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NLRB Explains What Employer Rules Are Unlawful and How to Make Them Lawful

NLRB Explains What Employer Rules Are Unlawful and How to Make Them Lawful

NLRB EXPLAINS WHAT EMPLOYER RULES

ARE UNLAWFUL AND HOW TO MAKE THEM LAWFUL

On March 18, 2015, the NLRB General Counsel (GC), Richard Griffin, issued a report attempting to reduce some of the mass confusion over the NLRB's policies concerning employer handbooks and other company policies.  The GC acknowledges most employers do not draft their policies with the object of restricting conduct protected by the labor law, but states that the law does not allow even well-intentioned rules that would inhibit employees from engaging in protected activities.  The main principle is that the maintenance of a work rule may violate the law if a rule has a chilling effect on employees' protected activity.  The most obvious way a rule would violate the Act is by explicitly restricting protected concerted activity.  However, even if a rule does not explicitly prohibit protected activities, it will still be found unlawful if:  (1) employees would reasonably construe the rule's language to prohibit protected activity; (2) the rule was promulgated in response to union or other protected activities; or (3) the rule was actually applied to restrict the exercise of protected rights.  The GC states the vast majority of violations are found under the first prong, and the NLRB has issued a number of decisions interpreting whether "employees would reasonably construe" employer rules to prohibit protected activity. 

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GOVERNMENT Position: Worker Presents New Social Security Number and States Previous Documents Were Not Real

GOVERNMENT POSITION:  WORKER PRESENTS

NEW SOCIAL SECURITY NUMBER AND STATES

PREVIOUS DOCUMENTS WERE NOT REAL

One of the most common (and difficult) immigration issues faced by employers occurs when an employer has accepted an employee's work authorization documents that appear genuine, but the employee later comes in and presents new identity and work authorization documents and states that the previous documents were not real.  Employers are concerned whether this situation opens the employer up to any discrimination issues in any way if it chooses to keep or terminate the employee.  The U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter on January 8, 2015, explaining an employer's responsibilities in this situation.  Because of the importance of the issue, significant portions of the "correct steps" and opinion are stated below:

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Supreme Court Addresses Wage-Hour Collective Actions and Statistical Proof in Tyson Case

Supreme Court Addresses Wage-Hour Collective

Actions and Statistical Proof in Tyson Case

On March 22, 2016, the U.S. Supreme Court affirmed a lower court decision which found Tyson Foods liable for a $2.9 million damage claim relating to overtime pay for time spent donning and doffing protective equipment.  The case was brought as a "collective" action under federal wage-hour laws but as a "class action" and under applicable state law.  Tyson's argued it was not proper to permit the employees to pursue their claims as a class because the primary method of proving injury assumed each employee spent the same time donning and doffing protective gear, even though differences in the type of gear may have meant that, in fact, employees took different amounts of time to don and doff.  Tyson also argued that certification was improper because damages awarded to the class may be distributed to some persons who did not work any uncompensated overtime.  The Supreme Court did not distinguish between collective and class actions, but found that there was no error in the decision to certify and maintain the class.  As a second issue, the Court finds that the challenge that under the verdict some employees may receive damages even though they do not work uncompensated overtime, was premature, as Tyson might still raise a challenge to the proposed method of allocation when the case returned to the lower court for dispersal of the award. 

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chickens, roosters

OSHA Regional Emphasis Program for Poultry Processing Facilities

On December 3, 2015, representatives from OSHA Region 4 (Atlanta) and Region 6 (Dallas) and representatives of the poultry industry meet at Georgia Tech to discuss the Regional Emphasis Program (REP) for Poultry Processing.  Presenters included Kurt Petermeyer, the Regional Administrator for Region 4, several Deputy Regional Administrators from Regions 4 and 6, Area Directors from Atlanta, Georgia and Nashville, Tennessee; an ergonomist, and an occupational physician.  The purpose of the meeting was to present the REP and take questions from industry and other stakeholders.

