Reflecting the fallout of a long national recession and rapidly rising health care costs, workers in 2010 on average are paying nearly $4,000 for their share of health care premiums, or an increase of 14 percent above what they paid last year, according to the benchmark 2010 Employer Health Benefits Survey released by the Kaiser Family Foundation and the Health Research & Educational Trust (HRET). This is the largest annual increase since the survey began in 1999, and a marked change from previous years when employers generally split the rise in the cost of premiums with their employees, the survey noted. In contrast, the amount employers contribute for family coverage did not increase.

“High out-of-pocket expenses and premiums affect health care decisions for patients. If premiums and costs continue to be shifted to consumers, households will face difficult choices, like forgoing needed care, or reexamining how they can best care for their families,” said Maulik Joshi, Dr.P.H., president of HRET and senior vice president for research at the American Hospital Association.

Other findings from the survey include:

• Single coverage. Worker-only health benefits increased 5 percent in 2010 to reach $5,049 annually. Workers on average are paying $899 annually for single coverage, up from $779 in 2009. Forty-seven percent of covered workers are in single-coverage plans.
• Physician office visits. Among covered workers with a copayment for in-network physician office visits, the average copayment increased a small but statistically significant amount from 2009 to 2010, from $20 to $22 for primary care and from $28 to $31 for specialty care.
• Mental health benefits. In response to the 2008 Mental Health Parity and Addiction Equity Act, 31 percent of firms with more than 50 workers made changes to the mental health benefits they offer. Most of this group eliminated limits on coverage to comply with the law, though a small share (5 percent of those making changes) dropped mental health coverage altogether.
• Wellness benefits. About three-fourths (74 percent) of employers offering health benefits offer at least one of the following wellness programs: weight loss program, gym membership discounts or on-site exercise facilities, smoking cessation program, personal health coaching, classes in nutrition or healthy living, web-based resources for healthy living, or a wellness newsletter.
• Health risk assessments. Among firms offering coverage, 11 percent give their employees the option of completing a health risk assessment to help employees identify potential health risks. Within this group, 22 percent — a relatively small two percent of all employers — offer financial incentives such as lowering the worker’s share of premiums or offering merchandise, gift cards, travel, or cash to their workers. Large firms are more likely than small firms both to offer assessments and to offer financial incentives.

The survey was conducted between January and May of 2010 and included 3,143 randomly selected, non-federal public and private firms with three or more employees (2,046 of which responded to the full survey and 1,097 of which responded to a single question about offering coverage).

The White House has endorsed legislation introduced by Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) in the Senate and House respectively, aimed at protecting workers from the negative effects of employee misclassification. The Fair Playing Field Act of 2010 will end the tax loophole that currently allows for workers to be misclassified as “independent contractors.” According to Kerry, the current loophole harms both businesses that abide by the rules and workers.

“This reform is pro-worker and pro-business,” said Sen. Kerry. “Today a tax loophole is being abused to deny workers basic protections and benefits.”
Businesses that engage in employee misclassification gain a competitive and financial advantage over their law-abiding counterparts, through their failure to pay FICA and unemployment taxes, fringe benefits and workers compensation premiums. Workers subjected to the practice are often liable to pay the employer’s half of the FICA tax, called self-employment tax. For these reasons, said McDermott, the practice has to end.

“For too long, the misclassification of employees has put an unnecessary financial strain on American businesses and workers,” said Rep. McDermott. “Having a distinction between independent contractors and full-time employees is a good thing, but the current law is leading to significant abuse. Companies that misclassify workers have an unfair advantage over companies who play by the rules.”

The current law allows employers to treat their workers as not being an employee for employment tax purposes, unless the employer can provide no reasonable basis that treatment. According to Kerry, the new bill will require the Secretary of the Treasury to issue prospective guidance that will clarify workers’ employment status for federal employment tax purposes and to issue annual reports on worker misclassification. The bill will also amend the Tax Code’s currently reduced penalties for a business’ failure to deduct and withhold income taxes and a worker’s share of the FICA taxes. Lastly, the bill will allow the IRS to also issue guidance on worker classification.

In announcing the White House’s backing of the measure, Vice-President Joe Biden cited the cost to the federal government of employee misclassification.
“When employees are classified as independent contractors, whether by design or because the rules are unclear,” Biden said, “they are denied access to critical benefits and protections, at significant cost to government at all levels.”

