Latest News

Litigation Targeting Trans Fat Stayed: A Bump in the Road or Something More?

WLF Legal Pulse - Thu, 10/01/2015 - 4:34pm
Guest Commentary by David L. Wallace and Michael R. Kelly, Herbert Smith Freehills LLP* Since the 1950s, partially hydrogenated vegetable oils (PHOs) have been used to produce all sorts of packaged foods. These ingredients increase food shelf life and flavor stability. They also contain artificial trans fats, which have been linked to various health risks, […]
Categories: Latest News

Eleventh Circuit Has Opportunity in “U.S. v. Clay” to Reshape Prosecutors’ & Courts’ Approach on Criminal Intent

WLF Legal Pulse - Thu, 10/01/2015 - 12:46pm
On Friday, October 2, the U.S. Court of Appeals for the Eleventh Circuit will hear oral arguments in a closely followed criminal health-care fraud case, U.S. v. Clay. Earlier this year, Washington Legal Foundation published a Legal Backgrounder on the case and its broader ramifications, Clay v. United States: When Executives Receive Jail Time for […]
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Kline Statement: Markup of Committee Reconciliation Proposal

Education & the Workforce Committee - Wed, 09/30/2015 - 10:30am
Since the Republican majority began nearly five years ago, Speaker Boehner has urged every one of us to make the people’s priorities our priorities. That is what this committee has always tried to do, and today’s effort is no different. In fact, the reconciliation process presents an opportunity to address three urgent priorities.

The first priority is getting our nation’s fiscal house in order. As members of the House Education and the Workforce Committee, we know this is a particularly important responsibility. Reckless federal spending is a threat to students and working families, and the threat has grown exponentially worse in recent years. Under President Obama’s watch, the national debt has increased by nearly 71 percent and currently stands at more than $18 trillion. We are on a fiscal path that is not sustainable and have been for far too long.

That is why under Republican leadership, Congress passed a balanced budget that would lead to less debt, a stronger economy, and more prosperity for the American people. As the Speaker has noted, we are on track to cut $2.1 trillion in government spending over the next 10 years. We are also making progress improving federal policies and programs so that each one delivers positive results for students, workers, and taxpayers. But we still have a lot of work to do. The reconciliation process reflects our commitment to using the tools we have to reform government and rein in deficit spending.

The second priority is dismantling ObamaCare. Under the president’s health care law, costs are going up, not down. We continue to hear reports and stories of families facing higher premiums or higher deductibles or both. Patients are losing access to their trusted doctors as insurance carriers squeeze provider networks to control costs. Meanwhile, workers and employers are struggling because of the law’s punitive rules and mandates.

The proposal before us would repeal a particular mandate known as auto-enrollment. As the name suggests, the law requires certain employers to automatically enroll employees in a government-approved insurance plan. This mandate will create a lot of unnecessary confusion for workers and employers and result in costly penalties for those who may already have insurance coverage. The mandate is so convoluted and confusing that after four years the Department of Labor still hasn’t figured out a way to enforce it. Let’s repeal this costly mandate and help empower workers to do what’s best for themselves and their families. 

The third and final priority we can and must address through reconciliation is holding Planned Parenthood accountable. Recent videos portray a number of practices by Planned Parenthood that are nothing short of gruesome and shocking. Charmaine Yoest, president of Americans United for Life, recently testified the videos as “deeply unsettling,” as well as “tragic and difficult to watch.” She went on to say, “Americans should not be forced to fund such unethical and abhorrent practices.” Many in Congress and concerned citizens from across the country agree.

Our colleagues on the Energy and Commerce Committee are leading this important effort. Right now, they are considering a reconciliation proposal that would stop the flow of taxpayer dollars to Planned Parenthood and redirect those resources to higher quality health care services for women. I hope we seize this opportunity to protect taxpayers and hold this organization accountable.

In closing, let me just say that the reconciliation process is never easy; it is always tough, complicated, and controversial. But because of our work here today, as well as the efforts of our colleagues on the Energy and Commerce Committee and the Ways and Means Committee, we can take an important step that will help address the priorities of the American people. I urge my colleagues to support this proposal and the reconciliation process as it unfolds in the weeks ahead.

