Democrats‘ SB 1543 would make it unlawful for an employer to cut employee hours to avoid costs and penalties of Obamacare.

Irony alert
Irony alert

Sen. Michael Dembrow (D-Portland) wants to make 30-hour work week with Obamacare benefits an enforceable civil right in Oregon.

Under current Oregon law, “The opportunity to obtain employment or housing or to use and enjoy places of public accommodation without unlawful discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability hereby is recognized as and declared to be a civil right.” ORS 659A.006(2). If Democrats in Salem have their way, Oregonians will see full-time employment and Obamacare added to the list of civil rights enforceable by civil lawsuits and the heavy boot of the Bureau of Labor and Industries or BOLI.

Senate Bill 1543 (see the bill below), sporting the name, “the Health Care Accountability Act,” sponsored by Multnomah County Democrats Michael Dembrow (SD23), Laurie Monnes Anderson (SD25) and Alissa Keny-Guyer (HD46), adds a new section to ORS chapter 659A, otherwise known by its short title, “the Oregon Equality Act.” ORS chapter 659A is Oregon’s statutory depository of civil rights legislation, including defining what acts are unlawful and specifying penalties for violations. As most Oregonians now know, it is unlawful for a Christian bakery to refuse to bake a wedding cake for a lesbian couple (see “Baking a BOLI Cake.”). ORS chapter 659A covers a wide spectrum of prohibited employment discrimination, from the listed protected classes above, as well as whistleblowing, family leave, employee housing, and more.

SB 1543 would add to the ever-expanding list of civil rights by making it “an unlawful employment practice for an employer to reduce the number of hours a full-time employee works solely for the purpose of preventing the employee from qualifying for coverage under the Patient Protection and Affordable Care Act, as specified in 26 U.S.C. 4980H.” This provision deals with the so-called employer mandate of Obamacare, in which employers who employ more than 50 full-time equivalent employees must provide health insurance to those employees or face a government penalty. As widely reported this week, the Obama administration has once again delayed implementation of the employer mandate until 2016. But that does little to help Oregon employers who will be impacted by SB 1543.

Full-time Employee and Employer Mandate

Under a little known provision of the ACA, under Obamacare an employee is considered “full time” if the employee works an average of just 30 hours per week – not the 40 hours per week normally associated with full-time employment. This provision has been known for some time, evidenced by the fact that many local governments have been joining private employers in cutting back the number of hours of employees as a means to avoid the impending employer mandate. SB 1543 would outlaw that practice in Oregon and make the 30-hour work week with Obamacare benefits a de facto civil right.

Even worse, subsection (2) of section 2 contains this alarming and confusing provision: “If a full-time employee files a complaint alleging a violation of subsection (1) of this section, the employer has the burden to establish that the reduction in hours worked by the full-time employee was made in compliance with subsection (1) of this section.” This section provides what is known as “a burden shift” from one party to the other in order to prevail against the charge.

Under SB 1543, all an employee has to do is file a complaint alleging a violation of the law, and the burden then shifts to the employer to prove it did not violate the law, awkwardly worded as “made in compliance with subsection (1) of this section.” Subsection (1) of SB 1543 is not a section an employer “must comply with” but rather not violate. SB 1543 is worded so poorly, it is like telling an accused killer that he must prove he “complied with” laws prohibiting the unlawful killing of another person.

A Bonanza for BOLI

Subsection (3) of Section 2 expressly grants to an aggrieved employee the right to file a complaint directly with BOLI, while subsection (4)(a) grants to the BOLI Commissioner the authority and mandate to “enforce subsection (1) of this section in the manner provided in this chapter regarding other unlawful employment practices.” Finally, subsection (4)(b) specifies that a violation of the Health Care Accountability Act “subjects the violator to the same civil remedies and penalties as provided in ORS chapter 659A.” Those penalties can ruin a company, as Sweet Cakes by Melissa can attest.

Sen. Laurie Monnes Anderson (D-Gresham) sponsored SB 1543, which would require employers who cut their work force to prove their innocence or face penalties and damages.

Besides facing the wrath of BOLI, an employer may be sued in civil court by an aggrieved employee. Available remedies include compensatory damages (e.g. back pay, etc) as well as punitive damages and mandatory attorney fees for a prevailing plaintiff (but not a prevailing defendant). The only time a prevailing defendant employer may recover its attorney fees in such cases is “only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim.” But given the wording of SB 1543 and the accompanying burden-shift, an employee need not have an objective basis for making a complaint – the employee merely needs to file a complaint and the burden shifts to the employer to objectively prove any reduction in the employee’s hours was not solely to avoid the Obamacare employer mandate penalty.

SB 1543 is similar to, but distinct from regulations announced this week by the Treasury Department and Internal Revenue Service affecting small businesses (50-99 employees) and large businesses (100 or more). The new regulations implement the employer mandate, providing additional time to small and large businesses. Under the new regulations, businesses that employ between 50 and 99 full-time workers have until 2016 to comply with the employer mandate to provide health insurance. Those that claim the exemption for 2015 will need to certify under penalty of perjury that they did not reduce their workforce to fewer than 100 employees in order to qualify. While SB 1543 does not criminalize cutting full time employees as does the IRS through perjury laws, nonetheless the message to employers from Democrats in Salem and D.C. is the same:

“Do not reduce your workforce to avoid the costs or penalties of Obamacare.”

Bruce McCain is an attorney in private practice, a retired Multnomah County Sheriff’s Captain, a member of the Reynolds School Board and a member of the Blogforce. This piece originally was published at his blog Oregon Oracle


Senate Bill 1543 Prevents employers from firing employees because of ObamaCare

9 Responses

    1. I’ll tell you what, “Harold,” I would prefer lawmakers not bring these stupid bills up for consideration in the first place. This is beyond a constituent request, this is a party-led effort to hide–and blame on employers–the corrosive, nay, toxic effect of this bill on employers. The democrats should be ashamed.

    1. Rob, these are people who believe they can suspend the laws of supply and demand and apparently believe they can force employers to keep operating too. What you’ll see is mass layoffs before this law goes into effect.
      My guess is that these Democrats will make this an “emergency” bill which will mean (should it pass) that it would immediately go into effect in 90 days.

  1. Yeah, what a great idea for discouraging businesses from locating or expanding in Oregon. Come to Oregon and get sued presuming you are guilty until proven innocent. Hey, Oregon electorate, can we please end one party, progressive rule in this state? This proposed bill is but one of many examples of Soviet styled governance plaguing Oregon’s economy.

    1. I guess the old joke about turning Oregon into a federally run park is right. They won’t be happy until there are no employers but plenty of government union jobs. They won’t be happy until there’s more green space stealing individual property rights. And on it goes.