Labor Law Protects Employees' Rants on Facebook

 Here's a recap of the case: After a dispute in the workplace involving a customer complaint, employee Dawnmarie Souza posted a negative remark about her supervisor on her personal Facebook page. This drew supportive responses from coworkers. Those responses then led to more negative comments from Souza about the supervisor.

Souza's employer, the American Medical Response (AMR) ambulance firm, suspended her and later terminated her because of her Facebook postings.

The AMR blogging and Internet posting policy included these statements:

"Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company, in any way, including but not limited to any Company uniform, corporate logo or an ambulance, unless the employee receives written approval... in advance of the posting...

"Employees are prohibited from making disparaging comments or discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers, and/or competitors."

The NLRB filed an unfair labor practice complaint against the Connecticut company.

The NLRB asserted the National Labor Relations Act (NLRA) gives all employees the right to discuss with other employees such work issues as pay, benefits, and working conditions. These discussions on work conditions and work issues are protected activities. In the case against AMR, the NLRB argued an employee's comments about a supervisor and about an employer, posted on a social media site like Facebook, is protected concerted activity when it involves comments and responses between coworkers.

The NLRB alleged the ambulance company illegally terminated Souza for violating the company's policy prohibiting employees from describing the company "in any way" on the Internet without company permission. The NLRB described the company's policy as overly broad.

A settlement is reached: In a private settlement between AMR and Souza, the employer has agreed to back off from its restrictions on employees' expressions of workplace issues outside the workplace.

The NLRB issued this statement about the settlement:

"Under the terms of the settlement... the company agreed to revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

"The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation." [The employee in the case, Dawnmarie Souza, was a member of the Teamsters union and the Teamsters represented her before the NLRB.]

Meaning to employers: The settlement between AMR and the NLRB strengthens the NLRB's position that employers can overreach in attempts to prevent employees from discussing matters relating to their work.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers' individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]

IRS ISSUES W-2 HEALTH CARE COST REPORTING GUIDANCE.

(PLANSPONSOR.com) - The Internal Revenue Service has issued interim employer guidance about reporting on employees' W-2 the cost of the health insurance coverage they sponsor for employees.

The IRS is also requesting comments on this interim guidance. The IRS emphasized that this new reporting to employees is for their information only, to inform them of the cost of their health coverage, and does not cause a taxable event.

The tax agency said except as provided in a question-and-answer section of the IRS document, all employers that provide applicable employer-sponsored coverage during a calendar year are subject to the reporting requirement under § 6051(a)(14).

The Affordable Care Act provides that employers are required to report the cost of employer-provided health care coverage on the Form W-2. Guidance issued last fall made this requirement optional for all employers for the 2011 Forms W-2 (generally furnished to employees in January 2012), the IRS said. In the latest guidance, the IRS provided further relief for smaller employers (those filing fewer than 250 W-2 forms) by making this requirement optional for them at least for 2012 (i.e., for 2012 Forms W-2 that generally would be furnished to employees in January 2013).

The notice also provides guidance for employers that are subject to this requirement for the 2012 Forms W-2 and those that choose to voluntarily comply with it for either 2011 or 2012. The notice includes information on how to report, what coverage to include and how to determine the cost of the coverage.
The IRS notice is at http://www.irs.gov/pub/irs-drop/n-11-28.pdf.

Information About the CLASS Benefit Plan

If you think you or someone you know needs assistance living in home assistants or nursing home care, this article is for you.

Health & Human Services (HHS) released a series of frequently asked questions on the Class (Community Living Assistance Services and Supports) Act. 

These questions and answers follow below:

About CLASS and long term care

What is CLASS?

CLASS (Community Living Assistance Services and Supports) is a new voluntary, federally administered insurance program created under the Affordable Care Act (ACA).

Most working adults age 18 or older will be able to voluntarily enroll in this new program either directly or through their employers, without answering questions about their health.

