Author Archives: afscme

The Continuity of Collective Action and the Isolation of Collective Bargaining: Enforcing Federal Labor Law in the Obama Administration

Source: Craig Becker, Berkeley Journal of Employment and Labor Law, Vol. 33 no. 2, 2012
(subscription required)

…Collective bargaining, like a class action, is a legal mechanism designed to facilitate and institutionalize concerted activity in order to redress “inequality.” Among the Board’s central duties is to insure that that mechanism remains available to employees who wish to utilize it. During my tenure, the Obama Board took several modest steps to insure the continued accessibility of collective bargaining to employees in today’s workplace. But the accomplishment of that task requires initiating a wider discussion that reveals the continuity of collective action and its centrality both within the structure of the NLRA and more widely in insuring a just workplace….

Where You Stand Depends on Where You Sit: Bureaucratic Incorporation of Immigrants in Federal Workplace Agencies

Source: Ming Hsu Chen, Berkeley Journal of Employment and Labor Law, Vol. 33 no. 2, 2012

From the abstract:
This article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants’ rights can be protected when workplace agencies incorporate immigrants into labor law enforcement, in accordance with their professional ethos and organizational mandates. Building on Miles’ Law that “where you stand depends on where you sit,” I argue that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose of protecting workers. The implication is that strongly pro-immigrant policies in the political branches are not necessary for the recovery of immigrants’ rights. Instead, entrenched institutional commitments to professional ethics and recognition of organizational mandates sometimes suffice. Empirical evidence of regulatory responses to immigrant workers after Hoffman Plastic v. NLRB in three federal agencies serve as comparative case studies: the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission, and the National Labor Relations Board.

It’s Go Time for Health Exchanges

Source: Martha Salazar, State Legislatures, Vol. 39 no. 2, February 2013

States have only a few months to get their health insurance exchanges up and running….Like it or not, and plenty don’t, federal law requires the Internet-based health insurance exchanges to be operational in every state, ready to conduct an “open enrollment period” by Oct. 1 for coverage that will be effective Jan. 1, 2014. The Congressional Budget Office estimates that 25 million people will participate in the exchanges by 2022. Along with offering health insurance options, exchanges also need to be able to let people know if they qualify for federal subsidies or programs such as Medicaid or the Children’s Health Insurance Program. Subsidies to purchase coverage are available to individuals with incomes between 138 percent and 400 percent of federal poverty guidelines….

How to Think Clearly about Medicare Administrative Costs: Data Sources and Measurement

Source: Kip Sullivan, Journal of Health Politics, Policy and Law, Published online before print February 15, 2013
(subscription required)

From the abstract:
The Centers for Medicare and Medicaid Services (CMS) annually publishes two measures of Medicare’s administrative expenditures. One of these appears in the reports of the Medicare Boards of Trustees and the other in the National Health Expenditure Accounts (NHEA). The latest trustees’ report indicates Medicare’s administrative expenditures are 1 percent of total Medicare spending, while the latest NHEA indicates the figure is 6 percent. The debate about Medicare’s administrative expenditures, which emerged several years ago, reflects widespread confusion about these data. Critics of Medicare argue that the official reports on Medicare’s overhead ignore or hide numerous types of administrative spending, such as the cost of collecting taxes and Part B premiums. Defenders of Medicare claim the official statistics are accurate. But participants on both sides of this debate fail to cite the official documents and do not analyze CMS’s methodology. This article examines controversy over the methodology CMS uses to calculate the trustees’ and NHEA’s measures and the sources of confusion and ignorance about them. It concludes with a discussion of how the two measures should be used.

Bitter Pill: Why Medical Bills Are Killing Us

Source: Steven Brill, Time, February 20, 2013

From the video introduction:
Simple lab work done during a few days in the hospital can cost more than a car. A trip to the emergency room for chest pains that turn out to be indigestion brings a bill that can exceed the price of a semester at college. When we debate health care policy in America, we seem to jump right to the issue of who should pay the bills, blowing past what should be the first question: Why exactly are the bills so high?

