Tesla Launched its Own Car Insurance. These Drivers Say it’s a Lemon.

“In February, Mark Bova purchased a used 2018 Tesla Model S. Before leaving the dealer, he bought insurance from Tesla, finding the initial $93 monthly premium “really reasonable.” Sixteen days later, as he drove along the Capital Beltway to his Maryland home, he engaged Autopilot, Tesla’s automated driving system. The car started beeping and lurched left — striking a median and flipping. He escaped through a window as the car filled with smoke. An ambulance rushed him to the hospital with back injuries that later required surgery.”  Full Article

– Insurance Journal

Schools Look to Improve Cybersecurity, but Many Vulnerable to Ransomware

“Some K-12 public schools are racing to improve protection against the threat of online attacks, but lax cybersecurity means thousands of others are vulnerable to ransomware gangs that can steal confidential data and disrupt operations. Since a White House conference in August on ransomware threats, dozens of school districts have signed up for free cybersecurity services, and federal officials have hosted exercises with schools to help them learn how to better secure their networks, said Anne Neuberger, the Biden`s administration`s deputy national security advisor for cyber and emerging technology.”  Full Article

– Insurance Journal

Bringing It All Together — Health and Welfare Plan Fiduciary Compliance Reviews

“Fiduciaries should strive to mitigate risks proactively by formalizing a fiduciary compliance review process. A solid process involves evaluating plan documents, participant communications, service provider agreements, and service provider performance to identify potential risks. Making corrections and taking steps to minimize risk can help reduce the chance of costly litigation in the future.”  Full Article

– Nixon Peabody

11th Circuit Affirms District Court’s Approval of the BCBSA $2.67 Billion Settlement

“Employers should be aware that they may have fiduciary duties under ERISA with respect to the use of any proceeds from the settlement fund…. Unless specific guidance is issued related to the BCBSA settlement, employers may want to use the [DOL’s] MLR guidance as a reference when determining how to calculate what portion of the BCBSA settlement proceeds should be considered ‘plan assets,’ and how those funds can be used.”  Full Article

– Miller Johnson Snell & Cummiskey P.L.C.

Draft of 2024 IRS Publication 15-B: Employer’s Tax Guide to Fringe Benefits (PDF)

“35 pages; Nov. 17, 2023. “What’s New: [1] Cents-per-mile rule [2] Qualified parking exclusion and commuter transportation benefit [3] Contribution limit on a health flexible spending arrangement.”  Full Article

– Internal Revenue Service (IRS)

Self-Insured Health Plans: Adjusted PCORI Fee Announced for 2024

“For plans with plan years that ended on or after October 1, 2023, and before October 1, 2024, the fee is $3.22 per covered life. Employers who maintain self-insured health plans and HRAs … need not pay a separate PCORI fee for HRA-covered lives. However, employers who provide coverage through a fully insured plan … and an HRA must pay a PCORI fee based on the HRA.”  Full Article

– Jackson Lewis P.C.

The Proposed MHPAEA Regulations: A Comment on the Comments

“A comment letter from the Brookings Institution] expresses concern over the depth of the analysis that is required for each NQTL [and] provides a useful schematic that fleshes out the particulars. The schematic makes the point that a substantial amount of effort is involved in demonstrating compliance for a single NQTL and all steps must be repeated for each additional NQTL.”  Full Article

– McDermott Will & Emery

In An Era of Premium and Provider Price Increases, State Employee Health Plans Target Key Cost Drivers

“The agencies that purchase health insurance for [the more than 15 million] public employees … are often the largest commercial purchaser of health care services in their state and therefore have market power to exert pressure on insurance companies and providers. Their efforts to shift health plan and provider behaviors and encourage greater efficiencies can have ripple effects for other commercial purchasers.”  Full Article

– Health Affairs Forefront

US Contractors, Insurers Overlooking Some Safety Improvements in Construction

“Many American construction firms are failing to implement obvious and inexpensive safety measures that could save lives, reduce injuries and avoid costly insurance claims. And many insurers are not nudging their insured contractors to be proactive and preventive. “It’s usually not until after the fact, after something happens,” said TJ Lyons, a safety consultant who spoke Tuesday at the International Risk Management Institute’s 43rd Annual Construction Risk Conference in Orlando.”  Full Article

– Insurance Journal

Dash Cams in Fleet Vehicles are Key to Avoiding Nuclear Verdicts, Risk Managers Say

“Cameras. One showing the driver and another facing forward. Those can be the keys to avoiding nuclear verdicts after auto and truck crashes, especially for companies with fleets of vehicles and relatively inexperienced drivers, two Crum & Forster risk executives said Monday at the International Risk Management Institute’s Annual Construction Risk Conference. “Fleet liability has not been profitable for insurers for a long time,” said Paul Anderson, vice president of field underwriting for the national group of property/casualty insurance companies.”  Full Article

– Insurance Journal

Can An Employer Fire Me for My Speech Outside Work?