Those who enroll and meet the benefit eligibility requirements will receive benefits to purchase long-term services and supports such as (but not limited to) personal assistance, homemaker services, specialized transportation and assistive technology to help them address their care needs.

When will CLASS be available?

The Affordable Care Act (ACA) states that the Secretary of Health and Human Services has until October 1, 2012 to designate the CLASS benefit plan. Enrollment will not take place before the plan is announced, and no one will pay premiums until after they enroll.

Is CLASS an entitlement program?

No. CLASS is not an entitlement program. Some people will not be eligible to enroll and some people who enroll will never meet the requirements to receive benefits.

Enrollment in CLASS will be voluntary and will be available to most working adults. Pre-existing medical conditions will not disqualify someone from enrolling. Individuals who enroll will be eligible to receive benefits if they meet specific requirements regarding functional limitation, earnings, and premium payment. Enrollees pay the premiums. Benefits will be paid from premiums and earnings on those premiums. Taxpayer funds will not be used to pay benefits.

How is CLASS different from long term care insurance offered through an insurance company?

CLASS will be administered and insured through the Federal government. Enrollment will be available to most working adults. Unlike most long term care insurance offered by private insurers, pre-existing medical conditions will not disqualify someone from enrolling. In addition, CLASS enrollees will have to meet specific requirements regarding functional limitation, earnings, and premium payment in order to receive benefits. Details about these requirements will be announced by the HHS Secretary no later than October 1, 2012.

What is long term care?

Long term care refers to care that individuals may need for a long time because they are unable to take care of themselves due to an illness, disease, the aging process, or cognitive impairment (for example, Alzheimer's disease).

Most long term care is non-skilled personal care, such as help with everyday tasks, called Activities of Daily Living (ADLs):

Bathing,

Dressing,

Using the toilet,

Transferring (moving to or from a bed or chair),

Caring for incontinence, and

Eating.

The goal of long term care is to provide help with routine functions when being fully independent is not possible. Long term care can be provided at home, in a community setting or in an institution. Most people prefer to receive long term care at home.

Who needs long term care?

The need for long term care can strike anyone at any age. While many people who need long term care are age 65 or older, a person can need long term care services at any age. Forty percent of people currently receiving long term care are adults 18 to 64 years old.

Factors that increase your risk of needing long term care include:

Age - The risk generally increases as you get older.

Marital Status - Single people are more likely to need care from a paid provider.

Gender - Women are at a higher risk than men, primarily because they tend to live longer

Lifestyle - Poor diet and exercise habits can increase your risk.

Health and Family History - These can also impact your risk.

Will Medicare and/or my health insurance pay for any long term care services I might need?

Generally, no. Medicare pays for nursing home care and/or home care only under limited circumstances after a hospital stay and only for a limited time period. Medicare and health insurance pay for acute care, generally needed for a defined period of time with an expectation that you will recover or your condition will improve. Long term care is chronic care (ongoing and long-lasting). It is not acute care.

Enrollment in CLASS

Can I enroll in CLASS now?

No. CLASS is not available yet. By October 1, 2012, the Secretary of Health and Human Services will announce the details of the CLASS benefit plan. Enrollment will not begin until after this announcement.

Who will be able to enroll in CLASS?

Once enrollment begins, most working adults age 18 or older will be able to enroll.

Will I have to pass underwriting to enroll in CLASS?

No. You will not be denied enrollment in CLASS because of a pre-existing condition or for any medical reason.

Will retirees be able to enroll in CLASS?

If they are fully retired (not working at all), they will not be able to enroll in CLASS.

I'm looking at private long term care insurance policies. Should I wait for CLASS instead?

It's important to plan for your potential long term care needs without delay. If you're nearing retirement, you should also note that one of the requirements to become eligible for benefits under the CLASS Program is to earn wages of a certain amount over a period of time after enrollment. Those planning to retire within the next few years may not be able to qualify for benefits under CLASS.

Should employers start withholding premiums for CLASS coverage from their employees' pay?

No. CLASS premiums will not be collected until enrollment begins. The Secretary of Health and Human Services will announce details about the CLASS benefit plan by October 1, 2012. Enrollment will not begin until after this announcement.

