The Supreme Court, The Affordable Care Act, and You (the Independent Contractor)

     This is a follow-up post to my earlier Affordable Care Act post, and is a discussion of how the ACA and the Supreme Court decision affects independent contractors, including Freelance Attorneys like those of us at the Montage Legal Group.  In addition to my private practice, I have been a Freelance Attorney with Montage since November of 2011.

     Yesterday, the Supreme Court upheld the Affordable Care Act (ACA) against two Constitutional challenges, and to the surprise of many, it was conservative Chief Justice Roberts who authored the opinion and provided the fifth vote, while centrist Justice Kennedy sided with the conservative dissenters.  Although the legal issues in the case are fascinating, and I will discuss them, my main focus is on how the ACA and the Court’s decision will affect independent contractors, including freelance attorneys.

     It is important to note that the Affordable Care Act, although it addressed access to affordable insurance, did not address many other pressing reasons that healthcare costs are spiraling out of control and unaffordable to many Americans.  Former editors of the New England Journal of Medicine, Drs. Arnold Relman and Marcia Angell, have argued that changing compensation structures for doctors (from per-procedure to salary), clamping down on insurance companies and pharmaceutical companies, and creating more non-profits like the Mayo Clinic, among other things, would increase the standard of care and greatly decrease costs.  Dr. Relman, incidentally, argued ACA’s individual mandate is unconstitutional as neither necessary nor proper in light of the available alternative of the widely popular single-payer system, which cuts insurance companies out of the picture.  Dr. Atul Gawande also presented a convincing case study showing that when managed properly, lower expenditures could lead to higher-quality care.  As a former medical devices engineer explained to me, “These [other] reforms are orthogonal to the healthcare act,” meaning that even with the ACA, other issues must be addressed to cut healthcare costs.  And independent contractors bear these burdens more directly than employees who have costly group insurance that insulates them to a greater degree from spiraling medical costs.

     In order to show how the ACA and Supreme Court decision affect independent contractors, I will discuss the scope of the decision, how the ACA and the Supreme Court’s ruling financially impact independent contractors, and finally, the legal mechanics of the decision.

     Please click here to read the rest of the post.

Quick Hit: The Supreme Court on Healthcare

So, I read the entire Affordable Care Act (ACA) decision.  193 pages.  Whew.  Quick thoughts:

1)  Roberts upheld the individual mandate as a tax, and only struck down and severed the part of the law that allowed all Medicare funding to be yanked from states who did not sign on to the newly-expanded Medicare which gives coverage to more low-income individuals.  So states will be able to choose between old Medicare and new Medicare, basically.  Because the federal government will cover 90-100% of medical costs for the expanded program, many states may choose expanded Medicare anyways.

2)  Roberts also argued (and the Scalia-Kennedy-Alito-Thomas dissent joined him in this conclusion) that the individual mandate was outside the bounds of the Commerce and Necessary and Proper clauses.

3)  Ginsburg, concurring in part, dissenting in part, and concurring in the judgment, argued that the individual mandate was proper under the Commerce Clause and the Necessary and Proper clause, and that at the very least, Roberts should have remained silent on those points, if he was going to uphold the law.  She also disagreed that the threat to deny states all Medicare funding if they refused to expand Medicare was improper, noting that Congress clearly could have repealed old Medicare and replaced it with "Medicare II", such that it seemed formalistic to say they could not simply change the parameters of an existing program.

4)  Scalia-Kennedy-Alito-Thomas wrote a joint dissenting opinion, which based on the writing style and measured town struck me as probably a primarily Alito opinion with some Scalia contributions (none of the flowery, expansive prose I am used to from Kennedy).  The opinion argued that the individual mandate was neither justified by the Commerce Clause, the Necessary and Proper clause, or as a tax and should be struck down.  They also found the expansion of Medicare unduly coercive, but much of that argument was based on the fact that Congress seemed to believe the states would not opt out.  So in short, the state of mind of Congress was used as evidence of unconstitutionality, which I find odd.  The dissent also found that the Affordable Care Act was not severable, and would have found it unconstitutional in its entirety.

