Thursday, October 24, 2013

The ACA contraceptive mandate may be headed to the Supreme Court

ScotusSCOTUSblog has links to documents filed earlier this week by the federal government in a number of cases concerning whether corporations have free exercise rights under the First Amendment. Companies like Hobby Lobby have argued that the contraceptive mandate as interpreted by the Executive Branch to enforce the Affordable Care Act's mandate that preventive women's health services be covered without cost sharing substantially burdens the religious rights of either the corporation or its shareholders, and that the mandate thus violates either the First Amendment or the Religious Freedom Restoration Act.

The Tenth Circuit agreed with Hobby Lobby, finding that the mandate likely violates RFRA, and the federal government has filed a writ of certiorari in that case. Hobby Lobby apparently agrees that the Court should take the case.  There is a circuit split between the Tenth Circuit and the Third and Sixth Circuit on this issue, and the Seventh and Eighth have issued unpublished decisions, granting stays of orders to comply with the mandate pending appeal of the issues. Finally, the Ninth Circuit, the Second Circuit, and the Minnesota Supreme Court have all found that corporations or their shareholders have some free exercise rights in other contexts. For more on that and another of these cases, see the cert petition in the Third Circuit case: Conestoga Wood Specialties Corp. v. Sebelius.

The circuit split, and the general agreement among the parties that the Court should resolve this issue make it more likely the Court will take one of these cases. The real question is whether the Court will consider only RFRA, and decide just Hobby Lobby or consolidate all of the pending petitions, or will consider both RFRA and the First Amendment.

MM

October 24, 2013 in Labor and Employment News, Pension and Benefits, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Call for Papers for 12th Annual John Marshall Employee Benefits Symposium on ACA

ConfKatie Kennedy (The John Marshall Law School) has asked me to post this Call for Papers concerning the Center for Tax Law and Employee Benefits upcoming symposium on the Affordable Care Act.

Here are some of the details: The Center for Tax Law and Employee Benefits is hosting the 12th Annual Employee Benefits Symposium next April 2014. The topic is “The Implementation of the Affordable Care Act.”  W. Thomas Reeder, one of the top officials in Washington’s Affordable Care Act Office, will be the keynote speaker; so the Symposium will also be an opportunity to have the ear of a government representative.

The due date for an abstract is Tuesday, November 5, 2013.  The Symposium’s date is Friday, April 4, 2014.

PS

October 23, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 15, 2013

Much ERISA Fun at the Supreme Court Today: Heimeshoff and Benefit SOL Accrual Issues

4United States Supreme Court 112904Update: Thanks to blog reader, Albert Feuer, for bringing to my attention Tejinder Singh’s commentary on the oral argument,  Argument analysis: Nobody seems worried about ERISA limitations periods, SCOTUSBLOG (Oct. 17, 2013).

OK, hold onto your seats for some flat out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Company [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.

RossRunkel.com, as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):

Heimeshoff's disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.

That can be tough, given the fact that it's possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it's even possible in some cases that the three years would run out before the claimant got a final denial.

Hartford has a simple response, which is that ERISA plans usually get enforced the way they are written.

There's really no statutory text that's much help.

The petition for certiorari points out that lower court have adopted three conflicting approaches to answer the question of accrual:

(1)   A plan’s statute of limitations cannot begin running until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination (Fourth and Ninth Circuits);

(2)   A plan’s pre-denial statute of limitations is enforceable if “reasonable,” as determined on a case-by-case basis (Second, Sixth, Seventh, Eighth, and Tenth Circuits);and

(3)   The plan must notify the claimant of the time limits for judicial review, in the SPD and adverse determinations, in compliance with ERISA regulations; and if it does not, the court will not allow the plan to assert the plan’s limitations defense or will equitably toll the limitations period (First Circuit and a District Court in Second Circuit).

I don't see any clear path for the Court on this one.

Also see Argument preview: When can an ERISA limitations period start to run? at SCOTUSblog.

I agree wth Ross that this area of ERISA law is a mess. The ERISA written plan requirement rule suggests that the plan administrator follow the terms of the plan as written, but to do so, at least conceivably in some cases, the administrator could drag their feet and wait for the statute of limitations to run before finally deciding the internal appeal and thereby prevent the employee to ever file a benefits denial claim in court.