Will an employer have to offer CLASS participation to its employees?

No. Employers will be able to decide whether to participate in the CLASS automatic enrollment process for their employees.

Will I have to enroll in CLASS if my employer participates in the automatic enrollment process?

No. You will be able to opt-out of enrollment.

Will I be able to enroll even if my employer decides not to offer the CLASS automatic enrollment process?

Yes. If you meet the enrollment eligibility requirements, you will have the option to enroll individually.

Will I be able to enroll if I am self-employed?

Yes. If you meet the enrollment eligibility requirements, you will have the option to enroll individually. 

CLASS Benefits

How will someone become eligible to start receiving CLASS benefits?

In order to receive benefits, an enrollee must:

have an eligible functional limitation(for example, need help to perform everyday activities or have a cognitive impairment);

earn wages of a certain amount over a period of time after enrollment; and

pay premiums for at least 60 months, and comply with other premium payment requirements.

Details about all of these requirements will be announced by the HHS Secretary by October 1, 2012.

Will I be able to use my CLASS benefits to help pay for care in a nursing home or assisted living facility?

Yes. If you qualify for CLASS benefits, you will be able to use them to help cover the cost of care in a nursing home or assisted living facility, as well as care received at home. CLASS benefits can also be used for other types of supports and services, such as home modifications, assistive technologies, accessible transportation, and homemaker services, to name just a few.

How much will CLASS pay in benefits?

We have not yet determined the benefit plan. By October 1, 2012, the Secretary of Health and Human Services will designate a benefit plan, after taking into consideration the recommendations of the CLASS Independence Advisory Council. The CLASS Act requires that the benefit plan include a cash benefit averaging at least $50 per day, not subject to any lifetime limit.

What is the CLASS Independence Advisory Council?

The CLASS Independence Advisory Council is the Department's statutory public advisory body on matters of general policy in the administration of the CLASS Program. The President has not yet appointed the members of the Council. The time period for submitting nominations to the Council has ended.

Can taxpayer funds be used to pay CLASS benefits?

No. The law specifically prohibits the use of taxpayer funds to pay benefits.

CLASS Premiums

How much will CLASS coverage cost?

Premiums have not yet been established. By October 1, 2012, the Secretary of Health and Human Services will announce details of the benefit plan, including premiums, after taking into consideration the recommendations of the CLASS Independence Advisory Council.

Insurance News in Michigan

MICHIGAN: In his first budget, Governor Rick Snyder has proposed that the state's current HMO-use tax on Medicaid plans be replaced by a 1 percent assessment on paid health claims to raise approximately $400 million.

The paid claims would be an obligation on insured and self-insured entities. Details regarding this budget proposal, including operational issues and effective date, are unclear at this time. But the Michigan budget is predicated on the implementation of this provision. If it fails, then the remaining options will be reductions in Medicaid, largely in provider rates and health plan premiums.

In short if we tax the insurance companies for paying claims, premiums will have to increase to the insured to compensate the additional tax. Individuals should contact their elected representatives and voice their opinion. Insurance rates are already becoming unaffordable to individuals and businesses as it is. This is only a proposal at this stage, but unless action is taken this could become a progressive tax and one in which the public at large is unaware of. 

How to get more than mileage out of your vehicles

Questions answered:  How to get More than Mileage Out of Your Vehicles


Q.  I'm using my personal car in my business. How much can I deduct on my tax return for the car?

A. There are two basic ways to write off expenses for business-related travel:

The standard mileage method. This provides a basic deduction for mileage and provides built-in depreciation. For 2011, the rate is 51 cents per mile (up from 50 cents for 2010). The tax law restricts the use of the standard mileage method.

A taxpayer cannot use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for any vehicle used for hire or for more than four vehicles used simultaneously.