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Supreme Court Gives Donning and Doffing Guidance

January 27, 2014 -

On January 27, 2014, the U.S. Supreme Court rendered an important donning and doffing ruling in Sandifer v. United States Steel Corp. (No. 12-417). The case concerned issues of whether donning and doffing certain protective gear was compensable. The Court ruled that the time spent donning and doffing protective gear was not compensable because of Section 203(o), a special provision of the wage-hour law applicable only to operations covered by a labor agreement. The case and more significantly its ramifications are highly important to both union and non-union employers.

The facts involved a steel-making facility in which employees were required to don and doff the following types of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hard hat; a "snood"; "wristlets"; work gloves; leggings; "metatarsal" boots; safety glasses; ear plugs; and a respirator. The plaintiffs sued contending that they wanted to be paid for the time they spent putting on and taking off these objects.

For purposes of this decision, the Court stated the case turned on the application of Section 203(o), which in pertinent part states: ". . . there shall be excluded any time spent in changing clothes or washing at the beginning or end of each work day which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee."

The Court describes this portion of the statute as providing that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining. Later, the Court reiterates that the object of Section 203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiations.

The plaintiff argued that the word "clothes" was indeterminate and should not include items designed and used to protect against workplace hazards. Plaintiff further argued that even if "clothes" included the protective gear at issue, the exception did not apply unless there was a "changing" of clothes, which meant to substitute one item of changing for another, rather than simply adding protective gear.

As to the first contention, the Court rejected the proposition that "clothes" somehow excluded protective clothing. The distinction offered by Plaintiffs would reduce 3(o) to “near nothingness.” It is only when employees change into protective clothing that the issue arises as to whether the activity becomes "an integral and indispensable part of the principal activities for which covered workmen are employed.” Thus, section 3(o) is meant to exclude that time.

The Court did find some limitation to the word "clothes" as the term is not so broad to mean essentially anything worn on the body – including accessories, tools, and so forth. The Court indicated its definition leaves room for distinguishing between clothes and wearing items that are not clothes, such as some equipment and devices. The Court refused to find that "clothes" excluded all objects that could conceivably be characterized as equipment.

Addressing the second argument of plaintiffs dealing with "changing clothes," the Court ruled that the term "changing" included not only to "substitute" but also to "alter." The Court thus found that "time spent in changing clothes" included time spent in altering dress.

Applying the principles to the facts of the case, the Court found that the first nine particular items donned and doffed clearly fit within the interpretation of clothes, as they were both designed and used to cover the body and are commonly regarded as articles of dress. However, three items did not meet the definition, glasses, earplugs, and respirators. The question then was whether the time devoted to the putting on and taking off these three items must be deducted from the non-compensable time.

In one of the two most controversial portions of the ruling, the Court stated that: "We doubt that the de mininis doctrine can properly apply to the present case." The Court stated that ". . . we nonetheless agree with the basic perception of the Courts of Appeals that it is most unlikely Congress meant Section 203(o) to convert federal judges into time-study professionals." The Court analogized that just as one can speak of "spending a day skiing" even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so one can speak of "time spent changing clothes and washing" when the vast preponderance in question is devoted to those activities. The question for the Court is whether the period at issue can, on the whole, be fairly characterized as "time spent in changing clothes or washing." ". . . if the vast majority of the time is spent in donning and doffing 'clothes' as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted."

Thus, under the facts of the case, all the time spent donning and doffing the twelve items of protective clothing were deemed non-compensable because of the Section 203(o) exemption for collective bargaining relationships.

Wimberly & Lawson Comments:

The following comments are going to be controversial, as different attorneys may draw different interpretations from the Sandifer ruling. Therefore, please remember that the following comments are not "black letter law," but instead one law firm's interpretation of the ruling and its ramifications to union and non-union employers.

