Category Archives: Workplace Rules and Policies

How Does COBRA Work With Obamacare?

cobra-240x203Last week, the federal Department of Labor issued proposed regulations dealing with COBRA notices. The regulatory proposal is quite uninteresting: Basically, the administration is removing the model notices from the Code of Federal Regulations and providing them instead on the Department of Labor’s website. This allows the notices to be changed much more quickly and easily, without resort to the federal rulemaking process.

The Labor Department also posted the new model versions of these notices: The general notice employees receive when they sign-up for employer-provided healthcare, and the election notice employees receive when a qualifying event occurs and they have to actually decide whether or not to continue their health insurance through COBRA. (You can find links to both new versions at the DOL’s COBRA Continuation Coverage page.)

The changes to the notices mostly involve Obamacare: specifically, the interface between Obamacare and COBRA. The notices explain that employees (and other beneficiaries) who are losing their employer-provided coverage may continue that coverage for at least 18 months by paying the full premium, pursuant to COBRA. However, employees also have the option of foregoing COBRA coverage and instead buying insurance through the Health Insurance Marketplace.

Ordinarily, anyone who wants to buy insurance on the Marketplace must wait for an open enrollment period. One just closed; the next one doesn’t start until mid-November. So what if you get laid off between now and then? The new notices explain that there is a 60-day “special enrollment” period triggered by losing job-based coverage. In other words, a laid-off employee has 60 days to choose a new health plan through the Marketplace; the same 60-day period applies to choosing COBRA coverage.

The new election notice provides some good answers to questions about switching coverage, too:

  • If you choose COBRA coverage, but decide you want to buy through the Marketplace instead, you may do so during the initial 60-day special enrollment period. If you miss this deadline, you’ll have to wait until open enrollment rolls around, just like everyone else (unless you have a second event that triggers a special enrollment period, like having a child).
  • If you choose Marketplace coverage, but decide you should have taken advantage of COBRA, you are out of luck. Once you decline COBRA coverage, it’s gone.
  • Once your COBRA coverage ends, you get another 60-day special enrollment period in which to sign up for Obamacare.

Fired for Jury Duty

gavelOne New York employer thought it had a bright idea: Lay off an employee who is called to serve on a jury, allow her to collect unemployment, then decide, once the trial is over, whether to offer her job back. That’s how the New York Times described an employer’s response when its employee gave notice that she had been selected to serve on a jury in a criminal case against Osama Bin Laden’s son-in-law (“Juror Loses Job for Serving in Terror Trial“).

Apparently it wasn’t bad enough to be called for jury duty, then actually selected for a case that will undoubtedly be lengthy and difficult, then apparently told that the trial is so “sensitive” that all jurors will be referred to only as numbers. No, poor Juror 21 had to suffer the additional indignity of hearing from her employer that she would be paid for only three days, then demoted, and finally laid off.

The judge in the case pointed out that this violates federal law, and it does. It’s a federal case, so perhaps the judge can be forgiven for not pointing out that it violates New York law as well. Most states prohibit employers from coercing an employee to avoid jury duty, or from disciplining or firing employees called to serve. (See Taking Time Off for Jury Duty for a list of every state’s rules.)

So far, so good. But the real problem is getting paid. Only a few states require employers to pay their employees for the time they spend serving on a jury. State laws may provide for nominal juror fees paid by the court, but these amounts are quite small. In fact, Juror 21’s employer offered more than New York law requires. Although state law requires employers to pay for three days (only) of service, the amount they have to pay is capped at the princely sum of 40 bucks a day.

The judge has appointed a lawyer to represent Juror 21 in contacting her employer and trying to work things out.

Hey, Wellness Programs: Reward Healthy Employees, Too

fitnessWorkplace wellness programs are booming: According to a recent study commissioned by Congress and conducted by the RAND Corporation, workplace wellness is a $6 billion industry (annually), with programs hawked by an estimated 500 vendors. (Unfortunately, Forbes reports that the study also reveals pretty minimal health benefits to employees and statistically insignificant cost savings for employers who adopt workplace wellness programs.)