The actual expense method. This gives you a depreciation allowance for the cost of the vehicle, plus deductions for gasoline and oil, insurance, and repairs. You generally wind up with a larger overall deduction than if you used the standard mileage method. You can write off the cost of the car based on the percentage of business use. For example, if the car is used 80 percent for business, you can write off 80 percent of the allowable expenses for that year.

Take Notes. To use the actual expense method, you must keep a log and record the time, place, mileage and business purpose of each business trip, and the total mileage for the year. That lets you calculate the business use percentage.

How does the IRS calculate the standard mileage rate for business? It is based on an annual study of the fixed and variable costs of operating an automobile.

There may be other limitations involved in tax-deductible business driving. Winthrop & Gray suggests that you consult with your tax adviser for information about the best ways to buy and operate a business car for tax purposes.

Bourdensom Requirements Remain,

Despite efforts by some members of Congress, the burdensome 1099 reporting requirements for businesses and rental property owners were not repealed as part of the new law passed on December 17, 2010. And Congress has adjourned for the year so a repeal of the requirements will now have to wait for the new Congress to take up the issue in 2011.

The new requirements were part of two laws passed in 2010:


1. The Patient Protection and Affordable Care Act imposes surprising new Form 1099 reporting requirements. Complying with them may add significantly to the paperwork burden of businesses and other organizations. Beginning with payments made in 2012, businesses generally will have to issue Form 1099’s to vendors (including corporations) and the IRS for purchases of $600 or more in property or services. Earlier this year, IRS Commissioner Douglas Shulman said business transactions conducted using credit and debit cards would be exempt from the requirements. These transactions will already be covered by other new reporting requirements on credit and debit card processors, so there is no need for businesses to report them as well, Shulman said.

2. The Small Business Jobs Act requires taxpayers who receive rental income to issue 1099 forms to service providers when they make payments of $600 or more during the year. Beginning on January 1, 2011, the law requires rental income recipients to follow the same reporting rules as taxpayers engaged in a trade or business. Result: If recipients of rental income make payments of $600 or more to a service provider while earning rental income, they must provide a 1099 form to the provider and the IRS.

Beginning January 1, 2011, taxpayers with rental property income must start keeping records of payments, so they can issue 1099 forms in 2012. For more information about your situation, consult with your tax adviser.Bottom line: Despite a push by the business community and some members of Congress to repeal the rules, they stay in place -- for now. Efforts to eliminate them, or make them less burdensome, will have to wait for Congress to return after the holidays. Stay tuned.

Winthrop & Gray Company has provided this shorten version of the law and is not liable for the content of this article. You should consult your tax advisor for details of your situation.

Importand news in Health Care

By Janet Adamy
Wall Street Journal

A federal judge ruled that Congress violated the Constitution by requiring Americans to buy insurance as part of the health overhaul passed last year, and said the entire law "must be declared void."

With his ruling, U.S. District Judge Roger Vinson set up a clash over whether the Obama administration still has the authority to carry out the law designed to expand insurance to 32 million Americans.

David Rivkin, an attorney for the plaintiffs, said the ruling meant the 26 states challenging the law must halt implementation of pieces that apply to states and certain small businesses represented by plaintiffs.

But the Obama administration said it has no to plans to halt implementation of the law. Already, it has mailed rebate checks to seniors with high prescription drug costs, helped set up insurance pools for people with pre-existing medical conditions and required insurers to allow children to stay on their parents' insurance policies until they reach age 26.
"We will continue to operate as we have previously," a senior administration official said.
In a pre-emptive move, the Justice Department, which represents the administration, is considering whether to seek a stay while its appeal against the decision is pending, spokeswoman Tracy Schmaler said.

The legal morass is the biggest blow yet to the law since President Barack Obama signed it in March. Most of the plaintiffs-governors and attorneys general in 26 states-are Republicans seeking to knock down Mr. Obama's signature legislative achievement.

The ruling by Judge Vinson, a Republican appointee in Pensacola, Fla., is the second of four to find that at least part of the law violates the Constitution's Commerce Clause by requiring citizens to carry insurance or pay a fee. But in asserting that the whole law is unconstitutional, it went much further than an earlier ruling in a Virginia case.

