Employment Law Observer

Insight & Commentary on Employment & Agency Issues

California Will Not Allow Health Insurers to Reinstate Coverage

Posted in Affordable Care Act

More than a million California residents whose health plans were cancelled under the Affordable Care Act, a.k.a. Obamacare, will not be able to keep their existing coverage, despite President Obama’s directive that insurers keep such plans available for another year.

The decision about whether to implement the president’s administrative “fix” rested with Covered California, the state’s new insurance exchange.  The exchange’s board announced today that it would not allow insurers to revive plans that fell short of the ACA’s coverage mandates.  Instead, California’s exchange will stay the course and continue to enroll residents into Obamacare.

 Covered California made the best decision for consumers by supporting the success of our new health insurance marketplace,” said Patrick Johnston, President and CEO of the California Association of Health Plans.  “Today’s decision comes with a renewed effort to ease the transition process for consumers in the form of a five-step action plan focusing on extending deadlines and increasing enrollment assistance.”

The decision will undoubtedly disappoint California residents who liked their previous coverage and had hoped they could keep their nonconforming plans for another year.  The announcement also drew the consternation of state Insurance Commissioner Dave Jones, who previously expressed support for President Obama’s directive.

 Covered California rejected what President Obama and I asked for – that individual policyholders be allowed to keep their existing health insurance through all of 2014.  Covered California’s decision denies Californians the same opportunity health insurers are giving to its small business customers who are being allowed to renew current policies throughout 2014.”

The board’s decision, however, does not come as a surprise.  Allowing nonconforming policies to continue for another year poses a risk to Obamacare’s financial viability as the move could prevent young, healthy individuals from participating in the new exchanges.  A risk pool disproportionately made up of previously hard-to-insure participants could cause premiums to soar.

We will watch the developments and keep you informed.

Obamacare Chaos: Two Lessons for Employers

Posted in Affordable Care Act, Opinion

Dysfunctional websites. Low enrollment numbers.  Public outrage over cancelled health policies.  Mea cuplas.  A presidential administrative “fix.”  Competing Congressional solutions.  Finger pointing.  It’s enough to make your head spin!

As an employer, you may be wondering what the recent flurry of activity surrounding the Affordable Care Act (a.k.a. Obamacare) means for your business.  This post presents the two most important lessons that employers should keep in mind following last week’s events.

First a brief recap: 

The mid-November headlines have focused on low enrollment numbers and growing discontent among millions of consumers whose health plans have been cancelled because they did not comply with the ACA.

Regarding the enrollment issue, the federal government last week reported that only 106,185 individuals nationwide have “selected” an Obamacare exchange plan.  The term “selected” appears in quotes because the government is counting people who have navigated the exchanges’ problematic websites and placed plans in their shopping carts – not necessarily people who have actually enrolled and paid premiums.

The figure is far lower than the government had projected.  It also likely includes a disproportionate number of individuals who had difficulty purchasing insurance before, i.e. the sick and elderly.  The economic viability of Obamacare depends on young, healthy individuals signing up in droves to balance the risk pool.  It remains to be seen whether enrollment will increase when (and if) the federal government corrects the technical snafus plaguing its exchange websites.

Next is the issue of cancelled policies.  During his campaign for Obamacare, the President repeatedly promised that individuals who liked their existing plans would be able to keep them.  This turned out to be false.  Millions of consumers, including more than a million in California, have had their plans nixed because they did not meet Obamacare’s regulatory mandates.

This has mushroomed into a major problem for Democrats, many of whom are up for re-election next year in swing districts.  President Obama on Thursday attempted to stem the damage by (1) apologizing for his unfounded assurances and (2) unilaterally changing the rules to allow insurers to continue offering their existing plans for another year.

Sounds good – but this “fix” is fraught with complications.  First, insurers have been restructuring their plans to meet the Obamacare mandates since 2010.  As a practical matter, insurers may not be able to stop on a dime and reinstate the cancelled policies.  Second, Obama’s directive did not guarantee continued coverage; it simply gave states the option of whether or not to allow insurers to offer nonconforming coverage.  It remains to be seen whether state insurance commissioners – especially those who are loyal to the president and his signature legislative achievement –  will go along.