Hoping to garner a key legislative victory before the Senate adjourns for the mid-term elections, Senate Majority Leader Harry Reid (D-Nev) this week reintroduced the Paycheck Fairness Act (S. 3772), a bill that would require specific changes to OFCCP and EEOC enforcement activities related to gender discrimination in compensation and amend the FLSA to heighten remedies for EPA violations. The legislation has been placed on the Senate calendar, though it’s uncertain when the Senate will take up the measure.

Originally introduced in 2009 by then-Senator Hillary Clinton (D-NY) as S. 182, the current Senate bill has 13 cosponsors. The House passed the Paycheck Fairness Act (H.R. 12) last year, but it stalled in the Senate. President Obama has indicated his Administration’s support for the bill, urging swift passage by the Senate, and noting the legislation was a key recommendation of the Vice President’s Middle Class Task Force. On March 11, 2010, Stuart J. Ishimaru, Acting Chair of the EEOC, testified before the Senate Health, Education, Labor and Pensions (HELP) Committee in support of the legislation.

One proposed change of particular concern to the federal contractor community is the proposed legislation’s requirement that the OFCCP reinstate the controversial Equal Opportunity (EO) Survey. The regulatory requirement for federal contractors to file the controversial EO Survey, put into place by the Clinton Administration, was eliminated by the Bush Administration on September 8, 2006 (71 FR 53032-53042). The survey required contractors to report information about personnel activities, compensation and tenure data, and certain information about the contractor’s affirmative action program. Although the OFCCP’s recordkeeping regulations require contractors to maintain information that was necessary to complete the EO Survey, contractors were not required to maintain that information in the format called for by the survey instrument.

The Paycheck Fairness Act would require that “not less than half of all nonconstruction contractor establishments” prepare and file the EO Survey each year and require the OFCCP to “review and utilize the responses to the survey to identify contractor establishments for further evaluation.”

However, even if the OFCCP is not required by statute to bring back the EO Survey, it appears the Obama Administration is considering reinstating the regulatory requirement for implementing some version of this data collection instrument. On July 20, 2010, at a White House Middle Class Task Force forum hosted by Vice President Joe Biden, Secretary of Labor Hilda L. Solis announced that the OFCCP will publish an Advanced Notice of Proposed Rulemaking early next year that will seek input from stakeholders on how to improve the EO Survey. If the EO Survey requirement returns, regardless if that return comes via the Paycheck Fairness Act or a reinstatement of the previous regulatory requirement, the OFCCP would be faced with the choice of using the previous, much criticized format or developing a revised, and hopefully more utilitarian, format.

The Bush Administration’s decision to eliminate the EO Survey was based in part on two studies commissioned by the OFCCP to access the validity of the EO Survey as a selection tool for compliance reviews. One of the studies failed to find a correlation between the predictive variables generated from the EO Survey and determinations of noncompliance. The second study showed that the EO Survey did not provide sufficiently useful data for enforcement targeting purposes. On October 5, 2006, at the National Employment Law Institute’s Twenty-Fourth Annual Affirmative Action Briefing in Chicago, then OFCCP Director Charles E. James, Sr. said the EO Survey “was a noble effort, but with a faulty design.”

The EO Survey was not popular among the federal contractor community who generally found it to be unduly burdensome. Critics asserted that the data request in the EO Survey was too generalized to provide useful compliance or enforcement information. Another concern was that the EO Survey required companies to report personnel data by individual business location. Companies that monitored their employment practices on a broader basis (for example, by functions or geographic regions), complained that requiring reports to be prepared by single business location was unduly restrictive. This was particularly problematic for contractors that utilized functional affirmative action programs, rather than the traditional establishment-based affirmative action programs. Nevertheless, civil rights groups, such as Women Employed, the National Women’s Law Center and the National Partnership for Women & Families have maintained that the EO Survey could have been a vital tool to enable the OFCCP to detect discrimination based on race and gender and target investigations or other enforcement action.

Fewer than half of employees leave their desk to take a lunch break each day, according to a recent online survey by Right Management. In a poll of more than 2,300 workers, only 47 percent of respondents said that they “almost always” take a break for lunch at work. Another 20 percent said they take a break, but usually sit at their desks. Nineteen percent of respondents only take lunch “from time to time,” while 13 percent “seldom, if ever,” take lunch.

“Has the true lunch break become the exception rather than the rule?” asked Douglas J. Matthews, president and chief operating officer of Right Management. “We know employees are currently under a great deal of pressure, but skipping lunch or being reluctant to take a break during the work day is not a good way to deal with it. On the contrary, taking time away from one’s desk for lunch may go a long way toward relieving stress and boosting energy.”

