvia Mathews Burwell, Secretary, United States Department of Health and Human Services
Senate Finance
Full Committee Hearing
Feb. 4, 10 a.m., 215 Dirksen Bldg.

Cybersecurity and Private Sector Issues
Senate Commerce, Science and Transportation
Full Committee Hearing
Feb. 4, 10 a.m., 253 Russell Bldg.

Implications of Immigration Action
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
Feb. 4, 10 a.m., 342 Dirksen Bldg.

Vessel Discharge Regulations
Senate Commerce, Science and Transportation – Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard
Subcommittee Hearing
Feb. 4, 2:30 p.m., 253 Russell Bldg.

Indian Affairs Legislation
Senate Indian Affairs
Full Committee Markup
Feb. 4, 2:30 p.m., 628 Dirksen Bldg.

Loan Leveraging Issues
Senate Indian Affairs
Full Committee Oversight Hearing
Feb. 4, 2:30 p.m., 628 Dirksen Bldg.

Financial Exploitation of Seniors
Senate Special Aging
Full Committee Hearing
Feb. 4, 2:15 p.m., 562 Dirksen Bldg.

Joint Committees

Proposed Waters Rule
Senate Environment and Public Works; House Transportation and Infrastructure
Committee Joint Hearing
Feb. 4, 10 a.m., HVC-210 Capitol Visitor Center

Feb. 5

House Committees

Drinking Water Protection Act
House Energy and Commerce – Subcommittee on Environment and the Economy
Subcommittee Hearing
Feb. 5, 10 a.m., 2123 Rayburn Bldg.

Senate Committees

Treasury Fiscal 2016 Budget Request – Treasury Secretary Jacob Lew
Senate Finance
Full Committee Hearing
Feb. 5, 10 a.m., 215 Dirksen Bldg.

Joint-Employer Standard
Senate Health, Education, Labor and Pensions
Full Committee Hearing
Feb. 5, 10 a.m., 430 Dirksen Bldg.

Judiciary Issues

Senate Judiciary
Full Committee Business Meeting
Feb. 5, 10:30 a.m., 226 Dirksen Bldg.

Kaitlyn McClure, Covington & Burling LLP Policy Advisor, co-authored this post.

ARTICLE BY

Richard A. Hertling
OF
Covington & Burling LLP

U.S. Department of Homeland Security Extends REAL ID Document Enrollment Dates Affecting State-Issued Driver’s Licenses and IDs

Greenberg Traurig Law firm

Pursuant to its phased implementation of the REAL ID Act, which establishes minimum standards for the production and issuance of state-issued driver’s licenses and identification cards and prohibits federal agencies from accepting non-compliant versions of these documents for official purposes, the U.S. Department of Homeland Security (DHS) recently announced an extension of document enrollment rules. According to current regulations, beginning Dec. 1, 2014, federal agencies may not accept state-issued driver’s licenses or identification cards for official purposes from individuals born after Dec. 1, 1964, unless the license or card is REAL ID-compliant and was issued by a compliant state as determined by DHS. In addition, as of Dec. 1, 2017, federal agencies will be prohibited from accepting any non-compliant documents for official purposes from any individual. Pursuant to this extension, both document enrollment dates have been moved to Oct. 1, 2020.

The implementation of the final rule, which goes into effect immediately, follows a multi-year plan to help budget-strapped states conform their document issuance and production processes to the standards set forth in the REAL ID Act. According to the DHS, this extension was granted due to the agency’s recognition that large numbers of residents from REAL ID Act-compliant states would be required to renew their driver’s licenses or identification cards prior to the end of the year or risk being unable to use them for official federal purposes as of Dec. 1, 2014. This would, in turn, impose significant burdens on compliant states due to the costs and operational difficulties of issuing high numbers of documents prior to the current regulatory deadline. In addition, the existence of two enrollment dates may complicate DHS’ enforcement objectives and diminish the agency’s opportunity to reasonably evaluate the impact of various enforcement phases.

The new rule does not impact the prohibition against federal agencies accepting licenses and identification cards issued by non-REAL ID Act-compliant states.