The first controversial point has already been mentioned, basically whether the Sandifer case abolishes the de minimis rule under the wage-hour laws. The de minimis doctrine, as noted in the Sandifer case, is a long-standing doctrine that has been previously acknowledged as good law by the U.S. Supreme Court, and it currently exists as a standard under federal wage-hour regulations in 29 C.F.R. Section 785.47. Our firm places great significance on the fact that the context of the Court's ruling was limited to the application of Section 203(o), and not to the entire wage-hour law. We believe that the Court is saying that the de minimis doctrine does not apply to Section 203(o); it is not saying that the de minimis rule does not apply anywhere under the wage-hour laws.

The Court nowhere indicated that the de minimis doctrine as outlined in an earlier Supreme Court ruling in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), was no longer applicable under the wage-hour laws, or that the federal wage-hour regulations applying the de minimis concept were no longer valid. Thus, we believe there is room for the continuing application of the de minimis doctrine under wage-hour law, although courts may feel more inclined in light of Sandifer to make more limited applications of the doctrine. Further, plaintiffs are sure to argue that the doctrine no longer exists under the wage-hour laws.

Another point worth mentioning here is that the Court actually applies a more favorable (to employers) doctrine than the de minimis rule in the context of Section 203(o). That is, the Court talks about not making federal judges into "time-study experts" and determining whether the vast majority of the time was spent in changing clothes, or changing certain types of equipment not considered clothes. The Court, in essence, is applying something akin to the "vast majority" of time spent in non-compensable activities, versus compensable activities, and indicating the entire time is to be counted as non-compensable under those circumstances. This conceptually is a more valuable doctrine than de minimis, although again the Court is only talking about Section 203(o).

In light of the Court's explanation of the concept to Section 203(o), one wonders whether the same concept would be applied by the Court to lunch periods. Some courts have indicated that if lunch periods of 30 minutes or longer are primarily for the benefit of the employee to have lunch, the fact that some compensable donning and doffing is performed during that lunch period does not destroy the non-compensability of the entire lunch period. The Court's rationale in Sandifer seems to support this concept concerning lunch periods, although it would be reasoning by analogy. This conclusion further supported by the favorable citation to Sepulveda v. Allen Family Foods, Inc., 591 F.3d.209, 218 which applied this reasoning to meal breaks.

Perhaps the most controversial part of the Sandifer ruling is, however, how it affects the non-union sector. There is a simple sentence in the ruling referring to donning and doffing the twelve items of required protective gear that "because this donning-and-doffing time would otherwise be compensable under the Act." Some commentators and all plaintiffs' lawyers will take the position that this means the donning and doffing of protective gear should never be from compensable time as preliminary or postliminary to the principal activity or activities that an employee is employed to perform under the Portal-to-Portal Act. That Act excludes from compensable time such activities. If this interpretation of Sandifer is correct, then a powerful defense would be unavailable to employers, that the donning and doffing of protective equipment in some circumstances at least should be excluded from compensation as preliminary or postliminary time. When combined with the plaintiff's argument that the de minimis rule no longer applies, non-union employers would have few defenses left to defend donning and doffing lawsuits.

Wimberly & Lawson believes that the Supreme Court did not go that far. Indeed, the Court cited Steiner v. Mitchell for the proposition that "changing clothes and showering" can, under some circumstances, be considered an "integral and indispensable part of the principal activities for which covered workmen are employed. . . ." The Court also discussed its IBT ruling as applying Steiner to treat as compensable the donning and doffing of protective gear somewhat similar to that at issue here, meaning the twelve items of protective clothing involved in the Sandifer fact pattern. In its decision, the Court indicates that it is talking about "items that can be regarded as integral to job performance." Later, the Court expressly limits its holding to the "donning and doffing of the protective gear at issue," referring to the twelve particular items which included a flame-retardant jacket, pair of pants, hood, hard hat, snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, ear plugs and a respirator.

