Wyatt Employment Law Report


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NLRB Orders Re-Run Election in Largest Mail Ballot Election Ever Conducted

By Edwin S. Hopson

On August 10, 2011, the National Labor Relations Board issued an order that will lead to a re-run of a mail ballot election held in the fall of 2010 involving some 43,000 employees of Kaiser Permanente in California.  This was the largest mail ballot election ever conducted by the NLRB.  The employees were voting on whether to remain represented by their current union — United Healthcare Workers, affiliated with the SEIU, or to select the National Union of Healthcare Workers (NUHW), a new union which had been created by former SEIU officials.  The other option on the ballot was to select “no union.”

In the first election last fall, a majority of employees voted to retain the SEIU affiliated union.  Objections were filed by NUHW after the election and, in July, 2011, NLRB Administrative Law Judge Lana Parke issued a report following a hearing on objections, sustaining some of the objections and recommending the original election results be set aside and a new election conducted. 

The Board’s order was signed by Chairman Wilma B. Liebman and Members Brian Hayes and Mark Gaston Pearce, with Member Craig Becker recused.


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New Healthcare Legislation Contains Some Provisions Having Immediate Effect

By Edwin S. Hopson

The Patient Protection and Affordable Care Act just passed by Congress and signed into law by President Obama has changes that take effect in the near term (typically 6 months after passage).  These include:

–small business tax credits of up to 35% of premiums;

–the elimination of co-pays for preventive services for non-grandfathered plans effective January 1, 2011;

–the prohibition of  medical plans dropping persons when they become ill;

–prevention of  medical plans denying coverage to children with pre-existing conditions;

— restriction of  NEW plans putting restrictions on coverage (in 2014 all such restrictions would be prohibited for all plans);

–the elimination of  lifetime caps on essential benefits coverage for all plans;

–as to NEW plans, protection of patients’ choice of doctors by allowing plan members to pick any participating primary care provider, prohibiting insurers from requiring prior authorization before a woman sees an ob-gyn, and ensuring access to emergency care;

–requirement that insurers permit children to stay on family policies until age 26 in most circumstances;

–prohibition for NEW fully insured group health plans from establishing any eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees; and

–establishment of standards for insurance overhead and requires public disclosure to ensure that enrollees get value for their premium dollars, including a requirement that plans in the individual and small group markets spend 80% of premium dollars (and 85% for plans in large group markets) on clinical services and quality activities, effective January 1, 2011 and applicable to all plans, including grandfathered plans, with the exception of self-insured plans.

There are other provisions not directly impacting employers that also take effect in the near term.  See http://dpc.senate.gov/healthreformbill/healthbill64.pdf.