The Affordable Care Act, better known as Obamacare, allows employers to adopt workplace wellness programs and reward employees who meet certain health goals. Understandably, the government has largely been concerned with making sure that employers don’t discriminate against employees whose medical conditions make it inadvisable to participate in certain activities or adopt certain health targets. (You can learn more about the final regulations on avoiding discrimination in our article, Final Rules for Wellness Programs Under Obamacare.)

Don’t get me wrong: I’m all in favor of employers offering programs to help employees improve their fitness, lower their cholesterol, lose weight, or stop smoking. And I understand that financial incentives are an effective motivation for most of us. But what about employees who are already fit and healthy? Many wellness plans offer an initial incentive to employees for taking a health assessment and participating in biometric screening, activities that are equally available to all. Beyond these measurements, however, some wellness plans offer additional rewards only to employees who need to change their behavior by, for example, participating in coaching programs, meeting certain health targets (such as achieving a particular BMI or cholesterol level), or participating in programs to monitor chronic health conditions, such as diabetes or hypertension. Employees who don’t need these types of assistance aren’t eligible for rewards.

Of course, good health is its own reward. But if money is being handed out, shouldn’t some of it go to the employees who are costing the company the least in insurance premiums? That’s what Eagle County, Colorado decided. According to an article at, the county’s HR director decided to reward the 25% of the county’s employees whom she described as “uber-athletes” with perfect health scores. She wanted to reward these employees and give them an incentive to motivate their coworkers. So, she gave them premium discounts on their health insurance and started paying their entrance fees for races and competitions; in exchange, they agreed to participate in workplace fitness teams, such as walking programs. Everyone wins, and the employees who are already costing the company less get to share a bit in the savings.

Obamacare Employer Mandate Postponed to 2015

In an announcement that seemed to take everyone by surprise, the Obama administration yesterday issued a statement that it would not enforce the employer mandate of Obamacare until 2015. More specifically, the statement indicates that the Obama administration won’t enforce the law’s reporting requirements for employers or assess the “shared responsibility” payments (fines for failing to provide adequate, affordable healthcare) until 2015. These provisions were supposed to take effect at the beginning of 2014.

This change was billed as the administration’s effort to “listen to the business community.” However, the effects of the change could be much more widespread. The deadline for the individual mandate has not changed; we all still have to have insurance coverage by January 1, 2014, or pay a penalty. I will refrain from detailing my thoughts about the administration giving a break to the “business community” while the actual humans are still on the hook. But postponing the employer mandate will make the individual mandate more challenging. For example, whether subsidies are available to employed people who buy their own insurance depends on the quality and cost of insurance available to them at work. If employers aren’t required to report on that, how is the IRS going to know who is eligible for a subsidy?

Postponing the employer mandate and reporting requirements also, frankly, gives employers more time to come up with ways to get around the law by restructuring their workforces (look for more job openings for employees to work no more than 29 hours per week), coming up with ways to offer the least coverage possible and pay the lowest penalties (like this scheme, which came to light only a few weeks ago), and so on.

Here’s an additional complication: The administration doesn’t seem to have the authority to require this delay. As noted in this article in Forbes, the effective date of the mandate is statutory. Congress said, right there in the law, that it applies to “months beginning after December 31, 2013.” Although the administration could choose not to enforce this part (as they did with DOMA before the Supreme Court overturned it), they might face a lawsuit over their decision. And, unlike the DOMA situation, there will be real people who are harmed by this delay.


Bad Credit Could Cost You a Job

Over the weekend, the New York Times published a chilling article about employer reliance on credit reports, The Long Shadow of Bad Credit in a Job Search. The main character was a poor guy who couldn’t find work as a shoe salesman after he couldn’t pay medical bills incurred for an injury he suffered after getting laid off (and losing his insurance).

The article points out that employers are actually a bit less likely to check credit reports on applicants than they have been in the past. While previous surveys (conducted by our friends at SHRM) have found that about 60% of employers check credit reports on applicants, that number is now down to about 50%. At the same time, however, many people have seen their good credit ratings go down the tubes in the last five years. So fewer employers are checking, but they may be dinging a higher percentage of candidates for poor credit.