Thus far, the court decisions are breaking down along party lines, with two Democratic appointees to the federal bench having upheld the law and two Republican appointees ruling against it. The matter is expected to be settled by the U.S. Supreme Court.

The possibility that a court could ultimately unravel the law underscores just how difficult it is to enact universal health insurance-a goal that had eluded presidents dating back to Theodore Roosevelt. Mr. Obama's law, signed after a long-fought partisan battle, has been hailed by supporters as a historic achievement. But it is also one that cost Democrats seats in this fall's midterm elections, as the public was still divided in its support of the legislation.

The court battle against the law-once seen as a long-shot strategy by the Republicans-has emerged as the greatest threat to the overhaul. While the Republican-led House has voted to repeal the law, that effort is expected to die in the Democratic-controlled Senate, and in any case would face President Obama's veto pen.

Now even some Democrats who voted for the overhaul are contemplating whether Congress should strip out the so-called individual mandate, a once unthinkable scenario since the provision is seen as the backbone of the law. Since the law requires insurance companies to accept all comers, even people who are already sick, it requires healthy people to buy coverage as well.

Otherwise, economists say, insurance premiums would likely rise sharply because people would wait until they were sick to seek coverage.

The victories are emboldening Republicans in Congress who see attacking the law as a key strategy for retaking the White House in 2012. "This ruling confirms what Americans have been saying for months: The health spending bill is a massive overreach," said Senate Minority Leader Mitch McConnell (R., Ky.)

In his 78-page ruling, Judge Vinson wrote that the entire law must be voided because the individual insurance mandate is "not severable" from the rest of the law. Some laws contain what's known as a severability clause that says the rest of the law stands should a judge strike down a piece of it. But Democrats left it out.

The judge said he didn't believe an injunction to stop the health overhaul was appropriate, because it is generally understood that the executive branch will obey a federal court. The government, however, doesn't believe the ruling requires it to stop implementing the overhaul.

In court filings and testimony before the judge, the Obama administration argued that requiring Americans to carry insurance was within its constitutional powers, particularly those of the Commerce Clause that allows it to regulate economic activity. It argued that the health-care market is unique since all Americans receive medical care at some point. Requiring them to buy insurance is just a way of regulating how they pay for it, the administration said.

Judge Vinson rejected that view. Under the Obama administration's logic, he wrote, "Congress could require that everyone above a certain income threshold buy a General Motors automobile-now partially government-owned-because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business."

Judge Vinson ruled in favor of the Obama administration on a secondary part of the suit, saying that the law's expansion of the Medicaid federal-state insurance program for the poor doesn't violate the Constitution.

The states argued that the law's addition of 16 million Americans to the Medicaid rolls violates the Spending Clause of the Constitution by burdening them without giving them room to opt out of the program.

But Judge Vinson said states clearly have the option to withdraw from the program, even though states "have little recourse to remaining the very junior partner in this partnership."

Critics say the law's implementation has been undercut by waivers the administration granted to various parties to avoid aspects of the law. For example, the administration has temporarily exempted some companies that provide bare-bones "mini-med" insurance plans from meeting a requirement in the law that says insurers must spend a certain portion of premiums on medical care.

The Obama administration says such waivers are only a bridge until 2014, when the full law takes effect and employers have more options for providing affordable coverage.

In addition to the House vote for repeal, Republicans are drafting a series of bills targeting particularly unpopular pieces of the law, including its requirement that larger employers provide coverage or pay a fee. They're also laying plans to choke off funding to hire federal workers to implement the law.

Under the law, most Americans who do not carry insurance starting in 2014 will pay a penalty. It eventually tops out at $2,085 a year for families lacking insurance.

Health policy experts say one alternative to the provision would be to make insurance more expensive for those who wait to buy coverage, providing an incentive for the uninsured to get covered early. But lawmakers from both parties agree that it would be complicated, and risky, to pull out such a central piece of the law without driving up insurance premiums.