Equitable tolling might be one way with dealing with the potential unfairness of the rule, but its implementation would also be messy.  Also, it is unavailing to say with a straight face that plan administrators and employee should be bound by terms of the plan because if the employee wanted a different type of SOL they could just bargain for it.  Everyone knows that employees don't bargain over plan language. They are classic adhesion contracts, presented on a take-it-or-leave-it basis.

To me, the best rule would be to start the SOL to run once the internal administrative process has been finalized and the employee is free to sue in court. This approach has the advantages of both providing a clear point when the SOL starts to run, plus provides incentive for the plan administrators to complete claims processing as quickly as possible.

No predictions on this one, folks, but I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations which will further undermine employee rights under ERISA.

PS

October 15, 2013 in Beltway Developments, Commentary, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Kaplan on Financial Planning for the Non-Retiree

RkaplanRichard Kaplan (Illinois Law) has posted on SSRN his piece in the Elder Law Journal entitled: Financial Planning for the Non-Retiree.

Here is the abstract: 

This article addresses the various options under Social Security, Medicare, and private retirement accounts that should be considered by individuals who are approaching or have reached their “retirement age” but plan to continue working. Specifically, the article considers Social Security’s bonuses for delaying Social Security retirement benefits and the related impact on a surviving spouse’s benefits, enrollment costs and delayed enrollment penalties in Medicare Parts A (hospital coverage), B (physicians’ fees), and D (drugs), and the penalty-free deferral of retirement plan distributions beyond age 70½.

Needless to say, this is a valuable contribution not just for social insurance law scholars, but for anyone who finds themselves confronting these types of decisions in their lives.

PS

October 15, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Fordham Urban Law Journal Cooper-Walsh Symposium on Legacy Liabilities and Municipal Financial Distress

ConfThe Fordham Urban Law Journal's Cooper-Walsh Symposium this year is entitled: Legacy Liabilities and Municipal Financial Distress.  It will be held on Friday, October 11th from 10:00 am to 4:30 pm at the Fordham Law School, 140 West 62nd Street, Room 430 B/C.

I have the good fortune of being part of this Symposium and will present a paper based on my recent research on how employment claims are treated in insolvency proceedings and guarantee schemes around the world.  The hope is the provide U.S. policymakers some international benchmarks for the treatment of pension and wage claims in both corporate and municipal bankruptcy situations.

I will provide more information on my paper in coming weeks once I have posted a draft of the article, but for now here are the particulars for the Cooper-Walsh Symposium from the Journal website (including the program line up):

The sixth annual Cooper-Walsh Colloquium will address the effects of the rising costs of healthcare and pension plans on municipalities and their residents.  Every year, the Colloquium is dedicated to bringing attention to the policies and legal frameworks that will shape the future of American cities.  The Colloquium is organized in conjunction with Professor Susan Block-Lieb, the Cooper Family Chair in Urban Legal Issues, and Vice Dean Sheila Foster, the Albert A. Walsh Chair of Real Estate, Land Use, and Property Law.

The presenters will introduce their papers, followed by responses from commentators and round table discussions. The Fordham Urban Law Journal will publish the articles and responses in its Spring 2014 Cooper-Walsh Book.

To register, please contact Kristy Eagan, Cooper-Walsh Editor, at colloquium@urbanlawjournal.com.

In addition to myself, other presenters include Jack Beerman (BU), Melissa Jacoby (UNC), and Christine Chung (Albany). Opening remarks will be delivered by Richard Ravitch (former Lieutenant Governor of New York).

PS

September 25, 2013 in Conferences & Colloquia, Pension and Benefits, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Corbin on Corporate Religious Liberty

CorbinCaroline Mala Corbin has posted a new article on SSRN. It's entitled Corporate Religious Liberty and it focuses on claims that corporations have made recently that their religious liberty requires that they be exempt from the contraception mandate instituted by the Obama Administration in accordance with the Affordable Care Act. Here is the abstract:

Do for-profit corporations have a right to religious liberty? This question is front and center in dozens of cases challenging the Obama administration’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression, and one the Supreme Court is likely to answer in the next few years. Most scholars writing on this issue argue, “yes,” they do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United. 