In California, Insurance Commissioner Dave Jones said he would follow Obama’s directive.  The final decision, however, rests with a newly formed board of the state’s new insurance exchange, which is scheduled to discuss the issue next week.

Meanwhile, on Friday the U.S. House of Representatives – including 39 Democrats –  approved a measure, H.R. 3350: Keep Your Health Plan Act of 2013, that would allow insurers to continue offering existing non-conforming plans and also enroll new individuals into those plans.  The president has vowed to veto the measure in the unlikely event it passes through the Senate.  Senate Democrats have offered a competing fix that appears to be on the back burner for now.

So how does all this affect you as an employer?  We see two important takeaways.

Takeaway No. 1.  Sit Back and Watch

To a large degree the current maelstrom is not your problem (yet).  Because of the postponement of the employer mandate until January of 2015, employers have the luxury of sitting back and watching events unfold – and you may actually benefit from any cosmetic or structural fixes to the ACA made between now and the implementation date.

The current fray primarily involves plans for individuals and small businesses.  These policy holders, and the individual marketplace in general, have essentially become the guinea pigs for the ACA.  Ideally, the healthcare landscape will become more clear and certain by the time employer mandates under the ACA kick in.

Takeaway No. 2.  Stay Flexible

Plan assiduously for ACA implementation, but keep in mind that the specific requirements may change.

The future of the ACA has never been more uncertain.  The low enrollment numbers coupled with the prospect of too few healthy individuals opting for coverage have shaken the very foundations of the law.  Though Obama Administration officials assert that the ACA has built-in safeguards to prevent a “death spiral,” the prospect of the law sinking under its own weight – or outright repeal – have never seemed so possible.

Obamacare’s rocky rollout also raises questions about the premiums insurers will be able to offer, making planning more difficult for all stakeholders.  Moreover, President Obama has demonstrated a willingness unilaterally to rewrite key provisions of the ACA to suit his immediate political needs.

All this creates uncertainty for employers, which is never good for business.  We recommend that you move forward aggressively with a prudent business plan to satisfy the ACA employer mandate.  You don’t want to risk penalties for being unprepared at the implementation date.  Just don’t carve your plan in stone under current political climate.

Machinations in Washington may necessitate major or minor adjustments to your approach.  It will be important to communicate with counsel in the coming months to better understand your options.

Barger & Wolen attorneys are available to discuss the employer mandate and any other personnel-related concerns you may have.

“Familial Status” (Whatever That Means) May Become FEHA’s Newest Protected Category Under SB 404

Posted in Fair Employment and Housing Act, Opinion

California employers are well aware that legislators and regulators, both on the state and federal level, have been burning the candle at both ends to generate laws, regulations, and administrative actions designed to hedge in and restrict their ability to chose and terminate their employees.

Correspondingly, it comes as no surprise to learn that the list of protective classes under California’s Fair Employment and Housing Act (“FEHA”) – which prohibits employment discrimination – is about to expand once again.

The FEHA already prohibits discrimination on the basis of race, religious creed, disability, gender, and age, among other things.  Now, “familial status” may join that list, under the currently pending SB 404 (D-Jackson).

What does “familial status” mean?  SB 404 provides the following definition:

In connection with unlawful employment practices, “familial status” means an individual who provides medical or supervisory care to a family member. For purposes of this subdivision, “family member” means any of the following:

(1) A child, as defined in Section 3302 of the Unemployment Insurance Code.

(2) A parent, as defined in Section 3302 of the Unemployment Insurance Code.

(3) A spouse, which means the partner of a lawful marriage.

(4) A domestic partner, as defined in Section 297 of the Family Code.

(5) A parent-in-law, which means the parent of a spouse or domestic partner.

Under section 3302 of the Unemployment Insurance Code “Child” means “a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis.”

A parent means “a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.”

A domestic partner means “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring,” and who complies with various other requirements for domestic partnership listed under Family Code 297.

So much for definitions.  The most important words in this provision remain entirely undefined.  What does it mean to “provide medical … care”?  Am I providing medical care if I give my child Advil once every few months?  And what is “supervisory care”?  How often does such “care” have to be provided for me to qualify?  Does going to parent-teacher conferences for a teenaged child count as exercising “supervisory care”?  If an employer terminates an employee for leaving an important deadline unmet to attend such a conference, has he or shee violated the FEHA?  Who knows?

