---

---

[Guidance Overview]
Domestic Partner's Right to Continued Health Coverage Under COBRA, Cal-COBRA and Analogous State Laws
Excerpt: "[Recent] guidance from the San Francisco Regional Office of the U.S. Department of Labor (the 'DOL') indicates that an employee's domestic partner may be eligible for continued health coverage under COBRA in certain circumstances and that, as a result, the [Defense of Marriage Act] would not preclude such coverage. . . . [Also, t]here are continuation coverage statutes in some (but certainly not all) states that, like Cal-COBRA, consider domestic partners to be qualified beneficiaries for purposes of state-mandated continuation coverage. Accordingly, it is important to identify any applicable state statute in order to determine what right, either individually or derivatively through the former employee, an employee's domestic partner may have to continued health coverage." (Cooley Godward Kronish LLP)


[Guidance Overview]
Court Dismisses Suit Filed by Fired Smoker
Excerpt: "The U.S. District Court for the District of Massachusetts has dismissed a lawsuit against Scotts Co. brought by an employee fired within two weeks of his hiring for testing positive for nicotine. In his suit, Scott Rodrigues claimed Scotts violated the Employee Retirement Income Security Act (ERISA) Section 510 by interfering with attainment of benefits to which he was entitled . . . . However, the court pointed out that since coverage under Scotts benefits plan starts after 60 days of continuous full-time employment, and Rodrigues was fired after only two weeks, he was not a participant in the plan and cannot make an ERISA claim." (PLANSPONSOR.com; free registration required)


[Guidance Overview]
Health and Cafeteria Plan Issues Requiring Attention in 2009
Excerpt: "[A] broad range of welfare plan legal issues will require attention in the coming months. [The target document] is a thumbnail sketch of several key near-term issues for employers, including special enrollment, Medicare reporting, privacy and security under the Health Insurance Portability and Accountability Act (HIPAA), mental health benefits, genetic information, cafeteria plans and college student dependents." (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)


[Guidance Overview]
Government Employer Not Estopped to Deny FMLA Coverage
See item #8 in the newsletter. Excerpt: "The United States Court of Appeals for the First Circuit recently decided a case that presented the question of whether equitable estoppel may be applied against a government employer based upon the employer's oral assurances to the employee of coverage under the Family Medical Leave Act." (Cypen & Cypen)


[Guidance Overview]
FMLA and Equitable Estoppel (PDF)
4 pages. Excerpt: "Since its passage in 1993, employers have diligently attempted to incorporate the Family and Medical Leave Act's regulatory scheme into the workplace compliance regimen, only to be tripped up on some final and technical requirement that lands them in the courthouse." (Law360 via Haynes and Boone LLP)


Heath Savings Account Balances Increase for Individuals and Families, According to Report
Excerpt: "Balances in health savings accounts increased slightly in the first quarter from fourth-quarter 2008 levels, according to data from Canopy Financial Inc. The average balance in an individual health savings account rose 3 percent to $960 during the first quarter, while the average balance in a family HSA grew by 7 percent to $1,720, according to San Francisco-based Canopy Financial, a provider of health care banking technology solutions." (Workforce Management; free registration required)


Employers Prepare to Address Health Care Reform
Excerpt: "Employers are major stakeholders in the efforts to reform health care. They've been watching the legislative process anxiously and have weighed in on various proposals. To provide you with additional insights on the impact that reform could have on employers, I conducted a quick Q/A with Kathryn Bakich, JD, Senior Vice President, National Director of Health Care Compliance at The Segal Company." (Wolters Kluwer)


New Scholarship Addresses Retiree Medical Benefits Issues
Excerpt: "A new article published by Richard L. Kaplan, Nicholas J. Powers and Jordan Zucker in the Yale Journal of Health Policy, Law, and Ethics addresses the issues arising in the reduction and termination of retiree health benefits. Professor Kaplan is the Peer and Sarah Pedersen Professor of Law, University of Illinois. [The article] is available for download at SSRN: http://ssrn.com/abstract=1445583[.]" (Roy Harmon III via Health Plan Law)


Should Employers Be Allowed to Deny Jobs to the Morbidly Obese?
Excerpt: "The Cleveland Clinic doesn't hire smokers -- part of its effort to 'walk the talk' about healthy lifestyles, Cleveland Clinic CEO Toby Cosgrove said in a recent chat with the Health Blog. But, according to Cosgrove, it would be illegal to apply a similar standard to people who are obese, because they're protected by the Americans with Disabilities Act. 'I can't decide that I'm not going to hire somebody because they're 400 pounds,' he said. 'We don't hire smokers, and that's perfectly legal.' Cosgrove questioned that rule, suggesting it could hinder efforts to lower the nation's obesity rate. 'We are protecting people who are overweight rather than giving people a social stigma,' he said." (The Wall Street Journal)


[Opinion]
Paid Sick Days Would Go Long Way Towards Addressing Flu Pandemic
Excerpt: "Boston [Massachusetts] health officials have been asking businesses to let employees take paid sick days so they can stay home with children. It is regrettable that Congress has yet to pass legislation requiring large employers to offer paid days off for workers who are sick or have to care for family members. Without such legislation, a sense of shared commitment will have to suffice. Even small employers whose operations are severely strained by an absence should strive to accommodate parents of flu-stricken children. If parents fear the consequences of missing work, they'll be more likely to ignore their children's symptoms and end up having them infect entire classrooms." (The Boston Globe)


