Healthcare Reform

The Affordable Health Care Act, a health care law, was passed in 2010.  By 2014 several health reform provisions will come into effect.  Unfortunately, with so many unanswered questions and loopholes, healthcare reform continues to confuse and bewilder employers.  Hopefully the below will provide some guidance.

For fully insured employers with 51+ employees, 2012-2013 health reform provisions include:

1. Limit employee contributions to FSAs.  Starting in 2013, employee salary reduction contributions to health FSA's will be limited to $2,500 per plan year, with indexed increases allowed in future years to adjust for inflation.
2. Employers who file 250 or more employee W-2 forms will be required to report the cost of employee's health benefit coverage on the employee's 2012 W-2 forms that are distributed in January 2013.   This requirement is informational only and does not mean that employees will be taxed on these dollars.
3. Provide written notice about Health Benefit Exchanges (Exchanges).  In late summer or fall (future guidance is expected on complying with this notice requirement), employers must provide written notice to current employees, and going forward, new employees, to inform them of the Exchanges and the circumstances under which they may be eligible for health insurance subsidies.
4. Assess health plan offerings.  Employers should begin assessing their health plan offerings to determine whether they meet the minimum value requirements that will become effective in 2014.  If plans do not meet the requirements, employers will need to explore alternative plan options/or the impact of paying assessments.
5. Requirements for providing the Summary of Benefits and Coverage (SBC) to your employees.  On or after September 23, 2012, group health plans and health insurance issuers offering group or individual health insurance coverage are required to provide an SBC that accurately describes the benefit and coverage under the applicable plan or coverage. The final regulations require that the SBC be provided in several instances (upon application, by the first day of coverage if there are any changes, special enrollees, upon renewal, upon request and off-renewal changes.)

2014 Health Reform Provisions.  Although the below provisions will not become effective until 2014, it is important for employers to know what is coming and what action is required!

1. Offer Minimum Essential Coverage (MEC).  Employers will want to consider whether they need to make changes to the cost and quality of the coverage offered to avoid penalties that will apply if that coverage is considered unaffordable or low in value.  Beginning in 2014, employers with 50-plus full-time employees may be subject to a penalty if an employee receives a premium credit or cost-sharing subsidy. The penalty is calculated as follows:
1. Employers not offering coverage.  If an employer does not offer MEC and one or more full-time employees receive a premium credit or cost-sharing subsidy through the Exchange, the penalty is $2,000 per year per full-time worker.  When calculating the penalty, the first 30 full-time workers are subtracted from the payment calculation.
2. Employers Offering Coverage:  If an employer offers MEC and one or more full-time employee receives a premium credit or cost-sharing subsidy through the Exchange, the penalty is $3,000 per employee who receives a premium credit or cost sharing subsidy.
2. An employer-sponsored plan that satisfies the ACA's reform requirements must:
1. Be affordable to the employee (premium must not exceed 9.5 percent of household income.  The IRS, however, has issued a safe-harbor allowing employers to substitute the employee's W-2 income for household income).
2. Provide minimum value, which is at least 60% of the total allowed cost of benefits.

Global Mobility and Crisis Planning

One of the most devastating things that can happen to a family is the unexpected death of a loved one.   You can't plan for it, death tends to come as a surprise.  And when the death occurs overseas the experience is even more traumatic.  The cultural and legal aspects of death and dying are varied across the globe.  Local customs, laws and procedures may not be clearly understood, creating barriers during an already trying time.

While we don't like to talk about the subject of death abroad, and I don't wish to be morbid, we must plan for every possible scenario.   Develop an Emergency Response Plan detailing steps to be followed addressing the death of an employee or any other crisis event such as a disappearance.  When building a plan, consider the following:

Disappearance:

1. Gather information (when/where last seen?  Last contact?  How traveling?  Was s/he seen with someone?  What search efforts have been initiated?)
2. Advise the U.S. State department.

Death:

1. Begin an event log, gathering background information and report crisis developments and responses.
2. Confirm status through local agencies (police, hospital, consulate)
3. Establish communication with family.
4. Seek assistance from U.S. Embassy/Consulate.
5. Contact local police and/or other law enforcement authorities in the country.
6. Coordinate the repatriation of remains. 

On the domestic front we plan for emergencies such as floods and tornadoes.  We follow OSHA guidelines in the workplace for the safety and protection of our employees.  Companies doing business on a global level should review their travel policies and ensure that a protocol has been established for dealing with the illness, injury and/or death of an employee. Ensure that it addresses the medical evacuation and/or shipping of the remains. 

