Wednesday, July 20, 2016

Obamacare's three "affordability" safe harbors

The Affordable Care Act (aka "Obamacare") is complicated, but generally it requires large employers to provide "affordable" health insurance to their employees (or else pay huge fines).

So, what does "affordable" mean? Per the IRS's Q&A sheet, "If an employee’s share of the premium for employer-provided coverage would cost the employee more than 9.5% of that employee’s annual household income, the coverage is not considered affordable for that employee."

Okay... but if I'm an employer, how in the heck am I gonna know my employees' "household incomes"? You probably won't.

Ummm, do you see the problem here? Yes, but fear not! The IRS has identified three safe harbors:

(1) the Form W-2 wages safe harbor,
(2) the rate of pay safe harbor, and
(3) the federal poverty line safe harbor.

In other words, you just make sure the employee contribution is below 9.5% of: their own W-2 income; the employee's "rate of pay at the beginning of the coverage period, with adjustments permitted, for an hourly employee, if the rate of pay is decreased (but not if the rate of pay is increased)" (multiply the rate by 130-hours); or the federal poverty line.

I guess it's nice to have these safe harbors, but they seem to necessarily require capping the employee contribution at a lower rate than would otherwise be allowed. You can read the regulations here.

Wednesday, July 13, 2016

NLRB on temp workers, bargaining units, and joint employers

Welcome to the latest edition of "I'm Too Busy To Write My Own Blog Entry On This, So I'll Just Point You To Someone Else's Content" or "ITBTWMOBEOTSIJPYTSEC" (I'm considering changing the name of this feature) - Check out Corporate Counsel's NLRB Ruling Eases Way for Temporary Workers to Join Unions.

Thursday, July 7, 2016

Gretchen Carlson sues Roger Ailes of Fox News for sexual harassment and retaliation

Yesterday, Gretchen Carlson filed a lawsuit against Roger Ailes, the CEO of Fox News (Complaint here). Here are a few of the highlights (lowlights?) she alleges:
Cover of Getting Real
by Gretchen Carlson.

  • Ailes "sabotaged her career because she refused his sexual advances."
  • Fox & Friends co-host Steve Doocy harassed her, mocked her, belittled her, treated her as a "blond female prop," and "pull[ed] down her arm to shush her during a live telecast."
  • Carlson complained and Ailes responded by calling her a "man hater" and sexually propositioning her because "sometimes problems are easier to solve" that way.
She also alleges that Ailes treated her worse than "other Fox News hosts who did not complain about harassment and rebuff his sexual advances." Now, I don't want to infer too much here, but that sounds like other hosts traded sexual favors for perks, doesn't it? (but I acknowledge that there are other ways to read it). 

Carlson claims that Ailes retaliated against her by removing her from O'Reilly Factor segments, firing her from Fox & Friends (the morning show) to move her to an afternoon slot, and ultimately firing her by declining to renew her contract on June 23, 2016. 

This case could go away quietly with a confidential settlement agreement... or it could result in media warfare in public - we'll see. Fox News has had some issues with sex discrimination in the past, including this EEOC suit on behalf of Catherine Herridge, and, of course, who could forget the cringe-worthy loofa/falafel allegations against Bill O'Reilly?

Wednesday, June 29, 2016

Quoted in Software Advice: $47,476: How to Prepare Your SMB for the Overtime Rule Change

Check out Brian Westfall's article on Software Advice: $47,476: How to Prepare Your SMB for the Overtime Rule Change. By far, the most important thing is that it includes a quote from me (and I provided some additional consultation) ;-) - but it's also a nice resource in its own right.

It also includes a cool little tool that let's you enter: (1) a current salary; and (2) the hours of overtime worked per week; and then spits out a reduced salary that - when accounting for the addition of overtime premium payments under the new rules - will equal the old salary. Obviously, it is somewhat limited because many employees will not work exactly the same amount of overtime every week; but it's a good ball-parking tool.

You can read my whitepaper New Department of Labor Overtime Regulations Limiting Exemptions here.

Tuesday, June 28, 2016

How many ways can you violate employment laws in one conversation?

Time for an issue-spotter pop quiz. I'll paraphrase the setup from this CDT article, Teen fired after asking for the same pay as her male co-worker at a pizza shop (assuming the facts as-reported are true):
A young woman calls her employer to complain that a young man with the same job (and experience level) is making more money for the same work. The employer fires her immediately and claims it was for violating a policy against discussing pay with co-workers.
Ready, annnnd.... go!
  •  The male gets paid more than the female for substantially equal work - prima facie Equal Pay Act violation!
  • The employer treated a substantially similar male better than the female in an employment action (pay decision) - prima facie disparate treatment claim under Title VII!
  • The employee engaged in protected activity (complaining about wage discrimination), suffered a materially adverse action (termination), and there appears to be a causal connection (extraordinarily short temporal proximity) - prima facie retaliation claim under Title VII!
  • The employee acted in concert with her male co-worker to address the terms and conditions of her employment by discussing their wages and got fired for expressly that reason - prima facie case of retaliation for protected concerted activity under the NLRA (at least according to the NLRB's interpretation of it)! 
And that's just the federal law! Four solid prima facie cases in a two-sentence setup. That's gotta be some kind of record. Did I miss any? The employer may have some defenses (and there may be disputes of fact), but this certainly does not sound very good. 

HT: Saw it on Facebook via Justin Miller

Monday, June 27, 2016

Lawffice Links - New and entertaining employment law cases

A few entertaining employment law cases for your enjoyment: