The ARRA COBRA Subsidy: Operative Dates

September 1, 2008

To be eligible for the subsidy, an employee must be involuntarily terminated between September 1, 2008 and December 31, 2009. An employee involuntarily terminated before September 1, 2008, is not eligible for the subsidy, even if the employee’s COBRA coverage did not start until after September 1.

Example

An employee was laid off on June 15, 2008, but received severance pay, including health insurance benefits, through December 31, 2008. The employee is not eligible for the subsidy in March 2009. It is the date of involuntary termination that controls–in this case June 15, 2008.

February 17, 2009

This is the date the ARRA became law. Persons eligible for COBRA after September 1, 2008 and prior to February 17, 2008, who do not have it (even if they had it and dropped it), may elect COBRA during an extended enrollment period.

March 1, 2009

The first day of subsidy for most persons who had COBRA continuation coverage in effect on February 17, 2009.

December 31, 2009

This is the last day that an employee can be involuntarily terminated and still be eligible for the COBRA subsidy, unless the subsidy is extended by Congress.

September 30, 2010

The COBRA subsidy runs for nine months only, unless Congress extends the period of subsidy. Consequently, an employee who was involuntarily terminated on December 31, 2009 would be eligible for the COBRA subsidy through September 30, 2010.

Example

On December 15, 2009, an employee is involuntarily terminated and elects COBRA coverage that day. She will receive the subsidy for 9 months, until the earlier of August 15, 2010, or until she becomes eligible for other group health plan coverage or Medicare.

Published in: on June 9, 2009 at 5:10 pm  Leave a Comment  
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Major Change Coming To The National Labor Relations Act–Part I (RESPECT Act)

Introduction

In the current Congress numerous employee-friendly bills have been introduced. Among the most significant and most likely to be adopted are changes to the National Labor Relations Act–the first amendments in over 30 years and perhaps the most significant amendments since the Act was first adopted in 1935, or at least since the Taft-Hartley amendments in 1947. This post begins a series explaining and analyzing the proposed changes to the Act.

The RESPECT Act

Senators Dodd, Durbin, & Kennedy recently introduced the “Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act” (RESPECT) (S. 969). The proposed statute would modify the definition of a “supervisor” in the National Labor Relations Act (NLRA). Congressman Rob Andrews and Congresswoman Rosa DeLauro have introduced companion legislation in the House of Representatives.

The NLRA defines a supervisor as an:

individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The amendment would add “and for a majority of the individual’s worktime” after “interest of the employer” and strike the words “assign” and “responsibility to direct them.”  The amended section of the  statute would read, therefore:

any individual having authority, in the interest of the employer and for a majority of the individual’s worktime, to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees. . . .

What Is the Significance of the RESPECT Act?

On its face, this looks like a modest change, but it could  have far-reaching impact, particularly in health care.   There has long been tension as to who is and who is not a supervisor. Supervisors are not allowed to organize into unions. When a union seeks to organize an employer for the first time, the bargaining unit defined by the parties must exclude supervisors. Consequently, employers generally want to treat as many employees as possible as supervisors, while the union wants to minimize the number of persons identified as supervisors in order to limit the size  of the bargaining unit.

There has long been tension between the more conservative and the more liberal members of the National Labor Relations Board (NLRB).  When I worked at the Board the staff often joked that for some Board members “everyone was a supervisor.”  The issue  came to a head in  the broad context of charge nurses.

Generally in a hospital each unit has at least one charge nurse.  The nurse may assign others duties and oversee the unit for his or her shift.  However, charge nurses usually do not have the power to hire and fire nor perform other managerial functions.  In 1996, the Board held in Kentucky River Community Care, Inc, 323 NLRB No. 209 (1997),  that  six  registered nurses in a 110 member bargaining unit  were not supervisors because the nurses  did not use “independent judgment” when they exercised “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.”  

The Supreme Court ultimately rejected the Board’s reasoning, however in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).   In 2006, the Board decided Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), finding charge nurses supervisors and devising a new test for measuring who is and who is not a supervisor, consisten with the Supreme Court’s pronouncement in Kentucky River.

The result is employees who perform even limited supervisory duties part of the time may be viewed as supervisors and prohibited from joining labor organizations.  By requiring that an employee can only be deemed a supervisor under the NLRA if he or she acts as a supervisor the majority of  his or her worktime and by eliminating the words “assign” and “responsibility to direct them,” the amendment would allow most charge nurses, and  perhaps many other part-time supervisors, to be represented by a union.

Needless to say, unions are lobbying hard for the bill, while employers are generally opposed to it.

 

 

 

 

 

 

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Published in: on June 7, 2009 at 1:15 pm  Leave a Comment  
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