Medicare program; changes to maintenance of effort requirements (section 421 of the Medicare Catastrophic Coverage Act)--HCFA. Notice

This notice announces the effect on employers of the repeal of section 421 (Maintenance of Effort Provision) of the Medicare Catastrophic Coverage Act of 1988 (MCCA). The enactment of Public Law 101-234 (Medicare Catastrophic Coverage Repeal Act of 1989) on December 13, 1989 repealed many of the provisions of MCCA and restored the Medicare benefit levels to those available prior to January 1, 1989. Consequently, employers are relieved of their Maintenance of Effort responsibilities effective January 1, 1990.     

雇主不当解雇雇员的赔偿责任

根据国际劳工组织相关公约和许多国家的立法，雇主解雇雇员必须具备正当事由并遵守正当程序，雇主缺乏正当事由或违反正当程序将承担不当解雇的责任。雇主不当解雇雇员责任的确定需考虑雇员的工资收入、工龄、剩余工作年限、找到类似工作的可能性、寻找其他工作的费用等复杂因素。目前我国《劳动合同法》的相关规则过于简陋，应该借鉴国外的经验，建立既具有可操作性又能反映雇员实际损失的赔偿规则。     

发展循环经济与企业环境责任的实现

发展循环经济,建设资源节约型社会已成为我国新时期的战略发展目标。循环经济立法的发展是完善企业环境责任的重要手段;循环经济法律制度的建立是实现企业环境责任的途径。     

The slippery slope of health care finance: business interests and hospital reimbursement in Massachusetts

In 1988 Massachusetts enacted a bill, popularly known as Health Care for All, which promised that by 1992 every Massachusetts resident would have available affordable insurance for basic medical expenses. This legislation was one of a series of laws enacted over a period of six years which progressively improved access to care for the uninsured. The policy process which led to the enactment of these laws was strongly influenced by the interests of large employers. This article describes the series of access-expanding hospital reimbursement changes in Massachusetts in the 1980s and traces the connection between the involvement of business interests in the policy process and the outcomes that occurred; that is, it follows the slide of employers down the slippery slope of health care finance. The article also describes a potential implementation strategy for the Health Care for All legislation.     

Genetic discrimination: the use of genetically based diagnostic and prognostic tests by employers and insurers

Genetic discrimination is detrimental to public health programs, as well as to society generally. Advances in genetic testing and screening, accelerated and prompted by the Human Genome Initiative, increase society's ability to detect and monitor chromosomal differences. These technologies and their resulting genomic data will enhance medical science, but may also encourage discrimination. Although few employers or insurers currently utilize genetic screening, testing or data, rising employee benefit costs and market forces create powerful incentives for usage. Current municipal, state and federal laws, including the Americans with Disabilities Act (ADA), may not sufficiently protect employees and insureds from genetic discrimination. While municipal and state protections should not be overlooked, the ADA's sweeping scope may currently provide the most comprehensive safeguard. Federal laws banning discrimination on the basis of race or sex might also successfully redress some forms of genetic discrimination. Genetic technologies' advent necessitates efforts to rectify state and federal statutory coverage gaps, strictly regulate employers and produce comprehensive guidelines regarding its use.     

Smoking in the workplace: a management perspective

Caution is warranted when undertaking smoking measures that go beyond those required by state or local laws and do not accommodate the interests of all employees. Twenty states and the District of Columbia have enacted laws regulating smoking in the private workplace. In contrast, twenty-two states recently have enacted laws that protect persons who smoke outside the workplace from being subjected to adverse employment actions. Although these laws vary widely in their language and specifics, most pose practical and compliance problems for employers. The following article updates the author's more comprehensive examination in 1988 of judicial, legislative, and employer responses to the workplace smoking issue published in 14 Employee Relations Law Journal 359 (1988).     

