The Affordable Care Act: Conflicting court rulings

by Michael Haberman on July 28, 2014 · 0 comments

Courts issue conflicting rulings on the Affordable Care Act

Courts issue conflicting rulings on the Affordable Care Act

I am sure you have read by now that two different courts had two different rulings concerning the Affordable Care Act. Naturally proponents for both sides claimed that their point of view will prevail. One thing is clear is that the outcome is not clear and will undoubtedly be decided by the US Supreme Court.

Basis of the decisions

According to the attorneys writing for JD SupraThe decisions turned on readings of the relevant statutory language and application of a test derived from the 1984 Supreme Court case, Chevron U.S.A. v. NRDC.  The Chevron test is used to assess whether agency action, here the IRS, is within the scope of the agency’s authorization, here the ACA. The Chevron test has two prongs:

  • First, has Congress directly spoken to the precise question at issue?  If Congress’ intent is clear, the court and the agency must give effect to that unambiguously expressed intent.
  • Second, if the statute is silent or ambiguous, is the agency’s action based on a permissible construction of the statute?”

The court that had a negative decision for the ACA, the D.C. Circuit relied on the first prong and said the IRS cannot provide tax credits. The court in the Fourth Circuit relied on the second prong and presumed the action was valid.


Rather than me making a legal argument I am going to refer you to many of the newsletters I received that discuss these decisions. Ultimately we will be waiting for the Supreme Court.

The Future of Premium Subsidies under the Affordable Care Act: ‘Halbig v. Burwell’ and ‘King v. Burwell’

Federal Courts Issue Conflicting Decisions on Affordable Care Act Subsidies

Federal Court Invalidates Key Component of the ACA

ACA subsidies on federal exchange overturned

4th Circuit upholds ACA insurance subsidies


Future Friday: Competing Businesses of the Future

by Michael Haberman on July 25, 2014 · 0 comments

Cyber Blackmail is on the rise and so is reputation management.

Cyber Blackmail is on the rise and so is reputation management.

Today I have looked at pictures that were posted by friends on Facebook; I have viewed a few YouTube video of people at the beach; I saw that several friends had checked in at Starbucks on FourSquare. Some of you have probably posted “selfies” and I even had one friend post what he called a “couplie”, a picture of he and his wife. There was a news story yesterday of a couple filmed by a local grandmother as they engaged in lovemaking on a public beach. This is just a small example of how “public” many of us have become as a result of our use of social media. This massive exposure has resulted in two growing and competing business that will continue to get bigger. They are reputation management and cyber blackmailing.

Reputation management

There have been many a celebrity that wishes the picture of them at a club had not ever occurred. There is even a TV show, called TMZ, which daily showcases all the drunken, nude and bellicose celebrities they can find on a daily basis. As celebrities that seems to come with the territory. What about you? What have you revealed about yourself on social media?

As employers, consumers, and clients started using LinkedIn, Facebook and Twitter to check up on prospective employees, people have become much more aware of reputation management. As companies started developing their pages and customers and clients started commenting on them companies have also become much more aware of reputation management. Futurist Tom Frey reports that companies today are spending billions of dollars on reputation management. In 2014 so far $3.5 billion has been spent “scrubbing” to remove unflattering or damaging information. If it can’t be scrubbed it is getting buried by creating good content to dominate the first few pages on Google and other search engines.

Cyber Blackmailing

Since all that information is out there to be had it did not take blackmailers long to also take advantage of that information. Unfortunately cyber criminals are pretty creative. In 2013 cyber-attacks on companies increased 55% over 2012 costing an average per company of over $1 million per event.

This blackmailing is not restricted to companies. Individuals are also the victims. Recently in the Philippines, reports Frey, a syndicate was broken up that was defrauding individuals by making them believe there bank accounts had been used by terrorists to launder money. It is not uncommon to hear stories of other individuals being blackmailed because of some picture sent from a smartphone. Or an ex-lover holding photos hostage because they don’t want to lose the relationship. Frey says there is a definite need for cyber-blackmail insurance.

The movement to “right to be forgotten”

One solution that is currently taking root is the “right to be forgotten” movement that is starting in Europe, particularly in France. According to Wikipedia this movement is “The concept stems from the desire of an individual to ‘determine the development of his life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.” There is even discussion in France of elevating this to a basic human right.

Frey reports that tech companies are scrambling to comply with these new rules. Google alone has gotten over 70,000 such requests to have 250,000 pages removed from Google search results. Every tech company is dealing with similar challenges.

It remains to be seen how effective this will be. To me reputation management begins with the decisions made by the individual. On the company level it is important to have someone assigned to watching social media, but that also begins with the decisions of the company. It is easier to treat employees and customers well as opposed to try to manage the fallout from that behavior.


Image courtesy of chanpipat


Five ways to make telecommuting work

by Michael Haberman on July 24, 2014 · 0 comments

There are many benefits to allowing employees to telecommute.

There are many benefits to allowing employees to telecommute.

I sat a dinner last night with my wife and a friend and past co-worker of her and was on the fringes of their conversation as they caught up on business. He is still working for the company that let her go in 2013. They talked about opportunities that she had fed his way. One was a job that needed his skill set to do a job that required frequent travel. He lives in the Midwest and did not mind travel and was used to working from home the few days he was not on the road. The company however was dead set against telecommuting, even though the amount of time that would have been involved was minimal. The president of the company just didn’t think people were effective. This intransigence on telecommuting is actually why my wife turned down the offer they had made to her. Subsequently this company lost two great candidates and got stalled on their project, as was indicated by a call my wife received, a few months after she started her current job, asking if she was happy. They had not yet filled their position.

Bad rap

When Yahoo pulled the plug on telecommuting many people saw that as indictment of telecommuting. It was not. It was an admission of the fact that Yahoo had mismanaged their program. Sean Kim, writer of an article that is reprinted in Fast Company, says that companies that are not embracing telecommuting are losing productive time from employees. He quotes a Sanford University study that showed that call center workers assigned to work at home were 13% more productive than their fellow employees assigned to work from an office. Nine percent of that productivity came from working more hours.

Some managers feel that workers working from home are more prone to distractions. Kim, however, quotes a Wall Street Journal article that said that office workers are interrupted generally every 3 minutes and it takes on average 23 minutes to get back to productive work.

How to make it work

The failure of Yahoo’s program was one of mismanagement. There are good practices to help insure good program performance and Kim had several suggestions to make telecommuting work, some of which I included in a 2011 post entitled Managing Virtual Teams.  Here are Kim’s tips:

  1. Think output- When you have someone telecommute the only real effective measure is output or performance. Time is difficult to measure. Results are what you want. The whole ROWE (Results only work environment) movement is based upon this idea. So you have to have a good definition of what output is expected.
  2. Get SMART- You need to have goals that follow the acronym of SMART. Specific, measurable, attainable, realistic and have a timeline. You need to have metrics and mechanisms in place that provide specific evidence that goals are being obtained.
  3. Communicate, communicate, communicate- A critical component of a good telecommuting program is communication. In fact it is the foundation for good HR and management, but that is a different blog post. As a telecommuter myself, one of the things that gets missed is face-to-face communication. You lose the nuance of facial expressions and the hand gestures as well. There has to be some attempt to provide some mechanism to accomplish that type of communication. Kim lists some tools for this.
  4. Create a company bulletin board- In my post of Managing Virtual Teams the manager I discussed, Eric Winegardner of Monster.Com told the story of a contest he had where each worker send in a photo of their home office and then everyone else on the team had to guess whose office was whose. It connected everyone on the team. That is the object of the bulletin board.
  5. Have regular feedback- Virtual meetings are a good way for everyone to connect and a good way to provide feedback. You can do this one-on-one and in group settings. Winegarder told of the value of these meetings in managing his team.

The good and bad

In a day when there is an emphasis on trying to attract and retain the best talent available why would a company want to limit themselves to an employee on the basis of geography? I am involved with a podcast radio program, NakedHRRadio, were our sound editors are located around the world. Telecommuting allowed us to find good talent at a reasonable price. Why wouldn’t everyone want to do that?

The bad part of this is that the US government, in the form of the FLSA, doesn’t allow us to pay a level of worker, non-exempt, based on their productivity. Rather we have to pay them based on their time.

Also let’s face it, not all work can be done in a telecommuting mode. It is just about impossible to get a hamburger from a telecommuter. Maybe someday in the future.


Pregnancy discrimination: The EEOC issues new guidance

by Michael Haberman on July 23, 2014 · 0 comments

New guidance for dealing with pregnant employees has been issued by the EEOC.

New guidance for dealing with pregnant employees has been issued by the EEOC.