Steven Brill spent seven months analyzing hundreds of bill from hospitals, doctors, and drug companies and medical equipment manufacturers to find out who is setting such high prices and pocketing the biggest profits. What he discovered, outlined in detail in the cover story of the new issue of TIME, will radically change the way you think about our medical institutions:

· Hospitals arbitrarily set prices based on a mysterious internal list known as the “chargemaster.” These prices vary from hospital to hospital and are often ten times the actual cost of an item. Insurance companies and Medicare pay discounted prices, but don’t have enough leverage to bring fees down anywhere close to actual costs. While other countries restrain drug prices, in the United States federal law actually restricts the single biggest buyer—Medicare—from even trying to negotiate the price of drugs.

· Tax-exempt “nonprofit” hospitals are the most profitable businesses and largest employers in their regions, often presided over by the most richly compensated executives….

Increasing Pathways to Legal Status for Immigrant In-Home Care Workers

Source: Cynthia Hess, Jane M. Henrici, Institute for Women’s Policy Research (IWPR), #I924, February 2013

From the press release:
As Congress digs into creating an improved immigration system, a report released today by the Institute for Women’s Policy Research (IWPR), in cooperation with Caring Across Generations, identifies solutions for increasing access to visas for immigrant in-home care workers. Immigration solutions include provisional visas for immigrants meeting certain criteria, and a policy model that allows states and the federal government to share authority for selecting economic immigrants to the United States.
The authors cite comprehensive immigration reform as a viable solution to solving the care work crisis, noting that any reform of the visa system must also be accompanied by policy changes to improve job quality for in-home care workers.

As the Baby Boom generation ages, women immigrant in-home care workers are filling a gap in home care labor for the elderly. Lack of legal immigration status leaves many vulnerable to low wages and poor working conditions. According to IWPR’s analysis, the median weekly earnings for all female in-home care workers are $308, compared with $560 for all female workers in the U.S. workforce.

According to the report, in the United States:
– Immigrants make up a disproportionate share of the in-home health care workforce at 28 percent.
– 90 percent of in-home health care workers are women and 56 percent are from a minority racial or ethnic group.
– One in five immigrant direct care workers are undocumented.
See also:
Improving Career Opportunities for Immigrant Women In-Home Care Workers
Source: Jane Henrici, Institute for Women’s Policy Research (IWPR), #I925, February 2013

Occupational Projections for Direct-Care Workers 2010–2020

Source: Paraprofessional Healthcare Institute (PHI), Fact Sheet, February 2013

In this fact sheet, PHI summarizes the latest national occupational projections (2010–2020) relating to the direct-care workforce released by the Bureau of Labor Statistics at the U.S. Department of Labor. Our analysis indicates that demand for direct-care workers (including nursing aides, home health aides, and personal care aides) over the next decade, particularly in home and community-based settings, will continue to outpace supply dramatically—unless policymakers and employers work together to make these jobs competitively attractive compared to other occupations.

The latest 2010 employment estimate for the direct-care workforce surpasses 3.3 million and projected demand calls for an additional 1.6 million new positions by 2020.

Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act

Source: Deborah Widiss, Indiana Legal Studies Research Paper No. 231, February 20, 2013

From the abstract:
Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, courts regularly permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.

This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by many courts interpreting the PDA risks relegating pregnancy once again to the basement.

The Incredible Disappearing Health Benefits

Source: Alec MacGillis, New Republic, February 19, 2013

Can a coal company get away with breaking promises to workers?… In 2007, Peabody created a new entity called Patriot Coal, and transferred to it 13 percent of its coal reserves. It also transferred to it about 40 percent of its health care liabilities—the obligations for 8,400 former Peabody employees. A year later, Patriot Coal was loaded up with even more liabilities when it acquired Magnum Coal, an offshoot of the country’s second-largest mining company, Arch Coal. This left Patriot with responsibility for another 2,300 retirees, and, by last year, total liabilities of $1.37 billion. Patriot Coal is now seeking Chapter 11 bankruptcy, through which it will seek to limit or discharge its pension and health obligations to 22,000 retired miners and their spouses, 90 percent of whom never worked for Patriot Coal….As the retirees await the fate of their benefits, last week brought them another morsel to chew on: Patriot sought court approval to distribute $6 million in bonuses to 225 corporate executives and salaried employees….

The Wage Theft Epidemic

Source: Spencer Woodman, In These Times, February 20, 2013

Thanks to a wave of government cuts, there’s no one to stop your boss from withholding your pay….Former investigators paint a stark picture of weakened enforcement divisions, lacking both necessary staff and funding, that regularly close claims of wage theft that appear legitimate. … For at least several savvy employers in Virginia, Myers says, there was effectively no minimum wage….