ARTICLE BY

Nataliya Binshteyn
OF
Greenberg Traurig, LLP

FTC Denies AgeCheq Parental Consent Application But Trumpets General Support for COPPA Common Consent Mechanisms

Covington BUrling Law Firm

The Federal Trade Commission (“FTC”) recently reiterated its support for the use of “common consent” mechanisms that permit multiple operators to use a single system for providing notices and obtaining verifiable consent under the Children’s Online Privacy Protection Act (“COPPA”). COPPA generally requires operators of websites or online services that are directed to children under 13 or that have actual knowledge that they are collecting personal information from children under 13 to provide notice and obtain verifiable parental consent before collecting, using, or disclosing personal information from children under 13.   The FTC’s regulations implementing COPPA (the “COPPA Rule”) do not explicitly address common consent mechanisms, but in the Statement of Basis and Purpose accompanying 2013 revisions to the COPPA Rule, the FTC stated that “nothing forecloses operators from using a common consent mechanism as long as it meets the Rule’s basic notice and consent requirements.”

The FTC’s latest endorsement of common consent mechanisms appeared in a letter explaining why the FTC was denying AgeCheq, Inc.’s application for approval of a common consent method.  The COPPA Rule establishes a voluntary process whereby companies may submit a formal application to have new methods of parental consent considered by the FTC.  The FTC denied AgeCheq’s application because it “incorporates methods already enumerated” in the COPPA Rule: (1) a financial transaction, and (2) a print-and-send form.   The implementation of these approved methods of consent in a common consent mechanism was not enough to merit a separate approval from the FTC .  According to the FTC, the COPPA Rule’s new consent approval process was intended to vet new methods of obtaining verifiable parental consent rather than specificimplementations of approved methods.  While AgeCheq’s application was technically “denied,” the FTC emphasized that AgeCheq and other “[c]ompanies are free to develop common consent mechanisms without applying to the Commission for approval.”  In support of common consent mechanisms, the FTC quoted language from the 2013 Statement of Basis and Purpose and pointed out that at least one COPPA Safe Harbor program already relies on a common consent mechanism.

ARTICLE BY

Shelton L. Abramson
OF
Covington & Burling LLP

Department of State Releases December 2014 Visa Bulletin

Morgan Lewis

The Bulletin shows that cutoff dates in the EB-2 India category remain severely backlogged, cutoff dates in EB-3 for the Rest of the World and China advance by five months, and EB-3 China is now ahead of EB-2 China.

The U.S. Department of State (DOS) has released its December 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the December 2014 Visa Bulletin Say?

The December Visa Bulletin shows no change in the cutoff date for the EB-2 India category. EB-3 cutoff dates for the Rest of the World and China will advance by five months.

The cutoff date for F2A applicants from all countries will advance slightly in December.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will remain at February 15, 2005. The cutoff date for applicants in the EB-2 category chargeable to China will advance to January 1, 2010. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to December 1, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by five months to June 1, 2010, which is now ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the Rest of the World will advance by five months to November 1, 2012.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: June 1, 2010 (forward movement of 152 days)

India: December 1, 2003 (forward movement of 7 days)

Mexico: November 1, 2012 (forward movement of 153 days)

Philippines: November 1, 2012 (forward movement of 153 days)

Rest of the World: November 1, 2012 (forward movement of 153 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The December Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through December 2014.

China

The November Visa Bulletin indicated a cutoff date of December 8, 2009 for EB-2 applicants chargeable to China. The December Visa Bulletin indicates a cutoff date of January 1, 2010, reflecting forward movement of 23 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2010 may file AOS applications or have applications approved in December 2014.

India

The cutoff date for EB-2 applicants chargeable to India remains at February 15, 2005. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to February 15, 2005 may file AOS applications or have applications approved in December 2014.

Developments Affecting the EB-3 Employment-Based Category

China

The November Visa Bulletin indicated a cutoff date of January 1, 2010. The December Visa Bulletin remains unchanged, with a cutoff date of June 1, 2010. This means that applicants in the EB-3 category chargeable to China with a priority date prior to June 1, 2010 may file AOS applications or have applications approved in December 2014.

India

The November Visa Bulletin indicated a cutoff date of November 22, 2003. The December Visa Bulletin indicates a cutoff date of December 1, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to December 1, 2003 may file AOS applications or have applications approved in December 2014.

