Lancaster Law Blog : Lancaster PA Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Pennsylvania : Lancaster's Legal Link

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

Everyone's trying to get up to speed on the changes prescribed under Title III of the American Recovery and Reinvestment Act signed into law by President Obama on February 17, 2009. Unlike most legislation which allows for a lengthy lead time for implementation, this Act will affect those who were involuntarily terminated even before the enactment of ARRA, and new COBRA notices are required by April 18. The new notices will need to be sent to employees who were involuntarily terminated from employment after September 1, 2008, whether the employees elected COBRA coverage or not.

Who

Employees (and employers of employees) who lost or will lose health insurance coverage under an employer-sponsored plan due to a involuntary termination of employment between September 1, 2008 and December 31, 2009 (but not if individual's modified gross income exceeds $290,000 for joint return filers and $145,00 for all others. Those with joint adjusted gross income of $250,000/$125,000 are entitled to a reduced subsidy.)

What

"Assistance eligible individuals" will be able to secure COBRA health insurance continuation coverage for 35% of the cost as opposed to 102%.

When

Now.   The subsidy is available for a maximum of 9 months, and ends upon eligibility for coverage under any other group health plan, or the expiration of the maximum allowable period of continuation coverage.

Where

Every workplace subject to COBRA, generally those employing more than 20 employees.

Why

With so many losing work, and health insurance premiums so high, a 65% reduction in premium will allow more unemployed persons to continue coverage.

Details

The employer pays the 65% balance which is then reimbursed to the employer by a credit on payroll taxes.   Employees who were involuntarily terminated after September 1, 2008 and before February 17, 2009 (the effective date of ARRA) who did not elect COBRA coverage will now be given another opportunity to do so. Employees who were involuntarily terminated after September 1, 2008. and did elect COBRA coverage prior to February 17, 2009 can receive the subsidy from the effective date of ARRA either by reimbursement from the employer or through a credit against future COBRA premium payments.

Although COBRA continuation coverage is available to individuals who lose their employment for any reason (except gross misconduct which generally is criminal conduct), this subsidy is available only to those whose employment was involuntarily terminated. It does not apply to those who voluntarily terminated employment, or to those who became eligible for COBRA coverage by reason other than a separation from employment. The existing prohibition from COBRA eligibility for gross misconduct continues to apply.

The Secretary of Labor or the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury, shall implement an appeal process for those who are denied the COBRA subsidy in which a determination regarding eligibility shall be issued within 15 business days. This is the process in which questions such as whether termination was voluntary or involuntary will be decided. (If you think that's not something that would often be contentious, think again, or ask an Unemployment Compensation referee.)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We received a question relating to employment in the economic downturn.  Is it legal in Pennsylvania to layoff an employee for lack of work, and a month later, replace that laid off employee with someone new.  I thought this would be a good topic to address in our blog. Generally, in the absence of a collective bargaining agreement or employment agreement providing for limitations on termination of employment, such an action on the part of an employer does not violate the law.

However, further inquiry can be made as to the true motive of the layoff.  Was the employee terminated because of his/her membership in a class protected under Pennsylvania and federal discrimination statutes?  Is she being replaced with someone not a member of the same protected class?  For example, replacement by an individual under the age of 40 can establish a preliminary claim for age discrimination if the employee replaced is over 40.

While the employer's proffered reason for termination, economic necessity, can appear to be pretextual if the employer is hiring a replacement soon after the layoff, the employer may have a logical reason for the new hire if it has secured new orders or new business.  And absent an agreement to the contrary, the employer has no obligation to recall laid off employees if business does turn around.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

References may be the first and last thing you think about in an employment relationship. Are employers required to provide them, and what information regarding former employees may be communicated? 

There is no statute or law requiring employers to provide references. As a result, and due to fear of providing the "wrong" information, many employers adopt a policy of providing information limited to confirming dates of employment and position(s) held. What can happen if an employer gives out "wrong" information? It could be subject to a claim of defamation, if the statement is factually false and tends to blacken the character, such as alleging criminal behavior. Or it could be claimed to constitute the tort of intentionally interfering with prospective contracts, if the information is shown to have cost the employee a job. 

But several factors limit employer liability in the employer reference area. First, employment matters are often "privileged," meaning that employer's conduct and statements are excused because it falls within the employment context. Second, Pennsylvania law confers immunity from civil liability to an employer who discloses information about a current or former employee's job performance to a prospective employer, unless the employer disclosed information that the employer knew was false or materially misleading, or in the exercise of due diligence should have known was false, the information was false and rendered with reckless disregard as to the truth or falsity of the information, or was information which the disclosure was prohibited by contract, civil, common law or statutory right, 42 Pa. C.S. § 8340.1.

From my experience, the best course is for employer and departing employee to understand exactly what employer will do and say about the employee in response to inquiries from third parties. If the employer has no stated policy with respect to references, a letter can be drafted by the employer or the employee so that it is clear what will be stated. In addition, the employer should have procedures in place so that information is disseminated only by a limited number of people and that only the agreed upon information is released. In most cases, it is to the benefit of both employer and employee for the employee to be gainfully employed again as soon as possible.

Employer/employee issues can sometimes be complicated even under the best of circumstances. If you have questions regarding employment references or any other employment issues, please contact an employment attorney.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I think by now, any resident of Lancatser County is familiar with the events in Sadsbury Township where a farmer alleged that he had been attacked by a mountain lion. This situation, although a little different, raises an interesting question, can a farmer kill wildlife on his property to prevent it from destroying his crops?

The answer is: not as a first resort. The Pennsylvania Game and Wildlife Code provides that “before any game or wildlife…may be killed, every reasonable effort shall be made to live trap and transfer such game or wildlife. The trapping and transfer shall be done in cooperation with a representative of the comission." Therefore, according to this statute, failing to first make reasonable non-lethal efforts in cooperation with the Commission before the final steps of destroying the wildlife is a violation of the law. The State is enforcing this law as well, as evidenced by a December 31, 2008 decision in Clinton county titled Commonwealth vs. Gavlock, which resulted in a Clinton County man being fined $500.00 for killing an elk to prevent it from destroying his fruit trees. The farmer conceded that there were non-lethal ways to discourage the wildlife, but he felt he only had one chance to destroy it before it came back to destroy the rest of his trees.

The lesson seems to be, contact the commission and elicit its help before taking matters into your own hands.