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Questions raised over employer’s presidential election e-mail

By Randi Pierce

A local business owner is making regional headlines for an e-mail he sent to his employees informing them of a possible detriment to the business should President Obama be reelected.

Questions have been raised as to whether or not the e-mail violates state election law, and the Durango District Attorney’s Office reportedly received a letter Tuesday afternoon requesting an investigation.

On Oct. 22, Chris Smith, owner of the local Visiting Angels franchise, sent an e-mail to company employees containing information as to how he believes the Affordable Care Act (known as “Obamacare”) would affect the business and a plea to vote in the election.

The information included came from a webinar on the employer mandate included in the act, presented by an eastern U.S. law firm trained in the company’s trade.

Contained in Smith’s e-mail is a reference to the possibility of the Affordable Care Act being repealed should Gov. Mitt Romney win the election.

The e-mail reads as follows in its entirety:

“The Affordable Care Act, aka ‘Obama-Care’, which is set to begin in a few months, will crush Visiting Angels and hurt your job when it takes effect. I recently attended the first detailed seminar from the legal counsel of our trade association. In it we finally got hard facts about how employers will have to administer this new law. Legal counsel gave us these options:

“1. Cut hours to as many employees as possible to get them below 30 hours per week. a. I don’t think any of you are hoping to get a cut in hours. b. Clients don’t want 7 different caregivers. 2. Raise your prices by 10% to cover this new expense, or cut pay rates to all employees. a. Raising prices will make health care more expensive, and reduce the amount of business we can get. Meaning less work for everyone, and less care for the clients. 3. Downsize your business to keep below the threshold of 50 employees. a. I started this business in hard times to create a job for me and as many others as possible. Did I misunderstand? 4. Pay the tax. Don’t provide health care for your employees. a. Because group health insurance runs about $15,000/year per employee, for the employer, it is much less expensive to pay the $2,000 tax, per year per employee. If many employers choose the much cheaper option, insurance will become a thing of the past, and health care in America will be run completely by the government. It will be like having Medicaid for everyone. Our business is in the health care industry and represents millions of employees. Downsizing business in today’s economy is the opposite of what America needs. We are not trying to sway your vote but sharing the facts of your future employment situation under these immediate political situations. If Romney is elected in 3 weeks, The Affordable Health Care Act, aka ‘Obama Care’ has a good chance of being repealed and small businesses like ours will not drown. For the sake of the 80 people working for Visiting Angels and your own paycheck, remember, on November 3, it will be a close presidential race. Please VOTE!”

Smith said he sent the e-mail after the webinar, calling it some of the first information he received about what the Affordable Care Act would entail.

“They need to know that there’s a massive new tax coming to employees,” Smith said, adding, “The e-mail I sent was to inform them that they’re looking at a significant pay cut due to this new act and some other possible repercussions to their employment.”

Smith said the Affordable Care Act is “nebulous,” but would end up hurting companies such as his and its employees, who would likely end up paying double for health insurance.

“This has to be an issue that’s being discussed,” Smith said, further stating that though discussion on the topic seems to be “squelched,” employees will be affected and should know.

Under the act, which was passed in 2010, individuals are required to carry health insurance by 2014 or pay a penalty, and employers with 50 or more employees will be required to offer health benefits or be subject to a fine of $2,000 per employee.

Smith said he currently offers health benefits to employees, but that the majority of the employees do not partake.

Smith’s e-mail was leaked to The Durango Herald from an unidentified employee, where portions were published and questions raised concerning the e-mail’s legality.

Smith said he was not aware of any statutes that the e-mail might have violated when he sent it, but added he has since received legal advice from his company’s corporate legal counsel that the e-mail does not violate statute.

Too, Smith said he has received no complaints from employees or others since the e-mail was sent and made public, and that he has received support from throughout Pagosa Springs and Durango.

“I was not trying to coerce, I was trying to inform,” Smith said of the e-mail.

However, 1-13-719(d) of the Colorado Revised Statutes (concerning unlawful acts by employers) states, “Within ninety days of any election provided by law, to put up or otherwise exhibit in his factory, workshop, mine, mill, boardinghouse, office, or other establishment or place where his employees may be working or be present in the course of such employment any handbill, notice, or placard containing any threat, notice, or information that, if any particular ticket or candidate is elected, work in his place or establishment will cease in whole or in part, or his establishment will be closed, or the wages of his workmen will be reduced or containing other threats, express or implied, intended or calculated to influence the political opinions or actions of his employees.”

District Attorney Todd Risberg could not be reached for further information by presstime Wednesday.

This story was posted on November 14, 2012.