Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2010

How Online Activists Ended Insurance Company Discrimination Against Women

Wednesday, March 31st, 2010

Last year, we ran a story about Peggy Robertson of Colorado. Robertsons’ health insurer, a subsidiary of UnitedHealth, had required that she be sterilized to receive health insurance. Peggy later testified before a Senate HELP subcommittee on insurance company discrimination against women, and told her story to millions on ABC Nightly News and on YouTube.

The committee Chair, Sen. Barbara Mikulski, reacted strongly to Robertsons’ testimony, calling it a bone-chilling and morally repugnant story of insurance company abuse. Today, the New York Times caught up with Robertson and asked for her reaction to the health care bills’ passage into law:

In a telephone interview on Friday, Ms. Robertson said: Barbara Mikulski told me, she promised me, This will never happen again. She did it. Its wonderful.

But it wasnt just Sen. Mikulski. Activists first mobilized in September, after discovering that domestic violence could be legally deemed a pre-existing coverage in eight states and the District of Columbia.

Online activists reacted by flooding Congress with petitions and emails and it paid off. The original House and Senate bill included specific language banning this practice.

In the months that followed, tens of thousands of SEIU online activists rallied against insurance company discrimination, sending thousands of personal emails to Congress. And even more signed petitions to Congress asking that they include language in the final bill to ban practices like gender rating and classifying domestic violence as a pre-existing condition.

Thousands more publicized this issue across social networks, taking their ticket and stating “I am not a pre-existing condition” on Twitter and Facebook.

We also rigged our phone system to direct calls into male members of Congress to educate them on gender discrimination by insurers.

Supporters joined the “I am not a pre-existing condition” Facebook group and wore t-shirts to the gym and around their neighborhoods.

And finally, bloggers and partner organizations (esp. the National Women’s Law Center) wallpapered the web with original reporting, thoughtful analysis and calls to action on ending insurance company discrimination against women. Blogs like Feministing, RH Reality Check, and Feministe fiercely reported on these stories and directed their readers to actions.

Together, we made history. Because of your activism, in four years, United States law will ban insurers from discriminating against women with higher fees, denial of coverage, and failure to provide coverage of critical procedures and services, like maternity care and c-sections.

*This post originally appeared in SEIU Blog on March 30, 2010. Reprinted with permission.

About the Author: Jessica Kutch is an online campaign manager for the Service Employees International Union (SEIU), where she directs the union’s new media campaign to win health insurance reform. She’s been organizing online since 2005, and has expertise in email advocacy, online advertising, social media and blogger relations.  Before joining SEIU, Jess managed online campaigns for Public Citizen’s Congress Watch division. She’s a graduate of Bennington College.

Driving ‘Mobile Sweatshops,’ Cabbies Become A New Face of Movement

Tuesday, March 30th, 2010

Cab drivers earn as little as $4 an hour, regularly work 12-hour days six days a week, suffer debilitating work-related health problems and are mistreated and gouged by customers, city regulators and leasing companies. Yet most feel such a sense of pride and community in the occupation that they don’t even consider switching professions.

This was among the revelations at the United Association of Labor Education‘s annual conference in San Diego last week, where Chicago professor Robert Bruno and east coast public health specialist Rebecca Reindel discussed their research in an increasingly high-profile field of study: cab drivers’ working conditions and organizing drives.

Bruno, whose work I’ve blogged about here before, has studied various facets of cab drivers’ daily lives, including wages and hours, frequency of violence and treatment by city regulators and leasing companies. He found that Chicago cab drivers on average earn only $4.38 an hour, often working almost 12 hours just to cover their lease and making a profit at the tail end of long shifts.