Opponents to the bill have noted that this very ambiguity threatens to swallow virtually all employees within the category of “familial status.”  As they argue, the term “familial status” can  potentially apply to “anyone who is perceived to provide familial care or associated with someone who provides familial care.  Such broad application of a protected classification will essentially encompass almost all employees in the workforce” and as a result, “any adverse employment action the employer takes against an employee could potentially be challenged as discriminatory on the basis of ‘familial status.’”

They have a point.  Unless something is done to clear up the ambiguous language in this bill, employment litigation in California, already at a very high level, will only increase.

Watch this site for further developments in the bill.  And meanwhile, employers should brace themselves for the possible repercussions if, as is likely, this bill becomes a law.

Please contact the author if you have any further questions regarding SB 404 or the FEHA.

Senate Passes LGBT Workplace Anti-Discrimination Bill

Posted in Gender Bias

The U.S. Senate passed a bill last week that would provide workplace protections to gays, lesbians and transgender individuals.

The so-called “Employment Nondiscrimination Act” passed the Democratic-led chamber on a 64 to 32 vote.  Arizona Sen. John McCain and Utah’s Orrin Hatch were among the ten Republicans who supported the measure.

The bill would make it unlawful for employers to discriminate based on a person’s “actual or perceived” sexual orientation or gender identity.  Federal law already bans discrimination based on a person’s race, gender or religion.  The Employment Nondiscrimination Act would add an individual’s sexual orientation to those protected categories.

It is unlikely, however, that the bill will become law because it faces steep opposition in the Republican-led House of Representatives.  We will follow the votes and keep you apprised of any developments.

Pro-Union Attorney to Head NLRB

Posted in News, NLRB

The U.S. Senate has confirmed union lawyer Richard Griffin to serve as general counsel for the National Labor Relations Board (“NLRB”).

The board’s general counsel is instrumental in determining when and how actively to pursue claims against employers.  Mr. Griffin’s appointment, which passed on a near-party line vote, assures that the NLRB will continue its recent aggressive enforcement and expansion of labor rules.

Readers of these pages will recall that Mr. Griffin was one of President Obama’s three controversial recess appointments to the NLRB in early 2012.  He and two other recess appointees were replaced on the board this summer by members confirmed by the Senate.

The confirmations solidified the status of the board going forward, but serious questions remain about actions taken when the recess appointees constituted the quorum needed to vote.

In January, the D.C. Circuit held that President Obama violated the Constitution by unilaterally appointing the members because the Senate was not technically in recess.  The decision has cast doubt upon the validity of hundreds of mostly pro-union rulings issued by the improperly constituted NLRB.

The Supreme Court has agreed to hear an appeal on that decision, called Noel Canning v. NLRB, this term.  We will watch the proceedings carefully.

Arbitration Clause In Collective Bargaining Agreement Doesn’t Cover Statutory Claims, Court of Appeal Rules

Posted in California Court of Appeal, Case Updates, Collective Bargaining Agreements

In Mendez v. Mid-Wilshire Health Care Center, the California Court of Appeal for the Second Appellate District held that the arbitration provision in a collective bargaining agreement governing a plaintiff’s employment did not apply to statutory discrimination claims.

Plaintiff, Mendez, was a nurse’s assistant who filed a lawsuit against her employer, Mid-Wilshire, alleging several causes of action, including three statutory causes of action based on the California Fair Employment and Housing Act (FEHA).  Mid-Wilshire filed a motion to compel arbitration and stay the action, arguing that all of Mendez’s claims were subject to the grievance and arbitration procedure set forth in the collective bargaining agreement between Mid-Wilshire and the union to which she was a member.

The Court of Appeal held that, although Mendez was bound by the collective bargaining agreement (and thus, her non-statutory claims were subject to arbitration),

the presumption that disputes arising out of collective bargaining agreements are arbitrable does not apply to statutory violations and … a requirement to arbitrate statutory claims in a collective bargaining agreement must be ‘particularly clear.’”

For this reason, the Court explained, “[b]road, general language is not sufficient to meet the level of clarity required to effect a waiver” in a collective bargaining agreement.  In short, a collective bargaining agreement must contain a “clear and unmistakable provision” under which the employees agree to submit to arbitrate all state and federal causes of action arising out of their employment.