Rest of the World

The November Visa Bulletin indicated a cutoff date of June 1, 2012 for EB-3 applicants chargeable to the Rest of the World. The December Visa Bulletin indicates a cutoff date of November 1, 2012, reflecting forward movement of 153 days. This means that applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to November 1, 2012 may file AOS applications or have applications approved in December 2014.

Developments Affecting the F2A Family-Sponsored Category

The November Visa Bulletin indicated a cutoff date of September 22, 2012 for F2A applicants from Mexico. The December Visa Bulletin indicates a cutoff date of January 1, 2013, reflecting forward movement of 75 days. This means that applicants from Mexico with a priority date prior to January 1, 2013 will be able to file AOS applications or have applications approved in December 2014.

The November Visa Bulletin indicated a cutoff date of March 1, 2013 for F2A applicants from all other countries. The December Visa Bulletin indicates a cutoff date of March 22, 2013, reflecting forward movement of 21 days. This means that F2A applicants from all other countries with a priority date prior to March 22, 2013 will be able to file AOS applications or have applications approved in December 2014.

Developments in the Coming Months

As noted in last month’s alert, the DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

  • The cutoff date in the F2A category will likely advance by three to five weeks per month.

Employment-Based Second Preference Category

  • The worldwide category will likely remain current.
  • The cutoff date in the EB-2 China category will likely advance by three to five weeks per month.
  • The cutoff date in the EB-2 India category will likely remain unchanged.

Employment-Based Third Preference Category

  • The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.
  • The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date by February 2015.
  • The cutoff date in the EB-3 India category will advance little, if at all.
  • The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
  • The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the December 2014 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
OF
Morgan, Lewis & Bockius LLP

The DOJ Increases Scrutiny of Whistleblower False Claims Act Suits

McBrayer NEW logo 1-10-13The Criminal Division of the Department of Justice (“DOJ”) recently announced that it will review all complaints filed under the qui tam provisions of the federal False Claims Act (“FCA”) to determine if a parallel criminal investigation is appropriate. This announcement came during a September 17, 2014 speech by the recently-confirmed Assistant Attorney General for the Criminal Division of the DOJ, Leslie Caldwell, at the Taxpayers Against Fraud Education Fund Conference in Washington D.C. This DOJ announcement signals a departure from prior policy, which allowed, but did not require, the Criminal Division to investigate Civil Division claims. In the past, the decision to open a criminal investigation was left to the discretion of each U.S. Attorney’s Office.

FraudNow, the Civil Division of the DOJ will share all new qui tam complaints with the Criminal Division as soon as they are filed. This change in procedure will likely be detrimental for defendants in future qui tam cases. With the Criminal Division more involved in False Claims cases, settlements with the government may become more difficult due to the need for approval from both the Civil and Criminal Divisions. Defendants may also face increased pressure to accept settlement offers from the government to avoid high-risk criminal penalties.

In 2009, Attorney General Eric Holder and Department of Health and Human Services Secretary Kathleen Sebelius announced the creation of an interagency task force, the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”), to increase coordination and optimize criminal and civil enforcement.  This coordination yielded momentous results: the Department recovered $12.1 billion dollars under the False Claims Act from January 2009 through the end of the 2013 fiscal year.  Most of these recoveries relate to fraud against Medicare and Medicaid Programs. In fiscal year 2013 alone, the DOJ recovered $2.6 billion dollars for health care fraud violations and brought health care fraud-related prosecutions against 345 individuals.

Thus, providers seeking reimbursement from federal programs should be aware that non-compliance risks have never been greater. Providers or entities faced with a civil qui tam suit should immediately evaluate their exposure to possible criminal charges. Because an ounce of prevention is worth a pound of cure, companies should closely review their compliance programs and pay special attention to the protocols in place to prevent and detect potential false claims or billing violations.

ARTICLE BY

Emily M. Hord
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC

FCC: The New Data Security Sheriff In Town

Proskauer Law firm

Data security seems to make headlines nearly every week, but last Friday, a new player entered the ring.  The Federal Communications Commission (“FCC”) took its first foray into the regulation of data security, an area that has been dominated by the Federal Trade Commission.  In its 3-2 vote, the FCC did not tread lightly – it assessed a $10 million fine on two telecommunications companies for failing to adequately safeguard customers’ personal information.

