San Francisco fancies itself to be far more than just a City. We are the smarter, prettier, more enlightened cousin of the troglodyte that is the rest of America. And if the rest of the nation won’t stop watching media coverage of Paris Hilton’s choice of hairclips long enough to get off their obese asses and pressure the State or Federal Government to do what’s right, we will do it ourselves. We declare our own foreign policy. Our own interpretation of the Second Amendment. Our own right to gay marriage. And now, our own universal health care.
Of course, being the legal trendsetter in this country means that other cities and states watch what we do here because they are too wussified to take risks. Will the world end if gay people can marry? (No, New Jersey.) Will the economy collapse if we make paid sick leave mandatory? (No, Massachusetts. Stop raising your hand.)
Because we are scrutinized, we have a special obligation to make sure that our dramatic endeavors into the spotlight are intelligent, thoughtful and properly executed. With the rollout of the initial stages of the Health Care Security Ordinance set to begin on July 2, I turned my attention to the text of this law to make sure there are no embarrassing errors. Let's just say that I am fixin' to write several posts about this here topic.
Before I begin, let me state once loudly for the people in the cheap seats: I am in favor of universal health care. Assuming the employer-contribution provisions are not stricken down in court (which I believe they likely will be), I want the law to look like something other places will want to copy. Hence the title of this posting.
Ahem. Here we go. Despite being amended once to “work out the kinks” the law still has a number of problems. My friends have asked me (begged, really) to keep the postings here short so I will only go into one issue today. Others will follow. As most of you know, once the employer contribution piece of the HCSO kicks in on January 1, 2008, employers will be required to contribute anywhere from $1.17 to $1.76 per employee, per hour to one of several health insurance vehicles for the employee or pay that amount to the city to cover the cost of the uninsured employee.
One of the most important questions here then, is: WHO IS AN EMPLOYEE? Well, the law gives us two answers. Section 14.1(b)(2) of the HCSO says that a "'covered employee" is one who, in a particular week performs at least twelve hours of work for an employer within the geographic boundaries of the City.
Umkay. That’s a LOT of people – including a lot of wealthy ones whose health insurance travails I do not care to be bothered with.
Surely there must be a way to make sure we are spending our resources looking after the people for whom this legislation was intended? Surely there is a limitation in the law to prevent the taxpayer-funded Office of Labor Standards Enforcement (OLSE) from having to police the benefits offered to partners at Hellarich & Proudofit, LLP?
Which brings me to the second definition of employee in the HCSO. Its a limitation on the prior definition. According to Section 14.1(b)(2)(d) of the HCSO, “the term ‘employee’ shall not include persons who are managerial, supervisorial [sic], or confidential employees, unless such employees earn annually under $72,450 [figure to be adjusted annually].” Okay, I see where the drafters were going with this. The reason to exclude supervisors, managers and confidential employees is the (perhaps erroneous) presumption that they have enough money to be off the list of people we are concerned about.
However, let me state unequivocally that using "supervisor" "manager" and "confidential" as categories of people to exclude from the HCSO is wrong. Wrong. Wrongitty McWrong. Couldn’t be more wrong.
For folks familiar with labor law, the terms “managerial”, “supervisory” and “confidential” look very familiar. That’s because these are the main categories of people necessarily excluded from the coverage of the National Labor Relations Act (NLRA)(this is the law that gives employees the right to unionize). Lets start with the big momma of all labor law: the definition of a Supervisor. (Manager and Confidential will be dealt with in a separate post.) Do you know a labor attorney? Want to make them cry? Call them up and ask them to determine who is a “supervisor” for the purposes of the NLRA.
“Supervisors” have been excluded from the NLRA since 1947 and employers and unions have been fighting about what it means to be a supervisor ever since. According to one estimate, since 1995, there have been 1500 National Labor Relations Board cases and Court of Appeals cases that reference the NLRA's definition of "supervisor". (That's right - the NLRA even has a definition of supervisor - the HCSO does not!) That's because questions of authority and responsibility necessary to the determination of supervisory status are painfully fact-specific.
MAIN POINT ALERT: the NLRA excludes supervisors because the purpose of the law is to protect the rights of employees to unionize. It is fundamental to the nature of protecting those rights that supervisors (whose allegiance is likely to the employer) stay the heck out of unions and union meetings. So, yes, exclude supervisors from the NLRA. But the HCSO doesn’t need that kind of distinction. Does giving a supervisor health care impinge on the rights of non-supervisory employees to get proper health care? No.
Like I said before, I don’t care about what rich folks do about health insurance so I agree that they should be excluded. But using the “supervisor” definition to make that distinction is just dumb as hell. It will create massive problems that are totally unnecessary. What we are after is inclusion of the neediest among us and an exclusion for those who do not need the law's protection.
Its like we want peanuts so we're buying an airplane. There is a better way to get peanuts, y'all.
Instead of saying supervisors, managers and confidential employees are excluded unless they make less than $72,450, why not just say all people who earn less than $72,450 are covered and those earning more are not? (Or some other annual salary cutoff – the number is not as important as the simplified inquiry.)
Let’s amend the law while we still can – before the effective date of January 1, 2008. Would be a shame if we tripped on our lovely progressive frock at the national coming-out party.
-Melissa
BONUS Law Nerd Quiz: The US Constitution requires that laws be written so that the average person can know whether they are violating the law. Laws that are written so crappily that you can't know if you are following them or not are said to be "void for vagueness." If implemented in its current form, the HCSO is unconstitutionally vague because neither the law nor the regulations define "supervisor" "manager" or "confidential" employee. How can an employer know who is covered? When a lawsuit is brought to strike down this law because it is unconstitutional, guess whose tax dollars will have to be spent in the futile exercise of defending the HCSO in court?
wow this was really good...very informative..
personally I find the whole thing irrelevant to me, as a self employed "business" (writer) - since most of my work isn't even in this STATE much less "SF", I get no love from the Mayor's much touted health plan.
thanks again for posting this,and providing some much needed disinfo rehab!
Posted by: Greg | July 02, 2007 at 20:07