The collective bargaining agreement in the instant case, the Court noted, did not contain a clear and unmistakable agreement to arbitrate statutory discrimination claims.  Rather, it contained very general language regarding grievances, not mentioning FEHA or any other statutory anti-discrimination laws, nor did it contain an explicit waiver of the right to seek judicial redress for statutory discrimination causes of action.  Rather, it provided that arbitration “shall be applied and relied upon by both par tie as the sole and exclusive means of adjustment of and settling grievances.”  As the Court held, this was simply not nearly specific or clear enough:

At a minimum, the agreement but specify the statutes for which claims of violation will be subject to arbitration.”

Please contact the author if you have any further questions regarding arbitration agreements in employment contracts or collective bargaining agreements.

Courts May Certify Class Claims Where Damages Differ

Posted in California Court of Appeal, Case Updates, Class Actions, Meal & Rest Break, Wage & Hour

In Benton v. Telecom Network Specialists, Inc., the California Court of Appeal for the Second Appellate District affirmed that employee wage and hour and meal break cases may be suitable for class certification even where employees experience diverse damages.

The case supports the proposition that courts considering whether common issues predominate for class certification purposes must focus on plaintiffs’ theory of liability and not on whether class members will have to prove their damages individually.

Telecom Network Specialists, Inc. (“TNS”) finds technical workers for large telecommunications companies to install, maintain and repair equipment at cell towers.  In June of 2006, a worker filed a class action complaint against TNS alleging numerous violations of California labor laws, including failure to pay overtime and failure to provide adequate meal and rest breaks.

The trial court denied plaintiffs’ motion for class certification on the grounds that the workers’ claims were too varied for class treatment because (1) the technicians operated under different working conditions, some of which allowed for breaks while others did not, and (2) the staffing companies that provided workers to TNS each had their own differing policies regarding rest and meal breaks.  The trial court analysis assumed that TNS was the proper employer.

Plaintiffs appealed and the court reversed.  In so holding, the court relied on three recent cases holding that the class certification analysis must focus on the commonality of the allegations against the employer as opposed to the difficulty in determining individual damages:

  • In Brinker v. Superior Court, 53 Cal. 4th 1004 (2012), the California Supreme Court held that claims alleging an employer had violated rest break laws were amenable to class certification even though certain employees may have waived the break requirement.  For the purposes of certification, it was sufficient that plaintiffs had alleged a uniform, improper policy.
  • In Bradley v. Superior Court, 211 Cal. App. 4th 1129 (2012), another case involving telecommunications technicians, the court allowed for the certification of claims alleging the employer had a policy preventing adequate rest and meal breaks, though some plaintiffs had not actually missed meal breaks.
  •  In Faulkinbury v. Superior Court, 216 Cal. App. 4th 220 (2013), a case involving meal breaks, the court stated:  “Whether or not the employee was able to take the required break goes to damages, and the fact that individual employees may have different damages does not require denial of the class certification motion.”

Pursuant to these principles, the Benton court held that just because TNS employees worked under a variety of conditions was not sufficient to deny class certification.

Rather than focusing on whether plaintiffs’ theory of liability . . . was susceptible to common proof, the court improperly focused on whether individualized inquiry would be required to determine which technicians had missed their meal and rest periods.”

The court reached the same conclusion with respect to plaintiffs’ overtime claims.  Accordingly, the court reversed the trial court’s order and remanded with instructions to reconsider the class certification motion in light of the ruling.

Please contact the author if you have any questions about this case.

EEOC Ordered To Pay Attorney’s Fees and Costs After Bogus Discrimination Case

Posted in 6th Circuit Court of Appeals, Case Updates, EEOC

The Sixth Circuit has ordered the Equal Employment Opportunity Commission (“EEOC”) to pay more than $750,000 in attorney’s fees and costs for pursuing a frivolous employment discrimination case.

The case, EEOC v. Peoplemark, is the latest in a cluster of judicial reproaches to the EEOC’s policy of aggressively targeting employers for conducting criminal background checks and allegedly declining to hire felons, practices the Commission believes disproportionately impact minorities.

