Client Alerts

The Patient Protection and Affordable Care Act ("Act") enacted on March 23, 2010 included a provision requiring insured group health plans (other than grandfathered health plans) to satisfy the nondiscrimination requirements of Internal Revenue Code ("Code") Section 105(h)(2). Prior to the Act, Code Section 105(h) only applied to self-insured health plans and required that they not discriminate in favor of highly compensated individuals as to eligibility to participate in the plan or in favor of highly compensated participants as to benefits available under the plan. The Act provided for the first time that insured group health plans comply with Code Section 105(h) under "rules similar to the rules" that applied to self-insured plans. In a Notice issued on December 22, 2010, the IRS has suspended application and enforcement of this rule for insured group health plans until regulatory guidance is issued.

Under the Act, an insured group health plan that failed to comply with the new nondiscrimination rules could have been subject to (1) an excise tax of $100 for each day of noncompliance with respect to each individual to whom such noncompliance relates (with certain exceptions), (2) in the case of a non-Federal governmental group health plan, civil money penalties under the Public Health Services Act of up to $100 per day per individual for each day the plan does not comply with the requirements (with certain exceptions), or (3) a civil action to enjoin a noncompliant act or practice or for other appropriate equitable relief under the Employee Retirement Income Security Act of 1974 ("ERISA").

The Employee Free Choice Act will not be enacted during the next two years. But the pro-union National Labor Relations Board will continue to issue rulings that will help unions organize new members.

The latest example of this NLRB trend is a decision involving Dana Corporation and the UAW. Dana Corporation, 356 NLRB #49 (2010). In a 2 to 1 decision, the NLRB ruled that Dana and the UAW, which represented Dana employees at 9 other facilities, did not violate federal labor law by entering a Letter of Agreement before the UAW represented the employees at a non-unionized Dana facility. The Letter was not even disclosed to the Dana employees whom the UAW wanted to organize.

On December 22, 2010, the National Labor Relations Board published, in the Federal Register, "Proposed Rules Governing Notification of Employee Rights under the National Labor Relations Act." For 60 days following December 22nd, members of the public may submit comments about these proposed rules to the NLRB.

These Proposed Rules confirm that the current NLRB will act aggressively to help labor unions.

On December 16, in a conference call which included U.S. Commerce Secretary Gary Locke, U.S. Patent and Trademark Office (USPTO) Director David Kappos and Michigan Governor Jennifer Granholm it was announced that the USPTO will locate its first Regional Patent Office in Detroit, Michigan. Employing 100 patent examiners at the outset, the regional office is scheduled to open sometime in 2011. In part, this move by the USPTO is intended to facilitate the hiring of additional qualified examiners and so reduce the present pendency of patent applications at the USPTO. According to Secretary Locke, the goal is to "get down to a 1 year review."

According to USPTO Director Kappos, the corps of examiners in the new Detroit Regional Office will represent, at least in part, technologies that mesh well with local industries, including automotive and emerging technologies.