I am always nervous about citations to studies prepared by outfits with political agendas (although what organization doesn't have an agenda these days?). But the numbers cited in this assessment by the Heritage Foundation are consistent with numbers that I saw from the CBO and other relatively unbiased sources when the debate over the PPACA was raging a year and a half ago.
The short answer is that for a minimum-wage worker, Obamacare will impose an almost 80% wage surcharge per family in the form of mandatory health insurance payments that will be absorbed primarily by the employer.
In hard numbers, average employees that cannot contribute at least $20,000 (single plan) or $27,500 (family plan) of value to their employer will not receive full-time employment positions. For states like Illinois, which has a higher minimum wage than the federal requirement, the overhead cost assigned to an employee with family plan medical insurance rises to almost $30,000 a year (based on a 2000 hour work year).
These values will be very hard for many unskilled laborers to meet. Employers will have no economic alternative but to hire unskilled workers to part-time positions, or hold their workforces below the 50 person threshold, in order to meet the new Obamacare requirements. This is in addition to dumping the low value producers into the government run health insurance exchanges, which appears to be the main goal of the statute in the long run.
Monday, October 24, 2011
Well, This Makes Me Feel Better about Photographic Evidentiary Standards
Based on this demonstration, it seems that you can insert just about anything into a photograph, a video, or any other computer-generated image. And you can do it very inexpensively, and very quickly, unlike the old photo retouching process. In other words, soon you won't be able to believe your eyes. This has some troubling implications for trial evidence. Presumably, any time you can get a witness to testify that the picture offered in evidence resembles his recollection of the way things were at the time the picture was taken, then the picture comes in as evidence and goes to the factfinder, typically a jury. The only way a jury or a judge could evaluate the picture's accuracy is by trying to assess whether the witness was telling the truth.
I'm certainly not comfortable with that standard.
I'm certainly not comfortable with that standard.
What Does a US Worker Really Cost?
An enlightening discussion here.
Some thoughts--
Compensation remains slightly more than half of the GDP, but more and more of it is in the form on non-wage type payments for taxes, benefits, etc. So workers are taking home less, even as they make about the same in total compensation relative to the size of the economy.
The non-wage expenses are making our workers more and more expensive vis-a-vis their foreign counterparts, with the resulting incentives that cause employers to move jobs out of the US.
These non-wage costs (and their government-regulated nature, think payroll taxes, Obamacare health insurance) also act as a brake on domestic hiring. As long as employers face economic uncertainty (in the form of the possibility of increased or changed regulation) every time they hire an employee, they will hesitate. If enough of them hesitate, you get stagnant employment numbers. Sound familiar?
Some thoughts--
Compensation remains slightly more than half of the GDP, but more and more of it is in the form on non-wage type payments for taxes, benefits, etc. So workers are taking home less, even as they make about the same in total compensation relative to the size of the economy.
The non-wage expenses are making our workers more and more expensive vis-a-vis their foreign counterparts, with the resulting incentives that cause employers to move jobs out of the US.
These non-wage costs (and their government-regulated nature, think payroll taxes, Obamacare health insurance) also act as a brake on domestic hiring. As long as employers face economic uncertainty (in the form of the possibility of increased or changed regulation) every time they hire an employee, they will hesitate. If enough of them hesitate, you get stagnant employment numbers. Sound familiar?
Why Pro Athletes are Different from the Rest of Us
Other than the money, the partying, the bling, the off-duty issues, the attention, etc.
I'm referring, of course, to the fact that some of them get to drink while performing their duties as baseball players. Maybe it's the attire--Sox teams seem to have gotten the attention here. It sounds worse than Mad Men.
I don't think an open bar is a prudent workplace policy. But I especially don't think it's smart for people to imbibe at work when their job description includes hitting 95 mph fastballs being thrown within inches of their heads, or tracking down 3 inch spheres being hit hundreds of feet from their location.
And now MLB wants to take action: "I'm shocked, shocked, to find drinking going on in this establishment..."
I'm referring, of course, to the fact that some of them get to drink while performing their duties as baseball players. Maybe it's the attire--Sox teams seem to have gotten the attention here. It sounds worse than Mad Men.
I don't think an open bar is a prudent workplace policy. But I especially don't think it's smart for people to imbibe at work when their job description includes hitting 95 mph fastballs being thrown within inches of their heads, or tracking down 3 inch spheres being hit hundreds of feet from their location.
And now MLB wants to take action: "I'm shocked, shocked, to find drinking going on in this establishment..."