In 2005, Peoplemark, a temporary employment agency, refused to refer for employment an African American woman with a felony conviction.  The woman filed a discrimination charge with the EEOC alleging that her application was denied because of her race and the conviction.

While investigating the charges, the EEOC interviewed a Peoplemark official who (erroneously) stated that the company had a blanket policy of rejecting felony applicants.  This prompted the EEOC to file a federal action against the employer alleging that the company’s “no felon” policy violated civil rights laws because it had a disparate impact on minorities.

During discovery, however, Peoplemark produced documents proving that it never had a policy depriving placement services to felons.  The parties eventually agreed voluntarily to dismiss the case.

Prevailing parties can recover their attorney’s fees and costs in many Title VII discrimination actions.  In Peoplemark, a magistrate judge determined that Peoplemark was the prevailing party and awarded the company a total of $750,942.48, which included $526,172.00 in expert witness fees the company paid to refute the EEOC’s claims.

The award covered fees incurred during the six month period between the date the EEOC should have known its case was groundless and the date of dismissal, as well as the entirety of Peoplemark’s expert fees.  The district court adopted the magistrate judge’s recommendation.

On appeal, the EEOC, among other things, argued that

  1. Peoplemark’s expert costs were excessive and
  2. the EEOC should only have to pay expert fees incurred within the same six-month window as the attorney’s fees deemed to be recoverable.

The Fifth Circuit rejected both arguments and affirmed the district court’s award of fees and costs.

In so holding, the court noted that upon learning Peoplemark had no blanket policy against referring felons,

the Commission should have reassessed its claim.  From that point forward, it was unreasonable to continue to litigate the Commission’s pleaded claim because the claim was based on a companywide policy that did not exist.”

It has become increasingly tricky for employers to determine when and whether it is appropriate to conduct criminal background checks or deny employment based on a felony conviction.  Barger & Wolen attorneys are available to assess your company’s policies.

“Locker Room” Talk In All-Male Workplace Sexual Harassment, Fifth Circuit Rules

Posted in 5th Circuit Court of Appeals, Case Updates, EEOC, sexual harassment

In this space, we have reported recently on the series of rebuffs that the EEOC has received from various courts in recent months.  But in EEOC v. Boh Brothers Construction Company, the Fifth Circuit Court of Appeals handed the EEOC a victory that serves to expand the meaning of what constitutes sexual harassment under Title VII of the Civil Rights Act of 1964. In the September 27, 2013, en banc ruling, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII.

The employee, Woods, was an iron worker and structural welder.  In a worker site that “was an undeniably vulgar place,” as the Fifth Circuit described it, Woods’ supervisor, Wolfe, and the other members of the crew, regularly used ‘very foul language’ and ‘locker room talk.’”  After Woods revealed that he used “Wet Ones” instead of toilet paper at the work site, he was consistently targeted by Wolfe for being “kind of gay” and “feminine,” and was called a “princess,” a “pu–y,” and a “fa–ot,” two to three times per week.

In addition, Wolfe approached Woods from behind and simulated anal intercourse with him, exposed his penis to Woods while urinating, suggested that Woods perform fellatio on him, and made crude remarks about Woods’ daughter — all of which caused Woods to feel “embarrassed and humiliated.”  The evidence suggested, however, that while Wolfe thought that Woods was “not manly enough,” he did not in fact believe Woods to be a homosexual.  The evidence also suggested that Wolfe used similar language in speaking with other workers, and that vulgarity was commonplace there.

The EEOC initiated a suit against Boh Brothers, and a jury found that the employer was liable for damages arising from the sexual harassment of Woods by Wolfe. Boh Brothers appealed.

The Fifth Circuit held that a sexual harassment claim could be established by showing “evidence of sex-stereotyping” and thus “the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”  In this, the Court held, the focus is on the alleged harasser’s subjective perception of the victim.

In other words, the Court did not “require a plaintiff to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective proof; here, for example, that Woods was not, in fact, ‘manly.’” Here, Wolfe’s subjective believe that Woods was not manly enough was sufficient to establish that he harassed woods “because of . . . sex,” as required under Title VII.