“用人单位”的刑法意义探讨——以强迫职工劳动罪为视角

"用人单位"本是劳动法中的概念,但是,经过《刑法》第244条的进一步确认,又赋予其刑法意义。根据罪刑法定原则,"用人单位"可以构成强迫职工劳动罪的单位犯罪主体。对此,不论从刑法与其他部门法的关系,还是按单位犯罪的代罚制原则,以及根据适用刑法人人平等原则,乃至从司法解释的合法性上来看,劳动法中的"用人单位"概念在刑法上均可以得到合理、合法的解释。     

手术签字与患者的知情同意权

由于我国现今法律法规未能明确手术签字与患者知情同意之间的关系 ,使得医院和患者之间的权利义务关系不甚明确。随着医疗市场的进一步规范 ,我们有必要尽快地明确手术签字与患者知情同意权之间的关系。文章从手术签字与患者知情同意及医院免责之间的关系等五个关键性问题入手对两者的关系作了阐述。     

劳动领域新法对企业用工的影响

《中华人民共和国劳动合同法》、《中华人民共和国就业促进法》、《劳动争议调解仲裁法》以及劳动社会保障部有关规章（以下概称为“新法”）的颁布和实施，是中国劳动和社会保障法制建设中一个重要里程碑，标志着劳动用工制度新时期的到来。在新法加强对劳动者保护的形势下。用人单位应积极适应新法，改善劳动用工管理，合理地避免用工风险、节约用工成本和避免违法成本。     

Expanding the scope of fiduciary duties to fill a gap in the law: the role of nonprofit hospital directors to ensure patient safety

In the wake of the patient safety movement, there is a glaring disconnect between the increasing responsibilities placed on hospital board members and the limited accountability for those board members if they fail to meet their responsibilities. This Article discusses how the effectiveness of new patient safety laws is diminished by the lack of accountability of nonprofit board members. The Article suggests that an expanded notion of corporatefiduciary duties, enhanced by shifts in social norms, would contribute to patient safety reform.     

Smoking in the work place: a management perspective.

In the past, smoking in the private work place has been a matter left largely to the discretion of individual employees and employers. A recent poll of the nation's largest service and industrial companies indicates a strong employer preference for this noninterventionist approach by which employees work out smoking-related problems among themselves. Nonetheless, approximately eight states and four dozen localities have passed legislation regulating smoking in the private work place, apparently in response to the courts' reluctance to order such restrictions where the employer has undertaken reasonable efforts to accommodate smokers and nonsmokers. While these laws vary widely in their language and specifics, they may pose significant practical and compliance problems for employers. In the following article, the authors examine judicial, legislative, and employer responses to work-place smoking issues and discuss the options of private employers for coping with this problem.     

评美国反基因歧视法律实践及其启示

为防治基因技术的滥用和基因信息歧视,以《2008年禁止基因信息歧视法》为代表的美国联邦和州立法积极实施干预,以确保所有人雇佣机会平等、享有平等健康保险待遇,全面参与社会生活.美国反基因歧视法内容详尽,既禁止基因信息歧视行为,又兼顾保险公司、雇主的合理要求以及避免可能给第三人及公众带来的风险,使违法行为几乎“无缝隙可钻”,且法律对公立雇主的要求高于私立雇主.美国反基因歧视法律实践,对于我们客观认识和把握平等权,完善相关立法和公共政策,具有一定启迪.     

FAMILY CARE COMMITMENT DISCRIMINATION: BRIDGING THE GAP BETWEEN WORK AND FAMILY

This Note discusses the pervasive problem of employment discrimination based on family responsibilities, or family care commitment discrimination. Employees with family care commitments often find themselves being pulled in opposing directions—between work and family. When an employee is forced to choose work, for financial reasons, over family, his or her family ends up suffering. The current state and federal statutes aimed at employment discrimination are insufficient to deal with family care commitment discrimination. This Note proposes a change to the current legislation and explains how this change will protect employees and families, while causing employers to internalize externalities by adopting more family‐friendly policies.     