“Absolutely yes – depending on the circumstances. While we have grown up with the notion that free speech is sacrosanct in this country, the First Amendment actually only prohibits the government from restricting individuals’ speech. The restriction on censorship does not extend to private employers and, to be clear, not-for-profit organizations are also private employers.”  Full Article

– Levy Employment Law, LLC

An Early Report on How the Supreme Court’s Affirmative Action Admissions Policies Decision is Impacting the Private Sector

“In Students for Fair Admissions v. Harvard, 600 U.S. (June 29, 2023) (SFFA), the United States Supreme Court struck down the legality of affirmative action programs within the university setting, holding that universities may not use race by itself as a “plus factor” in college admissions decisions.”  Full Article

– Whiteford, Taylor & Preston LLP

Engage the Workplace With A Military Mindset

“The WSJ piece about the benefit of hiring drill sergeants to double down on productivity and reduce whining makes some good points about how the private sector can profit from hiring military veterans. But the piece misses some important points about how veteran-driven values and skills can address employee engagement, a key private sector concern.”  Full Article

– Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

EEOC Settles Landmark AI Discrimination Workplace Suit

“The U.S. Equal Employment Opportunity Commission (EEOC) has settled its first discrimination lawsuit involving artificial intelligence (AI) in a New York federal district court. The EEOC and iTutorGroup filed a joint settlement, which provides that the tutoring company will pay $365,000 to resolve the charges against it. The EEOC alleged that iTutor’s AI hiring selection tool illegally screened out female applicants over the age of fifty-five and male applicants over the age of sixty.”  Full Article

– Hall Benefits Law, LLC

Increased Protection for Employees Who Blow the Whistle on Workplace Safety

“The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently memorialized their collaborative agreement to engage in information sharing between the agencies regarding the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act of 1970 (OSH Act), namely its anti-retaliation provision and other whistleblower provisions.”  Full Article

– Barnes & Thornburg LLP

How the Federal Government’s AI Risk Management Practices Will Set the Standard: A Closer Look At Government Action Following President Biden’s Executive Order

“The White House announced the formation of the ‘US AI Safety Institute’ within the Commerce Department’s technology arm, the NIST. The Institute has been directed to develop technical guidance used by regulators, such as the EEOC, considering rulemaking and enforcement on discrimination related to AI. The White House has also released for public comment draft guidance relating to the federal government’s use of AI.”  Full Article

– Seyfarth Shaw LLP

Right Turn on Red? With Pedestrian Deaths Rising, US Cities Are Considering Bans

“Sophee Langerman was on her way to a bicycle safety rally in Chicago’s Lakeview neighborhood in June when a car turning right rolled through a red light and slammed into her bike, which she was walking off the curb and into the crosswalk. The car was moving slowly enough that Langerman escaped serious injury, but the bicycle required extensive repairs. To Langerman, it`s another argument for ending a practice that almost all U.S. cities have embraced for decades: the legal prerogative for a driver to turn right after stopping at a red light.”  Full Article

– Insurance Journal

Three Passengers Sue Alaska Airlines After Off-Duty Pilot Accused of Trying to Cut Engines

“Three passengers sued Alaska Airlines, saying they suffered emotional distress from an incident last month in which an off-duty pilot is accused of trying to shut down the engines of a plane while catching a ride in the cockpit from Washington state to San Francisco. In the complaint filed Thursday in King County Superior Court in Washington state, San Francisco residents Matthew Doland and Theresa Stelter and Paul Stephen of Kenmore, Washington, alleged that the pilot should never have been allowed in the cockpit because he was suffering from depression and a lack of sleep.”  Full Article

– Insurance Journal

Winston & Strawn LLP: Benefits Bulletin — IRS Increases PCORI Fees Payable in 2024

“The new Patient Centered Outcomes Research Institution (PCORI) fee for policy and plan years that end on or after October 1, 2023 and before October 1, 2024 is $3.22; an increase of $0.22 per covered life as compared to the PCORI fee assessed on or after October 1, 2022 and before October 1, 2023.”  Full Article

