compare employment opportunities when one is looking for a job or
thinking about changing jobs. The specifics and richness of the insurance
benefit is much harder to assess than salary levels or other terms and
conditions of employment. A job-seeker who tries to use health coverage as
a factor in deciding which job to take or keep is likely to be confounded by
the many variables in health plan details. Many of these details are not
transparent to prospective employees—or even to current employees, for
that matter. It’s not just the policy language that varies but also how the
insurer interprets and applies that language in practice, something that
insurance shoppers find very difficult, if not impossible, to assess before the
fact. As will be discussed in the following section, one of the advantages
the ACA offers is the establishment of the Insurance Exchanges, which are
rationalized and standardized retail markets designed to facilitate
comparison-shopping.
Prior to the ACA’s guarantees of coverage and insurability,77 employees
were often reluctant to change jobs, even when that was the right thing to
do on other grounds, because they did not want to disrupt their insurance
coverage.78 Even if the new employer provided a good insurance package,
the employees, or their dependents, might be subject to exclusions of pre-existing health conditions and/or a waiting period for full vesting of
benefits. This phenomenon of sticking with one’s current job for fear of the
side-effects of making a switch, known as “job lock,” takes away an
important dimension of personal choice and interferes with the dynamic
functioning of the labor market, which compromises the nation’s economic
strength.79
77. 42 U.S. C. A. §§ 300gg, various subsections (2010) (sub. 3, prohibiting pre-existing
condition exclusions; sub. 4., prohibiting discrimination based on health status; sub. 6,
mandating coverage of “essential health benefits”; and sub. 7, prohibiting excessive waiting
periods before coverage begins).
78. The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), 29
U.S. C. §§1161-1168, tried to ameliorate this problem by facilitating bridge coverage for
workers transitioning from one job to another, but it relied on the very expensive individual
market, which is unaffordable for many, if not most, consumers. See Michelle Andrews, For
Workers Leaving Their Jobs, Health Exchanges Offer Insurance Choices beyond COBRA,
KAISER HEALTH NEWS (Sept. 16, 2013), http://khn.org/news/091713-michelle-andrews-
cobra-and-health-exchanges/ (discussing COBRA as a “transitional type of coverage”).
79. See Anna Sanz-de-Galdeano, Job-Lock and Public Policy: Clinton’s Second
Mandate, 59 INDUS. & LAB. REL. REV. 430, 430 (2006) (identifying some situations in which
job-lock may arise, e.g., if a person has a preexisting health condition). Job lock may be a
positive feature for employers who use health benefits to recruit and retain employees,
although this approach is less likely to work in a world of labor scarcity. See David S.
Caroline, Comment, Employer Health-Care Mandates: The Wrong Answer to the Wrong
Question, 11 U. PA. J. BUS. L. 427, 435 (2009) (“An individual who needs better insurance
might change jobs, even if he or she otherwise is quite content and productive, which in turn
causes an unnecessary loss in efficiency.”). In today’s world, where the “surplus army of the
