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Posts Tagged ‘terminated’

Don’t Get Bitten… Are You In Compliance With DOL’s COBRA Continuation Coverage Election Notice?

Posted on: August 21st, 2018

By: Pamela Everett

The United States District Court for the Middle District of Florida has certified a class action suit against Marriott International, Inc. for allegations that it failed to provide required notices of eligible terminated employees’ right to continued health care coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).  The law suit was filed by Alina Vazquez, individually and on behalf of all others similarly situated, who alleges violations of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by COBRA.  The Plaintiff asserted that after her termination as a covered employee and participant in Marriott’s health plan she was not provided with adequate notice of her rights to continued coverage under COBRA thus causing her to fail to enroll and incur excessive medical bills.

Marriott’s  plan provided medical benefits to employees and their beneficiaries, and is an employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1) and a group health plan within the meaning of 29 U.S.C. § 1167(1).  COBRA requires the plan sponsor of each group health plan normally employing more than 20 employees on a typical business day during the preceding year to provide each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event to elect, within the election period, continuation coverage under the plan.  This notice must be in accordance with the regulations prescribed by the Secretary of Labor. To facilitate compliance with these notice obligations, the Department of Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election Notice which is included in the Appendix to 29 C.F.R. § 2590.606-4.

Plaintiff alleged that, “Marriott authored and disseminated a notice that was not appropriately completed, deviating from the model form in violation of COBRA’s requirements, which failed to provide Plaintiff notice of all required coverage information and hindered Plaintiff’s ability to obtain continuation coverage”.  The  Model Notice also requires that notice shall be written in a manner calculated to be understood by the average plan participant.   Specifically, in her suit the Plaintiff asserted that Marriott’s Notice violated the following requirements:

a. The Notice violates 29 C.F.R. § 2590.606-4(b)(4)(i) because it fails to provide the name, address and telephone number of the party responsible under the plan for the administration of continuation coverage benefits. Nowhere in the notice provided to Plaintiff is any party or entity clearly and unambiguously identified as the Plan Administrator.

b. The Notice violates 29 C.F.R. § 2590.606-4(b)(4)(iv) because it fails to provide all required explanatory information. There is no explanation that a legal guardian may elect continuation coverage on behalf of a minor child, or a minor child who may later become a qualified beneficiary.

c. The Notice violates 29 C.F.R. § 2590.606-4(b)(4)(vi) because it fails to provide an explanation of the consequences of failing to elect or waiving continuation coverage, including an explanation that a qualified beneficiary’s decision whether to elect continuation coverage will affect the future rights of qualified beneficiaries to portability of group health coverage, guaranteed access to individual health coverage, and special enrollment under part 7 of title I of the Act, with a reference to where a qualified beneficiary may obtain additional information about such rights; and a description of the plan’s procedures for revoking a waiver of the right to continuation coverage before the date by which the election must be made.”

In her certification of the class, U.S. District Judge Mary S. Scriven also rejected Marriott’s argument that Vazquez’s claims were not typical because Vazquez could not understand English, could not  have understood the notice once it had been translated and could not afford COBRA continuation coverage.  Currently there is no requirement that the Notice be provided in any language other than English.  Perhaps this suit will change that requirement in a manner similar to some of the provisions in the Affordable Care Act.

Most importantly, this case highlights the importance of ensuring that your company complies with DOL regulations, and to the extent practicable, utilizes the forms provided.

If you have any questions or would like more information, please contact Pamela Everett at [email protected].

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos. The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

If you have any questions or would like more information, please contact Jeremy Rogers at [email protected].

Going Out with a “Goat Bang”

Posted on: July 27th, 2018

Employee’s Slang in Comments on Social Media Protected as Concerted Activity

By: Robyn Flegal

A panel of the National Labor Relations Board ordered an Iowa electric company to rehire and pay back wages to a utility pole employee who was terminated for posting on social media that the Company was a “goat bang,” which he later testified was a commentary about the utility company’s safety policies—including (a) inadequate training and (b) splitting teams into groups that were too small to ensure employee safety.  The Company learned of this social media post when employees who were offended by the post showed their supervisors.

The panel held that the Company violated the National Labor Relations Act (NLRA) by firing the employee for his post. The panel held that the social media comments (even calling the Company a “goat bang”), while not “inherently concerted” and therefore not subject to heightened protection, were “concerted activity for the purpose of mutual aid or protection.” According to the NLRB, the Company’s explanation for firing the employee was pretextual, as multiple Company witnesses said that the employee was “canned” because of his posts. Notably, the NLRB also determined that the Company’s “attitude” and “conduct” policies, which the Company pointed to in justification of this termination, were illegal under the NLRA because the policies interfered with workers’ rights.

This decision demonstrates the careful consideration employers should give to a decision to terminate an employee for raising concerns about the Company on social media. Employers should also be reminded to evaluate their seemingly neutral policies for compliance with the NLRA. For more information or to consult with one of FMG’s seasoned Labor and Employment attorneys regarding reviewing your company’s policies, contact Robyn Flegal at [email protected] or any of the attorneys in our National Employment Law Practice Group.

Employee Fired for Tweeting Complaint About Sex Jokes

Posted on: March 26th, 2013

By: David Cole

This USA Today article is another example of how social media is presenting new legal issues in the workplace. According to the story, the tech company SendGrid fired a female employee named Adria Richards because she tweeted complaints about a group of men sitting behind her at a conference making sex jokes.  You can read Ms. Richards’s play-by-play tweets about the jokes (complete with pictures of the alleged jokers) by clicking here.  According to the story, SendGrid says it terminated Ms. Richards, because it “doesn’t support how she reported the conduct.”  This raises a number of interesting issues, but at the very least it is a good reminder of the new challenges employers face because of social media.  Time will tell, but what do you think – fair decision or cautionary tale?