The significance of this point is that many cases draw a distinction between "unique" and "non-unique" protective gear, indicating that "heavy" or "unique" protective gear is not subject to the preliminary and postliminary exception of compensable work time under the Portal-to-Portal Act. Thus, a close reading of the Sandifer case indicates there is still room to argue this distinction, in addition to the de minimis doctrine. Indeed, we believe the case could open up a new argument for employers that the Court looks to see which activity constitutes the vast majority of time – donning and doffing gear that is an integral and indispensable part of the principal activity or donning and doffing gear that is not integral and indispensable.

Nevertheless, there is no question that as a result of the Sandifer decision, more donning and doffing lawsuits will be brought in the non-union sector. In contrast, in the union sector, there will likely be fewer such suits. Non-union employers need to look at their work practices and determine how, if any, they should be modified because of the additional legal exposure.

For questions or additional information call James W. Wimberly, Jr., J. Larry Stine, Elizabeth Dorminey, or any other attorney at (404) 365-0900 or at jww@wimlaw.com, jls@wimlaw.com, or ekd@wimlaw.com.

Good News For Employers Regarding Class And Collective Actions From The Supreme Court

May 2, 2013 -

Two recent cases from the U. S. Supreme Court are good news for employers defending against class and collective actions under State and Federal wage and hour laws. In Genesis HealthCare Corp. v. Symczyk the Court ruled that when the claim of an individual who sued under the was extinguished, the claims of others who might be “similarly situated,” but who had not yet joined the case, died with the original filer’s claim. The Court also let stand the lower court’s holding that a claimant who is offered full relief but rejects or ignores that offer is subject to having their case dismissed. In Comcast v. Behrend, a consumer class action case, the Court reaffirmed what it had held in Dukes v. WalMart: that difference among the plaintiffs and their claims may justify denial of class action status. It also held that courts must examine requests for class status very carefully, and not just give plaintiffs a green light. Given the popularity of both class and collective actions in wage and hour claims, these decisions definitely improve the outlook for employers defending against such claims.

 Symczyk was filed as a collective action under §216(b) of the FLSA. In collective actions, other plaintiffs who are “similarly situated” to the individual filing the lawsuit must “opt in,” or file written consents to join the action. (In contrast, in class actions under Rule 23 like Behrend, everyone who has a similar claim is automatically included unless they take steps to “opt out.”)

Symczyk, a registered nurse, alleged that she and others who worked for Genesis had been denied pay because Genesis automatically deducted 30 minutes from their paid time for a daily lunch break but they often worked through lunch, missed their break, and thus were denied pay for hours worked. Early in the litigation, Genesis offered Symczyk a sum of money that represented full relief – the maximum amount she could win if she prevailed on all her claims – plus reasonable attorneys’ fees, under Rule 68 of the Federal Rules of Civil Procedure. Symczyk ignored the offer, and sought to proceed with the litigation: the district court determined that because Genesis had offered her full relief, even though she did not take it, her case was moot and should be dismissed.

Symczyk appealed, saying that even if her claim was dead, the claims of others who were “similarly situated,” having also been denied pay when they worked through meal breaks, should be allowed to proceed. The Court of Appeals for the Third Circuit agreed, and reinstated the case. Genesis asked for Supreme Court review. Its petition was granted, and the Supreme Court reversed the Third Circuit, holding that the claims of other potential plaintiffs who had not yet joined the lawsuit when it was dismissed due to Symczyk’s rejection of the Rule 68 offer did not survive the dismissal.

Perhaps the most controversial aspect of Symczyk lies in something the Court didn’t say: it let stand, without examining, the lower court’s decision condoning dismissal of the plaintiff’s case after she was offered, and refused (by ignoring the offer) full judgment satisfying her claims. An offer of judgment under Fed. R. Civ. P. 68 is an important tool in a defendant’s arsenal to short-circuit a lawsuit and avoid expensive litigation – a problem that is particularly acute in FLSA cases where the law requires the defendant to pay attorneys’ fees. If, as in Symczyk, an employer offers to pay the full amount of back wages, plus reasonable attorneys’ fees, a plaintiff who refuses that offer and continues litigation could possibly forfeit a collective action, also preventing the plaintiffs’ lawyers from collecting fees for services incurred after the date the offer is made. This is an important disincentive to lawyers eager to bring FLSA lawsuits.