But not every company culture is supportive of lunch breaks, Matthews observed. “Sometimes employees feel the need to stay at their desk or to apologize for stepping out. But this kind of culture isn’t the way to heighten performance and engagement.”

Among other key findings:

• Top level executives (C-level and vice president) were the most likely to take a break, with 53 percent saying they almost always do.
• Men were slightly more likely than women to take a break, by 49 percent to 42 percent.
• The younger the worker, the more likely the individual is to take a break; 57 percent of those age 18-24 indicated they always take a break, compared to 53 percent of those age 25-34, 46 percent of those 35-54 year-olds, and 45 percent of those over age 55.

“While lunch breaks are typically 30 to 60 minutes,” said Matthews, “I’m seeing breaks getting shorter given the pressure on workers to do more with less, shoulder heavier workloads, and put in longer hours. It’s discouraging to find only a minority are taking a needed break from their work during the day.”

 A new website, launched by the Department of Labor’s Employment and Training Administration, will allow job applicant-wannabes to match their current skills to new careers and find out what training is needed to transition from one job to another. Called “mySkills myFuture” (www.myskillsmyfuture.org), this new online tool helps users to access job postings within a desired location radius; in addition, job descriptions, salary information, common job tasks and related training opportunities for short-term programs provided by local community colleges and other postsecondary schools are also included.

 “Americans deserve good jobs, and mySkills myFuture is one of the ways we’re ensuring they can find and access them,” said Secretary of Labor Hilda L. Solis. “The mySkills myFuture portal personalizes job searches. It allows people to explore work possibilities based on their experience, strengths and interests. It also connects them with high quality training programs and provides localized job postings.”

 The new site’s features include: (1) detailed information about occupational skills that can be transferred from one job to another; (2) a side-by-side comparison chart of likely skill gaps from one occupation to another; and (3) links to local training programs that are available to help fill skill and knowledge gaps.

 The online program is based on data from the U.S. Department of Labor’s Occupational Information Network, known as O*NET, and the National Labor Exchange. Data from O*NET includes the required knowledge, skills and abilities for more than 900 occupations, which helps identify transferable skills and skill gaps among different occupations. The National Labor Exchange is a service of DirectEmployers Association, a nonprofit consortium of more than 550 leading U.S. corporations.

A ruling by U.S. District Court Judge Christina Snyder that the Port of Los Angeles can regulate trucks coming into or leaving its property in order to decrease air pollution around the country’s busiest port complex is being hailed by supporters of the Clean Trucks Program.

In 2008, Los Angeles officials attempted to regulate the pollution caused by trucks hauling goods into and out of the Port by enacting the Clean Trucks Program. That measure required drivers to be actual employees, not independent contractors, of a trucking company. Program proponents say the bill is necessary to reduce the amount of pollution emitted by the port, specifically the amount of diesel particulate, which has been linked to a number of serious health issues, and claim that measures requiring the use of clean diesel and low sulfur fuels will assist with that goal. Advocates of the City’s solution claim that the low wages traditionally paid to the trucking workforce results in a workforce that “can only afford to haul in the oldest, most decrepit clunkers,” according to the Coalition for Clean and Safe Ports.

In the early days of the program, officials claimed a near 80 percent reduction in emissions, but after the American Trucking Associations (ATA) filed suit to stop the Program, the issue became a hot-button topic in California and in the US House, which held hearings on the issue in May. Opposition by the trucking industry created Congressional support for HR 5957, which was intended to clarify federal transportation law and allow local governments to implement solutions that will protect the public health, while also spurring green job creation

Members of the Coalition were thrilled with Snyder’s ruling. “This victory bolsters the standing of burgeoning clean port programs across the nation,” said Melissa Lin Perrella, senior attorney with NRDC’s Southern California Air Program, which argued alongside the Port at trial. “This decision allows the Port of Los Angeles to continue introducing cleaner trucks while getting dirty ones off the road and sets the stage for healthier communities nationwide.”

“Judge Snyder’s ruling affirms that the Los Angeles Harbor Commission, City Council, and Mayor Antonio Villaraigosa got it right from the beginning in enacting an economically sound, environmentally sustainable program to reduce deadly diesel truck pollution and create good green jobs in our communities,” said Tom Politeo, a San Pedro resident and representative of the Sierra Club, also party to the case along with the Coalition for Clean Air.

