There is a visceral and palpable dynamic emerging in global workplaces: tension.

Tension between what is potentially knowable—and what is actually known.   Tension between the present and the future state of work.  Tension between what was, is, and what might become (and when).  Tension between the nature, function, and limits of data and technology.

The present-future of work is being shaped daily, dynamically, and profoundly by a host of factors—led by the exponential proliferation of data, new technologies, and artificial intelligence (“AI”)—whose impact cannot be understated.  Modern employers have access to an unprecedented amount of data impacting their workforce, from data concerning the trends and patterns in employee behaviors and data concerning the people analytics used in hiring, compensation, and employee benefits, to data that analyzes the composition of the employee workforce itself.  To be sure, AI will continue to disrupt how virtually every employer views its human capital model on an enterprise basis. On a micro level, employers are already analyzing which functions or groups of roles might be automated, augmented, or better aligned to meet their future business models.

And, yet, there is an equal, counterbalancing force at play—the increased demand for accountability, transparency, civility, and equity.  We have already seen this force playing out in real time, most notably in the #MeToo, pay equity, and data privacy and security movements.  We expect that these movements and trends will continue to gain traction and momentum in litigation, regulation, and international conversation into 2019 and beyond.

We have invited Epstein Becker Green attorneys from our Technology, Media & Telecommunications (“TMT”) service team to reflect and opine on the most significant developments of the year.  In each, we endeavor to provide practical insights to enable employers to think strategically through these emergent tensions and business realities—to continue to deliver value to their organizations and safeguard their goodwill and reputation.

Continue Reading <i>Take 5</i> Newsletter – The Present-Future of Work: 2018 Trends and 2019 Predictions

This extended interview from Employment Law This Week will be of interest to many of our readers. Attorney and co-editor of this blog, Michelle Capezza explains how recent legal developments have prepared employers for their future workforce, which will include artificial intelligence technologies working alongside human employees. She also looks at the strategies employers should start to consider as artificial intelligence is incorporated into the workplace.

James D. Schutzer is the Vice President at JDM Benefits, a consulting group that provides strategic benefits services to small and mid-size employers. His career in healthcare spans over 20 years and has included leadership roles in employee benefits and insurance sales. He spent 10 years working in sales for carriers like Wellpoint and Oxford Health Plans. Jamie frequently presents and lectures to many organizations on the topic of the Affordable Care Act and sat on the New York State Health Benefit Exchange Regional Advisory Council. In addition, Jamie is the Immediate Past President of New York State Association of Health Underwriters (NYSAHU) as well as Legislative Co-Chair, and is an Executive Committee member of the Business Council of Westchester, and currently serves as Treasurer. In December 2015, Jamie was named in the Employee Benefit Adviser as one of the 14 politically active brokers to know across the U.S.

While attempts to fully repeal and replace the Affordable Care Act in 2017 did not come to fruition, several developments are taking on momentum which will surely shape the ability of employers to sponsor insured health plans for their employees in the future. From the repeal of the individual mandate penalty, expansion of association health plans, State proposals to increase taxes on insurers, referenced-based pricing and new “blockchain” models to purchase services directly for employees, the insured markets will be under increasing stress to survive. It is possible that these trends will accelerate the collapse of the insurance markets and usher in a government provided single payer system, and/or self-directed mode of procuring healthcare via blockchain technology.  I recently sat down with James Schutzer to discuss the evolving landscape in employer-provided group healthcare and obtain his insights regarding how these changes will impact costs and the future of employer-provided health insurance.

Michelle Capezza: How do you see the repeal of the individual mandate impacting the insurance markets and the ability of employers to obtain affordable insurance plans for their employees?

James Schutzer: For starters, the individual mandate penalty lacked the teeth from the beginning and I think it is still difficult to ascertain how many people enrolled in health insurance to avoid the penalty. There are different reports out in the market which argue the point from both sides. As an employee benefits advisor, I have seen a slight uptick in enrollment in employer sponsored coverage for the reason that employees want to avoid the individual mandate penalty. Therefore, I do not see the elimination of the individual mandate having a significant impact in the employer sponsored market. Plus, the employer mandate still exists as of this time and Applicable Large Employers are required to offer insurance or pay a penalty.

MC: For employers that seek to utilize the new rules expanding the ability to form association health plans (AHPs), how will this increase the adverse selection issues already straining insurance markets?

