When can you pay someone less for equal work? When they earned less before…

I just learned that the 9th U.S. Circuit Court of Appeals ruled yesterday that you can pay an employee less than another who is doing the same work, simply because they earned less in the past. Actually, the ruling was specific to a woman who earned less; but really, this has implications to anyone who earns less on a prior job – not just women.

Think about it – have you ever taken less salary to have better benefits? What about a better work-life balance? What if you worked in a location that had a lower cost of living (which is actually what seems to have happened in this case)? Did you think that those decisions/situations might impact your salary for the rest of your life? Probably not.

We all like to think that we get paid appropriately for the work that we do. However, this is very situational. You might want more to work in a fast-paced environment. Or, maybe less if they offer you a rich pension plan or more paid time off.

In this case, the court is saying that it is okay for an employer to allow a lower rate of pay to follow you around for the rest of your life (unless someone smarter realizes the injustice and decides to be more equitable).

I know that we’re dancing on a very fine line here – especially when it comes to quality of work and pay for performance. Do I like Bob’s work better than John’s because Bob and I are friends? What if Bob and I communicate well, but John and I do not. When is there bias in the decisions? We cannot often tell, nor are we always aware that we are being biased in these situations. So, we need to be careful in these valuations. But this decision does not take any variations of cost-of-living or total compensation into account, which seems very unfair.

This ruling is being sent back to U.S. Magistrate Judge Michael Seng for consideration. This judge previously decided that this behavior was grounds for bias. I ask you to think about what would happen if this happened to you, even if you are not female? Would you accept this if you found out another worker earned more just because s/he earned more in a previous job?

I hope this does end up in a higher court, as I have a hard time believing anyone would accept “prior pay” as a reason to pay someone less for very long. Seniority (years of experience), merit, quality or quantity of work all still sound reasons to differentiate pay (assuming you have as little bias as possible in the assessment). Good employees know they will be in demand, and will not tolerate discrimination for long. If possible, they will go to the smarter employer who will pay them what they deserve.

Let me know your thoughts on this topic…

Are you considering adding an ACO plan?

Employers are warming up to Accountable Care Organizations (ACOs), but is that the right option for your employees? There are already great resources on how ACOs work [i] – and I am not going to recount these details for you here. Instead, I want to help you determine if these types of plans might be a good fit for your employees.

ACOs are a product of the Affordable Care Act (ACA), but they are not completely unfamiliar territory for those of us who have been around a while. HMOs have a rather negative connotation to many of us who were enrolled in them 20-ish years ago, but they are very much an older and less tech savvy model of the ACO. If an ACO is streaming music from the cloud, and HMO is a cassette tape. They may sound alike, but they are fundamentally different.

Service Area Issues

A few important aspects of these plans have changed. Like HMOs, ACOs are specific to a particular service area, as they have to have a hospital network to succeed. So, to the extent possible, you will need to have a carrier knit together your ACO offerings if you have multiple locations, or have a benefits administration system that is smart enough to know who is eligible for which plan (and also reassign eligibility should an employee move service areas).

Cost Savings

The older HMOs relied on restrictions to care to drive costs savings. This added more administrative hassle (to both members and providers) and potentially to inappropriate restrictions for patients whose doctors were not good at documenting their case for the necessity of the care.

As the pendulum swung from the old model of restriction to a newer one of freedom, the new way to help control costs was to make the member foot the first part of the bill to a greater extent than they had to do in years – hence, the birth of the high deductible health plan (HDHP), or consumer driven health plan (CDHP).

Many employers added HDHPs/CDHPs over the last few years – we were looking for any way to help mitigate the rising medical plan trend. The main problem with this approach is that consumers really don’t have any easy ways to understand health care costs, much less become a smart consumer. 

Yes, we were all surprised when we went to the pharmacy in January and had a $300 fee, but that did not necessarily help us become better consumers. Many of us just grumbled under our breath and paid the bill – especially if our employer help us with some seed money in our HSA/HRA (or other savings) accounts.

But what about all of those great consumer tools? Even the best built tools and resources only help for some situations – I am probably not going to search for the lowest cost emergency room when I think I am having a heart attack. Nor do I necessarily understand why one place might charge more than another – maybe the more expensive provider is better quality? How are we to know, when health care quality is not well defined by anyone, much less your employees?


For an ACO to work correctly, the accountability shifts from the member in the HDHP back to the provider, but with the technology to make the process (hopefully) much smoother. That sounds great, right? Doctors can help me navigate the system, their nurses will call and check on me when I forget to refill my diabetes medication, and they will help me navigate the complex health care systems.

However, we’ve just spent the last few years telling members that they had to be accountable!? No wonder employees are always confused. It’s like we’ve just told them butter is better than margarine, after years of pushing margarine. We give up!

That said, many of your members may really like the concept of having more savvy advocates for their health care – especially if they have a chronic condition or if most of their providers are already in the narrower network. Since I am a visual person, here’s how I like to think about how ACOs fit on the spectrum:

ACO Graphic

So, where do your employees want to fall on that spectrum?