Stefanik Statement: Markup of Committee Reconciliation Proposal

Education & the Workforce Committee - Wed, 09/30/2015 - 10:30am

For more than five years, the president’s health care law has failed to produce the kind of health care system the American people deserve. While the Obama administration continues to tout the “benefits” of its government takeover of health care, hardworking men and women across the country have been forced to contend with less access to doctors, a system plagued by waste and abuse, costly penalties, cancelled plans, and ever higher health care costs.

Those workers and families were promised that costs would go down. They’ve gone up. They were promised jobs would be created. They’ve been destroyed. They were promised that if they liked their health care plan, they would be able to keep it. We all know how that worked out. It’s only becoming clearer that the American people were handed a bunch of empty promises about the benefits of ObamaCare. What they’re seeing instead are consequences, and those consequences are playing out in communities across the country.

This reality is unacceptable. And it’s particularly unacceptable at a time when our economy is still struggling to recover, a time when so many people are still looking for jobs, and a time when small business owners are being forced to contend with a barrage of executive orders and regulations that make keeping their doors open a constant battle.

This is why it’s so important to make commonsense fixes to this law where possible – my constituents in New York’s 21st district want us to work together in Congress to ease the pain this law is having on so many North Country families and businesses.

The measure we’re here to discuss today is a step forward both in our efforts to protect workers and job creators from the president’s government-run health care system and in our efforts to rein in our out-of-control debt and deficits. It accomplishes those goals by getting rid of a duplicative and onerous ObamaCare mandate known as auto-enrollment. In moving employer-sponsored health care coverage away from a voluntary and flexible model, the president’s health care law has created a myriad of penalties and mandates.

This particular provision requires certain employers to automatically enroll their full-time employees in health care coverage.

What this means is that is a veteran or student in my district who is eligible for tri-care or to stay on their parent’s healthcare plan gets a job, they will be automatically enrolled in an unnecessary health care plan unless they know about this provision and decline coverage within a prescribed amount of time.

Making sure an employee has health care coverage sounds like a perfectly admirable goal. However, in this case, the cons outweigh the pros.  

This auto-enrollment mandate will create a lot of unnecessary confusion for my constituents and, by triggering tax penalties, could actually cost employees who might already be enrolled in health insurance coverage. The mandate will also limit an employee’s ability to select a health care policy that works best for his or her family. It’s redundant, it’s unnecessary, and it’s not in line with the patient-centered health care system this country needs. The measure under consideration today would eliminate that misguided mandate, but does nothing to take away an employee’s ability to opt-in and enroll in his or her employer’s coverage.

The proposed substitute amendment simply makes technical drafting corrections to the underlying proposal.

Sixth Circuit Affirms Class-Certification Order Despite Lack of Commonality

WLF Legal Pulse - Tue, 09/29/2015 - 1:14pm
Featured Expert Contributor – Civil Justice/Class Actions Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P. (co-authored with Talia Zucker, Shook, Hardy & Bacon L.L.P.)* The U.S. Court of Appeals for the Sixth Circuit’s recent decision in Rikos v. The Procter & Gamble Company was a setback to Rule 23 jurisprudence, but as is often the case, there […]
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Roe Statement: Hearing on "H.R. 3459, the Protecting Local Business Opportunity Act”

Education & the Workforce Committee - Tue, 09/29/2015 - 10:00am
I’m disappointed yet another misguided move by the partisan National Labor Relations Board has brought us here, but I’m not surprised. As chairman of this subcommittee, I have presided over numerous hearings focused on the NLRB’s threats to American workers and job creators. From ambush elections and micro-unions to restricting access to secret ballots and intruding on tribal sovereignty, the unelected bureaucrats at the NLRB have persistently pushed an activist agenda that benefits union bosses at the expense of hardworking men and women. And they’re doing it again.

Last month, I traveled to communities in Alabama and Georgia to hear more about the NLRB’s latest Big Labor scheme, an effort to change what it means to be an employer by expanding the joint employer standard. For more than 30 years, two or more businesses were considered “joint employers” – or equally responsible for decisions affecting employees and the daily operations of a business – if they shared “actual,” “direct,” and “immediate” control over those decisions. That standard had been in place for decades, and it had worked well for consumers, workers, and employers. However, it became apparent that an effort was underway at the NLRB to change the joint employer standard and upend countless small businesses in the process.

