It should be news to no one that the implementation of the Affordable Care Act (“ACA”) requirement that individuals without employer sponsored health insurance must be covered by minimum essential coverage (the individual mandate) has been anything but seamless. Both federal and state health insurance exchanges have experienced dramatic crashes that have severely limited the ability of individuals to evaluate and apply for online coverage. Although improvements are reported daily, along with additional difficulties, it is clear that those responsible for the implementation of health care reform are well into Plan B, which includes increased reliance on in-person and written applications for coverage.
Even as enrollment numbers improve, other hurdles loom ahead. Will insurers receive the information needed to enroll a successful applicant into the correct coverage option? Will the system of subsidies and credits be properly applied to the individual’s premium? Will sufficient numbers of younger, and presumably healthier, individuals sign up for coverage so that their premiums will help offset the higher costs of covering older or less healthy individuals, who are eagerly taking advantage of the opportunity to obtain coverage that might not previously have been available.
As a result of this muddled rollout, the deadlines facing those without employer-sponsored coverage have been softened. Originally, such individuals had to sign up for coverage by March 31, 2014. No penalty would be assessed so long as an individual did not have coverage for three consecutive post-2013 months. In other words, an individual who lost employer sponsored coverage had three months within which to find coverage under another employer’s plan or sign up through an exchange. An individual without employer sponsored coverage on January 1, 2014, who signed up for coverage that did not go into effect until after March 2014, would face a penalty for exceeding this short coverage gap exception.
More recent HHS guidance changes this rule. Now, no penalty will be assessed if the individual just signs up for individual coverage by March 31, 2014, even if the individual did not have coverage for January, February, and March 2014. Remember, however, signing up for coverage by the March 31, 2014 deadline does not mean that the coverage itself is retroactive. If the individual decides to wait until March to sign up for coverage but then incurs medical expenses in January or February 2014, those medical expenses will not be insured. They will remain the individual’s responsibility.
Legal updates, news and commentary from Preti Flaherty's Employment Law Attorneys
FMLA: Discipline Unrelated to Leave Is Not Retaliatory
The New Hampshire Federal Court issued a recent decision affirming that an employer may take disciplinary action against an employee who has taken FMLA leave, provided the information is accurate and unrelated to the leave. The Court in Ameen v. Amphenol Printed Circuits, Inc. (Opinion No. 2013 D.N.H. 177) granted summary judgment for the employer against an employee claiming he was terminated in retaliation for taking FMLA leave, and noted “an employee may not immunize himself from being discharged for reasons unrelated to the FMLA simply by taking leave under that statute.”
The employee had taken approved leaves following the birth of his child, but upon his return it was reported that he had been violating the company lunch and break policy by the manner in which he had punched in and out for breaks. An investigation determined he was receiving a fifteen minute paid break per day in violation of company policy and it had been occurring for two years. The supervisor who decided to terminate the employee had no knowledge of the FMLA leave. The Court declined the plaintiff’s invitation to apply the cat’s paw theory of imputing motive up the chain to that decision maker because the individuals who made the initial report and reported the results of the investigation produced accurate information. The Court concluded that if it allowed accurate reporting of employee misconduct unrelated to the FMLA conduct to count as evidence of retaliatory animus, an employer’s ability to discharge an employee for reasons unrelated to the protected FMLA conduct would be “significantly constrained.”
Had the facts been different – for example, if the information reported to the decision maker was inaccurate – the result would likely have been different. While this opinion affirms an employer may discharge an employee for legitimate reasons unrelated to protective FMLA activity, the decision maker must take care to ensure the accuracy of the information that serves as the basis for the adverse employment action and that it is truly unrelated to the leave.
The employee had taken approved leaves following the birth of his child, but upon his return it was reported that he had been violating the company lunch and break policy by the manner in which he had punched in and out for breaks. An investigation determined he was receiving a fifteen minute paid break per day in violation of company policy and it had been occurring for two years. The supervisor who decided to terminate the employee had no knowledge of the FMLA leave. The Court declined the plaintiff’s invitation to apply the cat’s paw theory of imputing motive up the chain to that decision maker because the individuals who made the initial report and reported the results of the investigation produced accurate information. The Court concluded that if it allowed accurate reporting of employee misconduct unrelated to the FMLA conduct to count as evidence of retaliatory animus, an employer’s ability to discharge an employee for reasons unrelated to the protected FMLA conduct would be “significantly constrained.”
Had the facts been different – for example, if the information reported to the decision maker was inaccurate – the result would likely have been different. While this opinion affirms an employer may discharge an employee for legitimate reasons unrelated to protective FMLA activity, the decision maker must take care to ensure the accuracy of the information that serves as the basis for the adverse employment action and that it is truly unrelated to the leave.
Changes at the Maine Human Rights Commission
Friday, December 13, 2013
The
new counsel to the Maine Human Rights Commission, Barbara Archer Hirsch, spoke to the
Employment Section of the Maine Bar Association yesterday. She
announced one significant change in how the Commission would be processing
charges, but did not otherwise anticipate major changes of policy or
procedure. The investigators will no longer rule on the issue of
constructive discharge- they see it as a damages issue only that they should
not weigh in on.
A plaintiff’s attorney sitting next to me expressed concern because, for example, in a whistleblower’s case, he sees the constructive discharge as a tangible employment action, an essential element of the charge. Despite the Law Court’s recent holding, the Commission will still process some kinds of claims against individual supervisors- where the accusation is that the supervisor “aided and abetted” the discrimination or retaliated against an employee. Ms. Archer Hirsch acknowledged that the remedy against an individual would not include monetary damages.