Comcast was a Rule 23 “opt out” class action case. A group of customers sued the cable provider, claiming that they had been harmed because the company had created and abused a monopoly position in the market, denying them choices (and potentially lower prices) for cable service. The Supreme Court held that the case should not have been certified as a class action because individual questions regarding how different customers had been harmed predominated over class-wide questions. The Court reiterated that it had meant what it said in Dukes v. WalMart: that lower courts should probe beyond the pleadings, and conduct a rigorous analysis of the claims, before allowing a case to proceed as a class action.

Comcast matters to employers because shortly after publishing that opinion, the Supreme Court, citing Comcast, reversed and remanded to the 7th Circuit a case called Ross v. PBS Citizens, NA. Ross was a hybrid FLSA collective action/Illinois law class action where a group of former employees sued, alleging that they had been denied pay for hours worked. The Court of Appeals had affirmed a District Court decision that allowed these cases to proceed as class/collective actions: the Supreme Court said that was error, that the case should not have been so certified, and sent it back.

In both Symczyk and Comcast, the Supreme Court is making it more difficult to achieve class action status. This is important for employers because class action status makes wage and hour lawsuits more expensive and difficult to settle. The Court’s tacit approval of Rule 68 offers of judgment to moot a case may also make plaintiffs’ lawyers think twice about turning down an early (and fair) settlement.

Questions? Want more information? Call Larry Stine or Betsy Dorminey at (404) 365-0900 or at jls@wimlaw.com or ekd@wimlaw.com.

Obamacare - Issues and Solutions

April 11, 2013 -

Before January 1, 2014, employers with 50 or more “full-time equivalent” employees will have to decide whether to begin, or continue, to offer health insurance to their employees or whether to pay the penalties that will be imposed under the Patient Protection and Affordable Care Act, more commonly known as Obamacare. It may be helpful to sum up the dilemma some employers will face when making the decision and to suggest some potential solutions.

Starting January 1, 2014, employers with 50 or more “full-time equivalent” employees may be subject to non-deductible taxes unless they offer “minimum essential coverage” to at least 95% of their “full-time” employees. Full-time employees include those who work an average of 30 or more hours a week. “Minimum essential coverage” will generally include a group health insurance plan. Employers who do not offer such coverage will have to pay a $2,000 non-deductible tax for nearly every full-time employee (the first 30 employees are excluded) if any employee receives subsidized health insurance coverage from a state exchange.

Even if employers offer such coverage to at least 95% of their full-time employees, employers could be subject to non-deductible taxes if the coverage is not “affordable” for a particular employee or if the coverage does not provide “minimum value.” “Affordable” means that an employee does not have to pay more than 9.5% of the employee’s household income for single coverage under the employer’s plan. “Minimum value” means that the plan pays at least 60% of the plan’s total allowed costs as determined by the federal government. Employers who offer such coverage that is affordable and that provides minimum value will not face any penalty. However, employers who offer coverage that is not affordable or that does not provide minimum value will have to pay a penalty if any employee obtains subsidized coverage from a state exchange. The penalty will be $3,000 (increasing each calendar year after 2014 based on inflation in insurance premiums) annually for each full-time employee receiving subsidized coverage from a state exchange up to a maximum of $2,000 for each full time employee over 30 employees.

After 2014, employers with 50 or more “full-time equivalent” employees will have to offer the same coverage to the employees’ dependents as well in order to avoid or minimize the non-deductible taxes.