涉外劳动纠纷中竞业禁止协议准据法之研究——以微软与Google纠纷案为视角

竞业禁止协议的准据法确定问题,直接决定着涉外民商事关系主体应承担的具体权利、义务和责任,尤其是由于此类协议在一定程度上限制了雇员的择业自由,适用不当极有可能演变为雇主不正当竞争的工具,故此各国立法对其的有效性均采取审慎态度,并按照所奉行的公共政策对其进行法律调整。     

国际法视野下的企业社会责任与劳工权益保护——兼论社会责任标准在我国的实施

企业社会责任运动要求公司尤其是跨国公司在参与市场竞争的过程中应承担其应尽的社会责任以保障基本人权和劳工权利。考查企业社会责任运动的发展及相关国际法律文件的规定、实施及影响,相较于我国法律的相关规定,企业社会责任标准并非高不可攀的道德苛求,只要我国建立起规范、明确的约束体系,切实实施劳动法等相关法律的规定,劳工权益得到切实维护,企业社会责任的标准也就基本达到了。     

Special report on labor and employment. The Department of Labor issues final regulations for the federal Family and Medical Leave Act

The FMLA is a complicated and comprehensive regulatory scheme, and it is impossible to review any but the most basic provisions in this article. The final regulations provide very detailed guidance on such issues as benefits continuation, reinstatement rights, notice requirements, and enforcement measures. Personnel policies and practices must be revised to be consistent with these final regulations, and care must be taken that leave policies do not restrict rights under the FMLA or unintentionally create expanded leave rights. In complying with the FMLA, employers must also keep in mind that there are complex interplays between the federal FMLA, state laws that provide family and medical leave, the Americans with Disabilities Act, and state workers' compensation laws, that can require expert advice depending on the particular circumstances.     

Serving two masters: the interaction between Family and Medical Leave Acts and the ADA

The complex interaction between family leave acts and the new Americans with Disabilities Act (ADA) is just coming to light as employers begin to analyze how to comply with both laws. Specifically, the ADA implicates the procedures set forth in most family leave acts for verifying an employee's need for a leave through mandatory medical examinations and doctor's certificates. Many employees who are entitled to a leave of absence under state law are defined as "disabled" under the ADA. The ADA protects these employees with disabilities by regulating medical examinations and inquiries, and protecting the confidentiality of information obtained in such inquiries. This article offers some practical guidance for employers in providing leaves of absence under state family leave acts, while verifying the need for leaves in compliance with the ADA.     

Employment discrimination: age discrimination and sexual harassment

This is the era of deregulation—and yet in U.S. labor markets, at least, the legal regulation of the employment relation has been expanding in recent decades. The laws have been stiffened and their enforcement, mainly through private lawsuits, has been beefed up. Currently the two most important areas, in terms of impact on employers, are age discrimination and sexual harassment, and these will be my focus.     

海运温室气体减排国际法律制度研究

介绍国际海事组织制定国际海运温室气体减排法律制度的背景,分析制定相关法律制度的可行性和形势,提出并探讨四个关键问题,即立法目的、共同但有区别责任原则的体现、法律文件的形式、是否构成海运服务贸易壁垒,揭示其背后深层次的政治、经济、技术和法律问题,指出国际海运温室气体减排法律制度将给船舶技术、国际海运贸易、航运经营与运营带来深远影响。     

Psychologists abandon the Nuremberg ethic: Concerns for detainee interrogations

In the aftermath of 9-11, the American Psychological Association, one of the largest U.S. health professions, changed its ethics code so that it now runs counter to the Nuremberg Ethic. This historic post-9-11 change allows psychologists to set aside their ethical responsibilities whenever they are in irreconcilable conflict with military orders, governmental regulations, national and local laws, and other forms of governing legal authority. This article discusses the history, wording, rationale, and implications of the ethical standard that U.S. psychologists adopted 7 years ago, particularly in light of concerns over health care professionals' involvement in detainee interrogations and the controversy over psychologists' prominent involvement in settings like the Guantánamo Bay Detainment Camp and the Abu Ghraib prison. It discusses possible approaches to the complex dilemmas arising when ethical responsibilities conflict with laws, regulations, or other governing legal authority.