The companies, TerraCom, Inc. and YourTel America, Inc., provide telecommunications services to qualifying low-income consumers for a reduced charge.  The FCC found that the companies collected the names, addresses, Social Security numbers, driver’s licenses, and other personal information of over 300,000 consumers.  The data was stored on Internet servers without password protection or encryption, allowing public access to the data through Internet search engines.  This, the FCC found, exposed consumers to “an unacceptable risk of identity theft.”

The FCC charged the companies with violation of Section 222(a) of the Communications Act, which it interpreted to impose a duty on telecommunications carriers to protect customers’ “private information that customers have an interest in protecting from public exposure,” whether for economic or personal reasons.  Additionally, the companies were charged with violation of Section 201(b), which requires carriers to treat such information in a “just and reasonable” manner.

The companies were determined to have violated Sections 201(b) and 222(a) by failing to employ “even the most basic and readily available technologies and securities features.”  The companies further violated Section 201(b), the FCC found, by misrepresenting in their privacy policies and statements on their websites that they employ reasonable and updated security measures, and by failing to notify all of the affected customers of the data breach.

Commissioners Ajit Pai and Michael O’Rielly dissented, arguing that, among other things, the FCC had not before interpreted the Communications Act to impose an enforceable duty to employ data security measures and notify customers in the event of a breach.  Though now that the FCC has so-interpreted the Act, we can expect the FCC to keep its eye on data security.

The FCC made clear that protection of consumer information is “a fundamental obligation of all telecommunications carriers.”  Friday’s decision also makes clear that the FCC will enforce notification duties in the event of a breach, and will look closely at carriers’ privacy policies and online statements regarding data security.

ARTICLE BY

David A Munkittrick
OF
Proskauer Rose LLP

EEOC Loses on Procedural Grounds in Hotly Contested Case Challenging CVS Pharmacy Separation Agreement

SchiffHardin-logo_4c_LLP_www

Employers should continue to proceed with caution despite the recent pro-employer decision in EEOC v. CVS Pharmacy, Inc., a closely-watched case in which the EEOC alleged that CVS’ standard separation agreement interfered with the rights of former employees to file an EEOC charge or participate in an EEOC investigation. Although summary judgment was granted in favor of CVS by Judge John W. Darrah of the Northern District of Illinois, the court chose not to address the merits of the case, and instead dismissed the lawsuit on procedural grounds based on the EEOC’s failure to conciliate the case prior to filing its lawsuit.

This lawsuit was unique because there was no allegation that CVS had engaged in discrimination or retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). Rather, the EEOC alleged that CVS’ mere use of its standard separation agreement constituted a “pattern or practice” of resistance under Section 707 of Title VII. Among several challenged provisions, the separation agreement required former employees to release all waivable claims against CVS, prohibited them from filing any lawsuits or claims against CVS, and required former employees to notify CVS if they participated in an agency investigation. A disclaimer expressly stated that execution of the separation agreement was not intended to interfere with the right to participate in an agency proceeding or from cooperating with such agency.

The court granted summary judgment to CVS due to the EEOC’s failure to conciliate prior to filing suit. Yet, this decision provides little comfort for employers that utilize separation agreements with similar terms. Although the issue of whether the agreement constitutes a “pattern or practice” violation of Title VII remains unsettled, a resolution may be forthcoming as the EEOC is currently pursuing a similar theory in a case pending in the District of Colorado.

The court’s opinion includes a footnote that may prove helpful to employers. Judge Darrah noted that it was unreasonable to interpret CVS’ separation agreement as prohibiting employees from filing an EEOC charge and that, even if the agreement did prohibit the filing of a charge, that provision would simply be unenforceable and “could not constitute resistance to [Title VII]” such that the agreement would violate Title VII. However, this comment is non-binding dicta and not precedential.