On July 14th, 2014 the EEOC issued new guidance to dealing with pregnancy under Title VII. Originally addressed under the Pregnancy Discrimination Act of 1978, how to deal with pregnant women has been a big issue for employers for a long time, especially for smaller employers. According to Seyfarth Shaw this guidance ties pregnancy and disability in a novel way.

Novel tie to disability

According to attorneys Paul Kehoe and Tracy M. Billows of Seyfarth Shaw, this novel approach means “…all pregnant workers are, as a practical matter, entitled to a ‘reasonable accommodation’ as the term is understood under the Americans with Disabilities Act (ADA), as amended.” The Fact Sheet explaining this new guidance says “Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia.” So the ability to more easily prove a disability weighs into this guidance.

Light duty as second novel issue

A second area that is a new approach to pregnancy discrimination deals with light duty. As Kehoe and Billows say “an employer cannot restrict light duty positions based on the source of the individual’s restriction, for example, on-the-job injuries or covered disabilities under the ADA.” The Fact Sheet says “An employer may not limit a pregnant worker’s access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).” It does allow that if the employer restricts light duty as to the type and duration it can do so for pregnant employees as long as it has done so in the same manner with other employees who are not pregnant.

The new guidance emphasizes that pregnant employees must be treated as any other employee would be treated for purposes of leave. This guidance means an employer:

  • May not single out an employee’s pregnancy-related condition for medical clearance procedures that are not required of employees who are similar in their ability or inability to work,
  • May not remove a pregnant employee from her job because of pregnancy as long as she is able to perform her job, and
  • Must allow her to return to work following recovery from a pregnancy-related condition to the same extent that employees on sick and disability leave for other reasons are allowed to return.

The Enforcement Guidance spells out the terms of the new enforcement guidelines in much more detail.

According to Kehoe and Billows  “As a practical matter, employers will feel the greatest impact of the Guidance in the area of light duty and leave as applicable to female workers with ‘normal’ pregnancies.”

Future of this enforcement

Kehoe and Billows point out that this enforcement does not have the force of laws. However, these are the guidelines that the EEOC will be using in their enforcement efforts in the near future. Whether these guidelines will stand will depend on the Supreme Court of the US in the next term when they look at the case of Young v. UPS. However, this could also be addressed by enacted legislation and currently is proposed in both the Senate and House of Representatives as the Pregnant Worker’s Fairness Act.


Public Salaries: Is Transparency Right For Your Company?

by Michael Haberman July 22, 2014

Tweet This post is from my friends at Disclosed company revenue and monthly progress reports; shared self-improvements; internal emails between two employees sent with the team cc’ed. Buffer, a social media sharing solutions company, functions with this level of radical transparency. Buffer finds power in the vulnerability, openness and accessibility of transparent ideas and workflows. […]

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Wellness and Gamification: A Podcast

by Michael Haberman July 21, 2014

Tweet At our Naked HR Radio site we interviewed Mike Tinney, President of FIX and Utilifit. His goal is to fight the epidemic of obesity in the US, and increasingly in the world, by getting people up and moving. Even if this movement is for a short period it can have a major effect on […]

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Future Friday: Quick lessons from Quotes

by Michael Haberman July 18, 2014

Tweet I am waxing philosophical today. There are lessons we can learn about how to deal with the future from others who have addressed the subject. Moving beyond the past A favorite author of mine, Denis Waitley, says: Losers live in the past. Winners learn from the past and enjoy working in the present toward […]

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Violating the FLSA may send you to jail

by Michael Haberman July 17, 2014

Tweet In case you haven’t heard the USDOL is getting tougher and tougher. Ask any attorney. The ones that defend companies will tell you how tough it is getting and the ones that sue you will just get a big grin. In Fair Labor Standards Act cases there is generally no intent that has to […]

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The positive power of a contract

by Michael Haberman July 16, 2014

Tweet In my HR class we discuss that in HR you need to be careful not to create a contract with documents such as your handbook or by the actions of your managers. In past situations those “contracts” have offset other positive language that defended the company. If you promise something that goes counter to […]

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Proposed changes to the FMLA redefine “spouse”

by Michael Haberman July 15, 2014

Tweet On June 27 the U.S. Department of Labor published a Notice of Proposed Rulemaking that will alter the Family and Medical Leave Act. This is something that everyone who has over 50 employees must pay attention to and be prepared to make the appropriate changes. Major features of the notice According to the USDOL […]

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