Comments on: Cutting employee hours to avoid ObamaCare mandate = “retaliation”

By: MattS

MattS — Fri, 19 Feb 2016 22:15:48 +0000

It says "right to which such participant may become entitled under the plan", not "under the law". The plan here refers to the companies existing benefits plan. If the pre-ACA plan did not include health benefits, cutting hours to avoid the obligation to provide health benefits would not affect any right the employees had under "the plan".

By: Allan

Allan — Fri, 19 Feb 2016 18:15:19 +0000

In reply to Cecil.

But read the second clause “or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan..”

To emphasize, I am not defending the law. I am just pointing out that, under the law, the case is not a slam dunk for the employer.

In this country we have many barriers to entry into the market, whether it be licensing, paying the minimum wage, or offering benefits.

By: Cecil

Cecil — Fri, 19 Feb 2016 15:52:34 +0000

“discharge, fine, suspend, expel, discipline, or discriminate against” I do not see reduce hours for all non-management employees listed. My daughter is a “full time” employee, but her average hours for the past 12 weeks back in january was 36.78… This pay period she’s got the full 80 plus another 8 in ot (ain’t inventory great?). So were they retaliating against her for 12 weeks or was there some financial factor that lead to them cutting hours for everyone? Either a thing is permitted or it isn’t… After all, the employers involved aren’t standing behind them with firearms saying “you will not seek other employment”.

By: LTMG

LTMG — Fri, 19 Feb 2016 15:18:14 +0000

In reply to MattS. Yes, agree. I'm thinking of unintended consequences and the likelihood of overly aggressive prosecutors and regulators to twist such a precedent to attack in other situations.

By: MattS

MattS — Fri, 19 Feb 2016 14:20:52 +0000

In reply to CarLitGuy. @CarLitGuy I was responding directly to Allan, not to you. In fact at the time I submitted my reply, neither your reply nor Density Duck's reply had made it past moderation yet.

By: Allan

Allan — Fri, 19 Feb 2016 14:15:15 +0000

In reply to CarLitGuy.

Apparently, the law in question is found at 29 U.S. Code § 1140

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C. 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan . . .”

By: CarLitGuy

CarLitGuy — Fri, 19 Feb 2016 12:34:29 +0000

In reply to MattS.

MattS, I was quoting Allan’s #2 – I don’t know the source for that assertion either.

By: MattS

MattS — Fri, 19 Feb 2016 03:14:33 +0000

In reply to Allan.

“The law states that an employer cannot take action against an employee due to the cost of benefits.”

Please cite the specific law that says an employer can not reduce employee hours or head count if employee benefits are too expensive.

Are they required to go bankrupt first?

Are they prohibited from going out of business?

By: ras

ras — Fri, 19 Feb 2016 00:09:04 +0000

Not hiring more employees because you can’t afford them is retaliation, too.

By: CarLitGuy

CarLitGuy — Thu, 18 Feb 2016 21:47:09 +0000

In reply to Allan.

So who do they sue when the employer can’t make a profit because of the extra costs? *Under this logic, that’s retaliation when he lays off all his employees and shutters the business.*

“The law states that an employer cannot take action against an employee due to the cost of benefits.” Amazing that a single sentence can wash away economics so easily – why didn’t our Congress think of this sooner. Why, we can wipe out the deficit in seconds…