ARTICLE BY

Lauren S. Novak
OF
Schiff Hardin LLP

Retrogression for EB-5 Predicted at IIUSA Conference; July 2013 Cut-Off Discussed

Greenberg Traurig Law firm

The Chief of the Visa Control and Reporting Division of the U.S. Department of State, Charles Oppenheim, reported that the EB-5 immigrant visa category would likely retrogress in July 2015. However, this does contradict his prediction provided to AILA earlier last week of retrogression occurring in May 2015. What is striking about Oppenheim’s announcement was that retrogression of the EB-5 immigrant visa category would cause him to establish a cut-off date of July 2013. A cut-off date has the effect of establishing an orderly line for the issuance of EB-5 immigrant visas. The cut-off date is determined based on the date an I-526 Petition was filed and is the date included on each I-526 Petition approval notice in the “Priority Date” box. For example, if a cut-off date of July 2013 is established in July 2015, during the month of July 2015, only those EB-5 investors (and their derivative beneficiaries) with a Priority Date in July 2013 or earlier (i.e. June 2013, May 2013, etc.) may apply for an EB-5 immigrant visa.

As we have stated previously, EB-5 investors should continue to file I-526 Petitions in the regular course of business because retrogression will have no effect on the adjudication of I-526 Petitions by the U.S. Citizenship & Immigration Services. By filing an I-526 Petition, an EB-5 investor is reserving his or her place in line by establishing his or her Priority Date, which has the effect of determining when he or she may apply for an EB-5 immigrant visa after receiving approval of his or her I-526 Petition. However, there are other effects of retrogression which should be evaluated when making a decision to pursue an EB-5 immigrant visa.

Oppenheim attributed the establishment of a July 2013 cut-off date to the increasing volume of I-526 Petition approvals by the U.S. Citizenship & Immigration Services (the USCIS) and his estimation of approximately three derivatives per I-526 Petition. According to his own calculations, this would indicate that there are roughly 3,333 principal investors under the EB-5 Program, with the remaining 6,667 EB-5 immigrant visa slots filled by family members of EB-5 investors. As retrogression of the EB-5 immigrant visa category may cause a drop in market demand for the EB-5 immigrant visa, it appears the inclusion of dependents against the 10,000 limit of EB-5 immigrant visas available for each U.S. government fiscal year (Oct. 1 to Sept. 30) would likely constrain the flow of foreign investor capital to the United States.

ARTICLE BY

Dillon R. Colucci
OF
Greenberg Traurig, LLP

A Guide to Dealing with Illnesses in the Workplace

Godfrey Kahn Law Firm

As a result of all of the media coverage surrounding the Ebola issues, many of our clients have wondered whether they need to do anything, as employers, to prepare for similar issues and to address related employment issues. Whether it is the Ebola virus or another virus or pandemic, the general rules for employers remain the same.

The Ebola Virus Basics

The key to contracting the Ebola virus is direct contact (through broken skin or mucous membranes in, for example, the eyes, nose or mouth) with someone who is carrying the virus.  The Centers for Disease Control and Prevention (“CDC”) has a website dedicated to understanding, preparing for and preventing the spread of the Ebola virus.  For additional information regarding the Ebola virus, including symptoms and other useful information, please visit the CDC’s website.

For employers, the key is not to panic.  Given that we are at the early stages of flu season, employers should avoid overreacting at the first sight of an employee with flu-like symptoms.  Employers concerned about particular employees should consult with legal counsel before taking any steps that may lead to liability under various employment laws (more on this below).

Important Employment Issues Each Employer Should Consider

Pandemics (whether the Ebola virus, the 2009 H1N1 virus or influenza) implicate a number of employment laws.  Employers must strike a proper balance between protecting employees from infection and operating within the confines of applicable law.

1. Consider the requirements of the Americans with Disabilities Act before requiring employees to undertake a medical examination.

The Americans with Disabilities Act (“ADA”) prohibits, among other things, medical examinations for applicants and employees.  An employer cannot require a current employee to undergo a medical examination unless the examination is job related and consistent with business necessity.  According to the Equal Employment Opportunity Commission (“EEOC”), medical examinations of an employee are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions of his/her job will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.  “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. § 1630.2(r).  For additional guidance on direct threats, please see the EEOC’s website.

The EEOC’s 2009 guidance specific to the H1N1 virus sheds additional light on how employers should make direct threat assessments before requiring a medical examination.  The EEOC states that whether a pandemic virus rises to the level of a direct threat depends on the severity of the illness.  Helpful data points to determine the severity—and associated direct threat—of a virus are the warnings and guidance from government agencies such as the CDC, state health departments and other recognized authorities on illness and disease.

