Washington Post’s Daily Dose Blog adds more fuel to the health care reform debate:

The Department of Health and Human Services put a spotlight on that practice Tuesday in its continuing campaign to build support for an overhaul of health insurance.

“When a person is diagnosed with an expensive condition such as cancer, some insurance companies review his/her initial health status questionnaire,” the HHS said in a posting at HealthReform.Gov. In most states, insurance companies can retroactively cancel individuals’ policies if any condition was not disclosed when the policy was obtained, “even if the medical condition is unrelated, and even if the person was not aware of the condition at the time.”

“Coverage can also be revoked for all members of a family, even if only one family member failed to disclose a medical condition,” HHS said.

The department cited recent research by the staff of the House Committee on Energy and Commerce, which found that three large insurers rescinded almost 20,000 policies over five years, saving $300 million in medical claims.
At least one insurer included such savings in an employee performance evaluation.

I teach a case in employee benefits law class, McGann v. H&H Music (5th Cir. 1992), that describes a similar practice to this. Unfortunately, the court in McGann found that the participant could not prevail under an ERISA Section 510 retaliation claim when his coverage was dramatically reduced (1 million to $5000) when he told his employer he had AIDS.

Maybe I’ll just start counting reasons why health care reform is a necessity and that health insurers cannot continue to exist in a world with little regulation and even less meaningful remedies against them for this type of disturbing conduct.

The employee performance part can be filed under “truly disturbing.”

Paul Secunda: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

This article originally appeared on Workplace Prof Blog and is reprinted here with permission from the author.

At least in Utah (via Derek Thompson at The Atlantic):

Not sure this will start a craze, but the fewer day workweek clearly has some benefits, as illustrated above.  Moreover, Thompson points out:

But, on the other hand, any increase in telecommuting will lead to less face time in the office. Will that have deletrious effects on the culture of the workplace and make employees feel that they are not part of a team, part of something more than just what they contribute to the enterprise?

Am I overstating my concerns here?

Paul Secunda: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

This article originally appeared at Workplace Prof Blog on July 30, 2009 and is reprinted here with permission from the author.

Martin Feldstein, a brilliant conservative economist, has his facts wrong on the health care debate in an op-ed he penned today in the Washington Post.

Nate Silver of FiveThirtyEight concisely explains Feldstein’s error:

Feldstein is simply mistaken here. “Single-payer” has to do with who pays for health care (in the case of single-payer, the federal government does). It has absolutely nothing to do with who provides health care. It’s the difference between the Canadian system, in which private doctors and hospitals are paid by the Canadian government (and indirectly, Canadian taxpayers) to provide health care to its citizenry, and the British system, in which the providers themselves — doctors, nurses, hospital administrators — are actually in the employ of Her Majesty’s Government. For that matter, it’s the difference between Medicare — a single-payer system for American seniors — and the British system. The Canadian system is nationalized health insurance. The British system is nationalized health care — or if you prefer, socialized medicine.

Obama has never expressed or implied any admiration for the British system of socalized medicine. Not that there aren’t admirable elements of it — but I doubt that you’d find even very many self-identified liberals who would suggest that it’s the right system for America. Obama, rather, has expressed admiration for a government-run monopoly on insurance — single-payer — as do about half of Americans in opinion polls.

Got it? Get it? Good.

Paul Secunda:

With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.

Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about.  Although I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.

President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.

President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.

Workplace Anti-Discrimination and Civil Rights: President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.

President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.

Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term.  This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums.  Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care.  Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases.  In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the Civil Rights Act of 1991 amended Title VII.  Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).

Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments.  As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available.  (This would entail a newly-constituted Supreme Court overruling the Bivens case of Bush v. Lucas).  Such legislation would also provide whistleblowers under Sarbanes-Oxley and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.

Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country – the institution of just cause workplace protection as the default rule for American employees.

All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.

Cross-posted from the Workplace Prof Blog.

About the Author: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

To many, the 2007 decision of the U.S. Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co. marked a low point for protecting women against pay discrimination in the workplace. The case held that Lilly Ledbetter, the plaintiff, could not hold her employer, Goodyear, accountable for pay discrimination that had occurred over many years under Title VII because her statute of limitations for such a claim had run out before she even knew about the discrimination.

The Ledbetter decision creates an absurd result. Individual pay decisions by themselves are usually small, incremental changes, not as obviously motivated by discriminatory intent the way that more serious discrete acts such as terminations or failures to promote do.  It is not until many discriminatory wage decisions have occurred that the discriminatory injury becomes clear to the employee.  Often, it takes many years for this pattern to develop before the employee realizes that she might have a claim.

The Ledbetter decision is inconsistent with the purposes of Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large.  It leads to an absurd situation where employees must bring pay claims prematurely when they cannot be sure there has been unlawful pay discrimination. If the employee waits to a later time when there exists more substantial evidence of pay discrimination the employee will be barred from bringing the claim at all by the statute of limitations (as in Ledbetter).  This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.

But legislative nullification depends on both what the next Congress and President plan to do to address this glaring gap in ensuring pay equity in the workplace. Even if Congress continues to support the Lilly Ledbetter Pay Equity Act and passes it in both houses next year, the identity of the next President may determine whether that legislation is signed into law.

John McCain has stated that he is “in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems . . . . This is government playing a much, much greater role in the business of a private enterprise system.” McCain chose not to return to Washington to participate in the Senate vote on the Ledbetter bill (See Washington Post article.)  Barack Obama, on the other hand, has pledged his unequivocal support for the Ledbetter bill and returned to Washington for the bill’s Senate vote in April.  (See Washington Post article.)

On this Labor Day, while we praise all the workers throughout this country for their dedication and selflessness in making the United States the economic power that it is today, let us not forget that without equal wages for an equal day’s work for all members of our workforce, we really have accomplished very little. Let’s hope that regardless of who is elected president that women are no longer afforded merely second-class status in the workplace and the Ledbetter decision’s days are numbered.

About the Author: Professor Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.

Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

Note: Workplace Fairness is a nonprofit organization and does not make political endorsements. The opinions expressed by our guest bloggers are their own.