Government Affairs Committee Meeting September 10Th & 11Th
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Government Affairs Committee Meeting September 10th & 11th, 2013 Washington, D.C. AGENDA Tuesday Sept. 10 Location: Hall of States Building Room 231, 444 North Capitol St. NW, Washington, DC 11:00 a.m. – 11:30 a.m. Gather / Welcome 11:30 a.m. – 12:30 p.m. Lunch with Political Speaker 12:30 p.m. – 1:45 p.m. Employment / Labor Update (NLRB, Persuader, DOMA) Kara Maciel, Epstein Becker Green Healthcare Update (Employer Delay, Reporting Requirements) Adam Solander, Epstein Becker Green 1:45 p.m. – 2:00 p.m. Break 2:00 p.m. – 2:40 p.m. Patent Trolls Matthew Tanielian, Franklin Square Group 2:40 p.m. – 3:00 p.m. Issue Roundup (Interchange, SNAP, Menu Labeling, Etc.) 3:00 p.m. – 3:45 p.m. GMO Briefing Louis Finkel, EVP Grocery Manufactures Association (GMA) 3:45 p.m. – 4:30 p.m. Committee Policy Discussion on GMOs 5:00 p.m. – 6:30 p.m. NGA Capitol Hill Reception Featuring 2nd Annual Congressional Best Bagger Contest Location: Rayburn House Office Building B-318 45 Independence Ave SW, Washington, DC Wednesday Sept. 11 7:30a.m. – 7:50 a.m. Breakfast Location: NGA’s Offices 1005 North Glebe Road Arlington, VA (near Holiday Inn Hotel Ballston) 7:50 a.m. – 8:45 a.m. Capitol Hill Meetings Preparation / Briefing Primary Hill Meeting Topic: Healthcare 9:45 a.m. – 11:30 a.m. Capitol Hill Lobbying Meetings (NGA is coordinating meetings and teams) (approximately) Government Affairs Committee Roster Mr. Darrell Bourne Mr. Michael Erlandson Ragland Bros. Retail Co. SUPERVALU INC. – Corporate Headquarters Huntsville, AL Eden Prairie, MN [email protected] [email protected] Mr. Chris Brown Mr. Nate Filler Wray’s Food and Drug Ohio Grocers Association Yakima, WA Columbus, OH [email protected] [email protected] Mr. RF Buche Mr. Mike Gallagher GF Buche Company dba Buche Foods Spartan Stores, Inc. Sioux Falls, SD Grand Rapids, MI [email protected] [email protected] Mr. Brian Burnam Mr. Larry Gayer Keith’s Foods, Inc. Country Fresh Inc. dba Country Fresh Market Bloomfield, IA Shell Knob, MO [email protected] [email protected] Mr. Spencer Coates Mr. Ron Graff, JR Houchens Industries, Inc. Columbiana Foods, Inc. Giant Eagle Bowling Green, KY Youngstown, OH [email protected] [email protected] Mr. Jason Cooper, Chair Mr. Tim Henderson Brookshire Grocery Company Henderson’s IGA, Inc. Prairie Village Tyler, TX Valentine, NE [email protected] [email protected] Mr. Doug Cunningham Mr. Kevin Herglotz Affiliated Foods Midwest Unified Grocers Norfolk, NE Livermore, CA [email protected] [email protected] Ms. Linda Doherty Mr. Jimmy Holland New Jersey Food Council Associated Wholesale Grocers Trenton, NJ Kansas City , KS [email protected] [email protected] Mr. Kevin Doris Mr. Gerry Kettler Gerland Corporation Niemann Foods, Inc. Houston, TX Quincy, IL [email protected] [email protected] Mr. Bob King Mr. Paul Rowton Associated Food stores, Inc. GES, Inc. dba Food Giant Salt Lake City, UT Marianna, AR [email protected] [email protected] Mr. Manard Lagasse Mr. Brandon Scholz Associated Grocers, Inc Wisconsin Grocers Association Baton Rouge, LA Madison, WI [email protected] [email protected] Mr. Tom Litzler Mr. Dan Shaul Remke’s Markets, Inc. Missouri Grocers Association Erlanger, KY Springfield, MO [email protected] [email protected] Mr. Nolan Lockwood Mr. Christy Spoa Walla Walla’s Harvest Foods Ellwood City Save-A-Lot Walla Walla, WA Ellwood City, PA [email protected] [email protected] Mr. Barry Loy Mr. Michael Needler, JR Supermarket Operations, Inc. – The Markets Fresh Encounter, Inc. Natchez, MS Findlay, OH [email protected] [email protected] Ms. Lorelei Mottese, Vice-Chair NGA Government Affairs Staff: Wakefern Food Corporation Edison, NJ Greg Ferrara [email protected] Vice President, Public Affairs (703) 516- 8811 Mr. Jim Nilsson [email protected] Geissler’s Supermarkets, Inc. dba Geissler’s Tom Wenning East Windsor, CT Executive Vice President & General Counsel [email protected] (703) 516- 8805 [email protected] Mr. Ron Rehkopf Rehkopf Enterprises, Inc. Kailee Tkacz Texarkana, TX Manager, Government Affairs [email protected] (703) 516- 8832 [email protected] Mr. Jim Ried Olean Wholesale Grocery Cooperative, Inc. Hannah Loy Olean, NY Coordinator, Public Affairs (703) 516- 8815 [email protected] [email protected] Trying To Avoid ACA Mandate? ERISA 510 May Catch You - Law360 Page 1 of 3 Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] Trying To Avoid ACA Mandate? ERISA 510 May Catch You Law360, New York (August 22, 2013, 12:03 PM ET) -- The employer mandate provision of the Affordable Care Act requires that applicable large employers — those with 50 or more full-time equivalent