This essay argues “no,” for-profit corporations do not and should not have religious liberty rights. As a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Citizens United changes nothing in religious liberty jurisprudence, as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers.

As a normative matter, for-profit corporations should not have free exercise rights. There is no principled basis for extending a purely personal right to profit-making corporations, and for-profit corporations cannot be equated to churches or other voluntary religious associations. Finally, granting religious exemptions to corporations risks trampling on the religious liberty of individual employees.

It looks like a very interesting read.

MM

September 24, 2013 in Employment Discrimination, Pension and Benefits, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

Call for Papers for Hofstra Labor & Employment Law Journal Symposium Issue on ACA and ADA

BooksOn behalf of the Hofstra Labor & Employment Law Journal, Jamie Haar (Managing Editor of Articles) invites interested law professors and practitioners to submit original articles for publication in the Journal’s symposium issue.

The Journal will be devoting its Spring 2014 issue to the topics that will be discussed at this year’s Symposium.  The Symposium will be dedicated to a practice-oriented and scholarly discussion on employer-regulated healthcare and the implications of employee leave and disability accommodations in the labor and employment law context.  The Jounral is seeking articles on the impacts and implications of the Affordable Care Act and the recent amendments to the Americans with Disabilities Act on labor and employment law. 

Submissions for article proposals or completed articles must be made by October 11th. Articles that need to be written should be completed by January 8, 2013.  Articles may not exceed fifty pages and must be a minimum of fifteen pages. Please send all submissions to Jamie Haar, Managing Editor of Articles, via email to laboremploymentlaw@hofstra.edu.

PS

September 23, 2013 in Conferences & Colloquia, Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

New Guidance on Same-Sex Marriage from DOL

Wedding ringsThe Employee Benefits Security Administration (EBSA) released today guidance (Technical Release 2013–04) defining the meaning of the terms “spouse” and “marriage” under ERISA in light of the U.S. Supreme Court's decision in June in U.S. v. Windsor

Here is the pertinent text from the Technical Release:

In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department's regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term 'spouse' will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term 'marriage' will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms 'spouse' and 'marriage,' however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law.

DOL Secretary Thomas Perez suggests that the DOL plans to issue additional guidance in the near future.

PS

September 18, 2013 in Beltway Developments, Pension and Benefits, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Monday, September 16, 2013

Feuer on How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?

ErisaAlbert Feuer has completed the final article of a trilogy discussing the benefit rights of an ERISA plan participant or beneficiary.  The third piece is: “How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?,” 54 Tax Mgmt. Memo. 351 (September 9, 2013) .

Albert explains that this newest piece describes some of the ERISA benefit rights that a participant or beneficiary may exercise and (1) argues that ERISA plans may, but need not, disregard state law agents seeking to exercise such rights other than pursuing a benefit claim, (2) makes suggestions for plan powers of attorneys that are likely to be understood by participants and may minimize plan risks, and  (3) observes that participant directed plans will be responsible for investment decisions when a participant or beneficiary lacks the capacity to exercise investment rights, but has not appointed a third party agent to act on his or her behalf (this often occurs during the time between the time a participant dies and a beneficiary assumes such responsibilities).

Another welcome addition to the ERISA literature in this important area of the law.

PS

September 16, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

Labor and Obamacare

SECUNDAOur own Paul Secunda was on NPR's Marketplace yesterday in a story about labor complaints with Obamacare.  Washington & Lee's  Tim Jost comments as well.  An excerpt:

From high-wage construction workers to low-wage restaurant workers, 20 million employees get their health insurance through something known as Taft-Hartley plans. That’s where unions and employers get together and pay in for coverage.

Marquette University Law Professor Paul Secunda says Obamacare makes those plans really expensive for companies. “It might make more sense for employers to stop offering the Taft-Hartley plans, instead allow their employees to go on the state healthcare exchanges,” he says.

Secunda says not only would that mean workers end up with less generous coverage, it threatens the basic value of the unions.

“One of the thing that employees look to unions for -- the ability to get all sorts of employee benefits, but maybe most importantly health insurance benefits -- will no longer be something the unions can no longer offer in this environment,” he says.

