In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “NLRB Finds a Non-Union Employee’s Foul-Mouthed Complaining About Clients Protected Activity and Slams Employer’s Separation Agreement.”
Following is an excerpt:
A recent National Labor Relations Board (“NLRB”) decision by an Administrative Law Judge (“ALJ”) found numerous violations of the National Labor Relations Act (the “Act”) stemming from the reaction of a mortgage brokerage firm to a conversation in which one of its bankers used profanity and complained about a client in an office restroom. While this decision may seem extreme to some, it is also an example of the expansive view that the NLRB is taking in deciding what types of employee communication and activities, particularly with respect to non-unionized workforces, will be found to be protected by the Act as “concerted activity” relating to employees’ terms and conditions of employment.
Our colleague Stuart Gerson of Epstein Becker Green posted “DC Circuit Stays Halbig Action Pending SCOTUS Review of King, Upholds Accommodation for Contraceptive Coverage” on the Health Law Advisor blog. Following is the full text:
Only last week, we informed you of the Supreme Court’s somewhat surprising grant of cert. in the Fourth Circuit case of King v. Burwell, in which the court of appeals had upheld the government’s view that the Affordable Care Act makes federal premium tax credits available to taxpayers in all states, even where the federal government, not the state, has set up an exchange.
The Administration has taken something of a PR buffeting in the week following, after its principal ACA technical advisor’s comments on this issue were made public.
In any event, we suggested that the scheduled DC Circuit en banc argument in Halbig v. Burwell, which raises the same issue as the King case, would never take place. We were correct. The DC Circuit yesterday stayed action in its case pending Supreme Court resolution of King. We’ll continue to follow related developments.
Speaking of the DC Circuit, a panel of its most liberal judges today upheld religious organization accommodation for contraceptive coverage under the ACA, holding under Hobby Lobby that opt-out procedure does not substantially burden employer’s religious beliefs. Priests for Life v. U.S. Dep’t of Health & Human Services. There will be similar cases brought in other federal circuits, and we’ll report on those as well.
Our colleague Stuart Gerson of Epstein Becker Green has a new post on the Supreme Court’s recent decisions: “Divided Supreme Court Issues Decisions on Harris and Hobby Lobby.”
Following is an excerpt:
As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.
In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. …
An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly. …
Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides. In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.
Read the full post here.
On September 13, 2013, the Obama Administration rejected the union movement’s intense lobbying efforts to seek a waiver, so that their members would be able to receive tax subsidies in the Affordable Care Act (“ACA”) Marketplaces for those of their members who will be offered “affordable coverage” from their employers.
Beginning January 1, 2015, the ACA requires that large employers offer affordable health coverage that provides minimum value to their “full-time employees” (those working 30 hours or more per week) or pay a penalty. If an employee is not offered health insurance, or if the coverage offered does not meet the definition of “affordable” or does not provide minimum value, the employee may go to the Marketplace (formerly known as the Exchanges) to purchase coverage. In such cases, certain employees may receive a tax credit or premium subsidy in the Marketplace to help defray the cost of obtaining health coverage.
For many unionized employees, health care is provided through a Taft-Hartley multi-employer plan. Such plans will be required to be affordable and comply with the ACA’s plan design obligations, just like private employer-sponsored health plans. Employees who reject employer-sponsored coverage that complies with the ACA in order to obtain cheaper coverage through the Marketplace are not entitled to the same tax breaks as uninsured employees.
Labor lobbied hard for the ACA and spent millions getting President Obama elected several years ago. Now, much of labor has grown disenchanted by the Administration’s regulatory rulings and ObamaCare as a whole. This summer, labor union leaders from UFCW, UNITE-HERE, and the Teamsters sent a scathing letter to Congressional leaders criticizing the ACA’s new definition of a “full-time employee,” stating that “it will destroy the American workforce.” Labor unions – who depend on the promise of free or cheap health care to attract members – fear they will lose members and their leverage to organize new dues-paying members if employees can go to the Marketplace to obtain less expensive health care.
Big labor, however, wants to have its cake and eat it too. While the Taft-Hartley plan trust funds continue to unilaterally impose annual premium cost increases for the health and welfare plans covering many unionized employees, in recent weeks, labor has demanded ACA reforms providing tax breaks for unionized employees who receive coverage under these plans. Under their waiver plan, unionized employees (but not non-unionized employees) would get the same tax breaks as uninsured workers if their members want to purchase coverage in the Marketplace. Last week during the AFL-CIO Quadrennial Convention, the labor giant adopted a harsh resolution calling for these and other pro-labor changes to the ACA.
