Donna's Employment Law Predictions for 2014

Last week I revealed how I did on my predictions for 2013 (pretty darned good, if I do say so myself). Today, I look into my crystal ball for 2014. Here's what I see on the horizon:

1. Minimum Wage: Raising the minimum wage will be a hot political issue in 2014. We saw some movements in 2013 to make significant increases, and that will continue. Unless something drastic happens in the midterm elections, it's doubtful we'll see anything significant on the national level, but look for more states to increase the minimum wage to the $ 9 - 10 range. Some may go even higher, like Seattle's move toward $15. Raising the minimum wage is great for the economy. Unlike trickle-down economics, it gets money circulating quickly. Henry Ford had the right idea: pay your employees enough so they can buy your products.
2. Legalize It: Legalized marijuana will spread to more states, creating some confusion for employers. Can they fire employees who test positive, like Colorado? Or will their state prohibit firings for legal marijuana use like Connecticut, Arizona, Rhode Island, Maine, Colorado and New York? Colorado has a law, as do other states, prohibiting firing/discrimination for legal off-duty activities, so watch for some litigation over this issue there. Look for marijuana growers and sellers to push for laws like tobacco users have in several states protecting them from discrimination at work. In the meantime, medical marijuana users will seek protection under the ADA and other disability discrimination laws.
3. Health Care: ObamaCare kicked in and it will change the way we look at health insurance. Sure, it isn't ideal. But when a million or so people who've never had health insurance or who haven't had it in years suddenly can get medical treatment, they'll start to expect to be treated like human beings instead of human waste. From here, we'll be very close to an upheaval in the way we deal with health insurance. This year, we'll see some confusion as the regulations kick in, some stupid employers dumping insurance and cutting people to part-time to avoid paying insurance, but the employer mandates have been delayed until 2015, so most of the stupid employer activity will be at the end of the year and into next year. I say that employers who do this are stupid because they'll ultimately lose good employees. With more people covered, there will be more health care jobs available.
4. Internships Cut: With employers under attack for unpaid internship programs that don't actually educate the interns and replace regular employees, some programs will simply disappear. That's not all bad, since the interns-as-slaves programs need to die. We'll see better internship programs cropping up, ones that are truly educational, or paid internships. But most of the new programs will start up after this year. This will be a year of lost programs. We'll also see some attempts to put interns under the protection of discrimination and sexual harassment laws. Some may succeed on the state or local levels, but there's no way that happens on a national level with Congress as it is currently configured.
5. Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year.
6. NLRB and EEOC Cut Off By Courts: NLRB and EEOC will continue to try to expand the protections employees have. Courts will continue to stop them. Still, they'll inch forward with some new progress for employees. Baby steps.
7. Lip Service: While the midterm elections kick in, we'll hear lots of big proposals to help employees. Little or nothing will pass due to gridlock. Failures will include the FAMILY Act, Arbitration Fairness Act, and ENDA. However, the fact that each of these bills will be blocked will become fodder to take down some of the more anti-employee members of Congress. Maybe 2015 will see some progress.
8. Background Checks: EEOC's efforts to demonstrate that criminal background checks have a disparate impact on blacks have been pretty well crushed so far. However, there will continue to be efforts to ban credit checks. More states will ban or limit use of credit information in hiring. The federal efforts to do so will fail. More states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications. There is zero chance such a law will pass on the federal level this election year.
9. Pregnancy Discrimination: The issue of whether pregnancy is covered under the Florida Civil Rights Act will be resolved one way or the other by the end of the year. I think the Florida Supreme Court will say it is already covered. If not, then the legislature will pass a fix. The difference will be for all those women caught in between. If the Court doesn't rule for employees, lots of new moms who thought they were covered and sued under state law will be out of luck. Rule wisely, Supremes.
10. LGBT Protections: States and local governments will continue to pass discrimination laws banning LGBT discrimination. The feds will fail again, but EEOC will continue to push for application of existing law to LGBT employees.
11. Religious Discrimination: Religious employees will push the limits on their ability to proselytize and pray at work. There will be a disconnect between the right to practice religion vs. the right not to be harassed for not sharing a religion and also LGBT rights. Look for right-wing religious groups to push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. In an election year, we'll see extreme positions pushed on both sides.

Well, that's it for my predictions. I think this year will be one where employees start to wake up to how few rights they have and start to push for more. Major change will come only with a change in Congress.

The “New” Discrimination: Retaliation Based on Health Care Rights

Guest post by Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

• Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
• Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so; 
• Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or 
• Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA. 

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration (“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

Check in with us next year for updates on this law and a breakdown of the inevitable lawsuits to follow its implementation in 2014.

Debate Questions for Mitt Romney on Employment Issues

This will continue the series a group of management-side and employee-side employment attorneys are doing on what questions we would ask the candidates in the debates. Since I handle employee-side issues, I bet you can predict some of what I would ask Mitt Romney, but here goes.