Cabdrivers with the United Taxidrivers Community Council (UTCC) joined forces with Communities for an Equitable Olympics 2016 in Chicago in August 2008, demanding, among other things, a living wage for cab drivers.   (Photo courtesy United Taxidrivers Community Council)

Cabdrivers with the United Taxidrivers Community Council (UTCC) joined forces with Communities for an Equitable Olympics 2016 in Chicago in August 2008, demanding, among other things, a living wage for cab drivers. (Photo courtesy United Taxidrivers Community Council)

Reindel, pursuing a master’s in Public Health at George Washington University, studied occupational health effects on New York City cab drivers, in cooperation with the highly organized and active New York Taxi Workers Alliance. She found that nearly one in two drivers suffers moderate to severe pain each week that could be attributed to their job, with lower back pain not surprisingly being the most common complaint.

She found drivers also report significantly more pain on their right side, perhaps related to constantly twisting to collect fares and talk to passengers.

Reindel and a research partner identified a number of relatively simple and affordable remedies which drivers thought would greatly increase their comfort. The drivers identified safety shields, especially “L-shaped” ones that protrude between the driver and front seat passenger, as impeding their mobility and arm and leg space. Many drivers were unable to adjust their seats at all. In general, she noted that cars should be built as cabs from scratch in order to provide decent ergonomics and safety, as opposed to the usual procedure of retrofitting regular Crown Victorias or other vehicles.

Bruno and Reindel are often asked why, given the low wages, dangerous and grueling working conditions, and other drawbacks, people continue to drive cabs at all. The two researchers note that despite the problems, drivers feel an intense sense of pride in their work and also have tight-knit communities of drivers, especially within their own ethnic group. Groups of drivers from a given country, like Pakistan or Nigeria, are likely to all live in the same apartment building or even share apartments, Reindel noted.

“It’s such a cohesive unit,” she said, having observed the camaraderie and support among drivers during 12-hour ride-alongs. “For example, when they go to the airport it takes longer, they have to wait and they have to pay a tax, but it’s worth it because they like to mingle with their friends.”

More than half the drivers surveyed in Chicago and New York have college degrees, and many have graduate degrees. Though they are usually unable to work in their professional field in the U.S., driving a cab allows people to see themselves more as independent entrepreneurs than wage workers, Bruno notes.

“It’s a mobile sweatshop, but they do feel a pride in the job, and they are so embedded in the city of Chicago, they know the city so well and take pride in that,” said Bruno. “This is seen as much more dignified than working at McDonald’s. They’re businessmen, they have flexibility, though it’s flexibility without control since the city essentially controls them.”

Some drivers do own their own cabs and the medallions that most (though not all) cities require drivers to buy or lease in order to operate legally. But the vast majority of drivers lease cabs and medallions from major companies, or—less frequently—own their own cabs but lease medallions.

At the conference last week, Empire State College Professor Michael Merrill noted that the medallion system was typically a well-intended response to drivers’ own concerns about too many operators flooding the market…but the system in most cities turned into what could be called an exclusive racket controlled largely by just a few families or businessmen in a secretive manner.

Medallions in Chicago cost well over $100,000, and in New York they go for more than half a million dollars, making it extremely difficult for new owner-operators to enter the market and forcing them to work long hours just to pay off loans if they do.

Merrill proposes driving a cab should be a municipal job where workers could be organized by public employees unions and granted solid health benefits and pensions. But because of their independent spirits and negative stereotypes about unions harbored by drivers—perhaps because of experiences in their home countries—many drivers are resistant to these sorts of proposals.

Taxi drivers organizations, like the NYTWA in New York and the United Taxidrivers Community Council in Chicago, are springing up in a growing number of cities and often work together. They have called numerous strikes in recent years, but the nature of the industry is such that a very high percentage of drivers must participate to make a serious impact.

“This shows the difficulty of changing many of these situations,” Merrill said.

This post originally appeared in Working in These Times on March 30, 2010. Reprinted with permission.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.

Leadership Quiz

Monday, March 29th, 2010

Image: Bob RosnerReady for that corner office and a reserved parking spot? Tired of waiting for your boss to die? As a service to you, my readers, I’m going to give you a much easier path to a fancier office, bigger paycheck and higher quality headaches.