5)  Thomas briefly wrote on the Commerce Clause.

6)  There was a contretemps over the Anti-Injunction Act and whether it prevented this case from being heard at all, as the act specifies that you cannot enjoin the collection of a tax.  In short, Roberts concluded that the individual mandate penalty was not a tax for the purpose of the anti-injunction act, but was a tax for the purposes of the Congress’ power to tax.  Scalia et al disagreed, and stated that it was a penalty, which created due process problems.

7)  My thoughts:  This is Roberts’ Marbury v. Madison.  He gave the public the result it wanted, but in doing so, laid the groundwork for greatly constraining the power of Congress under the Commerce Clause and Necessary and Proper Clause.  I agree with Ginsburg that Roberts’ and the other dissenter’s definition of ”commerce” was too narrow.  Since 99.5% of us will see a doctor in our lifetimes, 60% of the uninsured see a doctor in a given year, and 90% of the uninsured see a doctor in five years, we are pretty much all participating in medical commerce.  And even if we are not, under the Necessary and Proper Clause, in order to adequately regulate medical services as a matter of commerce, we need to make sure that everyone is insured, as one of many modes to drive down costs.  Do I think this is a perfect law?  Far from it.  But I did believe that it was a clearly Constitutional law, and I am glad that it was upheld as such, although I am disappointed by the Chief Justice’s analysis on the Commerce and Necessary and Proper clauses, because I think it is radical and unprecedented.  On the other hand, with regard to Medicare, I am sympathetic to the arguments of Scalia et al. that it is coercive to pour so much money into and attach so many strings to federal programs that the federal government is in effect governing the states.  This concerns me greatly from a federalism perspective.

8)  The politically-minded might think that Roberts is partisan enough that he upheld the program as a tax to hurt President Obama in the polls.  I certainly hope not, but given how radical his Commerce Clause analysis is, he has opened himself up to that criticism.  Regardless of what the Chief Justice intended, I am guessing that "Health Care Tax" or Obama's statements on how the ACA was not a tax will be used in campaign advertisements.

9)  Dean Evan Caminker, who was dean of Michigan Law when I was a student there, was cited by Justice Ginsburg on pages 44-45 of her opinion.  M Go Blue!

Update:  I had not read the excellent Atlantic article by Daniel Epps by the time I wrote this post.  It is worth a read, and also draws the same Marbury v. Madison parallel I drew in this post.

6/29/12 Update:  I wrote a follow-up post addressing the ACA, the Supreme Court decision, and how it affects independent contractors.  The introduction is here on our blog, and the entire post is at the Montage Legal Group blog.

A Good Man and a Great Lawyer

     I find myself at a loss, because I learned today that Ed Taylor of Blakely, Sokoloff, Taylor & Zafman passed away.  I knew Ed because his firm gave me my first law-related job, as a patent legal secretary.  I remembered Ed well--he was the kind of partner who really knew everyone at his firm, and would always give you a warm hello.  He made Blakely in Sunnyvale a really wonderful place to work.  I still have close friends from my time at that firm.

     Pamela and I would like to express our heartfelt sorrow at the loss of Ed's family, friends, and colleagues.  He will be sorely missed.  And from one airman to another, here is a toast.

     Blakely has posted a memorial page here.

Love in a Time of Cyberharassment

     We live in an increasingly public world.

     Words that were once spoken in the heat of the moment, and then forgotten are now recorded--sometimes online, sometimes in videos, in emails, in chats--and possibly reposted.  Perhaps by an angry ex-boyfriend, ex-girlfriend, ex-boss, ex-employee.  Or just by internet troublemakers who may not even know the people who they are slandering. 