Why do employers check credit reports, anyway? For certain positions, a credit report might reveal pertinent information. You may not want an employee who never pays bills on time to manage a department budget, prepare economic forecasts, or have free access to a company credit card. In many situations, however, poor credit reveals no more than bad luck: high medical bills, divorce, and job loss account for many financial woes. Although there are certainly some people who run up huge debts on luxury items, never planning to pay for them, there are many whose debts are based on sadder — and more mundane –circumstances.

Rejecting these applicants for jobs puts them in a Catch-22: They lost a job, which hurt their credit, which will prevent them from getting a job, and so on. In recognition of this, states are starting to step in and prohibit employers from using credit reports in making hiring and other job decisions. Nine states have passed these laws so far, and more are considering similar legislation. You can find our articles on these laws in State Laws on Employer Use of Credit Reports; for more information on the rules for using applicant credit reports in hiring, including notice and consent requirements, see Can Prospective Employers Check Your Credit Report?

Dogs at Work, Part II


Temporary Office Dog: Richmond

A few years ago, I posted about some of the benefits of bringing dogs to work, including higher productivity, lower stress, better social cohesion, and better teamwork. A recent article in USA Today cites even more research to prove what dog owners instinctively know: Pets decrease stress in a tangible way, by lowering cholesterol and blood pressure levels. They increase our opportunities to socialize and exercise.

In fact, the article cites a 2012 study conducted at a single workplace in North Carolina, which revealed that workplace stress levels of employees who brought their dogs to work decreased by 11% as the day progressed. Employees who didn’t bring their dogs (or didn’t have dogs to bring) saw stress levels rise a whopping 70% in the same timeframe.

All of these benefits help explain the continuing office trend to allow dogs at work. Surveys show that about one in five employers allow employees to bring dogs to work, including the Daily Show and Google. (Those who consider themselves “dog people ” rather than “animal people” have to love their gentle rebuff of the feline: “we like cats, but we’re a dog company.” Me too, The Google; me too.)


Former Office Visitor: Flora

And those are just the human benefits: For the dogs, the benefits might be even greater. Dogs get to enjoy the company of their human companions for more of the day. They get to scrounge scraps from coworkers. They get treats, belly rubs, and head scratches from office dog lovers. And, for some dogs, the opportunity to go to work lowers their stress as much as it lowers ours; it may even save their lives.

Pet ownership is at an all-time high, according to the American Pet Products Association. Almost half of all households in this country have a dog. But it can be hard to take care of a dog when you’re a working stiff. Dogs need to use the facilities, exercise, socialize, and get their mental stimulation, just like we do. If a family member, friend, or paid helper isn’t available to meet these needs, dogs will figure out other ways — ways less friendly to furniture, carpets, and possibly neighbors — to get things done. Older dogs may be fine on their own all day, with the help of some chew toys and a doggie door. But for younger dogs and recently acquired dogs, more supervision is better.


No alarm clock today

That’s my personal angle on the dogs at work issue: It’s a great way to help more dogs get adopted and stay that way. My employer has been dog-friendly for its entire 40+ year history. Once a week, one of my dogs comes to work. Every once in a while, I stop by the office while walking a dog from our municipal shelter, Berkeley Animal Care Services, like red-headed beauty Flora. And recently, I was able to help a friend and her newly adopted dog get over the “home alone” hump by bringing teenage heartthrob Richmond to work with me for a few days. This allowed Richmond to socialize with lots of new people, get used to behaving calmly in a new environment, and have some time to settle in with his new family; now, he’s a successful stay-at-home companion to canine siblings (including little Bimo, pictured above) and human grandparents. (And my own dogs didn’t seem too sad about the opportunity to sleep in.)

Looking for your own dog to bring to work? Visit your local shelter! If you’re in one of the counties that participates in Maddie’s Fund Pet Adoption Days (San Francisco and Alameda County are), you can adopt your pet free on the first weekend in June — and be all set for Take Your Dog to Work Day on June 21.


Time to Update Your Company’s Harlem Shake Policy

It was bound to happen: All those Harlem Shake videos on YouTube have finally gotten the attention of the lawyers. According to, the Federal Aviation Association is investigating safety concerns over a Shake incident by passengers on a Frontier Airlines flight. (You will perhaps not be surprised to learn that the group was led by members of Colorado College’s Ultimate Frisbee team.) Safety concerns were also cited in the firing of a group of Australian miners for their on-the-job Shake performance. (See more in the article, When the Harlem Shake Bumps Against Workplace Policy.)