Check out the entire story.

-JH

September 3, 2013 in Labor and Employment News, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 28, 2013

Feuer on Determining the Death Beneficiary Under an ERISA Plan and the Rights of Such a Beneficiary

ErisaAlbert Feuer has a new ERISA article out that may interest many of our employee benefit law-inclinced readers: Determining the Death Beneficiary Under an ERISA Plan and the Rights of Such a Beneficiary, 54 Tax Mgmt Memo. 323 (August 26, 2013).

According to Albert, the article seeks to provide advice to (1) ERISA plan administrators, who often struggle to determine who they should pay survivor benefits, and to (2) trusts and estates attorneys and family law attorneys, who often struggle to determine who, if anyone, may use state law to wrest benefits from the person entitled to receive survivor benefits from an ERISA plan.

A great addition indeed to this underdeveloped area of ERISA Law!

PS

August 28, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Thomas and Molk on Employer Costs and Conflicts under the Affordable Care Act

Thomas PeterMolkThanks to Joe Seiner (South Carolina) for bringing to my attention this recently published article by Suja Thomas (Illinois) and Peter Molk (VAP lllinois) entitled: Employer Costs and Conflicts under the Affordable Act. It is published in the Cornell Law Review Online.

Here's the abstract:

In January 2015, qualified employers must provide health care coverage under the Patient Protection and Affordable Care Act of 2010 or face a fine. As employers actively attempt to minimize the costs that they will incur, the possibility emerges that employers will retaliate against or harass employees who seek coverage. This Essay discusses the protections for employees under the law and the possible deficiencies in the law. It shows that employers and employees often have contrasting incentives – employers to avoid coverage, and employees to take coverage – and these incentives may result in employer harassment and retaliation of employees. Presently, in an analogous context, employees often raise retaliation claims after they have complained of discrimination, and these claims have had significant success. Because of similarities between these situations, comparable retaliation under the ACA is likely, and perhaps it will occur even more due to the significant specific costs that employers face under the ACA.

As Joe points out, this timely article on the employment law implications of the Affordable Care Act has already been covered fairly extensively by the Wall Street Journal. The WSJ cites are here and here (behind pay wall).  Check it out while it is hot.

PS

August 19, 2013 in Employment Discrimination, Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 14, 2013

Feigenbaum and Riemer on Discretionary Review of Insured ERISA Benefits Cases

ErisaJonathan Feigenbaum and Scott Riemer have published in the ABA TIPS Health and Disability & Life Insurance Law Committee Newsletter (Summer 2013): Did the Supreme Court Flunk Constitutional Law When It Permitted Discretionary Review of Insured ERISA Benefits Cases?

From the Introduction:

Beginning with Firestone Tire & Rubber Co. v. Bruch, and its affirmance in Metropolitan Life Ins. Co. v. Glenn, and most recently in Conkright v. Frommert, the Supreme Court permitted District Courts to treat insured ERISA welfare benefits cases as summary review proceedings. In each case, the court focused on trust law, but never addressed whether the regulatory scheme it set up by these cases satisfies the requirements of Article III of the Constitution. The authors argue that discretionary review, without a full trial on the merits, violates Article III.

In the 1983 comedy Trading Places the amoral Duke brothers conduct an experiment in social Darwinism debating whether genetics or nurturing is the source of success. They make a wager, and then put their theories to the test. They manipulate the life of Louis Winthorp III (Dan Akroyd), a successful commodities trader, by “trading places” with Billy Ray Valentine (Eddie Murphy), a street con artist.

We’ll bet the same amount wagered by the Duke brothers with our readers – identify any litigation in the federal courts between private litigants, other than discussed in this paper, where the Article III Judge must defer to the decision of the defendant without conducting a full trial on the merits. We bet you can’t.

This is an interesting topic that has been explored by Don Bogan (Oklahoma), among others, in the past. The article makes an interesting and provocative point concerning the unique features of ERISA Section 502(a)(1)(B) litigation and the lack of a normal Article III federal court procedure.