JS: One concern related to AHP’s is that they can possibly siphon off the “perceived” good risk leaving the older and sicker members in the small group market. This will certainly create a death spiral. Another concern is that employers can jump in and out of the small group market based on medical needs. I believe the proposed regulations try to address and prevent this type of behavior. I know the National Association of Insurance Commissioners has come out in opposition to AHP’s.

MC: How do you see these developments impacting an employer’s decision to sponsor a high deductible health plan with access to a health savings account for its employees versus self-funding a plan? Are these still viable modes of delivering employer-sponsored health coverage to employees?

JS: High deductible health plans with a health savings account are still growing but I have seen the pace slow down the last couple of years. One important piece which is still not readily available is the price transparency tools which enable people to be better healthcare consumers. On the other hand, we are seeing more employers testing the waters with partially self insured plans. There are many benefits to this strategy but it does come with risks. It is critical that the employer completely understands the inner workings of being partially self insured. Picking the right individual and aggregate stop loss, provider network, pharmacy benefit manager among other things is vital to the success of the plan.

MC: What is your view regarding the viability of referenced-based pricing models for employer-provided health insurance?

JS: Referenced based pricing (RBP) is a newer concept that is starting to break into the Northeast. This market is generally slower to adapt to change but RBP is proving to save employers money in other parts of the country. Hospital and major surgical costs have exploded and RBP is trying to tackle this issue head on by identifying the true cost basis and providing payment based on this data. Employers with a partially self funded plan rely on a “leased” network for their discounts when their employees utilize healthcare. This contracted rate is what the employer is responsible to pay (outside of the employee’s copay, deductible, etc). RBP looks to further peel back layers of hospital and high cost surgical claims and offer a more “fair” payment. In return, the employer’s costs are lowered. The one challenge to RBP is the potential for balanced billing but there are RBP vendors employers can work with to assist in defending the payment.

MC: Given the complexities of these markets and programs, it is no wonder blockchain is being applied to healthcare, and household name employers are beginning to develop models to contract directly with healthcare service providers and pharmaceutical companies and use their own technology to administer claims. It seems that if more transparency in pricing can be obtained, this would lend itself to blockchain purchases. How do you see this evolving, and do you think an AHP could operate this way?

JS: Yes, the blockchain phenomenon is creeping into healthcare. As I mentioned before, transparency is so badly needed in healthcare and blockchain might be the right conduit to deliver it. Healthcare is the only area I can think of where you do not know the cost of the service until after it has been performed. Although some progress has been made over time, there is still plenty of work to be done. Can you imagine needing a hip replacement and having the ability to price out the surgery in advance? But something which cannot be overlooked are the outcomes and the data to support this is sorely needed as well. Blockchain can definitely have an impact here as well as data can be easily accessible.

MC: As more individual data is collected via electronic medical records, and through direct blockchain purchasing developments, and other technology based tracking and healthcare delivery systems, do you see such Big Data being collated, analyzed and utilized to drive value based pricing initiatives and influence certain healthy behaviors?

JS: As I mentioned above, data is a key to bending the healthcare cost curve. I recently bought a new television and the research I was able to do online was remarkable. Brand, dimensions, reviews, prices…all at my fingertips. It would be a game changer if this type of data becomes available in the healthcare industry.

MC: Given these developments, do you see a potential for the pendulum to swing to a U.S. government-provided system of healthcare, requiring all employers and individuals to pay into such a system with increased payroll and income taxes, and perhaps requiring individuals to use blockchain technology to self direct their allotted government healthcare dollars to purchase healthcare services?

JS: I believe we must leave healthcare in the hands of the free market system as opposed to the government. I believe we are in the very early stages of a sea change in the healthcare industry. The current system is just not sustainable in the long run and although we can put band aids on the problem ultimately, there must be some major changes in the delivery system. We have the tools….now we have to figure out how to use them to our advantage.

MC: Thank you. Clearly there are many approaches to providing and obtaining health insurance. As cost pressures increase and the desire for transparency rises, it will be important to monitor which path stands.

By Michelle Capezza

I recently authored an article in TechLifeSciNews: “Considerations for Technology Companies to Attract, Motivate and Retain Key Talent.”