– Winston & Stawn LLP

Self-Funded Plan’s Guide to Gender-Affirming Coverage

“Whether or how a group health plan (GHP) should cover gender-affirming care is a complex and evolving legal issue. This is especially true of self-funded GHPs, which are generally not subject to the nondiscrimination provisions of the Affordable Care Act (ACA). Both state and federal law are still unsettled. Self-funded GHP sponsors must carefully consider numerous legal factors.”  Full Article

– Hall Benefits Law

ACA Reporting Benefits Brief

“The reporting requirements under the Affordable Care Act (ACA) have been in effect since 2015. Many employers are already familiar with the rules. However, some employers, particularly those that have grown in size, may lack clarity regarding their reporting obligations under the law. As the deadlines for the 2023 ACA reporting roll near, it is important to review the basics of reporting, including any changes that may be applicable for the 2023 reporting year.”  Full Article

– Acrisure, LLC

Reminder: Gag Clause Attestations Due by Year-End

“[1] Review applicable contracts to ensure that they do not contain prohibited gag clauses. [2] If the group health plan is fully insured, confirm that the insurer will make the Attestation on behalf of the plan. [3] If the group health plan is self-insured, it may be possible to delegate the responsibility for completing the Attestation to the plan’s TPA. [4] Review existing agreements with insurers/ TPAs to ensure that the agreement includes a ‘compliance with applicable law’ provision.”  Full Article

– Faegre Drinker Biddle & Reath LLP

Agencies Propose Extensive Modifications to Regulations Implementing Surprise Billing IDR

“Several provisions of both the interim final and final regulations, as well as related agency guidance, have been vacated in a series of cases brought by an association of health care providers. In response, the agencies recently issued proposed regulations addressing IDR fee issues raised by the litigation and, among other things, partially shut down and reopened the federal IDR portal multiple times. The agencies now propose additional regulations to adjust the IDR process and change the fee structure. Here are highlights.”  Full Article

– Thomson Reuters / EBIA

Fact Sheet #66e: The Davis-Bacon and Related Acts — Compliance with Fringe Benefit Requirements

“The following practices may lead to violations under the DBRA, resulting in failure to pay the applicable prevailing wage rate: [1] Misclassifying laborers and mechanics for the type of work performed; [2] Failing to obtain prior approval from the DOL for unfunded fringe benefit plans; [3] Failing to annualize (or incorrectly annualizing) the hourly equivalent of fringe benefit amounts. [4] Paying hourly rates and/or fringe benefit amounts pursuant to a Collective Bargaining Agreement (CBA), where the CBA specifies rates lower than those required in the applicable wage determination; and [5] Improperly taking credit towards fringe benefit obligations for certain expenses.”  Full Article

– Wage and Hour Division, U.S. Department of Labor

Alliance of 40 Countries to Vow Not to Pay Ransom to Cybercriminals

“Forty countries in a U.S.-led alliance plan to sign a pledge never to pay ransom to cybercriminals and to work toward eliminating the hackers’ funding mechanism, a senior White House official said on Tuesday. The International Counter Ransomware Initiative comes as the number of ransomware attacks grows worldwide. The United States is by far the worst hit, with 46% of such attacks, Anne Neuberger, U.S. deputy national security adviser in the Biden administration for cyber and emerging technologies, told reporters on a virtual briefing.”  Full Article

– Insurance Journal

Companies May Be Employers of Contract, Franchise Workers Under US Labor Rule

“A U.S. labor board on Oct. 26 issued a final rule making it easier for workers and unions to hold companies liable for labor law violations by their franchisees and contractors, reviving an Obama-era standard heavily criticized by trade groups. The rule from the National Labor Relations Board (NLRB) will treat companies as so-called “joint employers” when they have control, even if it is indirect or not exercised, over essential terms and conditions of employment such as pay, scheduling, hiring and firing, and supervision.”  Full Article

– Insurance Journal

Union Charge and Election Petition Filings Continue to Climb

“Unions continue to dominate headlines, as the UAW strike persists and the union saga at Starbucks continues to unfold. Perhaps unsurprisingly, based on that, the number of charges alleging labor law violations and election petitions filed by unions with the NLRB still are on the rise as well.”  Full Article

– Barnes & Thornburg LLP

Senate Confirms New EEOC General Counsel as New Case Filings Climb

“The Senate has confirmed Karla Gilbride as the EEOC’s General Counsel, following an almost two and a half year vacancy. As GC, Gilbride is poised to make her mark on the EEOC’s litigation program by directing and advocating for EEOC’s litigators, both internally and externally.”  Full Article

– Seyfarth Shaw LLP

Is Your HR Department Aware of the Latest EEOC Priorities?

