Since the passage of the Affordable Care Act in 2010, opponents have said that the law will actually hurt employees in two ways. First, companies on the cusp of hiring a 50th full-time employee may hold off in fear of triggering the burden of the employer mandate to provide coverage or else face penalties. Second, employees with variable hours may find themselves limited to 30 hours, the threshold for “full time” status under the ACA that triggers the mandate and penalty provisions. Some employers actively publicized their intention to cut the hours of part-time workers because the expense of providing coverage was too expensive. Until now, there has been an academic debate as to whether employers have the right to cut expenses and manage healthcare costs, or whether such actions would run afoul of Section 510 of ERISA, which makes it unlawful to “discharge, fine suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of a benefit plan.”

That debate is no longer an academic one, as a class action has been filed against Dave and Busters alleging that the curtailment of working hours constituted discrimination “for the purpose of interfering with the attainment” of healthcare coverage.  My firm’s full client alert on this case can be found here.

This case is an important one as the New York court found that the plaintiffs stated a claim and denied the employer’s motion to dismiss. That means the case will proceed with discover and potentially a trial. The case will no doubt encourage other plaintiff’s lawyers to take up this theory around the country, especially against companies who have openly stated that their reasons for cutting employee hours are related to the ACA. One takeaway from this suit is that employers should exercise extreme caution in openly making political statements opposing the ACA or suggesting that employee hours will be cut to avoid triggering healthcare coverage. Supervisors should be trained to stay away from this topic, as anything they say “can and will be used against them.” Notably, in the Dave and Busters case, the plaintiffs allege that management told employees during meetings that the ACA would cost the company two million dollars, and it was cutting hours to reduce those costs.

In sum, it is still very much an open question as to how the courts will resolve the conflict between an employer’s right to manage its business (including healthcare costs) and the protections of Section 510. For example, a strong argument can and will be made that Section 510 does not protect part-time workers who have not yet obtained healthcare (as opposed to cutting hours of an employee who already has coverage), and the company has a right to manage its business and to plan how many covered employees it can afford. This is still a gray area of the law; and employers should remain cautious and conservative when it comes to making public statements to employees or the media.