The Employment Relationship Matters
A recent FMLA case here in Illinois shows why it's important for companies to carefully manage, or in this case, to at least understand, their own workforce relationships, or else find themselves wrapped up in lawsuits that they cannot defend.
Plaintiff worked as a manager for a regional air service that conducted flight operations in conjunction with United and United Express in Chicago. His paycheck and W-2 listed his employer as Trans-State Holdings, Inc ("TSH"). But his business card bore the logo of Trans-State Airlines ("TSA"), the improbably named (at least in affiliation with United) GoJet Airlines, and TSH. Company internal directories identified plaintiff as the O'Hare Airport contact for all three entities. He participated in employee meetings with both TSA and GoJet, drafted policies and procedures for both airlines, and represented both airlines in meetings with United Airlines and United Express operations. Company management determined that the plaintiff was only employed by Trans State Airlines, which had 33 employees within 75 miles of O'Hare. Note that the payroll employer, Trans-State Holdings had no employees at O'Hare at the time.
This becomes important because plaintiff tried to exercise FMLA leave rights as a result of a psychiatric disorder. The company denied plaintiff's request for FMLA leave, and terminated him when he failed to return from a 2 week personal leave.
The company's initial argument was that the FMLA was not applicable because it did not have the required number of employees - 50 - within 75 miles from the work site. The court rejected the company's defense, finding that while TSA and GoJet had different labor representations and different seniority lists, the company shared the same upper level management - the president, the vice president, and chief financial officer were the same for all three. The company with no employees in the area, TSH, maintained the personnel files for TSA and GoJet and TSH's recruitment department performed services for all three companies. Apparently, employees moved seamlessly between the three companies on occasion.
Looking at this confusing and irregular factual background, the court tried to impose some type of order. It noted that the US Department of Labor allows employees from one company to be considered employees of another for purposes of an FMLA headcount either under a "joint employment" or "integrated employer" test. Each test looks to see whether there are significant links between the employee and the various companies at issue such that each company can be considered an employer. If the employment circumstances meet the test, the workforces are merged for purposes of counting towards the FMLA threshold of 50 employees.
In this case, the court had little difficulty in finding that the three companies, individually and jointly, had control over plaintiff's employment. He was named as their representative at O'Hare, he represented them in dealings with the airlines and the Department of Homeland Security, they were listed on his business card as his employer, and all three benefited from his services. The court did not bother to check the application of the integrated employer test.
Once it determined that TSH, TSA and GoJet met the joint employment test, the Court found that plaintiff's medical condition qualified him for FMLA. The employer tried to defeat the FMLA entitlement with a novel argument--that plaintiff made his medical condition worse (i.e. he turned it into an FMLA qualifying condition), by not following his doctor's advice. The Court rejected this "plaintiff should have been a better patient" defense, determining that there was no case law for that proposition, and no authority for it in the regulations. The Court granted summary judgment for the ex-employee, ruling that the companies were liable for terminating him without granting him the FMLA leave he requested.
This case is noteworthy because of the confusion evidenced on part of the companies as to exactly who was employing plaintiff. Prior to the irrevocable decision to deny plaintiff his FMLA leave and terminate him, it would have been prudent for someone in charge to sit down and look at the nature of the employment relationship between the three entities. A situation where an employee is being used as a representative of multiple entities should raise a red flag as to how court will look at the employment relationship for headcount and ultimate legal liability purposes.
Friday, October 21, 2011
A Cheek Swab Would Have Sufficed
The British military is famous for absorbing and accommodating into its ranks soldiers from many of its former colonies. Particularly noteworthy among these groups are the Ghurkas, a fierce fighting tribe from Nepal.
Unsurprisingly, things occasionally get lost in the translation between British Army requirements, and Gurkha culture. I guess that explains how this particular individual came up on a court-martial charge for zealously collecting a DNA sample from a Taliban fighter that he engaged.
Quite reasonably, it seems that the charges have been dismissed on the soldier returned to his unit. I hope they were careful to inspect his carry-on bag before he got on the airplane home, however.
Unsurprisingly, things occasionally get lost in the translation between British Army requirements, and Gurkha culture. I guess that explains how this particular individual came up on a court-martial charge for zealously collecting a DNA sample from a Taliban fighter that he engaged.
Quite reasonably, it seems that the charges have been dismissed on the soldier returned to his unit. I hope they were careful to inspect his carry-on bag before he got on the airplane home, however.
A Fair FMLA Result
A recent Family and Medical Leave Act ("FMLA") case out of Illinois shows the importance of not rushing to a decision when the FMLA is involved, and reinforces the ability of an employer to require compliance with its attendance procedures, even where the FMLA applies.