     Facebook, twitter, tumblr, youtube, google+, email address books, personal webpages--all of these are the new tabloids even for the non-famous, the new platforms by which one angry individual can seriously harm the reputation of another.  We have given megaphones to the masses, which is both great and terrible.  People can have amazingly free-ranging conversations, and try out political ideas and arguments without having to worry about how it will affect their reputation.  People can reach out anonymously, discuss personal pain and get advice or realize that others IRL (in real life) are mistreating them.  But people can also attack from behind a veil of anonymity.

   Although our legislators do not have much technical expertise (see, for example, SOPA and PIPA), existing law does provide those who are being harassed with some respite.  You can obtain temporary restraining orders in certain situations, there are lawsuits for libel and slander, some web hosts are great about removing slanderous comments or websites, and unmasking online bullies can be accomplished at times through the power of subpoena after a lawsuit has been filed.  A lawyer can also contact your bully, if their identity is known, and negotiate for you.

     If you do need help, please do not hesitate to ask for it.  If you are a minor, please talk to your parents, your family, or adults you trust. 

     Glazner & Ryan does not make any promises regarding the outcome of a given case, nor is any case we describe typical.  This post is not meant to provide legal advice, and is merely an academic discussion of the law.  If you would like to contact us for a free initial consult, please either email us at info@glaznerryanlaw.com or call us at (650) 701-5261.

You Might Need a Lawyer When: You are being bullied or harassed

     Welcome to our new series about when you might want to hire a lawyer to address a problem in your life.  Because most people do not tend to see the world in terms of legal/illegal, and because most good people try to avoid conflict, this may not always be apparent.


     But for today, here is a brief discussion of when a lawyer might be able to help you cope with harassment, in the civil system.  That means instead of/in addition to criminal charges being filed, which is something the District Attorney does.  This involves a discussion of bullying and domestic violence, so please be warned in advance that it may be an upsetting blog post to read.


    This is not legal advice and should not take the place of legal advice.  Instead, it is an academic discussion of some of the ways in which harassment may break the law.  Also, it involves links to certain resources obtained from the California Courts Self-Help Center.


      Bullying is not just behavior that is directed at children, although many resources are aimed at addressing that type of bullying.  Studies suggest that childhood bullies are more likely to commit domestic violence as adults.  And lately, more attention is being paid to domestic violence among teenagers--which affects boys and girls both in disturbingly high numbers--1 in 10 and 2 in 10, respectively.  Bullying and harassment also take place in the workplace, the neighborhood, in adult relationships, and sadly, for the elderly and vulnerable, in nursing homes and in their own homes.


     If someone is hurting you, or someone that you love, the first thing to do is get help.  If it is happening right now, and you are in the United States, call 9-1-1.  The second thing to do is to remember that it is not your fault.  Not ever.  It does not matter if you are a woman or a man, bigger or smaller, if you said something mean, if you had only been nicer--none of that matters.  It is never okay for someone to abuse you and those who you love, period.  There are many counseling and safety resources for people who are being abused or harassed.  Here is a county-by-county list of resources for those in California.  If you live in another state, your court system may have similar resources.  To find them, google the name of your state and "domestic violence" or "temporary restraining order" as a starting point to find them.


     Also, as counterintuitive as it sounds, not everyone knows that they need help or are entitled to help or that what is happening to them is bad enough that they have the right to stick up for themselves.  So here is a quick overview of what the statutes (so, written law) says about civil harassment, domestic violence, and elder abuse, in the context of obtaining a restraining order.  A restraining order is a court order basically stating that someone has to stop doing certain things.


     Civil harassment, at least as of the time of this writing in 2012, is defined as "unlawful violence, a credible threat of violence, a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and serves no legitimate purpose."  See California Code of Civil Procedure S 527.6(b)(3).  A "course of conduct" may include "following or stalking," "making harassing telephone calls," "sending harassing correspondence" including via fax and email.  See CCP S 527.6(b)(3).  It does not include any constitutionally protected free speech.  If you feel you are being harassed by someone who is not a family member, romantic partner, or former romantic partner, you may be civilly harassed.  The California Courts website has resources for people who are being civilly harassed, or you could contact a lawyer for help, although of course, lawyers cannot promise any particular outcome.


