Viewing posts from: August 2016

Fair Pay and Safe Workplaces Executive Order

Posted August 31, 2016 by Megan DiMartino

Close-up of a vintage gavel, on blurred background, symbol of impartiality and rightness, judicial decisions, closed cases and justice

President Obama signed the Fair Pay and Safe Workplaces Executive Order on July 31, 2014, which requires prospective federal contractors to disclose labor law violations and give agencies guidance on how to consider labor violations when awarding federal contracts. As of August 25, 2016, the Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) issued final rules and guidance implementing the Executive Order.

For years, countless American workers have been unlawfully denied overtime wages, discriminated against in hiring or pay, put in physical danger on the job, and denied basic workplace protections by the federal contractors who employ them with taxpayer money.

The implementation of the Executive Order ensures that contractors’ employees are given the necessary information each pay period to make sure they are getting paid what they are owed and that workers victim of sexual assault or sexual harassment get their day in court. It also provides agencies with the information necessary they need to determine if contractors are providing their workers with basic protections and agencies can ensure the taxpayer money is only going to contractors meeting these responsibilities.

Implementation schedule:

  • Week of September 12, 2016: Pre-assessment begins, through which current or prospective contractors may come to the DOL for a voluntary assessment of their labor compliance history, in anticipation of bids on future contracts but independent of any specific acquisition.
  • October 25, 2016: The final rule takes effect. Mandatory disclosure and assessment of labor law compliance begins for all prime contractors under consideration for contracts with a total value greater than or equal to $50 million. The reporting disclosure period is initially limited to one year and will gradually increase to three years by October 25, 2018.
  • January 1, 2017: The Paycheck Transparency clause takes effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers.
  • April 25, 2017: The total contract value threshold for prime contracts requiring disclosure and assessment of labor law compliance is reduced to $500,000.
  • October 25, 2017: Mandatory assessment begins for all subcontractors under consideration for subcontracts with a total value greater than or equal to $500,000.

Source: United States Department of Labor | Executive Order 13673: Fair Pay and Safe Workplaces

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AssuredPartners Webinar | Understanding the Basics of the Health and Welfare Form 5500

Posted August 29, 2016 by Megan DiMartino

AP Logo LargeIs your company required to file a Form 5500 for any of the benefit plans it offers? Have your 5500s been filed correctly and for the appropriate plans? What happens if there are mistakes on a 5500 or missed filings? Will those exempt from filing retain their exempt status in the future?

Join the next AssuredPartners webinar and learn the who, what, when, where, how and why of the Health and Welfare Form 5500. They will also touch on the changes the DOL has proposed as they look to overhaul the information reported in the form for Form Year 2019.

Webinar Details:

  • Tuesday, August 30, 2016
  • 3:00 – 4:00pm EDT
  • No Cost to Attend

Register Now - CA Blue

Presenters:

  • Ann McAdam, Technical Consultant – Wrangle, LLC
  • Lynda Taylor, COO – Wrangle, LLC

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Q&A – Nondiscrimination Regulations and Group Health Plans

Posted August 26, 2016 by Megan DiMartino

Regulations. keyboardFinal regulations implementing section 1557 of the Affordable Care Act (ACA) were published on May 18, 2016, by the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS). This prohibits discrimination based on race, color, natural origin, sex, age, or disability in health activities and programs that receive federal funding or assistance.

Here are some things to remember:

1. The regulations prohibit discrimination in both health plan design and administration. 
Health plans that are subject to the regulations may not deny or limit health coverage, deny a claim, employ discriminatory marketing or benefit design, or impose additional cost sharing on a basis of an individual’s race, color, natural origin, sex, age, or disability.

They also may not:

  • deny benefits to a participant based on the participant’s sex or gender identity;
  • categorically exclude or limit health services related to a gender transition (“health services related to gender transition” is not defined in the regulations, but OCR stated its intention to interpret these services broadly);
  • deny or limit benefits for medically appropriate sex-specific health care based on the covered individual’s gender identity (e.g., medically appropriate ovarian cancer treatment cannot be denied for a transgendered individual identifying as a male); or
  • deny treatment that is consistent with the individual’s gender identity, including access to facilities.

Coverage for medically appropriate health services must be made available on the same terms and conditions for all individuals regardless of sex assigned at birth, gender identity, or recorded gender; as well as prohibition of categorical exclusion for all health services or care related to gender dysphoria or gender transition. Eventually, the requirements related to transgender coverage may effectively create a benefit mandate for health services related to gender transition.

2. What do the nondiscrimination regulations mean for employer-sponsored group health plans?
Employers that receive federal financial assistance from HHS for any purpose and provide health care are required to comply with these regulations within their group health plans regardless of whether the plan is fully insured or self-insured.

If the employer (non-health care provider) sponsors a fully insured health plan, the regulations will apply to the plan by way of the insurer. Any health insurance issuer receiving federal financial assistance from HHS is subject to the regulations, so the plans sold by any such issuer must conform with the nondiscrimination provision in both plan design and administration.

If the employer (non-health care provider) sponsors a self-insured health plan, the regulations do not apply directly to the group health plan. Third-party administrators (TPAs) or administrative-services-only providers (ASO), that are also insurance companies, are subject to the regulations they administer to employer plans.

These regulations can still fall suit to legal actions and compensatory damages brought on by individuals who feel that issuers or health care providers are not complying.

3. When do group health plans have to comply?
The final regulations became effective as of July 18, 2016, but if changes need to be made to health plan design then they are not effective until the first day of the first plan year beginning on or after January 1, 2017.

Links:
Final Regulations
Fact Sheet
HHS & OCR Final Regulations on Nondiscrimination in Health Programs and Activities – June 15, 2016

Source: Healthcare Reform Digest | Three Takeaways for Group Health Plans from the Nondiscrimination Regulations

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

New Poster Requirements

Posted August 19, 2016 by Megan DiMartino

EPPA PosterFLSA PosterThe Employee Polygraph Protection Act (EPPA) and the Fair Labor Standards Act (FLSA) have both issued new posters that were revised as of July 16, 2016. These posters are required by law to be displayed where they can readily be seen by employees.

The EPPA poster has been updated to reflect changes made by the Civil Penalties Inflation Adjustment Act, which now states that the Secretary of Labor may assess civil penalties against violators.

The FLSA poster has been updated regarding information about breaks for nursing mothers, changes made by the Civil Penalties Inflation Adjustment Act, and classification of independent contractors.

Please review and make sure all of your posters are up to date.

Source: 
EPPA Poster
FLSA Poster

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Politics & Work

Posted August 17, 2016 by Megan DiMartino

Vote!Free speech at work isn’t as free as you may think. Free speech is more for government employees…and even then, it’s not much. The Bill of Rights applies to government action, not corporation’s actions.

These are some examples where you may have some legal protection:

  • Concerted Activity: Employers can prohibit general political discussion and campaigning at work, but per the National Labor Relations Act they cannot prohibit discussions about workplace conditions. So employers couldn’t fire an employee if they were discussing how a candidate was better for them as a worker. And unless you’re in a state that has the Worker Freedom Act (which isn’t many), your employer could force you to attend and listen to a one-sided political pitch on behalf of a candidate.
  • Labor Union Insignia: Employers can’t prohibit labor union insignia. They can prohibit employees from wearing buttons, shirts, and other campaign items that singly support a candidate, for instance if it just said “Hillary,” but not if it collectively supports a candidate, such as “AFSCME for Hillary”
  • Objecting to Discrimination: Title VII protects against discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or any other protected status, which means you would also be protected against retaliation if you advised HR that your supervisor made a racial or sexist comment about a candidate that offended you. The First Amendment laws may not always be in your corner, but discrimination laws could potentially be in your favor.
  • Political Affiliation/Activities: The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees and though a few states don’t have laws prohibiting that, many states do. You should look into your own state’s laws, but for example – In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening shut downs or layoffs if a certain candidate is elected.
  • Activity Outside Work: If you work for or are involved in a political campaign outside of work then there are some states that prohibit disciplining or firing employees based on these legal activities.
  • Contract: If you have a contract that says you can only be fired for cause, it is best to check what constitutes as “cause.” You may not have quite the protection you think you do.
  • Time Off to Vote: Most states require employers to let you take time off to vote. Please check if your state follows this law (or any of the aforementioned laws), as it is an important right we’ve been given to vote!

Source: The Huffington Post | Can You Be Fired For Your Political Beliefs or Activities? Maybe

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

DOL Women’s Bureau Awarded $1.1M to Research & Analyze Paid-Leave Programs

Posted August 15, 2016 by Megan DiMartino

dept-of-laborThe U.S. Department of Labor (DOL) Women’s Bureau was recently awarded $1.1 million in grants to research and analyze paid-leave programs and how they can be developed and implemented across the country. This is for the millions of workers who have caregiving responsibilities for their young children or aging parents and who have to risk their job and paychecks for their loved ones, as only 12% of private-sector workers have access to paid family-leave from their employers.

U.S. Secretary of Labor, Thomas E. Perez, states – “Too many Americans are forced to choose between the job they need and the family they love. While congress refuses to take action to make paid leave the law of the land, we have seen tremendous leadership at the state and local levels to expand access to these programs.”

Paid family and medical leave programs are not only beneficial to the employee, but also assist employers in developing the necessary administrative infrastructure to conduct daily responsibilities in an employee’s absence as well as cut down on training costs that will boost earnings over time.

The grant funding is as follow:

  • The Commonwealth of Pennsylvania, Department of Labor and Industry will receive $250,000 to conduct cost-benefit analysis for different paid family-leave models; statistical analysis to determine populations that would benefit from them; feasibility study of state administrative infrastructure for a paid family leave program; and education, outreach and marketing analysis for implementation purposes.
  • The Hawaii Department of Human Services will receive $240,000 to conduct economic analysis and eligibility and benefit modeling; feasibility study to determine ways Hawaii could potentially implement a paid family-leave program; polling to gauge public opinion about paid family leave, benefit design, and messaging; focus groups to gather perspectives that will inform messaging design in educational materials and gather insight for policy development.
  • The Indiana Commission for Women will receive $202,500 to conduct cost-benefit modeling for several locally developed paid family and medical-leave program proposals; polling research to assess public interest in elements of proposed plans; and stakeholder interviews with low-income families, as well as develop educational materials for statewide outreach efforts.
  • The City of Madison, Wisconsin will receive $155,317 to research fiscal and operational impacts of providing a paid-leave policy for all permanent city government employees.
  • The City and County of Denver will receive $126,091 to conduct statistical analysis and financing, eligibility, and benefit modeling to explore and develop a paid family and medical-leave program or other benefit options in adherence with prevailing practices.
  • The Franklin County, Ohio, Board of Commissioners will receive $126,091 to evaluate impact of process changes on individuals; cost/economic impact on individuals and employers/supervisors that implement paid-leave program; and implementation analysis.

Source: Department of Labor | US Labor Department Announces $1.1M to Study Paid-Leave Programs

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Crawford Advisors Webinar Series: HRCI & SHRM Pre-approved Crawford Advisors Webinar | 2017’s Top Ten Health & Welfare Compliance Challenges

Posted August 9, 2016 by Megan DiMartino

Regulations. keyboardJoin Crawford Advisors’ General Counsel and VP of Compliance, Patrick C. Haynes, Jr., for a complimentary, 1-hour, HRCI* and SHRM** pre-approved webinar as he reviews the top challenges facing health and welfare compliance for the upcoming year. Discussion will include guidance on wellness programs, Marketplace Notices, as well as HSA and Form 5500 updates. Patrick’s main focus is to keep employers and their employees well informed, prepared and compliant with all regulations, changes and updates that are awaiting in 2017.

Top Ten Challenges include:

  • Wellness Programs – EEOC Final Regulations and IRS Tax Guidance
  • 2017 Updates & Changes Affecting Your Next Renewal – SBCs, Preventive & Clinical Trials, and Affordability
  • HSA Update
  • HIPAA Privacy & Security
  • Federal Mandates for All Group Health Plans
  • Marketplace Notices & Appeals
  • Form 5500 – Major Changes, Updates & Expansion

Webinar Details:

  • Wednesday, August 24, 2016
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

Register Now - CA Blue

hrci_ap_preapprovedseal_2016_new*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

SHRM SEAL-Preferred Provider Recert_CMYK_2016_1.25in (R)**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit shrmcertification.org.

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

ACA Employer Shared Responsibility Penalties

Posted August 8, 2016 by Megan DiMartino

IRSUnder the Affordable Care Act (ACA), employers with 50 or more full-time equivalent employees (FTEs) who fail to comply with the ACA’s employer shared responsibility provision will be subject to one of two penalties:

1. (i) an employer fails to offer health care coverage to “substantially all” of its full-time employees; and (ii) a low-income, full-time employee receives a premium tax credit through a marketplace.
These situations call for the employer to pay an annual penalty of $2,000 (adjusted for inflation), multiplied by the number of FTEs in excess of 30.

2. (i) an employer offers health care coverage to its full-time employees that is either “unaffordable” or does not provide “minimum value;” and (ii) a low-income, full-time employee receives a premium tax credit through an Exchange.
This would call for the employer to pay an annual penalty of $3,000 (adjust for inflation) for each FTE who receives the premium tax credit. This penalty is capped at $2,000, multiplied by the number of FTEs in excess of 30.

Under the first penalty, the IRS confirmed that all FTEs are counted, regardless of whether they are enrolled in Medicare or another type of coverage.

And an employer is liable for the second penalty only for employees who enroll in Marketplace coverage and receive a premium tax credit subsidy – due to employees who are actually enrolled in Medicare can’t receive the tax credit and therefore do not affect an employer’s liability.

Source: The Wagner Law Group | Health and Welfare Law Alert: Medicare-Enrolled Employees’ Impact on ACA’s Employer Mandate Penalty

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Top Takeaways from Recent FMLA Mistakes

Posted August 5, 2016 by Megan DiMartino

1. When calculating FMLA entitlement, include overtime and “working lunches”

Close-up of a vintage gavel, on blurred background, symbol of impartiality and rightness, judicial decisions, closed cases and justiceAn employee’s actual work week, which includes overtime and working breaks, is the basis for determining FMLA leave entitlement. In a recent case, an employee put his name down for certain overtime shifts and the overtime then became mandatory which the employer should have calculated into his FMLA allotment for the year in accordance with 29 C.F.R. §825.205(b)(3). The overtime hours were not considered, therefore sending the claim to trial.

2. In calculating amount of leave used, don’t include days an employee is not scheduled
FMLA leave may be taken in periods of weeks, days, hours and sometimes less than an hour. So when calculating the amount of leave taken, employers must exclude the days an employee would not be working, such as weekends, temporary closures and holidays.
In one case, an employer included weekends into the employee’s FMLA allotment and fired her when they thought her leave was used up. The employer tried to argue that their plant was closed for the holidays which would add to her FMLA leave, but the court noted that “if the employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave.”

3. Neither a medical emergency nor a request using the word “FMLA” is required
One employee came out on top after her employer argued that FMLA leave was limited to medical emergencies. The court found it undisputed that her parents had serious health conditions and she was entitled to FMLA to make arrangements for their care. The court also found that her FMLA was unforeseeable and that she was only required to provide notice as soon as practicable. The employer could have asked have asked for more information regarding her parents’ health.
The employer can also ask for more information when it comes to the employee’s need for FMLA. For example, an employee with a history of migraines that was marked down as having “headaches” was wrongfully terminated under the employer’s attendance policy. In another case, an employee receiving treatment for high blood pressure was having chest pains and thought it may be a heart attack. So he advised a coworker to let his manager know of his leaving, but he was considered a “voluntary quit” since he didn’t notify his manager himself. But the federal court found triable issues on whether he provided sufficient notice of the need for FMLA leave.

4. Give employees a chance to provide certification
Lawsuits often arise if FMLA certification is found incomplete. In a recent case, an employee provided certification for the need to care for her son hospitalized with diabetes, but then also sent a new FMLA request after he broke his leg. She repeatedly asked if she needed to submit more information, and eight days later received a letter stating her paperwork did not justify her absences after never receiving a response to her initial submission. The HR director only sent back DOL brochures after the employee sent several emails asking about what paperwork was needed. She was fired for job abandonment, but in an appeals court a jury could find the employee made good-faith efforts to provide the required certification and then unjustly relieved of her job.
Another case shows that the employer fired the employee a day after requesting her medical certification. An employer may deny leave certifications, explained the federal court, but 29 C.F.R. §825.305(b) defines timeliness to be 15 calendar days from the date of request. It is required that employers warn employees in writing of the consequences of failing to return their certification in a timely manner.

5. Communicate with employees
It is important to communicate with employees who request information about their FMLA obligations as well as regarding their job status and what they can expect to change in their absence. An employer held its employee liable for liquidated damages under FMLA because they failed to answer her questions regarding the handling of her accounts and commissions while she was out on maternity leave – leaving her with lost commissions and transferred accounts.

6. You can require the use of customary notice procedures for absences, but with caveats
Most often, cases that employers face are employees that are denied leave or disciplined for not following proper call-in procedures. FMLA leave may be unforeseeable and employees need only provide notice “as soon as practicable,” although it is generally required to call-in to advice of absences. In one case, an employee overslept after taking their bipolar medication and failed to call in prior to their shift. A jury could find that calling in late was “as soon as practicable” and that firing the employee was interfering with FMLA rights.

7. Avoid derogatory remarks about those who take leave
In a federal case, an employee was fired 13 days after returning from FMLA for heart surgery and won an extra $308k when the employer failed to show it acted in good faith. The employee had a visible heart pack and the supervisor made disdainful comments such as, “don’t die at the desk or I am going to drag you outside and throw you in a ditch.” And if that wasn’t enough, the employee was also threatened with demotion.

8. Be consistent in your treatment of employees before and after leave
Taking FMLA shouldn’t be used as a punishment and if treated differently or terminated because of it is enough to file an FMLA retaliation claim. In such case, an employee claims her supervisor “watched her like a hawk” after taking more FMLA leave and was placed on two performance improvement plans and fired after allegedly violating attendance and personal phone usage policies.

9. Adjust goals downward for employees who take FMLA leave
Not only is treatment of employees before and after FMLA leave important, but so is the adjustment of the employee’s goals. In one case, an employer didn’t adjust the sales goal of an employee out on intermittent FMLA and then fired her for failing to meet such goals. So it could be ruled that she was terminated due to taking FMLA leave.

10. Not every deviation from what you expect of a seriously ill person suggests FMLA abuse
FMLA abuse is not always clear, so employers must tread carefully. In one case, an employer let an employee leave to go to the hospital after he found blood in his stool, but instead the employee walked down the road to enjoy a cup of coffee at a nearby diner and didn’t contact the health department until the next day – which he was diagnosed with colitis and diverticula. He was fired for walking off the job, but a federal court found triable questions if he gave an FMLA-qualifying condition thus triggering an FMLA retaliation action.

Source: Wolters Kluwer | Ten things employers can learn from recent FMLA suits 

Links:
DOL Wage and Hour Division – Family and Medical Leave Act
DOL Wage and Hour Division Factsheet: Joint Employment and Primary & Secondary Employer Responsibilities Under the FMLA
DOL Wage and Hour Division Factsheet: Employee Notice Requirements under the FMLA
FMLA Posters
DOL Wage and Hour Division Factsheet: Calculation of Leave under FMLA

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Increased OSHA Penalty Structure

Posted August 3, 2016 by Megan DiMartino

In November 2015, federal agencies were required to adjust their civil penalties to account for inflation. The Department of Labor (DOL) is adjusting penalties for its agencies, including the Occupational Safety and Health Administration (OSHA). As of August 1, 2016, OSHA has raised its penalties for violations. This is the first time they’ve raised penalties since 1990.

OSHA’s maximum penalties will increase by 78% and below shows the increases:

Type of
Violation
Max. Penalty
Before Aug. 1
Max. Penalty
After Aug. 1
Serious Other-
Than-Serious
Posting
Requirements
 $7,000 per violation  $12,471 per violation
Failure to Abate  $7,000 per day beyond the
abatement date
 $12,471 per day beyond the
abatement date
Willful or
Repeated
 $70,000 per violation  $124,709 per violation

If any violations occurred after November 2, 2015, they will be subject to these new penalties.

Also, individual states that operate their own OSHA plans are required to adjust their penalty levels to be comparable to the new Federal OSHA levels. Going forward, OSHA will continue to adjust their penalties on a yearly basis based on the Consumer Price Index.

It is not uncommon for OSHA to issue multiple violations in a citation, so be cognizant of large penalties. If you receive an OSHA citation you wish to contest, you only have 15 working days from the date of receipt to do so.

Source: Labor & Employment Law Perspectives | Increased OSHA Penalty Structure Becomes Effective Today

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.