Days before, in anticipation of the AFL-CIO Resolution, Senator Orrin Hatch (R-UT) and Representative Dave Camp (R-MI) sent a letter to the Obama Administration cautioning that any such pro-labor carve outs to the ACA would be ill-advised and unconstitutional. On Friday, in a letter responding to Senator Hatch and Congressman Camp, the Administration rejected the labor movement’s proposal and responded with the message that union-represented employees should be treated the same under the ACA as any other employee offered affordable coverage from his or her employer. According to the Administration’s letter, [t]he conclusion that an individual cannot benefit from both the exclusion from taxable income for employer-provided health coverage under such a plan and the premium tax credit provided by the ACA applies whether the individual is covered by a single-employer plan or a multi-employer Taft-Hartley plan.
It is unclear whether organized labor will respond with formal calls for repeal or amendment of the ACA, but with this issue of a potential double standard sought by labor unions currently behind them, employers should focus on future compliance obligations under the ACA. Such compliance obligations include the upcoming October 1 Marketplace notice deadline, the creation of the Marketplaces, the Individual Mandate taking effect in 2014, and the Employer Mandate and associated reporting requirements in 2015.
Following is an excerpt:
For the unionized employer, the advent of the Affordable Care Act requires careful strategic thought about its impact on upcoming collective bargaining negotiations. Indeed, for companies with a unionized workforce, the ACA poses additional challenges and strategic considerations above and beyond those confronting nonunionized workforces.
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on employers and their group health plans.
In less than a year, employers employing at least 50 full-time employees will be subject to the Employer Shared Responsibility provisions. Under these provisions, if employers do not offer health coverage or do not offer affordable health coverage that provides a minimum level of value to their full-time employees, they may be subject to a tax penalty under the proposed regulations just issued by the Internal Revenue Service.
During this program, Epstein Becker Green practitioners will:
- Review the basics of the Employer Shared Responsibility provisions and proposed regulations
- Define employer status under the proposed regulations
- Clarify the definition of “full-time” employees and dependents who must be offered coverage
- Discuss the determination of affordable and minimum value coverage
- Review employer liabilities and penalties
This is the third session in the Employer Affordable Care Act Webinar Series for employers on upcoming rules and regulations implementing the Affordable Care Act. Please stay tuned for upcoming webinars on:
- Exchange Implementation
- Essential Health Benefits
- Quality Reporting
- And others…
Epstein Becker Green Presenters:
Wednesday, January 9, 2013
1:00 – 2:00 pm EST / 10:00 – 11:00 am PST
Registration Is Complimentary and Webinar Space Is Limited. Don’t Miss This Opportunity!
To Register, please click here.
Contact Elizabeth Gannon at 202/861-1850 or firstname.lastname@example.org for more information. If you missed the first two webinars in the New ACA Implementation Regulation series, the audio recording and presentation slides are now available.
On Tuesday, December 18, Epstein Becker Green attorneys Gretchen Harders, Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “What Employers Need to Know Now!” as the second webinar in a series on the New ACA Implementation Regulations: Employer Impact.
The webinar included:
- ACA implementation timeline
- Structure of the law and basic concepts affecting employers
- Critical employer decision making and planning for 2014
- Alternative plan design options available to employers
The webinar recording and presentation slides for “What Employers Need to Know Now!” are now available. Contact Elizabeth Gannon at 202/861-1850 or email@example.com, to obtain a password to download the files.
Frank C. Morris, Jr., Member of the Firm in the Litigation, Labor and Employment, and Employee Benefits practices is speaking at the 36th Annual National Labor & Management Conference on the topic of the Affordable Care Act and associated compliance issues facing employers and health and welfare funds.
The National Labor and Management Conference is recognized as one of the most outstanding labor and management programs in the United States, promoting discussion and collaboration on many levels. The program annually unites a diversity of labor and management leaders from across the country to address key issues affecting both labor and management.
Confirmed speakers for 2013 include: James P. Hoffa, President, United Brotherhood of Teamsters, Sean McGarvey, President, Building Construction Trades Department, AFL-CIO, Leo W. Gerard, President, United Steelworkers, Craig Alexander, Chief Economist, TD Bank and others.
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for employers. Registration is complimentary.
On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”
The webinar discussed:
- Proposed regulations and the impact these regulations could have on your overall wellness strategy
- Areas where employer comment is needed
- Recent wellness litigation trends
- Where EEOC fits in the picture
The audio recording and presentation slides for “The New Wellness Program Regulations” webinar are now available and you may contact Elizabeth Gannon at 202/861-1850 or firstname.lastname@example.org, to obtain a password to download the files.
This was the first in the Employer Affordable Care Act Webinar Series for employers on upcoming rules and regulations implementing the Affordable Care Act. Please stay tuned for upcoming webinars on:
- Exchange Implementation
- Shared Responsibility
- And others …
In addition to this blog, EBG’s PPACA blog will also post regulatory developments.