“Periodically, the EEOC (Equal Employment Opportunity Commission) lets us know what to watch out for. On September 21, the EEOC released its Strategic Enforcement Plan for years 2024-2028 (“SEP”), which tells us where the federal government is prioritizing its employment dollars.”  Full Article

– Dickinson Wright

NLRB Returns to a More Expansive Joint Standard

“Today, October 26, 2023, the National Labor Relations Board issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule establishing the current test for determining whether two entities are joint employers. This new rule will result in more findings that two entities are joint employers.”  Full Article

– Shawe Rosenthal LLP

Mark Your Calendars: EEO-1 Reporting Season is Almost Here!

“Ready or not, reporting season is right around the corner. The Equal Employment Opportunity Commission (EEOC) recently announced that the 2022 EEO-Component 1 data collection will open on Tuesday, October 31, 2023, and the deadline for employers to file is Tuesday, December 5, 2023. In completing the EEO-1, all covered private employers and federal contractors have a mandatory legal obligation to submit and certify their workforce demographic data.”  Full Article

– Venable LLP

Religious Accommodations, Part Deux: Is the Religious Belief Sincere?

“In Part One of this two-part bulletin, we explored the expansive meaning of religious beliefs entitled to an accommodation under Title VII and the reluctance of courts to second guess whether a belief is “religious” in nature. Even though the religious nature of a belief may not be an appropriate topic for inquiry, it is appropriate and necessary to differentiate between beliefs that are sincerely held as a matter of faith and those that are animated by a motive of fraud or deception.”  Full Article

– Constangy, Brooks, Smith & Prophete LLP

‘Forever Chemical’ Bans Face Hard Truth: Many Can’t Be Replaced

“As lawmakers around the world weigh bans of cancer-linked “forever chemicals,” many manufacturers are pushing back, saying there often is no substitute for the compounds. Minnesota and Maine have passed legislation to effectively outlaw the use of per- and polyfluoroalkyl substances, or PFAS, in nearly all products by the early 2030s. Dozens of other states are also considering curbing their use. And the European Union’s Chemical Agency has proposed a widespread ban.”  Full Article

– Insurance Journal

Governments and Firms Should Spend More on AI Safety, Say Top Researchers

“Artificial intelligence companies and governments should allocate at least one third of their AI research and development funding to ensuring the safety and ethical use of the systems, top AI researchers said in a paper on Tuesday. The paper, issued a week before the international AI Safety Summit in London, lists measures that governments and companies should take to address AI risks.”  Full Article

– Insurance Journal

What Are the Health Plan ID Card Transparency Requirements? (PDF)

“For plan years beginning on or after January 1, 2022, any physical or electronic plan or insurance identification card issued to group health plan participants or beneficiaries must clearly state … [1] any applicable deductible; [2] any applicable out-of-pocket maximum limitation; and [3] a telephone number and internet website address through which the individual may seek consumer- assistance information.”  Full Article

– Thomson Reuters / EBIA

Text of IRS Notice 2023-70: Insured and Self-Insured Health Plans Adjusted Applicable Dollar Amount for PCORI Fee Imposed by Sections 4375 and 4376 (PDF)

“The fee imposed by sections 4375 and 4376 helps to fund the Patient-Centered Outcomes Research Trust Fund (PCORTF) and is calculated using the average number of lives covered under the policy or plan and the applicable dollar amount for that policy year or plan year.”  Full Article

– Internal Revenue Service (IRS)

Fiduciary Governance: HIPAA and Cybersecurity Best Practices

“Plans considered ‘covered entities’ under HIPAA are subject to privacy and security rules governing individually identifiable health information. Plan sponsors must implement their plans’ physical, administrative, and technical safeguards to protect e-PHI against cyberthreats. Fiduciaries should not stop at HIPAA-covered health data but should equally safeguard any personally identifiable information of employees in connection with their welfare benefit plans.”  Full Article

– Nixon Peabody

10 Important Issues for Employers During the 2024 Open Enrollment Season

“[1] Affordability of group health plan [2] HDHP/HSA limits [3] Updated CHIP notice [4] HIPAA notice of privacy practices [5] Summary of Benefits and Coverage [6] Annual compliance notices. [7] Wellness program notices [8] Life insurance evidence of insurability [9] Premium payments for fixed indemnity/specified disease insurance [10] Coordinate with insurer/TPA on NQTL comparative analysis and gag clause prohibition compliance attestation.”  Full Article

– Dickinson Wright

Transparency in Coverage Update: Status of Current Enforcement and Future Rulemaking

“All covered plans will need to move ahead with publishing machine-readable files with prescription drug cost information, but future guidance will be issued on the implementation timeline for those plans that have relied on the enforcement delay. Also, plans that use alternative reimbursement arrangements for in-network providers will no longer be able to use the safe harbor that was previously available for reporting in-network rates.”  Full Article

– Slevin & Hart, P.C.