Take the following quiz and you’ll immediately know if you’ve got what it takes to be a leader. The only thing that will then hold you back from making that magical leap from being the delegatee to being the delagator is to convince the management that this test is much cheaper than extensive evaluations and actual accomplishments in determining the “keepers” for your company. But then again, Ms. or Mr. UpWardlyMobile, this is a small price to pay for potentially huge jump up the corporate ladder.

The answers, and what your score means to your career, appear at the bottom of the column.

1. Define “Management by Objective,” “Reengineering” and “Theory Y Management.” 10 points
2. What is the number one employee complaint? 10 points
3. What is your company’s vision statement? 25 points
4. What is the most precious resource for your company? 15 points
5. Which best describes your approach to leadership? 15 points
–a. I deserve my obscene paycheck and options because I make the tough decisions
–b. If indicted, I’m ready to claim that I really didn’t know what was going on
–c. All of the above

1. Give yourself 0 points if you had any clue about what “Management by Objective,” “Reengineering” or “Theory Y Management” means. If you have no idea, give yourself 10 points. You should know by now that old fads are not worthy of the bandwidth of an up-and-coming executive.

2. The number one employee complaint—“it’s too cold.” The second most common employee complaint? “It’s too hot,” according to a study by the International Facility Management Association. Give yourself 10 points if you got either of those answers correct. But give yourself 15 points if you refused to answer the question—because the only employee complaints that should concern you are those of your people.

3. Okay, vision statements from most organizations are forgettable platitudes that should make any sane person wretch. But remember, you want to join the ranks of people who spent days at some fancy resort to come up with this BS. So give yourself 25 points if you can recite your company’s current vision statement. Unfortunately this isn’t hand grenades or horse shoes, so close doesn’t count. To get the points, you’ve got to nail it perfectly.

4. If you answered that the most precious resource for your company are the employees, give yourself 20 points. If you said your boss, subtract ten points from your total. You should know that sucking up should always be focused on the person who signs your paychecks and not a silly quiz at a web site.

5. If you chose obscene paycheck AND claim that you didn’t know what was going on in the company you were running then you must work on Wall Street.

Scoring:
85—Check your pants, I think they might be on fire
70—Get ready to say goodbye to your cube
50—Don’t you have better things to do than take online leadership quizzes?
30 or below—Remember, without followers, there wouldn’t be any leaders

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Southwest Flight Attendant Wins ADA Appeal

Monday, March 29th, 2010

Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here’s what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

  • that he was an individual with a disability within the meaning of the ADA
  • that he was a qualified individual for his job, despite his disability,
  • and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

  • a physical or mental impairment that substantially limited one or more major life activities
  • a record of such an impairment or
  • that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona’s intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it’s opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

  • Carmona had an impairment that substantially limited his major life activity of walking
  • he was a qualified individual for his job
  • he was terminated because of his disability
Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest’s core argument — that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy — another topic we don’t see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

*This post originally appeared in Employee Rights Post on March 27, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


Health Care Reform Bill Creates New Whistleblower Protections

Friday, March 26th, 2010

The Patient Protection and Affordable Care Act of 2009 (H.R. 3590) that the House approved on March 21, 2010, creates new whistleblower protections for health care workers and strengthens the coverage of the False Claims Act.  The following is a summary of these provisions and the text of the relevant sections is available here.

Section 1558:  Health care worker whistleblower protections added to the Fair Labor Standards Act.  Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill.  The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill.   Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies.  Accordingly, Section 1558 will likely protect a broad range of disclosures.

The procedures, burden of proof, and remedies applicable to this new retaliation claim are set forth in the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including (1) a 180-day statute of limitations; (2) a requirement to initially file the complaint with OSHA, which will investigate the complaint and can order preliminary reinstatement; (3) the option to litigate the claim before the Department of Labor Office of Administrative Law Judges or to remove the claim to federal court 210 days after filing the complaint; (4) the right to try the claim in federal court before a jury;  and (5) a broad range of remedies, including reinstatement, back pay, special damages, and attorney’s fees.  Similar to Section 806 of the Sarbanes-Oxley Act, the causation standard and the burden-shifting framework are very favorable to employees.