  • Are they constantly confused about their plan and what is/is not covered? If so, they should move to the left.
  • In control and only asking very detailed questions? Maybe they can venture more to the right.


Will an ACO save your employer money? I am not sure we really know the answer to that yet. We do know thahave these plans do tend to attract the health (when priced at a lower price point) or those who already frequent the network. More time will help us determine if there are really savings to be had by pushing responsibilities back to providers. Unfortunately, the patient also needs to take accountability, including diet, exercise and medication adherence, Somehow, we can’t figure out how to create a plan that holds everyone accountable. I don’t think PPOs do that well, either.

Network Size

The other factor on this, of course, if the network size – ACOs typically have a significantly smaller network than most PPOs and HDHPs on the market. Let’s hope that some of that changes over time, as ACOs grow their network and integrate providers into their systems. 

For now, that’s another confusing factor in all of this – especially when many providers do not turn someone away when they show up and they are not in the member’s plan. Some even use non-network status this as a strategy and submit excessive bills to employer plans to exploit loopholes in non-network provider coverage. The usual and customary rates they receive are greater than the network price, so they waive any member fees and go after the insurance company with appeals and even lawsuits.

That’s exactly why some more provider accountability sounds so good to me right now, and I think (at least for now) ACOs are an option worth considering for many employers. Even if savings are unknown, increased member satisfaction with a more guided model may be the,right fit for your population, or even for you.


[i] See the following resources:

Can we have an adult conversation about health care reform?

This video is about a week old, but I just found it today:

If you have the patience to watch it, John Green of the vlogbrothers (and an author of teen fiction) sums up the issues facing us with health care reform in about seven minutes. It is a bit like watching a whirling dervish, but they clearly researched the issues and have a handle on some of the trade-offs at stake.

It’s worth a watch, if only to see it all explained rather succinctly!

Does telehealth actually increase employer costs?

A recent research paper in Health Affairs noted that “12 percent of direct-to-consumer telehealth visits replaced visits to other providers, and 88 percent represented new utilization” — meaning that 88% of the people who used telemedicine for acute respiratory illnesses probably would not have otherwise gone to the doctor. This increased the plan costs by $45 per telehealth user.

So, let’s back up a bit here. What is telehealth? Telehealth connects a patient with a provider using technology – this can be a phone call, an online chat or a video conference to conduct what would otherwise be a normal office visit, and can only be used for certain ailments. The thought is that this convenience will allow members to easily access car for certain conditions (especially if in a remote location) at a fraction of the cost. However, don’t expect to use telehealth for a broken arm or chest pain – go to the emergency room, instead.

There are some key things to take away from this study, but don’t drop your telehealth benefits yet!

First, while the study had a large sample and covered several years of claims, it did only analyze one diagnosis: respiratory illness. So, it is really limited in its applicability to assessing the costs for all telemedicine visits.

Next, keep in mind that some of the “new utilization” generated may have actually prevented larger claims down the road. Some of those patients who would have otherwise skipped a traditional office visit may have developed pneumonia or other more complicated and expensive illnesses as a result of the lack of care without telemedicine.

Monitoring your telemedicine utilization and expense is definitely something to keep an eye on; and if you are an employer who has access to claims data, you might want to investigate claims activity before and after introducing telemedicine (if possible).

Lastly, remember that not all benefits like this are in place to reduce costs. Providing a benefit that makes care convenient can be valuable to your employees! So, take these evaluations with a grain of salt and step back and remember why you introduced them in the first place. My guess is that even if your population uses this benefit a bit more, the additional $45 per utilizing member is probably worth the expense, given your total health care spend.

What do people want from health care reform?

According to a new JAMA Infographic, most people want lower out of pocket costs from their health plan. That is hardly surprising given the prevalence of cost shifting that has occurred by most employers in recent years. How that will happen, though, is not an easy fix for both employers and ACA plans.

Lowering pharmacy costs are also universally important to those surveyed. This is also probably due to the higher deductibles that people now experience and the transparency of these often very high costs now that co-payments are less prevalent. People now understand just how expensive pharmacy benefits are – except for those using specialty medications. I am sure many of these users are still sheltered for the full costs of these drugs. Manufacturer coupons are also not helping with this issue.

These data also confirm that the ACA now has a more positive image than in months past – maybe because the threat of it going away has made it more valuable to those who benefit from it (including those in employer-based plans who have benefited from richer benefits and broader coverage, even with the associated increased costs).

As you can imagine, the amount of Federal funding going toward assistance for lower income individuals is clearly divided along party lines. This is also the case around the Federal government’s involvement in health care, in general.

The main issue for legislators is that only 19% of those polled want the ACA repealed without a replacement in hand. That’s too small, even considering any margin of error, for congress to consider this as a viable option (at least without further push-back from constituents).

Click the link above to see more. Good insights into how your employees may feel about their plan, as well…