Unfortunately, Ms. Archer Hirsch indicated the Commission does not currently have a plan to reduce its backlog or expedite processing charges. All in all, the mission seems to be to carry on the status quo.
A plaintiff’s attorney sitting next to me expressed concern because, for example, in a whistleblower’s case, he sees the constructive discharge as a tangible employment action, an essential element of the charge. Despite the Law Court’s recent holding, the Commission will still process some kinds of claims against individual supervisors- where the accusation is that the supervisor “aided and abetted” the discrimination or retaliated against an employee. Ms. Archer Hirsch acknowledged that the remedy against an individual would not include monetary damages.
Unfortunately, Ms. Archer Hirsch indicated the Commission does not currently have a plan to reduce its backlog or expedite processing charges. All in all, the mission seems to be to carry on the status quo.
New Causation Standard for Title VII Retaliation Claims
Thursday, December 12, 2013
It can be difficult for employers to decide how to address employee misconduct when that employee has reported discrimination and the investigation is ongoing. The fear of prompting a retaliation claim can create paralysis. A recent decision by the New Hampshire federal court provides support for employers who wish to take adverse employment action when justified.
In Hubbard v. Tyco (Opinion No. 2013 D.N.H. 165), the District of New Hampshire analyzed a Title VII retaliation claim where the employee claimed his termination for insubordination was really in retaliation for reporting discrimination. The Court granted summary judgment for the employer, finding Hubbard had not met the “but-for” standard. The Court, following First Circuit precedent, framed the issue as follows: if Hubbard had not reported discrimination, he still would have been terminated for insubordination, and there was no evidence that Hubbard would have been terminated if he had not engaged in the insubordinate conduct. If those questions can be answered in that fashion, the adverse action is not retaliatory.
This opinion confirms that it is more difficult for an employee to prevail in a Title VII retaliation claim. The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), clarified that Title VII retaliation claims require proof of “but-for causation” rather than the lessened causation test for discrimination claims (where a plaintiff need only show that discriminatory animus was a motivating factor for the adverse action). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action of the employer.
In Hubbard v. Tyco (Opinion No. 2013 D.N.H. 165), the District of New Hampshire analyzed a Title VII retaliation claim where the employee claimed his termination for insubordination was really in retaliation for reporting discrimination. The Court granted summary judgment for the employer, finding Hubbard had not met the “but-for” standard. The Court, following First Circuit precedent, framed the issue as follows: if Hubbard had not reported discrimination, he still would have been terminated for insubordination, and there was no evidence that Hubbard would have been terminated if he had not engaged in the insubordinate conduct. If those questions can be answered in that fashion, the adverse action is not retaliatory.
This opinion confirms that it is more difficult for an employee to prevail in a Title VII retaliation claim. The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), clarified that Title VII retaliation claims require proof of “but-for causation” rather than the lessened causation test for discrimination claims (where a plaintiff need only show that discriminatory animus was a motivating factor for the adverse action). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action of the employer.
Make Your Holiday Parties Fun and Lawsuit Free
Friday, December 6, 2013
The holiday season is upon us. It is the biggest season for office parties. These parties give rise to the most law suits filed against an employer. Today I read a great article from “Law 360” (subscription required) that provides an employer with great advice that allows a holiday party to still be enjoyable while at the same time reducing the of the party turning a legal nightmare. The article lists five tips for employers: 1. Keep Alcohol Consumption Down, 2. Pick the Right Time and Location, 3. Don’t Make It Mandatory to Attend, 4. Ask Managers to Watch for Trouble, and 5. Remind Employees that Work Place Rules Still Apply.
Safeguarding Trade Secrets and Proprietary Information
Most states, including Maine, have statutes protecting trade secrets. These statutes provide an important measure of protection to employers wishing to safeguard their proprietary information. For employers, the issue of trade secrets often arises when an employee leaves to join a competitor or strike out on their own. The concern is that, upon leaving, the employee will abscond with the employer’s information and use or disclose the information without the employer’s consent. To help prevent this kind of misappropriation, employers should be sure that they have adequate policies in place governing the treatment of trade secret information.
As a case in point, in Dana Limited v. American Axle and Manufacturing Holdings (W.D. Mich. 2013), an employer sued two employees who had left to join a competitor. Prior to leaving, the employees downloaded several of the employer’s files onto their personal computers and storage devices. The employer claimed, among other things, that the employees misappropriated its trade secrets by downloading the files onto their devices.
The court disagreed, however, and found that there was insufficient evidence to show that the employees acquired the employer’s files through improper means. In reaching this conclusion, the court noted that the employer did not have a policy that prohibited employees from storing company information on personal computers and storage devices. Because there was no such prohibition, the employer could not show that the employees acquired the information through either theft, bribery, misrepresentation, or some other improper means.
Although the Dana case highlights the importance of having established policies in the first place, it also serves as a useful reminder to periodically review them to ensure they are up to date.
As a case in point, in Dana Limited v. American Axle and Manufacturing Holdings (W.D. Mich. 2013), an employer sued two employees who had left to join a competitor. Prior to leaving, the employees downloaded several of the employer’s files onto their personal computers and storage devices. The employer claimed, among other things, that the employees misappropriated its trade secrets by downloading the files onto their devices.
The court disagreed, however, and found that there was insufficient evidence to show that the employees acquired the employer’s files through improper means. In reaching this conclusion, the court noted that the employer did not have a policy that prohibited employees from storing company information on personal computers and storage devices. Because there was no such prohibition, the employer could not show that the employees acquired the information through either theft, bribery, misrepresentation, or some other improper means.
Although the Dana case highlights the importance of having established policies in the first place, it also serves as a useful reminder to periodically review them to ensure they are up to date.
Subscribe to:
Posts (Atom)