A complainant can prevail merely by showing by a preponderance of the evidence that her  protected activity was a contributing factor in the unfavorable action.  A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”  Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee engaging in protected conduct, an onerous burden.

Section 6703(b)(3):  Protections for employees of federally funded long-term care facilities.  Long-term care facilities that receive more than $10,000 in federal funding in the preceding year must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency.  Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $200,000.  A long-term care facility is prohibited from engaging in retaliation against an employee “because of lawful acts done by the employee.”  Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal funds for up to two years.

Section 6105:  Implementation of standardized complaint forms for nursing homes and prohibition against retaliation.  Section 6105 requires nursing homes to implement a standardized complaint form and requires each state to develop a complaint resolution process to track and investigate complaints and to ensure that complainants are not subjected to retaliation.

Section 10104(j)(2) expands the definition of an “original source” under the False Claims Act.  Section 10104(j)(2) strikes 31 U.S.C. 3730(e)(4)(A) and replaces it with language expanding the definition of an “original source” to include “individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section.”  This new definition of “original source” will bring much-need uniformity to this critical issue that arises in most qui tam actions and increase the likelihood that relators will be able to meet the original source exception to the public disclosure bar.

For information about The Employment Law Group® law firm’s Whistleblower Retaliation Practice, click here.

*This post originally appeared in Employment Law Group on March 23, 2010. Reprinted with permission from the author.

About the Author: Jason Zuckerman, a Principal at The Employment Law Group law firm (www.employmentlawgroup.com) has litigated more than fifty whistleblower retaliation, qui tam, and wrongful discharge cases. He also litigates civil rights, discrimination, non-compete, and unpaid overtime actions in federal and state courts. Mr. Zuckerman serves as Co-Chair of the National Employment Lawyers Association’s Whistleblower Committee and Co-Chair of the Whistleblower Committee of the District of Columbia Bar’s Labor and Employment Section.

AIDS Discrimination Victim Gets New Trial

Thursday, March 25th, 2010

Admission Of EEOC No Probable Cause Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it’s a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

  1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
  2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.” It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV).

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It’s also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine – which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

  • the evidence is irrelevant, highly prejudicial, or hearsay and
  • the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT” written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine. During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

The Court’s Ruling

With no Florida cases on point, the Fourth District Court of Appeals of Florida looked to federal law for guidance on the issue of admissibility of EEOC findings at trial.

It noted that the Eleventh Circuit Court of Appeals considered an EEOC determination “ordinarily admissible” and a decision which “rationalized that the reports are ‘highly probative’ due to the training and experience of the EEOC investigators.”

On the other hand, it went on to note that many federal courts have concluded that EEOC letters of determination are inherently prejudicial. The Court ultimately agreed that the letters in Byrd’s case should not have been admitted.

The Court wrote:

We agree with the reasoning of these courts, that a jury may find it hard, if not impossible, to independently evaluate the evidence presented to the parties after being informed that the EEOC has already investigated the claim and determined that reasonable cause does or does not exist to believe that unlawful discrimination has occurred…..

Several courts have reasoned that similar conclusory administrative determination letters, i.e., those which do little more than take sides, enjoy particularly low probative value, but possess especially high dangers of unfair prejudice.

The Court ruled that Byrd’s Motion in Limine should have been granted, reversed the lower court, and remanded the case for a new trial.

Take Away

The admissibility of EEOC findings has been plaguing lawyers who try discrimination cases since the civil rights laws were first passed. The whole issue has become much more important with the enactment of laws which give civil rights plaintiffs the right to to jury trials.

My former law students may recall that one of the first assignments I gave them was to draft a Motion in Limine regarding the admissibility of a probable cause finding and and argue its admissibility or exclusion.