NLRA

Let's talk NLRA for a moment.  There appears to be some lingering confusion.

The federal National Labor Relations Act governs the rights and responsibilities of unions and private employers.  Excluded, with some exceptions, are public employees, independent contractors, employees of Federal, state or local government, etc. 

An employee doesn't have to be a member of a union to be protected under the NLRA as it protects the rights of employees to engage in "concerted activity."   "Concerted activity" takes place when two or more employees take action for their "mutual aid or protection regarding terms and conditions of employment."  This protection can extend to work-related conversations conducted on social media such as Facebook and Twitter.

Many employers prohibit employees discussing compensation or wage levels in the workplace, often communicating that such information is confidential.  These same employers would be surprised to learn that this policy or practice would violate federal labor law.    The National Labor Relations Act contains a provision, Section 7 (29 U.S.C. § 157), that gives all employees the right to "engage in concerted activities", including the right to discuss their terms and conditions of employment with each other. Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades now that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so actually violate the NLRA.

A couple of tips:

1. You can't prohibit employees from discussing compensation or benefits, but you can prohibit them from holding such discussions during assigned work hours.
2. Clearly communicate that employees are protected in discussing their own pay as well as pay and benefits of secondary employees if information was obtained through ordinary conversation with the second party. 
3. If information was accessed in a manner that was restricted, such as access to confidential files or other off-limit information, the company can take steps to uphold confidentiality.

Exel and EEOC

An Atlanta jury awarded $500,000 ($25,000 in compensatory damages and $475,000 in punitive damages) in a sex discrimination suit against Exel, Inc., a Westerville, Ohio-based warehouse and distribution company.

According to the EEOC's suit filed in U.S. District Court of the Northern District of Georgia, Excel, Inc. violated Title VII of the Civil Rights Act of 1964 by refusing to promote a female, Contrice Travis, to an inventory supervisor position in 2008.

During the course of the trial, the EEOC presented evidence that:

1. Male employees were routinely promoted after verbally requesting consideration from open positions while Travis, who was indisputably recognized as the most knowledgeable in inventory control, was denied the inventory supervisor position.
2. Travis's former supervisor testified that when he recommended Travis for the position, the general manager informed him that he would never put a woman in that position.
3. Travis was told that the inventory supervisor position would not be filled.
4. The male selected for the position was told by management and a human resources official that the position would be filled, but that he would be selected only if he kept it a secret.
5. The selectee, Michel Pooler, required training by Travis because he had no inventory experience.

This isn't the first, or last,  potential violation by Exel.

On April 9th of this year, The Columbus chapter of the Council on American-Islamic Relations filed a federal employment discrimination lawsuit.  The plaintiff, Yusuf Sufi, was fired by Exel in May, 2012.   The federal complaint states that Sufi repeatedly asked Exel to provide him with an accommodation under which he could attend his Friday afternoon prayer services.   His employment was ultimately terminated by Exel in May 2012 when he asked for the accommodation a second time.  (It appears that Exel missed the memo.  Both state and federal law requires employers to accommodate the religious practices of their employees unless it creates an undue burden on the company.)

"This is not the first time Exel has discriminated against employees when they have asked for religious accommodation. Our office filed 18 charges of discrimination with the EEOC last month relating to the denial of religious accommodation for Muslim employees who worked at the same facility at which Mr. Sufi worked," said CAIR-Ohio Legal Director Jennifer Nimer. "This pattern of discriminatory behavior continues to be a problem at Exel." 

A massive review and overhaul of Exel's practices, policies, training and personnel needs to occur.   Both management and human resources have failed on a massive level.  Human resources is there to protect employee rights and employer rights.   In the case of Ms. Travis, HR took the side of the wrongdoer and supported a discriminatory selection process.  Human Resources didn't take steps to eliminate discrimination or reduce company liability in either case.

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Happy Birthday to the Equal Pay Act

50 years ago today the Equal Pay Act was signed by President John F. Kennedy.  While equal pay is the law, the nation still faces gender wage disparities.  In 2012, women generally earned 77 percent of men's wages.  For African-American and Latina women, the number is even lower.    We have made progress, but it's not enough.

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.  The jobs need not be identical, but they must be substantially equal.  Remember that job descriptions and titles are irrelevant. 

On the front line of this battle is the EEOC who has made enforcing equal pay laws one of its six priorities as outlined in the Strategic Enforcement Plan.

Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.