Potential Solutions

One possible solution is to offer a health insurance option that satisfies “minimum essential coverage” requirements and to offer other health care options so that employees can find an affordable coverage option or can purchase a greater level of coverage if they want. Doing so will allow employers to avoid penalties so long as at least one coverage option constitutes “minimum essential coverage,” which is “affordable” and provides “minimum value,” even if their employees do not sign up.

Even if employers offer affordable coverage, however, many employees may continue to decline company-offered insurance, either because they have coverage through Medicaid or a family member, or because they elect to pay the penalty for not having health insurance. The individual penalty for 2014 will be as low as $95, which is much less than most employees will be required to pay for coverage through company-sponsored plans. However, the individual penalties for being uninsured increase to at least $325 in 2015 and $695 in 2016 (and could be more depending on the individual’s income) and these higher penalties may cause more employees to accept employer-offered coverage in later years.

A second option for employers is to terminate their healthcare plans altogether and pay the penalty. When Obamacare was initially passed, there were some large corporations who evaluated the costs of paying the penalties versus continuing to provide health coverage to their employees and their studies indicated substantial savings from terminating their health plans and paying the penalties.

An example of why dropping coverage might be a viable option for some companies is the story of one employer who reports that it spends about $140,000 a year on insurance premiums to cover 25 managerial positions, but that under Obamacare he will be required to offer insurance to all of his 100 full-time employees starting in January. Doing so could increase his premiums to over $500,000 a year, exceeding his current profit. This employer believes that if he drops insurance entirely, he would pay a penalty of about $144,000 a year, about the same as his current cost (although the penalty is not tax deductible whereas the insurance premiums are). Obviously dropping coverage will not be good for employee relations. In order to counter this, an employer who chooses to drop all insurance coverage could make the decision more palatable to employees by explaining to employees that they may get better and cheaper coverage through the exchange than what the employer can offer and by paying employees more cash to help offset the cost for them to purchase insurance on their own.

A third option being considered by some employers is reducing the number of full-time employees, and converting more workers to part-time, since there will not be a tax assessed for failing to provide coverage to part-time employees. As discussed above, Obamacare defines a “full-time” employee as one who works or is paid for thirty or more hours per week on average, as determined on a monthly basis. Many employers have publicly announced plans to do this, in whole or in part, including a number of companies such as Darden, CKE Restaurants, Pillar Hotels and Resorts, and AAA Parking.

Since the requirement to provide coverage and the penalties for not doing so only apply to employers with 50 or more full-time equivalent employees, some companies have discussed whether it would be possible to set up several corporate entities all having fewer than 50 employees. The answer is no, this strategy will not work, since Obamacare’s mandate applies to affiliated companies.

Other employers may consider simply sub-contracting more work, thus avoiding the penalty provisions. However, in many instances, the contractor will also be subject to the Obamacare provisions, thus raising the contractor’s costs which the contractor will likely try to pass on to the employer. On the other hand, if the contractor has less than fifty employees, then this strategy could work.

Some employers also are paying close attention to a lawsuit filed by the State of Oklahoma that challenges the federal government’s authority to impose employer penalties. The lawsuit is based in part on the fact that most states, including Oklahoma, have decided not to establish state-run exchanges. Oklahoma asserts that, according to the law, the employer penalties apply only if the employee obtains subsidized coverage from a state-run exchange. In other words, if the federal government establishes or runs the exchange in a state, the employer penalties will not apply. Oklahoma claims that, contrary to the plain language of the statute, the IRS has issued rules saying that it will treat a federal-run exchange the same as a state-run exchange. This interpretation means that, if an employee obtains coverage in a federal-run exchange, the IRS may go after the employer for employer penalties. Oklahoma’s lawsuit challenges the IRS rule, and other lawsuits from employers may follow in 2014 when the penalties go into effect. If the courts rule that the IRS exceeded its authority, then employers who operate only in states that have federal-run exchanges will not be subject to the employer penalties.