New Illinois Law Mandates Certain Employers Offer Pre-Tax Commuter Benefits Starting January 1

“Beginning January 1, 2024, a covered employer must make available a pre-tax commuter benefit to covered employees. Covered employees are those employees who work an average of at least 35 hours per week. The Act applies to covered employers with at least 50 covered employees in one of more of [certain specified] locations. Illinois is not the first jurisdiction to enact such a law; employers with multi-state operations should confirm which states and municipalities in which they operate may require the adoption of the same or similar type of program.”  Full Article

– Michael Best & Friedrich LLP

Private Health Data Still Being Exposed to Big Tech, Report Says

“Despite recent efforts to address the issue, medical-related websites continue to be mined for data including personal medical information, in an apparent violation of patients’ privacy rights, according to a new study. Some of the most common tracking pixels were from Alphabet Inc.’s Google, Microsoft Corp., Meta Platforms Inc. and ByteDance, the parent company of TikTok, according to a report by the cybersecurity company Feroot Security.”  Full Article

– Insurance Journal

US Plans to Push Other Countries Not to Pay Hacker Ransoms

“The US is pushing a group of governments to publicly commit to not make ransom payments to hackers ahead of an annual meeting of more than 45 nations in Washington later this month. Anne Neuberger, deputy national security adviser, told Bloomberg News that she is “incredibly hopeful” about enlisting support for such a statement but acknowledged it’s a “hard policy decision.” If members can’t agree to the statement in advance of the meeting, then it will be included as a discussion point, she said.”  Full Article

– Insurance Journal

Cybersecurity Awareness Dos and Don’ts Refresher

“As we have adjusted to a combination of hybrid, in-person and remote work conditions, bad actors continue to exploit the vulnerabilities associated with our work and home environments.”  Full Article

– Katten Muchin Rosenman LLP

Top Three Labor Trends to Watch for in Q4 2023

“More companies will be pulled into union organizing campaigns, contract negotiations and National Labor Relations Board (NLRB) proceedings involving their contractors when the NLRB issues a new joint employer rule.”  Full Article

– McDermott Will & Emery

$2.49 Million Verdict Underscores Expansive USERRA Protections

“A little more than a year after U.S. Army veteran Le Roy Torres kept his case alive at the U.S. Supreme Court, a Texas jury voted unanimously to award him $2.49 million on the claim that his former employer, the Texas Department of Public Safety, failed to accommodate Torres’ service-connected disabilities.”  Full Article

– Littler Mendelson P.C.

Incentives to Improve Employee Performance, Attendance, Commitment

“In his recent book, Mixed Signals: How Incentives Really Work, economist and University of California-San Diego professor Uri Gneezy examines how incentives of various kinds can and do modify behavior in a variety of contexts. Employment is one of the contexts in which incentives have particular application.”  Full Article

– Constangy, Brooks, Smith & Prophete LLP

EEOC Issues Long-Awaited Guidance on Harassment in the Modern Workplace

“The U.S. Equal Employment Opportunity Commission issued long-awaited enforcement guidance on workplace harassment. The ‘Proposed Enforcement Guidance on Harassment in the Workplace,’ published in the Federal Register on October 2, 2023, advises employers on handling new workplace realties, including LGBTQ rights, online misconduct, abortion, and a number of different types of harassment.”  Full Article

– Sheppard, Mullin, Richter & Hampton LLP

Former Employee Challenges Employer’s Diversity Program on Religious Discrimination Grounds

“Courtney Rogers, a former recruiter for Compass Group USA, recently filed a lawsuit against the company in the U.S. District Court for the Southern District of California. Rogers argues that Compass violated Title VII of the Civil Rights Act of 1964 after it terminated her for requesting a religious accommodation to avoid working on a corporate diversity, equity, and inclusion (DE&I) program that excluded white male employees.”  Full Article

– Hall Benefits Law