As far as trials go, it should come as no surprise that  those of us who represent employees argue vociferously for the admission of a positive finding of discrimination by the EEOC. We argue just as strongly for the exclusion of a no probable cause finding.

Lawyers who represent employers of course make the same kind of arguments in reverse. I have had judges who have allowed the evidence in. I have had judges who have excluded it.

That’s why any law on this subject is helpful.

images: www.karlonia.com

*This blog originally appeared in Employee Rights Post on March 26, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. She’s recognized as one of the first and foremost employment and civil rights lawyers in the United States. Ellen’s a legal analyst and is available to discuss high-profile civil cases, employment discrimination and women’s issues. Quoted often in local and national news media, Ellen has been a regular guest on television and radio, including appearances on Court TV. For more information go to www.ellensimon.net or call 1-888-915-1952.

So, What's In the Reconciliation Bill?

Tuesday, March 23rd, 2010

The President signed the Senate health care bill into law at noon today.

This year, over 4 million small businesses will get tax credits worth up to 35% of their health care costs. This year, seniors will get $250 towards closing their coverage donut hole. This year, young Americans will be able to stay on their parent’s insurance plan until they are 26. This year, lifetime caps on benefits will be a thing of the past. And this year, the people with pre-existing conditions who can’t get health care now at any price will be able to buy into high-risk pools until the exchanges are set up in 2014.

But we are not done. Right after the House passed the health care bill on Sunday, they passed a package of improvements that now head to the Senate for an up-or-down vote.

The fixes heading to the Senate are mostly focused on making health care affordable to middle class families.

First, the package vastly improves the excise tax on “Cadillac” insurance plans, raising the threshold at which a plan will be affected to $10,200 for individual plans and $27,500 for family coverage. It also delays the implementation of the tax until 2018. As a result, the burden on middle tax families will be dramatically reduced.

To make up for the loss in revenue, the fixes broaden the Medicare payroll tax on on rich investors, taxing net investment income for those who make more than $250,000 per year.

And second, the package increases the subsidies available in the exchanges for middle class families and lowers their cost sharing. With the package, a lower percentage of a family’s income will be spent on health care costs – both premiums and out of pocket.

And there are more provisions in the package that would help broad swaths of the American public:

  • The package fully closes the donut hole for seniors over time
  • It freezes Medicare Advantage overpayments to private insurers and requires private insurers to pay 85% of money in to benefits in Medicare Advantage, to match the levels for all insurance plans in the health care bill
  • It strikes the deals Senators like Ben Nelson received and replaces them with increased Medicaid funding to all states
  • And it funds student loans for millions of young Americans

The Senate, after a string of favorable parliamentary rulings, is expected to take up the improvements under budget reconciliation rules today, with the goal of a final vote at the end of this week before the Easter recess.

*This post originally appeared in Health Care For America Now on March 23, 2010. Reprinted with permission.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Cubicle Blues

Monday, March 22nd, 2010

You’d expect the “father” of the cubicle to be a proud parent. Heck, his invention multiplied faster than rabbits. But you’d be wrong.

Thirty years ago, Robert Probst was seeking to create the perfect place to work for the office furnishings company Herman Miller. In search of the “office of the future,” he designed the perfect environment for maximum satisfaction and productivity. He called his creation “the action office.”

Yep, the cubicle. At the time Probst was looking for something better than the open bullpen that was the norm for much of the last century. He wanted to create a space that would allow privacy, personalization and the maximum in flexibility. For example, his original creation had a variety of surfaces that you could work from each that was a different height.

So much for privacy, personalization and flexibility. Just before his death in 2000, Probst called his creation “monolithic insanity” in Fortune.

There are many reasons why the “action office” devolved in the cube. Soaring real estate prices, corporations trying to get more bang for the buck by packing employees in like sardines and even the tax code (corporations can write off cubicles much faster than they can write off their investment in walls in an office building).