In so ruling, the Fifth Circuit explained that Title VII is not “a general civility code of the American workplace.”  However, Judge E. Grady Jolly, in his dissent, accused the majority of doing just that: “The vulgarities can cast turmoil on a strong stomach, but that does not mean that the laws of the United States have been violated, and it does not require Title VII and the EEOC to serve as federal enforcer of clean talk in a single sex workforce.”

Indeed, the majority’s ruling provoked an angry response from the six dissenting circuit judges, all of whom effectively accused the Fifth Circuit of seeking to establish civility codes in the American workplace.  The scathing dissent by Circuit Edith H. Jones likewise noted:

Vulgar speech is ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment. In the workplace, however, vulgar or offensive speech may now inspire litigation that costs employers hundreds of thousands of dollars to defend; may forever stigmatize the ‘harasser’ whose principal crime was bad taste; may be outlawed by workplace sensitivity training; and may subject workplaces to intrusive, court-ordered injunctive monitoring. In essence, this judgment portends a government-compelled workplace speech code.”

Judge Jones goes as far as attaching a fanciful memo of her own devising, from the legal department of the fictional “Apex Co.” to “Management” entitled “Etiquette For Ironworkers” (e.g., “10. Avoid touching any coworker in any manner, except if asked to rescue the person from physical danger, and even then, avoid touching private areas.”)

Judge Smith, in his dissent, concluded that it “is apparently the radical agency of the EEOC” to “dumb down American discourse, at least in the workplace, to avoid any chance that someone might be annoyed.”

As the above case demonstrates, the definition of sexual harassment in the work environment is only expanding with time.  Employers must carefully review their sexual harassment policies to be sure to avoid the pitfalls of this law. Please contact the author if you have any questions regarding the above ruling, Title VII or sexual harassment in the workplace.

Upcoming SCOTUS case could have wide implications for ERISA plans

Posted in Case Updates, United States Supreme Court

Barger & Wolen partner Royal Oakes was interviewed by PLAN SPONSOR magazine on October 8, 2013, in regards to Heimeshoff v. Hartford Life & Accidental Insurance Co. High Court to Rule on Litigation Limitations Period.

The U.S. Supreme Court agreed to hear the case that could have far-reaching implications for litigation against Employee Retirement Income Security Act (ERISA)-covered plans.

In the case, Heimeshoff, a Walmart employee who submitted a claim for long-term disability benefits under her employer, argues that ERISA plans should not be allowed to impose a limitations period that begins before the claimant exhausts administrative remedies and is able to file suit, because doing so could allow the limitations period to waste away while the claimant is going through the plan’s administrative review process.

Oakes told PLAN SPONSOR that the Supreme court will examine the extent to which any ERISA plan, including retirement plans, may specify a deadline to sue, and if it is subject to being protected by legal remedies or subject to being rewritten by courts. If the Supreme Court rules for Heimeshoff and upholds the idea of essentially rewriting plan terms simply because a claimant thinks they are unfair, it could open the door for much additional litigation against plans, he said.

Oakes argued the provisions of the plan in the case were unambiguous and agreed to by all parties. “If a claimant feels something is unfair because of administrative remedies and the duty to file suit, she has a right to use other legal doctrine,” he noted.

As an example, Oakes pointed to a doctrine called “equitable tolling,” which permits a policyholder to go to court and say the plan sponsor or insurance company is trying to enforce a statute of limitations in an unfair manner by being vague or compelling noncompliance. “There are other ways to protect claimants; it is not necessary to rewrite plan terms,” Oakes said, adding that use of other legal doctrines is a far less onerous remedy.

Oakes said the case is not about the ERISA statute of limitations. “If a law says you have this time to file, that is a statute of limitations; but if an insurance company has a deadline for filing litigation written in the plan terms, that is a contractual obligation,” he said.

“It’s a matter of common sense and fundamental fairness. When parties agree on plan terms and they are unambiguous, both sides are entitled to rely on those plain, straightforward terms being upheld,” Oakes contended. The law has safeguards against rewriting contracts, and claimants have other recourses when someone is under duress or the plan is wildly ambiguous, he concluded.

The Court is scheduled to hear the case on October 15, 2013. Barger & Wolen will continue to follow and update our readers as to the latest news.

More about the case and a link to DRI’s amicus brief is at http://www.dri.org/Article/96.

Originally posted to Barger & Wolen’s Life, Health & Disability Insurance Law blog.