Tucked within the broad package of financial industry reforms contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173 / Public Law 111-203) is a provision that mandates that each covered governmental agency establish an Office of Minority and Women Inclusion (OMWI) to “be responsible for all agency matters relating to diversity in management, employment and business activities.”  Section 342 (contained within Subtitle D) of the Act requires each OMWI to monitor the diversity efforts of the agencies, the regulated entities and agency contractors. In cases where an OMWI director determines an agency contractor has failed to make a good-faith effort to include minorities and women in their workforce, the agency head may refer the matter the OFCCP or take other appropriate action, including termination of the applicable contract.

Contracts. The OMWI directors must develop and implement standards and procedures to ensure, to the maximum extent possible, the fair inclusion and utilization of minorities, women, and minority-owned and women-owned businesses in all business and activities of the agency at all levels, including in procurement, insurance, and all types of contracts (Section 342(c)(1)).

The procedures established by each agency for review and evaluation of contract proposals and for hiring service providers must include, to the extent legally permissible, a component that gives consideration to the diversity of the applicant. These procedures must include a written statement that a contractor “shall ensure, to the maximum extent possible, the fair inclusion of women and minorities in the workforce of the contractor and, as applicable, subcontractors” (Section 342(c)(2)).

The statute requires each agency to establish a procedure for its OMWI director to make a determination whether an agency contractor, and, as applicable, a subcontractor has failed to make a good-faith effort to include minorities and women in their workforce. If an OMWI director makes such a determination, the director must make a recommendation to the agency head that the contract be terminated. Upon receipt of such a recommendation, the agency head may: (a) terminate the contract; (b) make a referral to the OFCCP; or (c) take other appropriate action  (Section 342(c)(3)).

Duties within the agency. Within their respective agencies, Section 342(b)(2) requires the  OMWI directors to develop standards for: (a) equal employment opportunity and the racial, ethnic, and gender diversity of the workforce and senior management of the agency; (b) increased participation of minority-owned and women-owned businesses in the programs and contracts of the agency, including standards for coordinating technical assistance to such businesses; and (c) assessing the diversity policies and practices of entities regulated by the agency.

In addition, each OMWI director is charged with advising his/her respective agency head on the impact of the policies and regulations of the agency on minority-owned and women-owned businesses (Section 342(b)(3)).

Reports. Each OMWI must submit to Congress an annual report regarding the actions taken by the agency and the OMWI pursuant to Section 342 including: (1) a statement of the total amounts paid by the agency to contractors since the previous report; (2) the percentage of these amounts that were paid to covered contractors; (3) the successes achieved and challenges faced by the agency in operating minority and women outreach programs; (4) the challenges the agency may face in hiring qualified minority and women employees and contracting with qualified minority-owned and women-owned businesses; and (5) any other information, findings, conclusions, and recommendations for legislative or agency action, as the OMWI director determines appropriate (Section 342(e)).

Other diversity requirements. Each agency is also required to take steps to seek diversity, to the extent legally permissible, in the workforce of the agency at all levels of the agency, including: (1) recruiting at historically black colleges and universities, Hispanic-serving institutions, women’s colleges, and colleges that typically serve majority-minority populations; (2) sponsoring and recruiting at job fairs in urban communities; (3) placing employment advertisements in newspapers and magazines oriented toward minorities and women; (4) partnering with organizations that are focused on developing opportunities for minorities and women to place talented young minorities and women in industry internships, summer employment, and full-time positions; (5) where feasible, partnering with inner-city high schools, girls’ high schools, and high schools with majority minority populations to establish or enhance financial literacy programs and provide mentoring; and (6) any other mass media communications that their respective OMWIs determines are necessary (Section 342(f)).

Duties not included. However, the OMWIs’ responsibilities do not include enforcement of statutes, regulations, or executive orders pertaining to civil rights, except each OMWI Director shall coordinate with the agency administrator, or the designee of the agency administrator, regarding the design and implementation of any remedies resulting from violations of such statutes, regulations, or executive orders (Section 342(a)(3)).

Agencies that are required to establish OMWIs. Covered agencies under Section 342 include: (1) the Departmental Offices of the Department of the Treasury; (2) the Federal Deposit Insurance Corporation; (3) the Federal Housing Finance Agency; (4) each of the Federal Reserve banks; (5) the Federal Reserve Board; (6) the National Credit Union Administration; (7) the Office of the Comptroller of the Currency; (8) the Securities and Exchange Commission; and (9) the Bureau of Consumer Financial Protection (Section 342(g)).

The U.S. Senate has unanimously passed legislation as part of its effort to improve Internet and technology access for people with disabilities. Sponsored by Arkansas Senator Mark Pryor, the Equal Access to 21st Century Communications Act (S. 3304) will amend the Communications Act of 1934 to ensure that companies make new technologies accessible for persons with disabilities. The legislation passed within days of the 20th anniversary of the Americans with Disabilities Act.