The article didn’t even scratch the surface of employees recently fired for participating in dance crazes, including an Oxford Librarian fired for allowing the filming of a Harlem Shake video at the University, and the Gagnam Style 14, a group of young lifeguards in Southern California who were fired, then rehired, after posting their homage video. Ride those horsies straight to the unemployment line, kids! Even Conan O’Brien has gotten into the act, firing an Indian chief, an astronaut, a giant banana, and someone dressed as a pillow, just as they start gettin’ their Shake on. (Okay, so this last one seems to be a parody.)

Some employment lawyers have taken this opportunity to talk about the infiltration of social media into the workplace, draining company resources and lowering employee productivity. I suppose that’s fair enough, and there may be true safety concerns when employees are getting their groove on down a mine shaft. On the other hand, some of these videos look to be real morale boosters. They can even be useful to employers: A local rescue group for older dogs (Muttville) has posted theirs — which includes people dressed as dogs and actual dogs — as a promotional video. At least we can be glad it isn’t thirty years ago, when the Streak was popular! Oh wait, it still is for this fired guy.



Yahoo’s Ban on Working From Home

Unless you’ve been hiding under a rock, you probably heard about Yahoo’s recent decision to prohibit employees from working from home. The ban, intended to promote collaboration and innovation, will start in June. Almost all of the news coverage I’ve heard and read has focused on a few angles:

  • Is innovation really harmed when employees work from home? (The consensus: yes, but productivity is higher when employees work from home, in certain jobs at least.)
  • Is this the start of a trend? (To quote the Magic Eight Ball, “my sources say no.” The trade-off makes sense only for companies that must innovate constantly to succeed: the serial innovators, as John Sullivan referred to them on the PBS NewsHour. And Yahoo needs to make some big changes to turn its fortunes around.)
  • Isn’t it kind of ironic that perhaps the most famous working mom — other than Michelle Obama — instituted this policy? (You be the judge. Over at the Daily Beast, Ellen Galinsky points out that men are more likely than women to work mainly  from home, and more likely to be allowed to work from home.)

All interesting discussions. What interested me far more, however, was the memo that actually announced the change, sent out by Yahoo’s head of HR (and reproduced here at AllThingsD). If I were a Yahoo employee — or just a Yahoo, as the memo puts it — who had been working from home, and I received this memo, I would be pretty angry. I’m not sure if I would be angry enough to send it to the media, as a number of Yahoos apparently did, despite the all caps heading tagging the memo as “PROPRIETARY AND CONFIDENTIAL — DO NOT FORWARD.” But angry for sure.

The change in policy is bad enough from an employee perspective, especially considering that some employees may have taken the job (or turned down other offers) because of the opportunity to work from home — and arranged their lives accordingly, from child care to pet ownership to buying or renting a home that’s too far away to commute regularly. No matter where you come down on the innovation/productivity argument, or whether you think this change will ultimately help Yahoo rebound, it’s clear that an employee benefit is being taken away.

Which must have made the odd cheerleading tone of the memo hard to take. There’s no acknowledgment that this might be difficult or unwelcome for some employees. There are, however, many references to the company’s culture and identity, from what “being a yahoo” is all about to the need “to be one Yahoo!” to the company’s effort “to become the absolute best place to work.” There’s also an admonition that even Yahoos who “occasionally have to stay home for the cable guy” must use their “best judgment in the spirit of collaboration.” Seriously? Does that mean missing even a few hours of work could harm the company’s success? Could they have come up with a more frivolous reason to miss work? Using the official announcement of what is sure to be an unpopular change in company policy to tout what a “productive, efficient and fun” place you are to work is the kind of HR speak that gets internal memos sent to news outlets by angry employees. I’m just sayin’.

Final FMLA Regulations Cover Veterans and More

On February 6, 2013, the Department of Labor issued its final regulations implementing statutory amendments to the FMLA. These regulations incorporate the amendments Congress passed in 2010. Among other things, the 2010 amendments:

  • tweaked the way eligibility and hours are calculated for flight crews
  • expanded the right to take qualifying exigency leave to cover not only employees with family members in the National Guard and Reserves, but also employees with family members in the regular armed forces, and
  • expanded the right to take military caregiver leave to cover not only employees with family members who were seriously injured while on active military duty, but also employees with family members who exacerbated a preexisting injury while on active duty and employees with family members who are veterans suffering from a serious injury incurred while on active duty.

