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  1. #1
    Join Date
    Apr 2017
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    9

    Default Loss of Health Insurance Due to Part-Time Schedule

    My question involves labor and employment law for the state of: California

    Hello. I work for a large retailer as a pharmacist. I have been with them for a little over a year. They told me that I need to work 1,560 hours (or 30 hours a week) during the measurement period to be eligible for benefits but I ended up short 27 hours and ended up with 1,533 hours. They sent me a letter notifying me that I am no longer eligible for health benefits alongside other benefits that they offer to pharmacists considered to be full time such as vacation, etc. I estimate the amount of benefits lost to be about $40,000.

    I work different amount of hours every week and have been constantly asking them if I am in compliance with the 30 hours per week requirement. The answer was "Yes, you are in compliance" in some instances and in other instances, they referred me back to my district manager whom I contacted and was unable to tell me if I complied with the 30 hour requirement. I have that documented in writing.

    On the flip side, my paychecks showed the total hours worked on a bi-weekly basis but there were hours that were not counted (i.e. meals premiums erroneously paid) and in addition, the checks being on bi-weekly basis, did not show the hours worked on daily basis. Therefore, there were days in the very first biweekly payment and the last biweekly payment that did fall within the measurement period.

    Based on the fact that I consistently requested information about average hours worked and based on the fact that I received misstated information stating that I have complied with the 30 hours rule or in other instances was referred to others who didn't have the answer, what legal recourse do I have against this employer for cutting my benefits off?

    Also, I have taken vacation during that measurement period but did not claim the hours because I wanted to save my vacation. Can I compel the employer to retro pay me for unclaimed vacation during the measurement period and compel them to recalculate my average hours worked?

  2. #2
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Just FYI, I post here too...

  3. #3
    Join Date
    Oct 2014
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    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Quote Quoting MSerforfun
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    Based on the fact that I consistently requested information about average hours worked and based on the fact that I received misstated information stating that I have complied with the 30 hours rule or in other instances was referred to others who didn't have the answer, what legal recourse do I have against this employer for cutting my benefits off?
    Just going with the information you gave here I think it is very unlikely that any such claim would succeed if you brought it to court. The fact that you frequently asked the employer whether you worked the 30 hours tells me that you were not keeping track yourself of the time you worked. I advise every employee to keep track of the time they work because their pay and benefits depend greatly on that and they should not count on the employer getting it right as employers, just like anyone else, can make mistakes and you want to rectify those mistakes as soon as they occur. Had you kept track of your own time you would have known how close you were to meeting the requirements and could have taken steps to ensure you worked sufficient hours to get the benefits. (You would have also avoided having to constantly ask HR or your manager for this information; my guess is that after awhile they started getting annoyed at the frequent requests. Having your employer annoyed at you doesn’t help you.) Because you didn’t keep track of your own time, you don't really know if the employer misstated anything to you. Besides, you acknowledge that for some periods the employer came back with a response of basically “we don’t know” which means that it is quite possible you didn’t meet the requirement during that period.

    The federal Affordable Care Act (ACA, otherwise known as “Obamacare”) requires that most large employers offer health insurance to their full-time employees. If they fail to do that, they are subject to a shared responsibility tax (essentially a penalty). Internal Revenue Code (IRC) section 4980H. A full-time employee is one who works an average of 30 hours a week in a month, i.e. 130 hours a month. The applicable Treasury Regulations have rather detailed rules on how this is determined. You can find a plain language discussion that gives the basics of those rules on the IRS web site here: full-time employees under the ACA. An hour of service is defined under the regulations to include:
    • Each hour for which an employee is paid, or entitled to payment, for the performance of duties for the employer, and
    • Each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence.


    Unpaid vacation/leave time does not count as an hour worked. An employer subject to this requirement must make an offer of coverage to those employees who qualify for it. But nothing in the law requires the employer to provide ongoing notifications to the employee during the year regarding whether the employee is meeting the 130 hours a month requirement. This is one reason why it is important for employees who work variable hours like you do keep close track themselves of the hours they work (or that they are paid for even if not working, like vacation pay). It is ultimately on the employee to protect himself/herself by ensuring he or she works enough hours to qualify for the health benefits if the employee wants them. Unless you can prove you met the requirement for coverage I don’t see a good claim here to force the company to give you benefits. But you may want to bring all the documentation you have to an employment law or tax attorney familiar with the ACA and specifically IRC § 4980H for advice. Perhaps some other fact you haven’t yet mentioned might make a difference.