“The Internet and other emerging communication equipment are no longer a luxury. They are an essential gateway to learn, interact and conduct business,” said Pryor. “This legislation will ensure all Americans, including those with disabilities, are able to fully participate in today’s online world. I am pleased that the Senate came together with one voice to pass this important legislation.”

The legislation’s passing was met with enthusiasm from disability rights groups including the American Foundation of the Blind (AFB). “We will now be looking to the House to take up S. 3304 and ensure that this landmark legislation is sent to the President’s desk,” said Paul Schroeder, Vice President of AFB Programs & Policy. “Twenty years ago now when the ADA was signed into law, no one could have predicted the new technologies—smart phones to the Internet—that now shape our daily lives and work routines. Once signed into law, this legislation will ensure that the 25 million Americans with vision loss and the millions more with other disabilities can fully participate in the digital era.”

According to Pryor, the Equal Access to 21st Century Communications Act will:

• Create a one-stop shop for information on online products and services available to blind and deaf individuals;
• Close existing gaps in accessibility by requiring technology like smart devices, including an iPhone or Blackberry, to be hearing aid compatible;
• Require that programming shown on television also be closed captioned and video described when it is posted on the Internet. ex., nightly news, Razorback games, Lost;
• Require video programming devices, such mp3 players and DVRs, to be capable of closed captioning, video description and emergency alerts; and
• Authorize federal support for specialized equipment for deaf or blind individuals.

The Act, cosponsored by Senators John Kerry (D-Mass), John Ensign (R-Nev) and Kay Bailey Hutchison (R-Tex), was introduced on May 4, 2010 and passed the Senate with an amendment by unanimous consent on August 5.

In the latest perennial poll of union sentiment, only 52 percent of Americans say that they approve of labor unions. Gallup’s latest poll notes that the percentage is the second lowest in the organization’s 70-year polling history on the issue, ahead only of last year’s 48 percent. The highest approval rating came in 1953 and 1957, when 75 percent of Americans voiced support for organized labor. Not surprisingly, the breakdown comes on largely political lines, with 71 percent of Democrats supporting unions, as opposed to 34 percent of Republicans and 49 percent of independents. Regardless of their preference, 46 percent of those polled believe that unions will weaken in the future, as compared to the 25 percent who believe unions will grow stronger. Gallup speculates that the economic downturn may be responsible for labor’s sagging ratings, citing its finding of a mild drop in union approval during the late 1970s and early 1980s as the US economy struggled through recession and stagflation. Gallup also speculates that the negative views may stem from the view that unions are likely to benefit or are benefitting from the policies of the Obama administration.

Hartmarx, the Chicago area men’s clothier that outfitted President Obama on election night, as well as provided him with his inaugural suit, top coat and tuxedo, this week celebrated its one-year anniversary of a very close call with liquidation. Hartmarx, now known as HMX Group, was sold last June to Britain-based Emerisque Brands and SKNL North America BV. 

In spring 2009, the 122-year-old company was forced into bankruptcy protection after citing lower borrowing capacity under Wells Fargo, a senior credit facility.  Hartmarx had attracted three potential buyers, two of which, it was reported, intended to keep the company intact. Rumors flew, however, that Wells Fargo, which was a recipient of federal bailout funds, was leaning towards a third buyer that favored liquidation. This threat, however, was enough to galvanize workers, supporters, union leaders and federal lawmakers to put a little pressure on Wells Fargo. Two Congressional members at the forefront of this fight, Rep. Phil Hare (D-Ill), who spent 13 years in the employ of Hartmarx, and Rep. Jan Schakowsky (D-Ill), whose great-aunt also worked at the company, urged the bank to keep the company afloat.

During a few days that month, rallies featured labor leaders and workers, along with Rep. Hare and Illinois Treasurer Alex Giannoulias, who threatened to cut off the State of Illinois’ $8 billion in business with Wells Fargo if the company proceeded with liquidation plans. The Hartmarx workforce, in a page taken from that of the Chicago-based Republic Windows and Doors, whose employees staged a successful sit-in to secure the 60 days’ severance and unused vacation days they were lawfully owed, voted to occupy the plant if liquidation were the outcome.

Finally in late June, parties returned to the courtroom for the bid hearing and, after resolving concerns that had arisen, the sale to Emerisque was approved.

Fast forward to this year: in light of continual depressing employment figures, it’s a happy day when 600 employees can take time out to celebrate their jobs being saved.