employees — provide health insurance to their full-time employees or pay a tax penalty. Significantly, the ACA defines a full-time employee as anyone who works on average 30 hours or more each week. Especially in industries that employ high numbers of part-time employees, this definitional change has the potential to greatly expand the number of employees eligible for employer-sponsored coverage. In response to this change, employers are analyzing their workforces to determine how best to comply with the ACA mandates, while also reducing the potential financial impact from having to provide coverage or pay a penalty for all such full-time employees. A common response from employers has been to employ certain “workforce management” techniques to reduce some or all employee hours to below 30 hour per week in order to reduce the number of full-time employees for whom they are responsible under the mandate. While this type of workforce management seems a rational response that would be permitted by the ACA, employers may well be stepping out of the frying pan and into the fire, due to certain provisions of the Employee Retirement Income Security Act of 1974, as amended. Potential Liability Under Section 510 of ERISA for ACA Workforce Modifications Plaintiffs attorneys and other commentators are warning that employers who modify their employees’ hours of work to prevent their qualification as a full-time employee may be running afoul of Section 510. In general, ERISA Section 510 was enacted in order to prevent unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights. Specifically, Section 510 provides the following: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. In the context of the employer mandate, plaintiffs are likely to argue that an employer’s workforce management efforts interfered with an employee’s right to health coverage. The most likely ERISA 510 claim would seem to involve an employee who averaged 30 hours a week previously. http://www.law360.com/articles/464969/print?section=employment 8/27/2013 Trying To Avoid ACA Mandate? ERISA 510 May Catch You - Law360 Page 2 of 3 If such an employee’s hours were capped below 30 hours a week, arguments could be made that such a change was made with the intent to deny that individual a right to which he or she would have been entitled. While this scenario seems to be the most likely Section 510 claim, arguments could be made that an employer’s workforce management practices could violate Section 510, regardless of the number of hours the employee worked previously. In general, ERISA 510 claims are evaluated by the courts using a three-step process. The first step is that the plaintiff employee must establish a prima facie case by showing that the employee had the opportunity to attain rights under the plan, was qualified for the position at issue and was subjected to adverse action giving rise to an inference of discrimination. The second step requires employers to defend against these claims by articulating a legitimate, nondiscriminatory reason for the action taken. Should the employer articulate a legitimate reason for the action, the burden falls to the employee to establish that the employer was motivated by the specific intent to avoid providing the benefit. Strategies for Avoiding Section 510 Liability The critical issue in ERISA 510 cases is often whether the employer acted with a specific intent to interfere with an employee’s rights to benefits under a plan. Thus, employers should take steps to avoid providing plaintiffs' attorneys with a “smoking gun,” should they decide to engage in workforce management and lower employee hours. Perhaps most significantly, employers should avoid making public statements on employment or health benefits strategy. In a Section 510 lawsuit, statements made by the employer will almost certainly be used to demonstrate a specific intent by the employer that these modifications were made to avoid providing individuals with benefits. In addition to controlling external communication, employers should be cognizant that their internal communications may also be used against them in a Section 510 lawsuit. As a result, employers should take steps to ensure that internal communications around workforce management are discussed only in the context of a larger business needs and, if possible, protected under attorney-client privilege. Employers should also centralize their communications around benefits issues so that the organization has a single, consistent voice. Creating a centralized communication plan includes training all levels of management on the unified message about workforce management to avoid the release of any conflicting statements to the media.