    Quote Quoting MSerforfun
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    Also, I have taken vacation during that measurement period but did not claim the hours because I wanted to save my vacation. Can I compel the employer to retro pay me for unclaimed vacation during the measurement period and compel them to recalculate my average hours worked?
    Not unless the employer’s plan allows you to make that kind of choice retroactively at this point. I know of no employer that has such an option. Neither federal nor California law requires that an employer offer paid vacation in the first place and if it is offered, the employer is free to to set up the plan pretty much any way it likes (except that once earned California law treats vacation pay like wages and thus the vacation pay cannot be forfeited under a use it or lose it kind of policy). You had the option to ask for and get from your employer paid vacation when you scheduled the vacation. So if you wanted those hours to count, it was up to you to tell the employer you wanted to take paid vacation. It is not the employer’s fault you elected not to take the paid vacation. Again, had you kept track yourself of your hours you might have known that it might be a good idea to take the paid vacation to have the hours count.

    I’m sorry that you lost your benefits and that I can’t give you a more positive answer. I’m sure it’s not what you wanted to hear. Given how large the benefits are, it may be worth it to you to consult an attorney as I previously suggested. But be prepared that the attorney may tell you that there isn’t any way to force the employer to give you the benefits unless you can somehow prove you met the necessary number of hours worked.

  4. #4
    Join Date
    Feb 2008
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    1,173

    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    I have to agree with Taxing Matters. Unfortunately, you are stuck in a bad situation. I am sorry that you are there. Those variable workers that average right around 30 hours a week should track their own time and understand what it means (things like what counts for hours under this calculation).

    How long ago was your unpaid vacation and where did that fall in the calculation period? You might have more luck if it was later in the year or lately, but if it crossed tax years, I doubt they will want to retropay and deal with payroll issues that might incur. And there is no law that says they must pay it and use it for a prior calculation period once that period is closed.

  5. #5
    Join Date
    Apr 2017
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    9

    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Quote Quoting hr for me
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    I have to agree with Taxing Matters. Unfortunately, you are stuck in a bad situation. I am sorry that you are there. Those variable workers that average right around 30 hours a week should track their own time and understand what it means (things like what counts for hours under this calculation).

    How long ago was your unpaid vacation and where did that fall in the calculation period? You might have more luck if it was later in the year or lately, but if it crossed tax years, I doubt they will want to retropay and deal with payroll issues that might incur. And there is no law that says they must pay it and use it for a prior calculation period once that period is closed.
    The vacation was actually about a month and half ago which falls in the last month of the measurement period. It did not fall in different tax years.

  6. #6
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    Feb 2008
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    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    I'd be careful about your wording to them being very kind/gentle rather than using words like "compel" and guns blazing and threatening legal action, but you can always ask. What date were benefits actually stopped? In the end you might have a very small chance, but legally they aren't required to give you one.

  7. #7
    Join Date
    Apr 2017
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    9

    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Quote Quoting hr for me
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    I'd be careful about your wording to them being very kind/gentle rather than using words like "compel" and guns blazing and threatening legal action, but you can always ask. What date were benefits actually stopped? In the end you might have a very small chance, but legally they aren't required to give you one.
    I will be disqualified from benefits next month.

  8. #8
    Join Date
    Feb 2008
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    1,173

    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    then you might have a chance but I would go about it very carefully and prudently because they can say no easily and have plenty to back their case. It would be worse if you were already dropped say as of 3/31. I would try to schedule an inperson meeting as soon as possible.

  9. #9
    Join Date
    Apr 2017
    Posts
    9

    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Thank you all for the insight. I do want to hire an attorney and I think my best option is to find someone who is willing to take my case and at the same time is comfortable with the ACA rules. How do i go about in finding one in the bay area, California?

    I have much more details to share but probably too long to describe here in this forum. For example, I feel that there is an error in the manner this employer is calculating the average hours for ACA purposes. I believe this error is applicable to tens of thousands of employees who works for this employer. I just need a good attorney and i was wondering as to how I can find one who is willing to take my case.


    Many thanks

  10. #10
    Join Date
    Jun 2006
    Location
    Massachusetts
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    Default Re: Loss of Health Insurance Due to Part-Time Schedule

    Pick up the phone and start dialing.

    That's not sarcasm - that's a real answer. You can call your local Legal Aide, your state Bar Association, or any law schools in your area, for referrals, but the only way you're going to find one of them and convince them you've got a winning case is to start making phone calls. Yes, I said phone calls. Not emails, not texts, not messages on social media - phone calls.

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