About a year ago, the Department of Labor issued proposed regulations implementing these provisions and seeking input from the public on a few key issues, including how to implement the leave provision to care for a veteran. Rather than issuing proposed regulations on this topic, the Department decided to hold off until it had received comments and issued its final regulations. As a result, the Department delayed the effective date of this provision. Until it issued final regulations defining the key terms (including who qualifies as a veteran and what constitutes a serious injury for a veteran), the Department took the position that employers were not legally required to provide this type of FMLA leave.

That has now changed. As of the effective date of the final regulations (March 8, 2013), employers are now required to provide FMLA leave to employees who need time off to care for a family member who is a veteran and suffered a serious injury while on active duty.

The final regulations have changed military family leave in a few important ways:

  • Veterans defined. One of the reasons why Congress amended the FMLA was to allow time off for employees to care for family members who had served in the military and later manifested serious health problems, notably PTSD. The final regulations define “serious injury,” and make clear that injuries are covered whether they manifest before or after the veteran leaves the military. The veteran must have been in the military in the five years before the employee first takes FMLA leave. However, the time between the Congressional amendments (October 28, 2009) and the effective date of the final regulations (March 8, 2013) doesn’t count against this five-year limit. The Department excluded this time because employers weren’t required to give leave to care for an injured veteran during this period. 
  • Qualifying exigencies expanded. As required by Congress, the final rule expands qualifying exigency leave to cover not only family members who are members of the National Guard and Reserves, but also family members who are in the regular armed forces and are deployed to a foreign country. This type of leave is intended to allow employers to handle practical matters arising from a family member’s deployment. The final regulations make a few changes to this type of leave. For example, employees may take up to 15 days off for a family member’s rest and recuperation leave (the previous limit was five days). The final regulations also add a new type of qualifying exigency leave, to allow employees to take time off to make arrangements for a military family member’s parent who is incapable of self-care. For example, the employee might need to hire a caretaker for the parent, tour care facilities, and so on.

The Department of Labor has issued a helpful FAQ set on the final regulations.

Farewell, CLASS Act — We Hardly Knew Ye

If you’ve gotten a paycheck since the beginning of 2013, you’ve no doubt noticed one effect of the fiscal cliff deal Congress reached last week: It did not extend the payroll tax holiday. Employees had been getting a break on their Social Security taxes, but now it’s over. The tax on Social Security went back up by 2% to its former level, resulting in lower paychecks for everyone.

I’ve fielded a few questions this week from people wondering if there’s anything else in the 11th hour deal that should interest them, given that they don’t earn enough to be affected by the expiration of the Bush tax cuts on very high earners. The answer, as always, is that it depends. There were certainly extensions and changes that trickle down to the 99%, starting with the extension of the Bush tax cuts for the rest of us. Here are a few of the job-related items:

  • If you are out of work, you no doubt know about this one: The federal government extended its emergency unemployment benefits program. For unemployed people who have exhausted the benefits available from their state, this program provides additional weeks of benefits. The program was set to expire at the end of 2012. 
  • Employees can continue to exclude from their income — and therefore,  not pay tax on — certain benefits paid by their employers, including educational assistance and adoption assistance. The bill also allows employers to continue claiming tax deductions or credits for certain benefits, such as child care.
  • The CLASS Act is gone. This program was part of the larger healthcare reform legislation. It created a long-term care insurance program to be paid by payroll withholding from employee paychecks, if employers opted to participate in the program. Critics claimed it was inadequate at both ends, from the funding to be paid in to the benefits to be paid out. I don’t know enough about it to weigh in, but no matter: The program got killed.

Finally, a very restricted group of employees — the ones who created this mess in the first place — got a pay freeze. So if you are a Senator or Congressperson, you will just have to continue living on your $174,000 annual salary. If you are the majority or minority leader of either house, you get $193,400. And if you are John Boehner, you will have to budget yourself to only $223,500 a year. Performance-based salaries? You be the judge.