With its “employer mandate”—i.e., the requirement that applicable large employers make an offer of group health coverage to substantially all full-time employees or face the prospect of a penalty—the Affordable Care Act (ACA) opened a fault line in the previously monolithic market for group health insurance. There is large cohort of American workers who, before the ACA, were not offered major medical coverage under an employer-sponsored group health plan. These employees are sometimes referred to as the “contingent” workforce. They include part-time, seasonal and temporary employees, as well as employees whose work schedules are generally irregular or intermittent. Found predominantly though not exclusively in industries such as staffing, restaurants, media and advertising, transportation and hospitality, among others, these workers tend to be on the lower end of the pay scale. They also often have significant “deferred” health issues (a euphemism for undiagnosed conditions owing to lack of previous access to health care). The ACA provided “applicable large employers” (those with 50 or more full-time and full-time equivalent employees) with an incentive to cover these workers.

Continue Reading The Rise of the Group Health Insurance Captive

Senate Majority Leader Mitch McConnell recently gave a candid assessment of the chances of getting an Affordable Care Act (ACA) replacement bill through the Senate, saying “I don’t know how we get to 50 (votes) at the moment.” That succinctly captures the political dilemma. There has long been broad bipartisan agreement that the nation’s health care system was in need of repair. Something had to be done to contain rapidly rising health care costs, increase the quality of medical outcomes, and to expand coverage. But there was little or no bipartisan agreement on how to do it. Indeed, no major health care initiative since Medicare was enacted in 1965 has enjoyed true bipartisan support.

Continue Reading Can Congress Get to “Yes” on Replacing the Affordable Care Act?

Congress adopted the Family and Medical Leave Act of 1993 (“FMLA”) to provide job security for employees who must miss work due to their own serious health condition, the birth of their children, to care for family members suffering from a serious health condition or for reasons related to their family members’ military service. One of the most vexing issues for employers trying to comply with the FMLA is “intermittent” or “reduced-schedule” leave.

Continue Reading Intermittent Leave Under the FMLA – The Basics

On June 2, Patricia Moran was a guest on Bloomberg radio, where she discussed the Trump administration’s potential softening of the Obamacare contraception coverage mandate.  You can listen to her segment here: https://www.bloomberg.com/news/audio/2017-06-02/trump-moves-to-restrict-access-to-birth-control-audio

We previously discussed the conflict between a Second Circuit panel’s holding in April that Title VII of the 1964 Civil Rights Act did not prohibit discrimination on the basis of sexual orientation and the Seventh Circuit’s landmark ruling the same month reaching the opposite conclusion. The Second Circuit has now ordered en banc review of the April panel ruling, meaning that the entire court will rehear the case, and may be poised to follow the Seventh Circuit in extending Title VII to sexual orientation claims.

Continue Reading Second Circuit Orders En Banc Review of Panel Holding that Title VII Does Not Prohibit Sexual Orientation Discrimination

In an effort to make up for a funding shortfall in the Commonwealth of Massachusetts’ Medicaid program, state policymakers have proposed solutions that include a “play-or-pay” option under which employers who fail to offer major medical coverage, or who offer coverage but have low take-up rates, would be required to pay an additional “employer contribution” to the Commonwealth based on multiple factors and complex computations. Another option would make up the shortfall with an across-the-board increase, similar to a payroll tax increase, in the Employer Medical Assistance Contribution (or “EMAC”), which helps defray Medicaid financing.

This post argues in favor of the latter option. We are of the view that an across-the-board increase in EMAC payments, would be vastly preferable because of its simplicity and ease of administration. The “play-or-pay” option would not only be extremely complicated to comply with and enforce, but, as we explain below, it may be preempted by federal law, i.e., the Employee Retirement Income Security Act of 1974 (ERISA).

Continue Reading Efforts to Shore up MassHealth Should Favor Simplicity and Avoid Potential Conflict with Federal Law

In a previous post we discussed the significant new obligations New York City’s “Freelance Isn’t Free Act” imposes on employers that retain the services of freelance independent contractors. On May 15, these requirements became effective for all freelance contracts executed on or after that date. Some of the law’s key provisions include the requirements that freelance services in excess of $800 be detailed in written contracts and that employers provide payment for freelance services within 30 days, and a prohibition on retaliation against freelancers who exercise their rights under the law.

The New York City Department of Consumer Affairs, Office of Labor Policy Standards has issued some limited initial guidance on the law but, as we discussed in our earlier post, numerous questions remain concerning the law’s practical implications. Please stay tuned to Employment Matters for updates as we continue to monitor this law’s impact on companies that rely on freelance workers.

As expected, the New York State Department of Labor (DOL) recently appealed the decision of the New York Industrial Board of Appeals invalidating the DOL regulations concerning employers who use direct deposit or payroll debit cards to pay employees.  The regulations, which were scheduled to take effect on March 7, 2017, were invalidated in February 2016.  We reported on that decision here.  We will continue to provide updates here as this case moves forward; but for now, the law on this issue remains in flux. Stay tuned!

Join us on Tuesday, May 16 for the final installment of our Entrepreneur Series in partnership with the University of San Diego. In the third session, “Employment & Litigation Avoidance,” panelists, including speakers from The Honor Foundation, Fairway Technologies, Patriot List and Mintz Levin, will discuss the nuts and bolts of workforce management and provide advice for structuring your business to avoid making mistakes that may result in litigation.

For more information and to register, please click here.

As we recently blogged about here, efforts to ban inquiries related to applicants’ salary history have gained momentum across the country. Last Friday, New York City Mayor Bill de Blasio joined this trend by signing into law a bill prohibiting New York City employers from inquiring about prospective employees’ salary history. When it takes effect on October 31, 2017, the law will prohibit employers from communicating “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” “Salary history” includes the applicant’s current or prior wage, benefits or other compensation.

Continue Reading Update on New York City Legislation Limiting Salary History Inquiries