     People who are being harassed or abused by family members, dating partners, or former dating partners may be able to obtain a Domestic Violence Restraining Order.  In general, Domestic Violence Restraining Orders cover more different types of conduct than civil harassment orders.  "Abuse" according to the law barring domestic violence, among other things, includes "intentionally or recklessly to cause or attempt to cause physical or bodily injury," sexual assault, placing someone in fear of imminent attack (See Family Code S 6203), and a court may order that a person refrain from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning" the abuse victim.  (See Family Code S 6320).  Here are self-help centers you can go to in California for assistance with filing a restraining order, if you cannot afford a lawyer or are not sure you want or need one.  If you are low-income, a number of counties have pro bono organizations that may be able to get a volunteer attorney to represent you, such as San Mateo County Legal Aid, which is near my own office.


     Finally, elder- and dependent-abuse restraining orders are available both for elders and dependent adults who are being abused.  An "elder" is someone 65 years of age or older, while a "dependent adult" is someone between the ages of 18 and 64 years old who has physical or mental limitations that make it difficult to protect his or her rights, or perform normal activities without assistance.  See Welfare and Institutions Code 15610.23 and 15610.27.  Abuse in this context includes "physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering" or depriving someone "of good or services that are necessary to avoid physical harm or mental suffering.  See Welfare and Institutions Code 15610.07.


   Even if someone is causing harm that does not fit into one of these categories, if you are being harassed, a lawyer may be able to help.  Many lawyers give free initial consultations, and there may be pro bono organizations in your community.  And even if you do not need a lawyer, it may be good to look to community resources to help you deal with the stress of being harassed. 

To Sue, or Not to Sue

When people learn that Pamela and I started our own firm, the question I hear the most often is—how is your work different from what you did at a big law firm?  And the answer that I give is that instead of working on litigation (that is, actual lawsuits), a lot of times we advise clients on whether or not they should be suing in the first place.  And most of the time, the answer to that question is No.

That is the major difference we have noticed between working at a big law firm and founding our own boutique firm.  Now, because we are the partners, we are the ones advising clients right off the bat whether their rights are being violated, and if so, what they can do (and what we can do) to solve the problem. 

The truth is, especially with regard to the individual clients and small businesses that we can now represent as a small firm, suing is not always the answer.  This is true for larger businesses as well—but usually they have larger budgets and more experience with the law in general and litigation specifically—so that they already have a pretty good idea about whether or not to sue before they ever meet with us.

So how do we help clients decide what to do?  Well, first of all, we do an initial consultation, which we offer for free, as do many civil attorneys.  Sometimes, we do legal research to figure out what a client’s rights or responsibilities are before we even meet them.  Then we talk about whether the problems that they have can be solved by a lawsuit, or by having an attorney draft a letter, or negotiate, or mediate on their behalf.  Many times, the real answer is that even if the problem is a legal problem, the best way to deal with it is by trying to work things out.  Sometimes, having a lawyer negotiate makes things more hostile.  Other times, involving a lawyer allows parties who dislike each other to solve problems that they are too angry to work out between the two of them.

At the end of the day, the truth is that just because we are litigators does not mean that our answer to every question is “litigate.”  As a mentor reminded me once, being a good lawyer involves being able to fulfill two roles—that of counselor and that of advocate.  Put more simply, sometimes we give advice, sometimes we try to persuade others that our legal argument is a winner.  With clients, the first goal is to advise.  Even for advocates like Pamela and me.

