Monthly Archives: February 2012

Text Free Zone: OSHA’s Distracted Driving Initiative Kicks Into Gear

By Casey M. Cosentino and Eric J. Conn

“Texting while driving” is an epidemic in America, which has prompted forty-two states and the District of Columbia to ban (completely or partially) this conduct for drivers.  Here’s a map of the U.S. states that have enacted some ban on texting while driving.  Studies suggest that texting while driving distracts drivers’ cognitive focus and removes their eyes from the road and hands from the wheel.  It is not surprising, therefore, that distracted driving is attributed with sixteen percent (16%) of all traffic fatalities in 2009.

The consequences of texting while driving are also seen in work-related accidents, as motor vehicle accidents are among the leading cause of worker fatalities.  Due to the political attention that texting while driving is garnering and the high number of employee deaths caused by motor vehicle accidents, OSHA has launched a Distracted Driving Initiative in partnership with the Department of Transportation to combat this safety issue.

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HEALTH REFORM: The Clock Is Ticking: CMS Issues a Proposed Rule on Reporting and Returning Overpayments

On February 16, 2012,[1] almost two years after the passage of the Patient Protection and Affordable Care Act[2] (the “ACA”), the Centers for Medicare & Medicaid Services (“CMS”) issued a proposed rule (“Proposed Rule”) regarding overpayments to providers and suppliers, as provided for under Section 6402(a) of the ACA and codified at Section 1128J(d) of the Social Security Act (the “Act”). Specifically, Section 6402(a) states that “[i]f a person has received an overpayment, the person shall (A) report and return the overpayment to the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, at the correct address; and (B) notify the Secretary, the State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment.”

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CMS Proposed Rule on Overpayments – A 10 Year Burden

CMS recently published its proposed rules on reporting and returning overpayments.  These rules are intended to implement the 60 day overpayment reporting requirement pursuant to the Affordable Care Act (the “ACA”).  The ACA created a new section 1128J(d) of the Social Security Act requiring a person who receives an overpayment to return and report the overpayment to HHS, the State, a carrier or a contractor and notify the recipient of the reason for the overpayment.  The statute requires that all  overpayments be refunded within 60 days after the date the overpayment was identified or the date of any corresponding cost report (as applicable), whichever is later.

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Investment Friendship with Pakistan

DIPP has sent a proposal to the Ministry of Finance, on February 16, 2012, to relax the current FDI norms to allow FDI from Pakistan. In terms of the present FDI norms, a non-resident entity other than a citizen of Pakistan or an entity incorporated in Pakistan can invest in India. Pakistan is the only country expressly debarred from investing into India. An individual or an entity incorporated in Bangladesh can invest only under the FIPB approval route. Although Pakistan allows FDI from India, the Government of India has always had security concerns in reciprocating Pakistan’s stance.

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Indian Aviation Industry in High Spirits

Excessive lobbying by major domestic carriers like Kingfisher Airlines and GoAir urging the Government of India to allow Foreign Direct Investment (“FDI”) by foreign airlines has finally borne fruit. The Ministry of Civil Aviation has reportedly forwarded its recommendations to the Department of Industrial Promotion and Policy, Ministry of Commerce, Government of India (“DIPP”) which is in the process of formulating a Cabinet note allowing upto 49% FDI in domestic airlines by foreign airlines via the Foreign Investment Promotion Board (“FIPB”) approval route.

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New Rule for Furnishing of Annual Statement by a Liaison Office

In terms of Section 285 of the Income Tax Act, 1961, every non-resident who has a liaison office in India set up in accordance with the guidelines issued by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 is obliged to prepare and deliver or cause to be delivered, a statement in respect of its activities in a financial year (“Annual Statement”) within sixty (60) days from the end of such financial year in the form and containing such particulars as may be prescribed. The Central Board of Direct Taxes (“CBDT”) has on February 6, 2012 prescribed such form and procedure to file the Annual Statement.

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OSHA Finally Releases Its Watered-Down Fall 2011 Regulatory Agenda

By Paul H. Burmeister and Eric J. Conn

At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months.  The agenda includes updates about the status of several major OSHA rulemaking efforts.  Below is a brief summary of the Reg Agenda.

This Reg Agenda was far less ambitious than each of the previous agendas set forth by the Obama Administration’s OSHA, but it does reveal the agency’s top priorities that will continue to be pressed even during an election year.  The highlights include:

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Hotel Operators and Managers Remain Vulnerable to Wage and Hour Class Actions

By:  Casey Cosentino

A hotel management company was recently hit with a putative class action in federal court for allegedly failing to compensate hotel employees overtime pay at one and one-half times their regular rate of pay for all hours worked over 40 hours in a workweek. As the chief engineer, the lead plaintiff was classified as an executive employee and, thus, was exempt from overtime requirements under the Fair Labor Standards Act (“FLSA”). The lead plaintiff asserts, however, that he was misclassified under the Executive exemption because he “regularly and routinely performed non-exempt tasks . . . including but not limited to, upkeep of the hotel and its grounds, and building and property maintenance; and supervised no more than one other employee.” As such, the complaint contends, among other things, that he and other similarly situated employees unlawfully worked between 50 and 60 hours per week without receiving overtime pay. 

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The administrative exemption from overtime pay continues to plague employers: Is there a cure?

By: John F. Fullerton, III, Douglas Weiner, and Meg Thering

The plague of lawsuits for unpaid overtime compensation by employees who claim that they were misclassified by their current or former employer as “exempt” from overtime under the “administrative” exemption of the Fair Labor Standards Act shows no signs of receding.  These lawsuits continue to present challenges to employers, not just in terms of the burdens and costs of defending the cases, but in the uncertainty of the potential financial exposure.

Read the full article online.

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DOL issues notice of proposed rulemaking to amend FMLA regulations

Arnstein & Lehr attorney Lori Adelson

Lori Adelson

The U.S. Department of Labor has issued a notice of proposed rulemaking to implement recent statutory amendments to the Family Medical and Leave Act contained in the 2010 National Defense Authorization Act.

The proposed changes affect military servicemember leave and include new provisions for certain airline employees, who would otherwise be ineligible for leave. According to the DOL, the proposed regulations cover the following:

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