So we got out of Washington to get a better idea of what would happen if the board did what many people feared they might do. At two separate field hearings, we heard serious concerns that expanding the joint employer standard would have far-reaching consequences. We heard words like “disruptive,” “devastating,” and “detrimental.” We heard fears that the board would make a decision that would lead to higher costs, fewer jobs, and less opportunity for individuals – including veterans, women, and first generation Americans – to pursue the American Dream. And then, the board did exactly that.

Before we even returned to Washington, the NLRB issued a ruling in a case known as Browning-Ferris Industries that significantly expanded the joint employer standard. The decision discarded years of established labor policy to include employers who have “indirect” or even “potential” control over virtually any employment decision. To put it plainly, the board blurred the lines of responsibility for decisions affecting the daily operations of countless small businesses, including the nation’s 780,000 franchise businesses and countless contractors, subcontractors, independent subsidiaries, and more.

Having heard the stories of so many small business owners across the country and understanding the impact of this decision on countless lives and industries, Chairman Kline and Senator Lamar Alexander introduced the Protecting Local Business Opportunity Act. This commonsense legislation would roll back the NLRB’s harmful decision by reaffirming that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers. It would prevent the disruption of countless small businesses; it would ensure future entrepreneurs have the opportunity to pursue the American Dream; and it is the reason that we’re here today.

We’ve spoken many times and heard many stories about the problems related to board’s radical rewrite of the joint employer standard. Now it’s time to talk about the solution. I’m eager to hear from our witnesses – not only about how the board’s decision will affect them, their businesses, and their families, but how this legislation can help protect those things that they’ve worked so hard for and those that they hold so dear.

Peer-to-Peer Lending: Advocacy Analyzes Alternative Finance Option for Small Business

Office of Advocacy - Mon, 09/21/2015 - 3:06pm

For Release: September 10, 2015                                                                                                                

SBA Number: 15-05 ADV                                                                               


Contact: Elle Patout


Peer-to-Peer Lending: Advocacy Analyzes Alternative Finance Option for Small Business


Categories: Latest News, SBA Advocate

‘Chevron’ Deference Conflicts with the Administrative Procedure Act

WLF Legal Pulse - Fri, 09/18/2015 - 1:03pm
Featured Expert Column − Complex Serial and Mass Tort Litigation Richard O. Faulk, Hollingsworth LLP*   “It is emphatically the province and duty of the Judicial Department to say what the law is.”                                            –Marbury […]
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Small Businesses Speak Out on Overtime Proposal

Education & the Workforce Committee - Thu, 09/17/2015 - 12:00am
For months, employees, job creators, and policymakers have warned about the consequences of the Department of Labor’s overtime proposal. So far, these concerns are falling on deaf ears. Now, an independent office within the president’s own Small Business Administration is expressing concerns as well. In a letter to the department, the Office of Advocacy writes:

While small businesses support a modest increase in the salary threshold under the “white collar” FLSA exemption, DOL’s proposal more than doubles this salary threshold. Based on small business feedback, Advocacy believes that these changes will add significant compliance costs and paperwork burdens on small entities, particularly businesses in low wage regions and in industries that operate with low profit margins. Small businesses at our roundtables have told Advocacy that the high costs of this rule may also lead to unintended negative consequences for their employees that are counter to the goals of this rule.

In its letter, the nation’s small business advocate also notes the Department of Labor failed to “properly inform the public about the impact” of the proposed rule on small businesses:

Advocacy questions DOL’s analysis because it relies on multiple unsupported assumptions regarding the numbers of affected small businesses and workers … [It] analyzes small entities very broadly, not fully considering how the economic impact affects various categories of small entities differently.

According to the office, the department has not adequately taken into account the number of small businesses affected by the proposed rule, underestimates compliance costs, and does not consider less burdensome alternatives.

These small business concerns are troubling, but they’re not surprising. Others continue to raise similar concerns about a sweeping proposal that will:

Still, the administration pushes forward. With great fanfare, President Obama vowed almost three years ago to “make sure that small business owners have their own seat at the table in our Cabinet meetings.” Now that the small business owners are speaking up, are the president and his administration listening?  

