Obama Grows a Pair

Obama announced yesterday that he is making 15 recess appointments during the Easter recess. Obama Bypasses Senate Process, Filling 15 Posts - NYTimes.com. One of the appointments is Craig Becker for the National Labor Relations Board. Republicans, naturally, are having a hissy fit, claiming Becker is some kind of radical.

Becker is a great lawyer, and no more radical than any other labor lawyer. It's a sign of how far the right has made inroads into our culture that he is seen by some as completely outside the mainstream. It's not like he is an actual socialist, as many labor lawyers and leaders were in the 30s. By constantly pushing the debate rightward, the middle has also moved to the right.

In any case, Becker's appointment is cause for celebration, if for nothing else that it signals Obama's willingness to push forward some of Labor's issues. And now that health care is out of the way, perhaps we can get started on EFCA.

Recess Appointment in the Cards?

For the past two years the National Labor Relations Board has operated with only two members instead of its normal complement of five.  Last Tuesday the Supreme Court heard arguments on whether the Board legally issued the 500 or so decisions it issued while it was down to two members.

The legal issue turns on an interpretation of the section of the National Labor Relations Act in which the five member Board can delegate its authority a three member panel, and then whether that three member panel can delegate its authority to a two member panel.  That's what happened in December 2007 when one of the Board members' terms ended.

The case, New Process Steel, is less of a labor case and more of a statutory interpretation case.  But what it really points out is the ridiculous recalcitrance of the Congress in appointing members (such as Craig Becker) to the Board -- and Obama's reluctance to deal with the vacancies through recess appointments.  Indeed, Chief Justice Roberts made just this point when he asked one of the lawyers why the President didn't just recess appoint members:  "And the recess appointment doesn't work why?"

Look for Obama to appoint Becker and the other nominees over the next break.

Health Care Finally Passes

More than 50 years after FDR proposed universal health coverage in this country we finally have a start on health insurance reform. Personally, I believe we will have to move to a single payer system at some point. Baby steps are good though. I'm still not sure exactly what is in the bill -- the media has been treating the whole thing as a some sort of political football game -- but this is a nice summary to start, taken from the Segal web site:
Stat! Health Reform Weekly | Segal

Patient Protection and Affordable Care Act Passed March 21, 2010

On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act. The Act (HR 3590) was passed by the Senate on December 24, 2009. Consequently, the Act will become law once it is signed by President Obama. The Act is expected to be signed in the next two days, according to Representative Henry Waxman (D-CA), chair of the Energy and Commerce Committee.

A second bill, the "reconciliation bill," was also passed by the House on March 21. The reconciliation bill would revise the Act to reflect substantial changes that were necessary in order to achieve enough votes in the House to pass the Act. This reconciliation bill (HR 4872) must now be acted on by the Senate. If passed in the Senate, the bill would become law and revise many of the provisions in the Act. Senate Majority Leader Harry Reid (D-NV) has promised House members that at least 51 Senators will support the reconciliation bill. Debate on the reconciliation bill is expected to start on March 23, 2010.

A summary of the Act as passed by the House and Senate is available at:

http://www.segalco.com/publications-and-resources/stat/senate-passes-bill.php

A detailed summary of the Act plus the reconciliation bill modifications will be made available as soon as the reconciliation bill is enacted. However, plan sponsors will need to focus on three significant aspects of the Act, including the following:

Changes effective immediately or in 2011

Although existing group health plans will be "grandfathered," that is, exempt from certain requirements, several requirements will now be effective for plan years beginning six months after the date of enactment. If the reconciliation bill becomes law these provisions would include the following items. In addition, the Act states that certain provisions do not apply to plans maintained pursuant to a collective bargaining agreement until the date on which the last of the collective bargaining agreements relating to the coverage terminates.

• No lifetime benefit limits and only limited annual benefit limits
• Coverage for dependent children up to age 26, as long as they do not have access to other employer-sponsored health coverage (the reconciliation bill also assures that this coverage can be provided on a tax-free basis)
• No preexisting conditions for children under age 19
• No rescission of health coverage, except in cases of fraud (primarily an individual insurance policy issue)

Other items that are immediately effective include a Medicare Part D provision that provides that beneficiaries who are in a Prescription Drug Plan and who reach the doughnut hole in 2010 would receive a one-time $250 rebate, as well as a reinsurance program for pre-Medicare retirees (discussed below)

Additional reforms would be effective for plan years beginning on or after January 1, 2014, including a ban on waiting periods over 90 days.