Quick Hit: Repeal of Don’t Ask, Don’t Tell (DADT)

About a month ago on September 20, 2011, the Secretary of Defense officially implemented the repeal of “Don’t Ask, Don’t Tell” (often abbreviated “DADT”), which previously barred openly lesbian, gay, and bisexual persons from serving in the military.  The repeal memorandum mentions the importance of maintaining servicemembers’ privacy, by explicitly stating that the repeal of DADT does not mean that anyone in the military has the right to ask a servicemember about his or her sexual orientation.

In addition, this brief memorandum attached a longer document, dated January 28, 2011, with a more detailed explanation of the repeal and the institutional changes needed to end DADT.  On page 1 of the policy guidelines attached to the January 28, 2011 memo, the Department of Defense (DOD), states that neither “lawful homosexual conduct,” statements that a servicemember is “a homosexual or bisexual,” or a marriage or “attempted marriage” between two people of “the same biological sex” will be grounds for separation from the military.  (Separation is the  military word for “being fired.”) 

The focus on marrying (or attempting to marry—which makes marriage sound rather like a crime to this lawyer’s ears) someone of “the same biological sex” also seems to extend some protection to persons of any sexual orientation who marry transgender and/or intersex persons, as those persons are not always allowed to alter birth certificates to reflect their sex.*  This may not have been intended by the DOD, as currently, transgender persons are not permitted to serve in the armed services, see e.g. AFI 36-3208 5.11.9.5. 

The policy guidelines do not allow for military benefits to pass to same-sex spouses of military personnel, due to an existing law known as the Defense of Marriage Act, or DOMA, found at 1 U.S.C. §7 et seq.  

One provision in the implementing memo are very interesting because it extends more protection to lesbian, bisexual, and gay servicemembers then they would receive under federal law outside of the military.  The first is the complete ban on any harassment or discrimination based on sexual orientation.  Ironically, gays, lesbians, and bisexuals are more protected in the military by federal law then they are in civilian life because the military used to bar openly bisexual, lesbian and gay troops.  Although individual state and local laws prohibit private businesses from engaging in discrimination based on sexual orientation, federal law does not.

But military protections are also less than civilian protections in some ways.  The memo states that standards governing “dress and appearance” will not be altered.  As those who have served know, standards governing dress and appearance are highly gendered.  For example, men and women cannot wear eachother’s uniforms.  (In the Air Force, at the academy, women used to have to wear service caps with round hatbands, while men wore service caps with oval ones.  Like many women, my head is not round on top.)  By way of contrast, civilians have more freedom in how they present their gender—women cannot be punished for being “too masculine” or men for being “too feminine.”  The leading case happened when Price Waterhouse was successfully sued for sex discrimination by Ann Hopkins, in part because Ms. Hopkins was told to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”  

So, paradoxically, gay, lesbian and bisexual servicemembers now can legally serve and marry, but civilians have no similar protections from private employers.  And, members of the military have to dress femininely if women and in a masculine fashion if a man, but civilians employed by private companies can have any gender presentation they prefer.

 *This protection is important.  Those of us who served at the time may recall the brutal murder of Army PFC (Private First Class) Barry Winchell, who was beaten to death while he slept.  PFC Winchell was targeted because of his relationship with a transgender woman, Calpernia Addams, who was also a military veteran before her transition.  In the months leading up to the murder, PFC Winchell was repeatedly taunted and called homophobic names because of his relationship with Ms. Addams.  No one seemed to care that PFC Winchell identified as straight.  His murderer, a fellow soldier named Pvt. (Private) Calvin Glover, had been soundly beaten in a fight by PFC Winchell, and he attacked Winchell in his sleep after being goaded for losing the fight by another soldier, SPC (Specialist) Fisher.  SPC Fisher had initially taken PFC Winchell to the club where he met Ms. Addams, and had spread many of the rumors that led to PFC Winchell being harassed and ultimately killed.  SPC Fisher has been paroled, and Pvt. Gloveris serving a life sentence.