America's Affordable Health Choices Act of 2009 Could Be Costly for Employers

With a number of union-friendly provisions, America's Affordable Health Choices Act of 2009, which was introduced by House Democrats on July 14, 2009, could prove costly for employers. On July 31, 2009, the Act moved out of Committee in the House of Representatives – the farthest a comprehensive health reform bill has ever gone. The Act, which is now expected on the House floor in September, contains a number of union friendly provisions, including:

• Creation of a Health Benefits Advisory Committee – The Act creates a 27-member Heath Benefits Advisory Committee and mandates that "labor" be included amongst the represented constituencies. This ensures that labor has a voice when recommending covered benefits for essential, enhanced and premium plans.
• Continued Rights to Collective Bargaining – The Act makes clear that it does not supersede or alter obligations "to engage in collective bargaining over the terms and conditions of employment related to heath care." This means that the federal health care program will provide a floor for health care negotiations.
• Disclosure of Managing Employees by Nursing Homes – Under the Act, nursing homes would be required to disclose the identities of certain individuals, including "managing employees" as well as their organizational charts and a description of how each "managing employee" relates to the facility and one another. Such disclosure would provide unions with a road map detailing which employees are subject to unionization. Additionally, the Act defines "managing employees" narrowly, which may provide unions with the opportunity to overturn prior federal court decisions holding that nurses who manage other employees are members of management.
• Reporting of Wages and Benefits of Nursing Home Staff – The Act would require skilled nursing facilities to "report expenditures for wages and benefits for direct care staff" (including registered nurses, licensed practical nurses, certified nursing assistants, and other medical and therapy staff). Such disclosure would not only benefit unions during collective bargaining, but it would also allow unions to target particular facilities for unionization based on wages and benefits.
• Whistleblower Protection for Nursing Home Complaints – The Act further mandates that each state make standardized complaint forms available for whistleblowing purposes to "any person who works at a skilled nursing facility or is a representative of such a worker." This would allow unions to file complaints against nursing homes on their members' behalf. The provision also creates a civil cause of action for retaliation.

Although the Act still has a long way to go before even making it out of the House, it is never too early to start considering the substantial ramifications of enactment on employers. Amongst those ramifications are risks associated with pro-union provisions. Employers should contact legal counsel with questions about the potential effects of the America's Affordable Heath Choices Act of 2009.