# # #

Jay B. Stephens Succeeds Dick Thornburgh as Chairman of WLF Legal Policy Advisory Board

WLF Legal Pulse - Mon, 09/14/2015 - 3:55pm
Washington Legal Foundation today named Jay B. Stephens as Chairman of its Legal Policy Advisory Board. Mr. Stephens succeeds The Honorable Dick Thornburgh, who served as Chairman for 18 years. WLF’s Legal Policy Advisory Board includes over forty distinguished professionals from the government, private sector, academic, and public policy legal communities. Mr. Stephens recently retired […]
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Citing State-Based Voluntary Conservation Efforts, Federal Court Strikes Down ESA Listing for Chicken

WLF Legal Pulse - Mon, 09/14/2015 - 9:00am
Featured Expert Column – Environmental Law and Policy by Samuel B. Boxerman, Sidley Austin LLP, with Joel F. Visser, an associate with the firm. On September 1, 2015 a federal district court in Texas vacated a United States Fish and Wildlife Service (“FWS”) rule listing the lesser prairie chicken as threatened under the Endangered Species […]
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San Francisco’s Sweetened-Beverage Warning Mandate and Ad Ban Tread on First Amendment

WLF Legal Pulse - Fri, 09/11/2015 - 5:41pm
In past posts, we’ve characterized California as the “too much information” state. Under the everything-gives-you-cancer Proposition 65 law, even parking lots and coffee houses must post warning signs. San Francisco tried, and failed, to impose health warning signs at cellphone dealers. Undaunted, Berkeley passed its own cellphone warning ordinance this year, which faces a First […]
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Congress Taking Action to Reverse Harmful NLRB Decision

Education & the Workforce Committee - Thu, 09/10/2015 - 3:00pm

Republican leaders in Congress have started an effort to roll back a recent National Labor Relations Board (NLRB) decision that radically changes what it means to be an employer and will have far-reaching consequences for working families, small business owners, and entrepreneurs. In response to the board’s latest Big Labor ploy, House Education and the Workforce Committee Chairman John Kline (R-MN) and Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN) introduced the Protecting Local Business Opportunity Act. Upon introduction, the chairmen explained:

The NLRB’s new joint employer standard would make big businesses bigger and the middle class smaller by discouraging companies from franchising and contracting work to small businesses … Our commonsense proposal would restore policies in place long before the NLRB’s radical decision, the very same policies that served workers, employers, and consumers well for decades.

As numerous news outlets and stakeholders noted, the activist board’s decision would benefit union bosses at the expense of hardworking men and women:

  • Republicans on Wednesday made good on their promise to try to reverse a landmark ruling that will ease unionization for contract workers and others. – “Republicans Try to Reverse Ruling on Unionization for Contractors,” The Wall Street Journal
  • Under President Obama, the board has acted to expand the definition [of joint employer] … Companies would be forced to either assert more control over franchises' business practices to counter their increased liability or sever ties with them, forcing them to survive without the help of the company brand. – “GOP Announces Bill to Rein in Labor Agency,” Washington Examiner
  • Republicans blasted the decision as yet another way to expand labor’s grip on the workforce … They fear the joint employer ruling could force many franchisees out of business. – “Republicans Take Aim at NLRB's 'Joint Employer' Ruling,” The Hill

The legislation will protect workers and employers from the harmful effects of the board’s overreach and prevent the disruption of countless small businesses:

  • Republican leaders of the House and Senate labor committees introduced legislation to undo the recent National Labor Relation's Board ruling that expanded the definition of a joint employer. Instead of classifying franchisors as employers even if they only influence employees indirectly, the bill would force the return to a definition in which companies can only considered employers if they have "direct and immediate" control over workers. – “Lawmakers Push Back Against Joint Employer Ruling,” Fox News
  • “With the introduction of a bill to restore the traditional joint-employer standard, Congress has the chance to return stability and flexibility to thousands of business relationships and employment arrangements across the country,” [Competitive Enterprise Institute] labor expert Trey Kovacs said … – “Republicans Introduce Bill to Reverse NLRB’s Far-Reaching New Franchise Rule,” The Daily Caller
  • A reversal will prevent companies from being discouraged to contract work to smaller businesses and to enter franchising agreements, the GOP lawmakers said … – “Republicans Try to Reverse Ruling on Unionization for Contractors,” The Wall Street Journal