2. Consider the Occupational Safety and Health Act when accessing your workplace practices.

In addition to the ADA’s medical inquiry restrictions, most employers must follow the safety and health regulations dictated by the Occupational Safety and Health Administration (“OSHA”) under the Occupational Safety and Health Act (“OSH Act”).  Although OSHA does not specifically regulate Ebola or other pandemics, employers may trigger workplace safety violations under OSHA’s General Duty Clause if they do not take proper steps to protect their employees.

Employers run the risk of receiving citations under the General Duty Clause if they expose employees to a hazard that the employer could reasonably have reduced and that the employer recognized would cause or likely would cause serious physical harm to employees.  Employers in industries with a high risk of disease contamination (e.g., healthcare employers) should therefore evaluate potential hazards and determine whether they can take steps to reduce the risk of exposure to employees.

Employers should also keep in mind that an employee who reasonably refuses to report to work because of a dangerous work condition—including contracting a pandemic virus—may be protected from retaliation.

OSHA’s guidance about Ebola and pandemic influenza provides useful information for employers who want to prepare for and respond to contagious disease risks in their workplaces.

3. Employees may be entitled to leave under the Family and Medical Leave Act.

Federal and state (where applicable) family and medical leave laws (“FMLA”) complicate the web of responsibilities an employer has to navigate when it comes to dealing with ill employees.  For employers covered by these laws (generally employers with 50 or more employees under federal law), an eligible employee who has contracted the Ebola virus or another pandemic virus may qualify for leave based on a serious health condition.  Similarly, an eligible employee may qualify for leave if an eligible family member contracts a virus that qualifies as a serious health condition.

If an emergency situation prompts the need for FMLA leave, administering the leave in a lawful manner gets more complicated than under normal circumstances.  For example, it may not be practical to solicit and review medical certification forms.  In these situations, employers must have sufficient information (including the employee’s statements) that the underlying condition qualifies as a serious health condition.  Designating leave as FMLA without sufficient information establishing a serious health condition can result in a retaliation claim.  In emergency situations, employers may also need to exercise forbearance on the return of medical certification forms, particularly if an employee needs to assist a family member who is ill.  For additional FMLA guidance, please visit the United States Department of Labor website.

Steps Employers Should Take to Minimize Workplace Safety and Health Issues

As with any other workplace safety and health issues, the recent Ebola-related news has raised many questions about what employers should do when facing similar situations.  Although each employer is unique and each industry must confront different obstacles and risks, employers should, at a minimum, follow the steps outlined below.

  • Have a plan.  Consult with internal safety experts and review the guidance provided by government agencies regarding specific safety issues.  Create a plan (preferably with the assistance of legal counsel) that addresses issues specific to your workplace and your industry.

  • Communicate your plan to employees.  Your company’s protocols for dealing with safety issues should not be a secret to any of your employees.  Publicize the plan internally and ensure that employees have ready access to the plan.

  • Train your employees.  Train your employees about your company’s safety protocols on a yearly basis.  If you are concerned about a particular risk that is not usually common to your workplace or if you update your plan, provide additional training as needed to address these issues.

  • Supervise implementation of the plan.  Having a plan in place and training your employees to follow certain procedures is meaningless if no one supervises the process.  Designate individuals to review employee actions to ensure that the plan’s protocols are followed and to identify potential shortcomings of/improvements to the plan.  Whenever necessary, update your plan to ensure that it addresses all major safety risks and train employees on the changes made to the plan.

Employers that consult government and other advocacy organization websites to adopt ideas, disseminate information and prepare practices and procedures for addressing workplace safety and health issues will be in a good position to protect against unwanted legal action.

ARTICLE BY

Rufino Gaytán
OF
Godfrey & Kahn S.C.

Ebola and Potential Labor Relations Issues

Proskauer Law firm

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers.  The escalating concern over Ebola also raises potential labor relations issues.  Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members.  Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees.  Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears.  Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training.  Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken.  In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands.  Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease.  Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities.  As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active.  Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns.  At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola.  In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears.  In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations.  Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns.  They may also be faced with bargaining demands by employees seeking greater protection.  Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

ARTICLE BY

Scott Faust
OF
Proskauer Rose LLP