According to the National Conference of State Legislatures, seventeen states and the District of Columbia received conditional approval from HHS for their exchanges. Mississippi's insurance commissioner applied for a state exchange, but did not receive HHS approval. Seven states are planning to pursue a state/federal partnership where the states run the consumer assistance and/or plan management function of the exchange. Every other state will default to the federally-facilitated exchange.

Whatever strategy employers choose to use, the time is near and it is critical that employers immediately review the requirements and study their options. In doing so it is worth noting that the average annual premiums for employer-sponsored health insurance in 2012 were $5,615 for single coverage and $15,745 for family coverage, according to the Kaiser Family Foundation.

Questions? Need more information? Call Jim Wimberly or Jim Hughes at (404) 365-0900 or e-mail them at jww@wimlaw.com, or jlh@wimlaw.com.

Self-Insured Health Plans After Obamacare

March 14, 2013 -

There is an issue that very few people are discussing, but will have major ramifications for employers who sponsor, and employees who participate in, self-insured health plans. This issue is raised by the preamble to the proposed regulations dealing with the employer penalty and apparently will be decided in the final regulations on the individual penalty. The issue is whether employers will be subject to the $2,000 per employee penalty on nearly all of their employees even though they sponsor self-insured health plans for their employees.

Most people are aware that an individual will not be subject to the individual penalty if the individual has “minimum essential coverage.” Minimum essential coverage includes health coverage provided through grandfathered health plans (GFHPs), qualified health plans (i.e., coverage through State Exchanges), health insurance policies, eligible employer-sponsored plans, and certain governmental plans (such as Medicare or Medicaid).

Although the individual penalty depends, in part, on whether the individual has minimum essential coverage, the employer penalty depends, in part, on whether the employer offers to its employees and their dependents minimum essential coverage under an eligible employer-sponsored plan.

What is an “eligible employer-sponsored plan”? Obamacare defines the phrase “eligible employer-sponsored plan” to consist of certain governmental plans, any other plan or coverage offered in the small or large group market within a State, and GFHPs offered in a group market. Obamacare also defines the phrase “group market” to mean the health insurance market under which individuals obtain health insurance coverage (directly or through any arrangement) on behalf of themselves (and their dependents) through a group health plan maintained by an employer.

Given these statutory definitions, concern is growing that the phrase “group market” will be limited to insurance products. If the phrase “group market” is limited to insurance products, then employers who sponsor self-insured plans will not be providing minimum essential coverage under an eligible employer-sponsored plan.

The preamble to the proposed regulations on the employer penalty states:

Future regulations [about the individual penalty] are expected to provide further guidance on the definition of [minimum essential coverage] and eligible employer-sponsored plans. These regulations [about the individual penalty] are expected to provide that an employer-sponsored plan will not fail to be [minimum essential coverage] solely because it is a plan to reimburse employees for medical care for which reimbursement is not provided under a policy of accident and health insurance (a self-insured plan).

What does this mean for employers? It means that a self-insured plan may be minimum essential coverage for purposes of the individual penalty, but it does not address the issue of whether employers who offer self-insured health plans will be subject to the $2,000 per employee penalty.

Of course, at this time we do not know how future regulations will define “eligible employer-sponsored plan” or “group market.” If the regulators follow the literal language of the statute, employers who sponsor self-insured plans are exposed. Of course, we are hopeful that under pressure from employers, that these phrases will be interpreted to include self-insured products offered by insurance companies, self-insured health plans administered by insurance companies, or self-insured plans with stop loss insurance.  The problem is that the government punts on this issue in the proposed employer penalty regulations.

Employers could consider commenting on the proposed employer penalty regulations by the March 18 deadline in an effort to ensure that they will not be subject to the $2,000 per employee penalty for nearly all employees even though they offer self-insured health plans to their employees.

 Questions? Need more information? Call Jim Wimberly, Jim Hughes, or Ray Perez at (404) 365-0900 or e-mail them at jww@wimlaw.com, jlh@wimlaw.com; rp@wimlaw.com


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