Arlen Specter, Joe the Plumber Oppose EFCA
More news on the Employee Free Choice Act (EFCA): last week, Pennsylvania Senator Arlen Specter, long considered a critical swing vote for both sides, came out in opposition to EFCA. Click here to read the New York Times' coverage. Specter's "no" means that the pro-EFCA senators will fall short of the 60 votes they need to overcome an expected Republican filibuster.
You know the Republicans are serious when they trot out Joe the Plumber. And they have, according to the Huffington Post, in an effort to defeat EFCA. We're not sure if Joe's support is going to matter much, but at least it increases the entertainment value.
Costco, Whole Foods and Starbucks Offer Olive Branch on EFCA
According to the Washington Post, executives from three progressive employers, Costco, Whole Foods and Starbucks, have offered a compromise of sorts on the Employee Free Choice Act (EFCA). Their proposed compromise would drop the card-check and mandatory arbitration provisions of the act, but give unions greater access to employees and guarantee union elections within a specific time period. Click here to read the Post's article on the proposal.
The compromise would remove from EFCA the two provisions that give employers the most heartburn: a provision that would allow employees to form a union without a secret-ballot election if a majority sign pro-union cards, and one that would impose binding arbitration if employers and unions fail to reach a contract after 120 days. However, the compromise would keep EFCA's increased penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining, would set a fixed period in which an election must be held, limiting the delays that give employers time to campaign, and would provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break on company premises.
Don't expect either side to jump on the bandwagon soon. Unions are committed to the card-check and arbitration provisions, and anti-EFCA forces will not favor giving unions on-site access to employees anytime soon. But, as the EFCA fight goes on, creative proposals like this one might be what is needed to break a Senate filibuster. Keep watching the Stoel Rives World of Employment for more EFCA news and updates.
Model COBRA Subsidy Notices Now Available
The Department of Labor has published four model notices to help employers, plans and individuals comply with the notice requirements of the COBRA subsidy provisions of the American Recovery and Reinvestment Act of 2009 (ARRA). Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions. Click on the title of each to download:
- General Notice (Full version). Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, AND who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA. This full version includes information on the premium reduction as well as information required in a COBRA election notice.
- General Notice (Abbreviated version). The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.
- Alternative Notice. Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.
- Notice in Connection with Extended Election Periods. Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who (1) had a qualifying event at any time from September 1, 2008 through February 16, 2009; and (2) either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA. This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.
For more information about the COBRA subsidy, click here to read our coverage at the Stoel Rives World of Employment. Or, click here to go to the Department of Labor's COBRA Subsidy Website.
Let the Fireworks Begin! EFCA Introduced in Congress
The Employee Free Choice Act (EFCA), which will amend the National Labor Relations Act to make it easier for unions to organize, was introduced in Congress yesterday. Separaste bills were introduced by Sen. Tom Harkin (D-Iowa), member of the Senate Health, Education, Labor and Pensions Committee, and Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee. Want to know more about EFCA? Check out our continuing coverage here at the Stoel Rives World of Employment.
Pro-EFCA forces are gathering. The SEIU has put out this fancy new ad for your viewing pleasure (seriously, we got a big kick out of this one! Some say this is over the top, but we respect that.)
Ninth Circuit Declines to Reconsider Ruling on SF Health Care Ordinance
Back in October 2008, the Ninth Circuit Court of Appeals upheld a San Francisco city ordinance that requires many employers to either contribute a specified amount toward their employees' health care costs on a regular basis or pay into a city health care fund for San Francisco residents. Earlier this week, the Ninth Circuit denied a petition for rehearing en banc, meaning that the law will continue to be in effect--until or unless the Supreme Court decides to hear an appeal.
The San Francisco Health Care Security Ordinance went into effect on January 9, 2008. It is a "pay or play" health care plan, as it requires employers either to "pay" for health care or "play" by the rules of the city health care fund. The ordinance applies to for-profit employers with at least 20 employees and non-profit employers with at least 50 employees. For more information on the ordinance, including compliance information, click here.
In the underlying lawsuit, Golden Gate Restaurant Association v. San Francisco, a group of employers brought a lawsuit seeking the federal court to declare that the San Francisco ordinance is preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA). The Ninth Circuit disagreed, and the ordinance will continue to be in effect. This decision may pave the way for other state and local governments to pass similar "pay or play" health care laws, knowing that they will likely withstand a legal challenge.
Changes Coming to the WARN Act?
The Worker Adjustment and Retraining Notification ("WARN") Act is getting a lot of airplay these days; that's the federal law that requires qualifying employers to give 60 days’ notice of a plant closing, a layoff of 500 or more people at one location, or a cut of at least one-third of the work force at a site. But many critics of the WARN act think it doesn't go far enough because it covers only the largest layoffs by the largest employers. Now, some economists are calling for a tougher, broader WARN Act.
We'll be watching to see if these calls for revising the WARN Act gain traction in Congress this term. For now, there are resources out there to help you cope with the current version of WARN:
- For a basic overview of the law, here's a basic WARN Act Fact Sheet.
- For more detailed information, download the Employer's Guide to the WARN Act (a great resource and our personal favorite).
- Next, if your layoff is caused by an "act of God," you might want to download the WARN Act Natural Disaster Fact Sheet.
- And finally, you can read what the DOL is telling your employees: the Workers' Guide to the WARN Act, and for Spanish-speaking employees, the Guía para el Trabajadores.
Revised IRS Form 941 Provides for COBRA Premium Assistance Credit
Employers: The Internal Revenue Service has issued a new Form 941 (Employer's Quarterly Federal Tax Return) that provides for any credits due because of the new COBRA Premium Assistance Credit. You can download the new form by clicking on the links below:
The IRS also has put up this web page to provide tax assistance to employers taking advantage of the COBRA credits. To read more on the COBRA Premium Assistance Credit, check out our coverage at the Stoel Rives World of Employment.
DOL Issues FAQs on COBRA Subsidy
The Department of Labor's Employee Benefits Security Administration has posted answers to 10 frequently asked questions regarding the COBRA subsidies included in the new stimulus package. Most relate to individual claims for the subsidy, but the information may be helpful to employers as well.
For more information about the subsidy, click here to read our coverage at the Stoel Rives World of Employment. Or, click here to go to the Department of Labor's COBRA Subsidy Website.
(Okay, this picture has nothing to do with the continuation of health care, and the FAQs don't say anything about snakes. We just like to keep things interesting at the Stoel Rives World of Employment.)
EEOC Proposes Regulations for Genetic Information Nondiscrimination Act
Today the EEOC published its proposed regulations on the Genetic Information Nondiscrimination Act (GINA). Click here to download the proposed regulations. Interested members of the public have 60 days (or until May 1, 2009) to comment on the new regs.
GINA, passed by Congress last year, prohibits the improper use of genetic information in health insurance and employment. GINA prohibits group health plans and health insurers from denying coverage or charging higher premiums based solely on the insured's genetic predisposition to developing a disease in the future.
Title II of GINA, which takes effect November 21, 2009, will prohibit employers from using genetic information to make hiring, firing, promotion or other employment decisions based on genetic information. Why would anyone want to do that? Perhaps you should watch this movie:
