Even those with no intention of cutting their ranks below 50 are strategizing. Some plan to shave hours of part-time staff so they won't be required to offer coverage to them, BakerHostetler's Mr. McGowan said, and he knows of at least one company that is considering splitting up into multiple entities so that each employs fewer than 50.
Those employers trying to mitigate the mandate's impact will want to steer clear of violating anti-abuse rules from the Internal Revenue Service and the Treasury Department, attorneys said. A hearing on those rules, which were proposed Dec. 28, is scheduled for April 23.
According to the rules, for example, the government almost always will consider a company to be employing someone full time if it were to employ the worker for 20 hours a week on its payroll while hiring the same person through a temporary staffing agency for the rest of the week.
“Regulators are concerned about employers that are going to have a rolling list of temporary employees,” Mr. McGowan said. “They're aware right now that employers are going to play games around the margins.”
It's prudent to watch for any expansion of those anti-abuse rules and to plan this year for next year, said Dan Clevenger, a partner at Canton-based law firm Day Ketterer Ltd., who serves as outside counsel for small to midsize companies.
Mr. McGowan said he's advising his clients to put together long-term plans, not a “one-trick pony solution” that may be disallowed eventually.
“If it quacks like a duck and walks like a duck, it's a duck,” Mr. McGowan said. “You can't just do a paper shuffle and assume that somebody's no longer your employee because you shuffled the papers in a different way.”
Alliance's Mr. Grossman anticipates the uptick in the use of temporary workers will take hold in the fourth quarter of 2013, particularly in the manufacturing and distribution fields, which employ a high number of lower-level workers.
With the cost of employing full-time, unskilled workers guaranteed to rise because employers either will need to offer coverage to them or pay the penalty, employers are likely to reassess the profitability of employing such workers full time, Meyers Roman attorney Mr. Briskin said.
That's why most agree that unskilled workers will lose out.
“If a business is looking at an unskilled worker and says, "Look, I can't afford to provide an offer of coverage, it's just too expensive for me,' I'm either not going to employ you or I'm going to employ you on a part-time basis,” Mr. McGowan said.