Can anyone win the Duke brothers' wager that Feigenbaum and Riemer have put forward?  I guess one of the questions is whether there is another area of law that has a statutorily required internal review process (like under ERISA Section 503) which requires exhaustion of internal appeals before a claim can be brought in court (not the same thing as what exists in Title VII scenarios where you can exhaust external administrative procedures by merely waiting out the EEOC)? 

Another wrinkle is that ACA provides for the possibility of an alternative mechanism through an independent external medical review by a physician, which is de novo review of the plan administrator's claim denial and which is final and not appealable to court. How does that further complicate the Article III issue?

PS

August 14, 2013 in Commentary, Pension and Benefits | Permalink | Comments (2) | TrackBack (0)

Friday, August 9, 2013

Feuer on ERISA Preemption and Life Insurance Rules

ErisaReaders may find of interest Albert Feuer's recent article, The Supreme Court Finds Federal Life Insurance Rules Preempt State Law in Hillman v. Maretta and Reinforces ERISA Protections for ERISA Plan Participants and Beneficiaries, 32 Tax Mgm’t Wkly. J. 1040 (August 5, 2013), which is available here on SSRN.

Albert provides this summary:

The article makes two  basic observations. First, the preemption principles pertaining to federal employee benefits may be quite relevant to ERISA, which governs private employee benefit plans.  Second, the Windsor case is relevant to employee benefits attorneys not only for its overturning of DOMA, but for the discussion of federalism in the Supreme Court majority opinion. The latter in concert with Hillman supports the continued viability of Boggs and Egelhoff  and their conclusion that ERISA protection extends to distributed benefits.  There has thus been considerable erosion of the significance of the Kennedy footnote that seemed to undermine the extent of those protections. That footnote has been used by many courts to find that state law may be used to wrest benefits from duly designated ERISA beneficiaries.

Another interesting take on developing trends in ERISA case law and one which employee benefit law afficionados should check out.

PS

August 9, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 31, 2013

Call for Papers for Third Annual ERISA, Employee Benefits, and Social Insurance National Conference

ConfI am happy to issue this invitation and call for papers for the Third Annual ERISA, Employee Benefits, and Social Insurance National Conference: Benefits Law at the Crossroads: Whither U.S. Employee Benefits and Social Insurance Law, a conference to be held on Friday, March 28, 2014, at Marquette University Law School in Milwaukee.

The conference is intended to provide an invited group of leading scholars and policy makers the opportunity to discuss current research and topics of interest involving employee benefit plans and social insurance.  You are welcome to participate either by presenting work in progress, moderating a panel, or simply by attending and participating in the discussion. The following are tentative topics to be discussed by separate panels:

Public Pensions, Bankruptcy and Federalism

Emerging Issues Surrounding Implementation of the Affordable Care Act

Theoretical Challenges to Current Retirement and Benefits Law Systems

Emerging ERISA Issues

Space on the program will also be provided for other benefits law-related topics that do not fit readily within any of the above descriptions.

If you are interested in attending the conference, I would greatly appreciate your indicating, as early as you can, the likelihood of your attendance.  Please email me at paul.secunda@marquette.edu.  While of course your plans may change, this preliminary information, however tentative, will help us in planning and making the conference arrangements.

To propose inclusion of your work on the conference program, please submit an abstract of 200-300 words and an/or outline of up to 3 pages to me via email and indicate which panel(s) your proposal fits within.  As indicated in the attached call for papers, the deadline for submitting an abstract is September 20, 2013.  Those participants whose papers are accepted will be asked to commit to finishing their manuscripts by March 1, 2014, in time to permit distribution to and review by other participants by the March 28th conference.

PS

July 31, 2013 in Conferences & Colloquia, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Monday, July 29, 2013

Secunda on Detroit Bankruptcy

SECUNDAPaul Secunda is back in the news again--this time on Detroit's filing for bankruptcy.  In particular, the filing raises the question of what will happen to the city's pension promises, which are guaranteed by Michigan's constitution.  Should they have a higher priority or should they be treating like any other creditor?  Paul comments on this issue in the Montreal Gazette and ABA Journal:

"There's not a lot of previous case law that tells us what's going to happen here," said Paul Secunda, a Marquette University law professor who specializes in labour and benefits issues.