There is a part of me that believes that the successor to the cube will be emptying out our huge office buildings in a massive wave of telecommuting. This makes sense for so many reasons—spiraling gas prices, increasing real estate costs and the fact that so many homes now have broadband access. The only problem with this picture is that we barely know how to manage the people we can see at work, so few of us have the foggiest idea of how to manage people we can’t see.

Which leads back to the “action office.” It’s clear that business is now 0 for 2. The bullpen didn’t work. The cubicle has spawned Dilbert and a massive amount of griping from most of the people who’ve worked in one.

So what is the answer? I think it involves combining the best of the future with the best of the past. The first part of the equation is really figuring out what jobs can be done by telecommuting. And what workers and managers are up to this challenge. Once these jobs are moved out of our buildings then we’ll actually have the room to turn the cube back into the “action office” that Probst originally envisioned. With fewer people they can be bigger and hopefully employees can have the ability to tailor them to their needs.

For all the talk of productivity, I’m surprised at how little of the conversation addresses the place where most of our work actually gets done. If more of us engage in this conversation, hopefully, we’ll be able to put the “action” back into the “action office.”

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

What Health Reform Will Do for America - Two Examples

Friday, March 19th, 2010

Two headlines today highlight glaring problems in our health care system that would be fixed if health reform passes.

First, from Pennsylvania, the New York Times headlines “Big Insurance Rate Increase for Pennsylvania Poor”:

Facing a sharp rise in costs, Pennsylvania has almost doubled the monthly bill for a state health insurance program for poor people who do not qualify for Medicaid and are on a waiting list for a less costly option.

On March 1, the cost of the plan rose to about $600 a month, up from $313 a month, for the roughly 2,400 state residents on the waiting list.

Established in 2002, Pennsylvania’s state insurance program, called AdultBasic, covers adults ages 19 to 65 with incomes lower than twice the federal poverty level, or about $21,672 for a single person, at a cost to participants of about $36 per month. About 39,000 people are enrolled in AdultBasic.

About 390,000 other people are on a waiting list to join the AdultBasic program. While they wait, the state gives them the option to pay for the same insurance at a higher rate. It is the cost for members of the waiting list that rose on March 1 to about $600 a month.

Health reform solves this problem.

For families who make 133% of the Federal Poverty Level or less – about $24,000 per year – health reform would allow them to get on Medicaid. Those families who make more than that – up to 400% of the FPL or about $73,000 per year – will be able to purchase heavily subsidized insurance in the Exchanges.

For families making between 133% FPL and 200% FPL ($24,000 – $36,000 per year) – the people affected by Pennsylvania’s rate increase above – their average cost for insurance, both premiums and out of pocket, will be [pdf] around $63 per month for families at 133% up to $244 per month for families at 200%.

The next headline is from Kaiser Health News, “Drug Prices Rise For Seniors Who Reach Medicare Part D Coverage Gap”:

Seniors who hit the coverage gap in their Medicare prescription drug plans and must use their own money to buy drugs are facing price increases that are far outpacing inflation, a new study finds.

According to the Kaiser Family Foundation, prices paid by enrollees in standalone Part D plans who enter the coverage gap increased 5 percent or more since January 2009 for half of 10 brand-name drugs most commonly used by seniors. That’s almost twice the rate of inflation over the same period.

For example, the price of Actonel, a treatment for osteoporosis, increased 8 percent, from $91 per month in 2009 to $98 per month in 2010. Meanwhile, the prices for both Aricept, an Alzheimer’s medication, and Plavix, a drug used to prevent blood clots, both increased by 7 percent during the same period. Aricept’s prices rose from $184 to $198 while Plavix’s rose from $142 to $152. Lipitor, a cholesterol medication, was the only drug surveyed that decreased in price, from slightly more than $86 to just under $86 per month.