[Opinion]
Health Care Reform and the States' Benefits Budgets
Excerpt: "As I've written before, the idea that national health care changes could impact retiree medical benefits plans has been an excuse for inaction by local politicians who have failed to properly fund these OPEB (other post-employment benefits) plans. Once Congress finalizes a bill for the president's signature, it will become obvious to all that state and local governments remain entirely responsible for the medical benefits they have promised, and there will not be an 'OPEB fairy' to relieve them of their $1.5 trillion unfunded liability. . . . The point of this column is that national health care will most likely bring incrementally higher costs for employee medical benefits in the years to come -- not savings. For OPEB plans that are highly sensitive to prolonged medical-cost inflation that outruns investment income, it's even worse." (Governing.com)

---

---

Links to Items on Executive Comp, Benefits in General

A Summary of Judge Sotomayor's ERISA Decisions: Part II (PDF)
3 pages. Excerpt: "This handful of cases is representative of Justice Sotomayor's decisions in ERISA cases during her time as a District Court judge. In short, Judge Sotomayor's District Court ERISA decisions are well-reasoned, thoughtful and meticulous. They are not the product of a 'judicial activist.' Although we often see cases in which courts simply don't seem to 'get it' when it comes to ERISA, the same cannot be said for Judge Sotomayor based on a review of those opinions." (Reish & Reicher)


More Employers Plan to Reverse Pay and Benefit Cuts
Excerpt: "The number of employers planning to reverse salary cuts and freezes and reinstate a matching contribution to 401(k) plans has increased in the past two months, according to the latest update to an ongoing series of surveys by Watson Wyatt. The survey found that 24% of employers plan to reverse reductions to 401(k) match contributions in the next six months, versus 5% in June, according to a press release. Additionally, 33% of employers that froze salaries plan to unfreeze them within the next six months, up from 17% two months ago. Forty-four percent plan to roll back salary cuts in the next six months, compared with 30% who said so two months ago." (PLANSPONSOR.com; free registration required)


[Opinion]
U.S. Social Insurance Needs Rethinking
Excerpt: "The U.S. is headed for a fiscal meltdown. Even before Congress began calling for a hugely expensive overhaul of health care, the federal government was a staggering $56 trillion in the hole, in terms of unfunded obligations. That's $184,000 of debt for every American. Even after its tax increases, the House health bill would add an additional $10 trillion in red ink. No wonder foreign investors as well as ordinary Americans are beginning to worry we won't be able to pay our national bills." (Stuart Butler via The Washington Times)

---

Webcasts and Conferences

"ERPA Test Review Archived Web Seminar, Part 2"
Nationwide on August 13, 2009
presented by SunGard Relius

Compensation for Executives and Directors
in New York on October 26, 2009
presented by ABA Joint Committee on Employee Benefits

ftwilliam.com Administration Software 'Sneak Peek'
Nationwide on August 25, 2009
presented by ftwilliam.com

Health and Welfare Benefit Plans: Responding to Change
in District of Columbia on October 19, 2009
presented by ABA Joint Committee on Employee Benefits

Lessons from Madoff: Ideas and Practices for Plan Fiduciaries to Limit Exposure to Financial Fraud
Nationwide on September 29, 2009
presented by ABA Joint Committee on Employee Benefits

( Click to post your webcast or conference )

---

Press Releases

Segal Releases On-Line Survey Findings: Managing Through Fiscal Stress
The Segal Company

U.S. Labor Department Sues Retirement Plan Trustees of Defunct Alabama Wholesaler to Recover Nearly $900,000 in Pension Assets
U.S. Department of Labor, Employee Benefits Security Administration (EBSA)

( Click to post your press release )

---

Employee Benefits Jobs

Trust Administration Supervisor
for Associated Pension Consultants
in CA

Retirement Plan Analyst (Retirement Plan Administration)
for BeneTrends, Inc.
in PA

Defined Contribution Relationship Consultant
for The Douglas Group
in ANY STATE

( Click to post your job opening | View all jobs | RSS feed of all jobs )

---

EmployeeBenefitsJobs.com (Sponsor)

(Click on banner to learn more.)

---

Handy Links:

• View Today's Active Message Threads
• Using the Web for Employee Benefits Research (hypertext article)
• Employee Benefits Library

---

---

Subscribe to the BenefitsLink Retirement Plans Newsletter, Too!

Sign-up form is at https://benefitslink.com/newsletter (free).

---

This email has been published by:
BenefitsLink.com, Inc.
1298 Minnesota Avenue, Suite H
Winter Park FL 32789
(407) 644-4146
Fax: (407) 644-2151

David Rhett Baker, J.D., Editor

Copyright 2009 BenefitsLink.com, Inc.; except that you can forward this email in full (including this boilerplate part) or otherwise reprint this email in full (including this boilerplate part) without obtaining our permission.

Anyone can receive these emails; just have them sign up at this web page: https://benefitslink.com/newsletter/

Other useful links:

• How to Sponsor an Issue
• Privacy Policy
• Archive of Previous Newsletters