The employee worked as a mushroom picker for company in central Illinois (insert inappropriate jokes here about being kept in the dark, etc. with regard to your current working conditions). She advised her supervisor that she needed to take leave one summer to help her sick mother in Mexico. The manager directed her to coordinate her trip with HR to ensure that the leave was properly recorded. The company's FMLA policy required employees to submit requests for foreseeable FMLA absences at least 30 days in advance, and as soon as possible for unforeseeable events. The company typically did not enforce the 30 day notice requirement, but did ask for some type of advance documentation when possible. The company provided the employee with the necessary documentation (in Spanish, even) so that she could take it to Mexico and get it completed by her mother's physician there.
The employee planned to cover the first two weeks of her absence with vacation time, and then use FMLA time for the rest. At the end of the vacation portion of her absence, she unsuccessfully tried to fax the completed FMLA paperwork to her employer. Back in the US, when the employee did not return to work the employer unsuccessfully attempted to contact the employee by phone and via mail at her house. In the meantime, the employee's brother called her in Mexico and told her that she needed to contact the employer. She ultimately talked to her supervisor who told her that the company did not have her FMLA medical certification The employee sent another copy. This fax did not make it, either, nor did the employee call to confirm that the employer received her second fax. The employer terminated her shortly thereafter.
In finding for the employer, the court noted that the company was entitled to impose reasonable procedural requirements for requesting FMLA leave, including preliminary authorization where possible. The court determined that the company exercised reasonable discretion in the application of its procedures in this case, and that the company did not receive any FMLA certification before it terminated the employee Although there was some confusion about who said exactly what to the employee, it was clear that the company had not rushed to terminate the employee under its formal deadline, but rather extended it to try to accommodate the employee's situation. Because the employee knew that she had to get the information to the company and failed to do so, the court determined that she was out of luck with respect to her request, even though she made a good faith attempt to send the information
This case has two important messages. The first is that in an absence case, an employer should avoid making summary decisions and carefully assess its obligations before making a decision. The courts are not looking for a perfect process in these cases, but only one that provides the statutory requirements for notice and reasonable opportunity to respond. The second is that even when the employer does not follow its own attendance policies, the employer can still enforce reasonable requirements as long as those requirements are effectively communicated to the workforce.
The employee worked as a mushroom picker for company in central Illinois (insert inappropriate jokes here about being kept in the dark, etc. with regard to your current working conditions). She advised her supervisor that she needed to take leave one summer to help her sick mother in Mexico. The manager directed her to coordinate her trip with HR to ensure that the leave was properly recorded. The company's FMLA policy required employees to submit requests for foreseeable FMLA absences at least 30 days in advance, and as soon as possible for unforeseeable events. The company typically did not enforce the 30 day notice requirement, but did ask for some type of advance documentation when possible. The company provided the employee with the necessary documentation (in Spanish, even) so that she could take it to Mexico and get it completed by her mother's physician there.
The employee planned to cover the first two weeks of her absence with vacation time, and then use FMLA time for the rest. At the end of the vacation portion of her absence, she unsuccessfully tried to fax the completed FMLA paperwork to her employer. Back in the US, when the employee did not return to work the employer unsuccessfully attempted to contact the employee by phone and via mail at her house. In the meantime, the employee's brother called her in Mexico and told her that she needed to contact the employer. She ultimately talked to her supervisor who told her that the company did not have her FMLA medical certification The employee sent another copy. This fax did not make it, either, nor did the employee call to confirm that the employer received her second fax. The employer terminated her shortly thereafter.
In finding for the employer, the court noted that the company was entitled to impose reasonable procedural requirements for requesting FMLA leave, including preliminary authorization where possible. The court determined that the company exercised reasonable discretion in the application of its procedures in this case, and that the company did not receive any FMLA certification before it terminated the employee Although there was some confusion about who said exactly what to the employee, it was clear that the company had not rushed to terminate the employee under its formal deadline, but rather extended it to try to accommodate the employee's situation. Because the employee knew that she had to get the information to the company and failed to do so, the court determined that she was out of luck with respect to her request, even though she made a good faith attempt to send the information
This case has two important messages. The first is that in an absence case, an employer should avoid making summary decisions and carefully assess its obligations before making a decision. The courts are not looking for a perfect process in these cases, but only one that provides the statutory requirements for notice and reasonable opportunity to respond. The second is that even when the employer does not follow its own attendance policies, the employer can still enforce reasonable requirements as long as those requirements are effectively communicated to the workforce.
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