The rising prices are part of a longer is sufficient longer-term trend. Between January 2006 and January 2010, the analysis showed, prices of drugs bought by seniors who hit the coverage gap increased 20 to 25 percent for Lipitor, Plavix, Nexium, a drug for acid-reflux, and Lexapro, a medication for depression and anxiety; 39 percent for Actonel, and 41 percent for Aricept. Over the same period, inflation has increased 9.2 percent while prices for medical care have surged 16.1 percent.

Health reform solves this problem, too. Immediately after passage of the bill, seniors will get immediate relief that starts closing that coverage gap. The gap will be completely closed as health reform is implemented.

There are a few more noteworthy immediate affects of reform as well:

  • Prohibit pre-existing condition exclusions for children in all new plans;
  • Provide immediate access to insurance for uninsured Americans who are uninsured because of a pre-existing condition through a temporary high-risk pool; (this will help with the Pennsylvania situation as well)
  • Prohibit dropping people from coverage when they get sick in all individual plans;
  • Offer tax credits to small businesses to purchase coverage;
  • Eliminate lifetime limits and restrictive annual limits on benefits in all plans;
  • Require plans to cover an enrollee’s dependent children until age 26;
  • Require new plans to cover preventive services and immunizations without cost-sharing;
  • Ensure consumers have access to an effective internal and external appeals process to appeal new insurance plan decisions;
  • Require premium rebates to enrollees from insurers with high administrative expenditures and require public disclosure of the percent of premiums applied to overhead costs.

Reform will also help people like 11-year-old Marcelas Owens, who’s mother died because she didn’t have insurance:

And Matt Masterson’s son, who’s pre-existing condition makes him virtually uninsurable, a near death sentence as soon as he’s kicked of his father’s insurance plan in a few years:

Finally, today, the House Energy and Commerce Committee came out with numbers on how reform will help people in every Congressional district.

The vote is coming in the House. It’s likely to take place this weekend. Without reform, none of these problems get solved, and the insurance companies will get to continue their business practices of denying care and carving out coverage while making record profits.

It’s time to for the House to decide, and you should pick up the phone and help them.

*This post originally appeared in Health Care For America Now on March 17, 2010. Reprinted with permission.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Senate Passes Jobs Bill, Obama Signature Next

Thursday, March 18th, 2010

Image: Mike HallThe U.S. Senate today passed a jobs bill that AFL-CIO President Richard Trumka calls a ”good start” in helping the nation’s workers climb out of the 11-million-deep jobs hole dug by the Wall Street greed that propelled the economy’s nosedive.

But he says the bill—which is on its way to the White House for President Obama’s signature—must be the first step of a broad and intensive effort to rebuild the economy.

Much more needs to be done. We need to restore the jobs that were lost to the financial debacle, and Wall Street should pay to create them. We must invest in rebuilding our crumbling infrastructure and in the green jobs of the future. We have to maintain funding for vital services by state and local governments and prevent destructive cuts in education, police and fire protection and more.

We must take the additional steps needed to extend unemployment insurance and health care lifelines to the unemployed. We must increase funding for neglected communities to match people who want to work with jobs that need to be done. And we should move right now to use leftover TARP money to get credit flowing to Main Street.

The $17.6 billion bill includes a one-year extension of the federal highway program, an extension of the Build America Bonds program that helps states finance certain infrastructure projects and tax incentives for employers to hire workers.

The Senate first passed the legislation in February, but minor changes by the House forced a second vote on the legislation.

Other pending jobs legislation includes a December-passed House bill that is a more extensive jobs bill with an emphasis on jobs-creating infrastructure projects. The next step for the bill is uncertain—Senate leaders have promised to move further jobs-related legislation, but no time table has been set. Also this month, Rep. George Miller (D-Calif.) introduced the Local Jobs for America Act, which would create or save up to 1 million public- and private-sector jobs. Jobs saved would include those such as the firefighters, the police and teachers and others whose jobs are in jeopardy because of local government budget cuts.

*This article originally appeared in AFL-CIO blog on March 17, 2009. Reprinted with permission from the author.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

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