The following is an excerpt:

As technology companies innovate and grow, the need for knowledgeable, experienced employees increases along with the competition for the most highly-skilled workers.  As a result of the competitive marketplace (as highlighted by the recent high-tech employee antitrust/anti-poaching class-action lawsuit settlement involving technology giants), one of the biggest challenges facing technology companies today concerns how well it can attract, motivate and retain top talent.  In addition to providing fair and competitive compensation and benefits packages, companies should not overlook developing employees so that they may grow professionally and be positioned for movement in the company to critical positions.  Further, review of company culture would also be beneficial to determine if changes should be made to address diversity, gender and/or multigenerational issues that can create a more inclusive, dynamic working environment.  Thus, a comprehensive approach can serve to attract, motivate, develop and retain the best employees while fostering a culture of growth, loyalty and innovation.  Consider the following in developing a comprehensive approach …

Download the full article in PDF format (see page 10).

By Michelle Capezza

I recently read Sheryl Sandberg’s Lean In, which includes a call to action for men and women to end gender bias in the workplace.  Yet, Lean In is not only a discussion about gender bias and stereotypes, women being held back or holding back themselves but, it’s a call to action as a society to work together toward equality.  A common question that has followed for many who have read the book is where do we begin; how can we move forward as a society to address the issues that face all of us in the workplace, men and women of all races, cultures, ages, and religious backgrounds.  How do we all, regardless of our backgrounds or position in life, move forward to lead more happy, prosperous, fulfilling lives while delivering to our employers.  It seems insurmountable, and, also unfortunate to say we cannot do anything unless the entire world changes.    But from an economic standpoint, can’t we make changes one business at a time, one industry at a time?

The technology industry seems well-poised to make advancements in this regard as it is an industry replete with intelligent, creative, forward-thinking people and the perfect place to set standards, trends and changes.  The technology industry is also fertile ground for start-up businesses to start from scratch and implement new ways of thinking about getting things done.  This industry can advance the workplace of tomorrow by implementation of progressive workplace policies and benefits while achieving what has yet to be achieved in technological advancements.

The time is long overdue to examine workplace policies and benefits which are already governed by a myriad of employment and benefit laws in the U.S., and find ways to further develop or expand these policies.  Research has shown that one of the keys to productivity and improving the company bottom line is fostering an engaged and happy workforce.  When workers feel valued and able to progress in their positions, they are more likely to contribute their all to the job and the company. Workplace policies alone will not end workplace biases or discrimination, but they can provide the workplace culture and supportive infrastructure that will enable all workers to perform their jobs to their best ability, to have their performance judged based on objective, realistic and attainable goals, and allow them the flexibility to juggle their personal and familial responsibilities in order to be the happy and fulfilled workers they need to be in order to attend to their employer’s demands.

In this vein, and as a starting point, I encourage our technology business leaders to strategically think about the following types of workplace policies and benefits that can be implemented or enhanced in their companies to foster revolutionary change:

  • Creative solutions to the 24/7 workweek (which may include flexible work schedules, shifts or mid-day siestas that can still equate to 40 hours per week minimums)
  • Remote Working Arrangements (which may include certain standards for in-office time)
  • Incentive Compensation Programs based on objective metrics and hours of service
  • Performance reviews conducted by objective third-parties
  • Paid maternity and paternity leave policies (which may include gradual return-to-work programs during the first 3 to 6 months following birth or adoption)
  • On-ramp and off-ramp Programs for men and women to re-engage workers who may have left or need to leave the workplace for a myriad of reasons
  • Business Development and Mentoring Programs to provide roadmaps for business-specific progression tailored to the company’s needs
  • Sabbaticals (which can include time-off for professional enhancement to serve business needs)
  • Wellness Programs (to promote the health and well-being of workers)
  • Dependent Care Reimbursement Account Plans
  • On-Site Child Care
  • Access to long term care policies at group rates

This list is not exhaustive.  Once an assessment is completed regarding the business’ current workplace and benefits policies in effect,  I encourage business leaders to work with legal counsel to determine how to further develop or implement these types of policies and benefits in compliance with applicable laws.  We at Epstein Becker & Green are well-positioned to assist in this endeavor.

Technology has brought us the ability to accomplish tasks that were previously unimaginable.  The technology industry can also help us re-design the workplace of tomorrow.  All businesses can thrive and be more profitable when everyone is engaged, valued and firing on all cylinders.