In 2011, Health Flexible Spending Arrangements, Health Reimbursement Arrangements, and Health Savings Accounts can only reimburse participants for over-the-counter drugs with a prescription written by their health care provider.

Long-term changes

• In 2014, the Health Insurance Exchanges, individual mandates, subsidies to purchase insurance coverage take effect
• In 2014, the employer "free-rider" mandate begins, requiring that employers with over 50 employees with an employee that obtains subsidies for coverage in an Exchange pay a financial penalty. The penalties, detailed in the Senate summary, are changed and increased in the reconciliation bill.
• In 2018, the excise tax on health plans above a certain threshold would take effect.

Changes affecting retiree health plans

• Retiree reinsurance program: A program that will take effect within 90 days of enactment will reimburse plan sponsors for 80% of claims between $15,000 - $90,000 for pre-Medicare retirees age 55-64. The program is funded with $5 billion and is designed to be a bridge to the Exchanges in 2014
• Medicare Part D: Beneficiaries who are in a Prescription Drug Plan and who reach the doughnut hole in 2010 would receive a one-time $250 rebate. In 2011, the reconciliation bill provides a 50% discount on brand-name drugs in doughnut hole for retirees in a Prescription Drug Plan; 75% discount on generics. The measure is designed to eliminate the doughnut hole by 2020.
• For employers with a tax liability, the Retiree Drug Subsidy will become taxable in 2013. These employers should immediately consult with their actuaries and accountants as to the implication of this tax change. This change will not generally affect multiemployer plans or governmental plans.
• Medicare Advantage plan payments will be decreased over the next three years.

Doctor Doctor

In a recent decision, the Third Circuit Court of Appeals decided that an employee can prove she had a "serious health condition" by using her own testimony and that of a doctor to show she was unable to work for three days due to her illness.  Under the FMLA, employees can take upaid leave to take care of their own serious health condition.  One of the definitions of "serious health condition" is that an employee must be incapacitated for a period of three calendar days and receive treatment from a health care provider on at least one occasion. 

In the case, Rachael Schaar v. Lehigh Valley Health Systems, http://www.ca3.uscourts.gov/opinarch/091635p.pdf, Mrs. Shaar went to the doctor after suffering nausea, a fever, and vomiting.  Her doctor gave her a note taking her out of work for two days.  After two days, however, Mrs. Shaar was unable to go to work for another day.  Upon her return to the hospital, she was promptly fired for violating the hospital's sick policy.  The hospital claimed she did not qualify for FMLA leave because her doctor's note said she was unable to work for two days, not three.

The court held that Mrs. Shaar's testimony, in combination of her doctor's testimony, was enough to prove that she was unable to work for three days.  The court rejected the approach of some courts, which is that lay testimony alone can establish incapacity, but also rejected the hospital's doctor only approach.

The decision is a common sense victory for employees because it eliminates the need to rely exclusively on doctors or other experts to establish this prong of the serious health condition test.

Takin' in to the Streets

Last Friday a thousand workers held a rally to protest Whirlpool's decision to close its plant in Evansville, IN, and move it to Mexico in order to save costs.  http://www.theepochtimes.com/n2/content/view/30565/  The company responded by basically threatening workers that if they rallied, they might find it hard to get jobs elsewhere. 

The move to Mexico outraged many, particularly since Whirlpool has received millions in federal tax money, and had net earnings of nearly 100 million last year.  How much is enough?  Whirpool wants to take taxpayer's money, wants us to buy their products, wants to be an "American" corporation -- yet also wants to move jobs offshore and stick the rest of us with the human costs incurred by all these job losses.

Change is not going to happen in this country until people start rallying in the streets and holding these scoundrels accountable.  Almost always corporations get away scot-free when they make moves like this because no one cares enough to do anything, and the workers affected are too depressed and ashamed to take action.  Yet without more action nothing is going to change.  Please sign this petition to let Whirlpool know what you think of their decision to offshore US jobs.  http://www.unionvoice.org/campaign/evansville