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Saturday, July 05, 2008

This is indefensible
Posted by Jill | 3:07 PM
In case there is anyone left in America who believes that even the laws that appear on the surface to protect workers do anything but protect the corporations that employ them, guess again.

This just boggles the mind:

Dying of cancer, Thomas Amschwand did everything he was told to make sure his wife would collect on the life insurance policy he had through his employer.

"He was obsessed with dotting every `i' and crossing every `t'," Melissa Amschwand-Bellinger recalled about her husband, who died in 2001 at age 30.

But Spherion Corp., the temporary staffing company where Amschwand worked, told Amschwand-Bellinger she would not receive any of the $426,000 in benefits she believed she was due. When she went to court, Spherion succeeded in getting her lawsuit thrown out. The Supreme Court on June 27 refused to review the case.

Amschwand-Bellinger received a refund of the few thousand dollars in insurance premiums she and her husband dutifully had paid. The total, she said, would not cover the costs of his funeral.

The story has played out often under the federal Employee Retirement Income Security Act. Designed to protect employee benefits, the law has been used by employers as a shield against suits.

Federal appeals courts, interpreting Supreme Court decisions dating to 1993, consistently have said companies that offer health, life and retirement benefits under ERISA cannot be sued for large amounts of money, or damages. Instead, they can be sued only for typically smaller sums such as Amschwand's insurance premiums.

Several federal judges have bemoaned the unfairness even as they have felt constrained to rule in favor of employers.

"The facts ... scream out for a remedy beyond the simple return of premiums," Judge Fortunato Benavides of the New Orleans-based 5th U.S. Circuit Court of Appeals said in the Amschwand case. "Regrettably, under existing law it is not available."

The Bush administration has argued that the appeals courts are misreading the precedents and has asked the high court at least twice to clarify the earlier rulings. So far it has refused.

Congress, which could amend ERISA to make clear such suits are allowed, also has taken no action.

The result, in the view of ERISA experts, the administration and some lawmakers, is perverse.

"The beneficiary under the policy didn't get the promised benefit," said Colleen Medill, an expert on ERISA at the University of Nebraska-Lincoln. "To say we're just going to return your premiums, that's a total farce. That's not what they paid the premiums for. They paid them for the benefits."

Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said at a recent hearing that before ERISA became law, employees clearly could sue for benefits in state courts.

The court rulings, said Leahy, D-Vt., have left people "more vulnerable than they were before the law was passed."

Spherion's decision to deny benefits to Amschwand-Bellinger turned on an odd set of facts. Spherion, which employs about 300,000 people, switched insurers after Thomas Amschwand was diagnosed with a rare form of heart cancer. The new policy did not take effect until an employee worked one full day. Spherion never informed Amschwand of the requirement.

Amschwand asked repeatedly whether there was anything else he needed to do and was told no. He asked that the new policy be sent to him. Spherion never did so.

He died without returning to work. His widow said he easily could have worked a day if that was what it took to activate the new policy. Spherion could have waived the one-day-of-work provision, as it did for other employees but not for Amschwand.

Spherion spokesman Kip Havel issued a brief statement when contacted by The Associated Press after the high court declined to review the case. "We are pleased the court has made its decision and the matter has finally been resolved," Havel said.


This is what happens when laws are written in a hurry; when laws are given names that seem to benefit ordinary people but are actually written to give all the power to big business. This ERISA provision is so egregious that even the Bush Administration isn't defending it.

So why the hell isn't it being changed?

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3 Comments:
Blogger Fran said...
Holy fuck - how wrong is that???????????????
7/6/08, 9:43 AM  
Anonymous Anonymous said...
I did some temp work [contract computer consulting] through Spherion about 2 years ago. I did not find them to be at all "enlightened" employers.
My initial -- and continued -- reaction to this story was that they knew EXACTLY what they were doing.

I don't know the details of Mr Amschwand's contract, but my experience with these temp companies suggests that you want nothing whatsoever to do with any insurance or other "benefits" they offer. Since they offer no long-term security whatsoever and make it very clear that your "employment" can -- and likely will -- end on the slightest whim, nothing that requires/expects a commitment should be entered into.. I'm surprised they even considered him an "employee" if he wasn't actively "working" for one of their clients.

While I have every sympathy for Mr Amschwand's relatives, he really, really should have known better. He should have viewed himself as "self employed" and should have protected himself with private insurance..
7/7/08, 9:06 AM  
Anonymous Anonymous said...
Yeah, if only congress were not so busy giving Telecom companies immunity, they could take up worker protection laws. Wouldn't that be nice. If only we had a candidate of change, who could take up Democratic causes like worker protection. Oh right - he's too busy supporting the Telecom immunity bill.
7/7/08, 1:51 PM  
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