With the Obama NLRB continuing to act against the interests of America’s workforce, Republicans remain committed to advancing commonsense solutions – like the Protecting Local Business Opportunity Act – that protect working families and job creators. As House Subcommittee on Health, Employment, Labor, and Pensions Chairman Phil Roe (R-TN) said yesterday:

With an economy still struggling to recover, the last thing we need is more union favoritism that makes it harder for small businesses to survive and more difficult for Americans to find jobs … Unlike the NLRB’s misguided decision, this legislation will help, rather than hurt, the men and women working hard to provide for their families and those who aspire to one day have a business of their own.

# # #

EPA Proposes Changes to the Requirements for the Certification of Applicators for Restricted Use Pesticides

Office of Advocacy - Thu, 09/10/2015 - 10:14am

On August 24, 2015, the Environmental Protection Agency (EPA) issued a proposed rule, “Pesticides; Certification of Pesticide Applicators.”  This proposed rule would apply stricter standards to certified applicators of restricted-use pesticides by expanding competency standards, by adding certification requirements for certain high-risk application methods, and by requiring annual safety training for uncertified applicators.  The proposal requires applicators to renew their certification every three years.  The rule also establishes a first-time nation-wide minimum age of 18 for certified a

Categories: Latest News, SBA Advocate

Foxx Statement: Hearing on "Preventing and Responding to Sexual Assault on College Campuses”

Education & the Workforce Committee - Thu, 09/10/2015 - 12:00am
Earlier this week, as millions of students stepped foot on a college or university campus, members of Congress returned from their districts to continue their work strengthening America’s higher education system. As we all know, that effort often requires difficult but necessary conversations about tough issues, which is why we are here today.

Every college student should be able to learn in an environment that is safe and free from fear and intimidation. Yet for some students, that is not the case. According to one study, approximately one in five women in college has been sexually assaulted. Several universities – including Rutgers, Michigan, and MIT – report similar findings, and a number of recent high-profile cases further highlight the scope and seriousness of this important issue.

As a former community college president, a mother, and grandmother, I know I’m not alone when I say that all of us have a responsibility to protect students from sexual assault on campus. As one university president exclaimed, “The issue of sexual assault keeps me awake at night … I feel personally responsible for the safety and well-being of all students.” Another said, “I see the issue of sexual violence and sexual assault on colleges and universities as a matter of national importance.”

Students, parents, educators, administrators, and policymakers across the country share this same sentiment, and have joined a national conversation about these heinous crimes and how we can better protect students.

At the college and university level, efforts to prevent and respond to sexual assault are underway. For instance, some colleges and universities now require students to participate in seminars to help them understand what sexual assault is and how to prevent and report it. At the University of North Carolina – Chapel Hill, for example, these seminars reinforce a safe campus culture and explain university policies and procedures for responding to reports of sexual violence. 

Institutions are also improving how they support victims of sexual assault, providing resources and counseling services to help students recover from such a terrible event, complete their education, and continue on with their lives. Just as important, administrators are working to put in place a fair resolution process that respects the rights of the victim and the accused.

At the national level, the federal government has been working with colleges and universities to prevent and respond to sexual assault for decades. More recently, members of Congress have introduced legislative proposals intended to improve protections for college students. Additionally, the administration has established new policies institutions must follow.

Colleges and universities have rightly raised concerns about the administration’s one-size-fits-all regulatory approach. While well-intended, the administration has further complicated a maze of legal requirements, added to the confusion facing students, administrators, and faculty, and made it harder for institutions to guarantee student safety. As Dr. Rue will explain during her testimony, the patchwork of federal and state policies has impeded the efforts of administrators and educators to effectively prevent and respond to sexual assault on their campuses.

As Congress works to strengthen higher education, it must ensure tough, responsible policies are in place to fight these crimes and support the victims. I am pleased we have a panel of witnesses to represent all sides of this difficult yet important discussion. Your observations and recommendations are vital to our effort to help colleges and universities provide students the safe learning environment they deserve.


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