I'd start with this one.

Four years ago, you advocated letting Detroit go bankrupt rather than bailing out our auto industry during the depths of the recession. You addressed some specific solutions, including dumping existing management, saying, "The new management must work with labor leaders to see that the enmity between labor and management comes to an end. . . . Companies in the 21st century cannot perpetuate the destructive labor relations of the 20th. This will mean a new direction for the U.A.W., profit sharing or stock grants to all employees and a change in Big Three management culture. The need for collaboration will mean accepting sanity in salaries and perks. At American Motors, my dad cut his pay and that of his executive team, he bought stock in the company, and he went out to factories to talk to workers directly. Get rid of the planes, the executive dining rooms — all the symbols that breed resentment among the hundreds of thousands who will also be sacrificing to keep the companies afloat" Do you still believe that management needs to get rid of perks and be more reasonable and fair with labor?

 I'm pretty sure I know the answer, but I'd like to hear him backpedal. I might follow up with this one:

As Massachusetts governor, you worked with Senator Ted Kennedy to develop health care coverage for all employees. Yet you've opposed the strikingly similar provisions of Obamacare. How would you assure that all employees and their dependents get health care coverage?

 That should be fun. Then I'd ask:

During the primary campaign in New Hampshire, you said, “My view has been to allow the minimum wage to rise with the CPI or with another index so that it adjusts automatically over time.” Now you seem to have changed your mind, and say there's no need to raise minimum wage. Which is it? What would you do to bring minimum wage workers over the poverty level, which they are currently about $7000/year under?

I'd probably end with this one:

In 1994, you wrote a letter to the Log Cabin Republicans where you said, "I am more convinced than ever before that as we seek to establish full equality for America's gay and lesbian citizens, I will provide more effective leadership than my opponent. . . . If we are to achieve the goals we share, we must make equality for gays and lesbians a mainstream concern. My opponent cannot do this. I can and will." In 2011, you were asked: "How do you feel about gays serving openly in the military?" and you answered, "That’s already occurred and I’m not planning on reversing that at this stage." As President, are you going to reverse gay rights in the military? Would you support adding sexual orientation to the protected categories in Title VII?

There are lots of other questions I could ask, but I know the answers. The fact is, this election is of huge importance to employees. You can either vote against your own economic interests and can buy into what Fox is telling you, or you can vote with your wallet. For anyone making under a million a year, the choice is pretty clear. I hope the middle class will see it that way.

What You Need To Know About Your Employer's Health Insurance

No Federal law requires your employer to carry health insurance coverage for employees (a few states, like Massachusetts and Hawaii, are different). However, once they do have coverage, there are some Federal requirements employers must comply with. If your employment has ended, read the paperwork you get on COBRA to find out about your rights to continued coverage. If you're still employed or about to be employed, here's what you need to know about your insurance.

Non-discrimination: Your employer must not discriminate in providing or reducing coverage based on , for example, age, disability or pregnancy.

Plan description: The Employee Retirement Income Security Act (ERISA) requires your employer to provide a description of your plan and how to make claims.

Privacy of records: If your employer does have access to medical records, such as when it’s self-insured, it must comply with the privacy requirements of HIPAA.

Specific coverage requirements: Certain procedures must be covered once insurance is provided. For instance, if mastectomies are covered, then reconstructive surgery must also be covered. Insurance can’t restrict the length of hospital stays for the birth of a child to less than 48 hours for vaginal delivery or 96 hours for c-section.

Preexisting conditions: HIPAA limits exclusions for preexisting conditions to no more than 12 months, and allows plans to look back no more than 6 months. Pregnancy and genetic information can never be excluded. If you were covered by a prior plan and had less than a 63 day break in coverage, preexisting conditions won’t be excluded. Most children can’t be excluded based on preexisting conditions.

Health factors: You can’t be denied insurance or have benefits reduced due to your health status, physical or mental illness, claims experience, receipt of health care, medical history, genetic information, conditions arising from domestic violence, participation in hazardous activities, or disability.

Certificate of coverage: The employer must provide a certificate of coverage automatically at certain times, and upon request.

Young adults: Your plan must allow you to have your children covered up to age 26.

Lifetime limits: No lifetime limits on coverage are allowed anymore. Most plans won’t be able to have annual limits.

Rescission: If you become ill, the insurance company can’t look for unintentional mistakes on your application as an excuse to deny coverage.

Eliminate or reduce coverage: Your employer can eliminate coverage or change plans at will.

Donna’s tips:

a. Your employer has to disclose if it believes its plan is “grandfathered” and exempt from some of the new health care reform’s requirements. If it is grandfathered and significant changes are made to the plan, it might lose its grandfathered status and have new requirements.

b. Non-grandfathered plans must provide access to pediatricians and OB-GYNs and coverage of preventive services with no cost sharing.

c. Read your plan and understand it. Don’t wait until a crisis to understand your health care coverage and rights.