Week in Review

February 17, 2015

GOP lawmakers unveil alternative to ACA

Senate Finance Chairman Orrin G. Hatch, R-Utah, along with Sen. Richard Burr, R-N.C., and House Energy and Commerce Chairman Fred Upton, R-Mich., on February 5 unveiled the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Bill, which would cap the exclusion for employer-provided health coverage, and provide a targeted tax credit to help buy health care.

Under the CARE Bill, there would be no mandate for individuals to buy health care coverage and employers would not be required to provide any. "Under our plan, every American will be able to access a health plan, but no American is forced to have health insurance they do not want," stated the lawmakers in the outline of their plan. The introduction of the bill comes just days after the House voted to repeal the Patient Protection and Affordable Care Act (ACA).

The proposal would reportedly cut more than $1 trillion in taxes and reduce federal spending by hundreds of billions of dollars, according to the lawmakers. All of the ACA's taxes would be scrapped, including the medical device tax, health insurance tax, pharmaceutical tax and other fees.

Senate GOP moves to block NLRB "quickie' election rule

Senate Republicans have introduced a measure to block the NLRB's revised representation election rules resorting to the Congressional Review Act (CRA) in an effort to prevent the Board's new rules from taking effect on April 14, 2015. House Republicans are expected to follow suit, with House Education and the Workforce Chairman John Kline intending to introduce a joint resolution in the House. The CRA allows Congress to review "major" rules issued by federal agencies before the rules take effect. Congress may also disapprove new rules, resulting in the rules having no force or effect.

NLRB Chairman Mark G. Pearce responded promptly by saying "The Board remains committed to the critical work of this agency and fully carrying out the law," Pearce said. "As Congress considers this resolution, this Agency will continue productive conversations about the rule ensuring that our processes help fulfill the promise of the National Labor Relations Act. The Board is also currently fending off two industry lawsuits seeking to invalidate the representation rules.

Supreme Court asked to scrutinize FLSA outside sales exemption

KeHE Distributors has asked the Supreme Court to review a Sixth Circuit decision finding that the company's sales representatives were not exempt from FLSA overtime under the outside sales exemption and that employees who signed waivers contained in a separation agreement could not be excluded from a collective FLSA action. Last July, the Sixth circuit found, that a district court had erred in concluding that the reps' reordering of merchandise constituted a "sale" for FLSA purposes as a matter of law and that making sales was the reps' primary duty.

The food distributor also asserts that the Justices should address whether the FLSA's outside sales exemption excludes those who are paid entirely on commission and write orders to replenish customer inventory, but do not alone cause increased sales. According to the petition, permitting a jury to conclude that the company's sales reps are not making sales despite the fact that they "write and transform orders," make "cold-calls," and are paid only commission is contrary to DOL guidance, the FLSA, and the Supreme Court's prior decision in Christopher v SmithKline Beecham Corp, which found a more expansive definition of "sale," an argument rejected by the Sixth Circuit.