"It's not just an issue of bankruptcy law and pension law, it's also an issue of federalism," Secunda said. "Can a federal bankruptcy court basically ignore a state constitutional provision and allow a city like Detroit to ignore its previous promises concerning public employee pensions?" . . . 

-JH

July 29, 2013 in Labor and Employment News, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 23, 2013

Penn State's "Health Tax"

PsuFrom Legal Skills Prof Blog, referring to a story in Inside Higher Ed:

Beginning in the fall, Penn State will levy a "health tax" (they're calling it a "surcharge") of $100 per month against any employee, including faculty, who fails a healthcare screening that includes a “full lipid profile,” blood-glucose test, body mass index and waist circumference measurement.  Yeow!  So even if you're in relatively good shape but pound Twinkies between work-outs which sends your lipids rocketing past the Dow Jones Industrial Average, you're going to have to pay-up.

rb

July 23, 2013 in Pension and Benefits | Permalink | Comments (5) | TrackBack (0)

Thomas & Molk on the Affordable Care Act

Sthomas MolkSuja Thomas & Peter Molk (both Illinois) have just posted on SSRN their article (forthcoming 99 Cornell Law Review Online __ (2013)) Employer Costs and Conflicts Under the Affordable Care Act.  Here's the abstract:

In January 2015, qualified employers must provide health care coverage under the Patient Protection and Affordable Care Act of 2010 or face a fine. As employers actively attempt to minimize the costs that they will incur, the possibility emerges that employers will retaliate against or harass employees who seek coverage. This Essay discusses the protections for employees under the law and the possible deficiencies in the law. It shows that employers and employees often have contrasting incentives – employers to avoid coverage, and employees to take coverage – and these incentives may result in employer harassment and retaliation of employees. Presently, in an analogous context, employees often raise retaliation claims after they have complained of discrimination, and these claims have had significant success. Because of similarities between these situations, comparable retaliation under the ACA is likely, and perhaps it will occur even more due to the significant specific costs that employers face under the ACA.

rb

July 23, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, June 28, 2013

Windsor's Effect on Federal Employment

Supreme CourtThis was fast.  Windsor is only a few days old, and OPM has already come out with this memo for federal executives: "Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families."  The introduction:

As you already know, on June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  As a result of this decision, the United States Office of Personnel Management (OPM) will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex. 

There are numerous benefits that are affected by the Supreme Court’s decision, and it is impossible to answer today every question that you may have.  Nevertheless, I want to assure you that the U.S. Office of Personnel Management is committed to working with the Department of Justice to ensure swift and seamless implementation of the Court’s ruling. 

A big deal for same-sex couples that include a federal employee.

Hat Tip: Patrick Kavanagh

June 28, 2013 in Pension and Benefits, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Lurie on the Fiscal Cliff

LurieAlvin Lurie has a guest post on BenefitsLink on the fiscal cliff.  Here's the introduction:

The final days of the first Obama Administration provided him and the Democratic and Republican leadership of the Congress with a unique challenge to resolve what had by then become the most critical domestic problem of the Nation: averting the fiscal cliff. To do so required them to achieve what they had been unable to accomplish in the President's entire initial term in office, namely, overcoming the obstacles posed by their sharply contrasting philosophies of government regarding the issues that underlie the fiscal cliff, i.e., tax policy and government expenditures. Resolving the problem was further compounded by what had become the President's mantra in his bid for reelection: "tax the rich" to diminish cuts in programs benefiting the middle and lower classes. The argument of this piece is that there had already been enacted as part of the Affordable Care Act new tax measures that were scheduled to begin in 2013, falling only on the very taxpayers who were in the President's target area, and that counting them would accomplish to a large extent his goal, thereby possibly removing the principal obstacle to the parties' ability to agree on how to avert the fiscal cliff. That didn't happen. Instead they came up with a last-minute set of tax measures, called the American Taxpayer Relief Act, to cushion the effects of the end of the Bush tax cuts on all but the "rich" American taxpayers. Much of the cliff-effect is still there. Recent events, principally an outbreak of scandals in Washington that have become the preoccupation of the government leaders, have put into serious question whether Washington will be able to engage in constructive efforts to resolve the differences over the cliff.

-JH

June 28, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)