ACA. Affordable Care Act

Lots to talk about in the Labor & Employment world!  The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act.  The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed.   The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law.  In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits.  As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.

Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.

My colleague Patricia Moran, wrote a Law360 article entitled In The ACA Age, Employee Handbooks Can Help — Or Hurt as a follow up to her latest post, Have You Reviewed your Employee Handbook for Affordable Care Act Compliance? In the article, Moran urges employers to review their health and welfare benefit documentation for ACA compliance. Given the anticipated increase in IRS audits, she notes that an employee handbook can be great tool to ensure compliance with the ERISA and the ACA. In addition to outlining the value of an ACA compliant handbook, Moran also examines common noncompliance issues.

Written by Alden J. Bianchi

The Affordable Care Act’s employer shared responsibility, or “pay-or-play,” rules require “applicable large employers” (generally employers with 50 or more full-time and full-time equivalent employees) to offer group health plan coverage (i.e., “play”) or face the prospect of having to pay money to the government (i.e., “pay”). These provisions are included in a new section of the Internal Revenue Code, Code § 4980H, as implemented by final regulations issued earlier this year, and the IRS has provided a useful summary of the rules in a set of Questions and Answers.

The impact of the Act’s employer shared responsibility rules varies widely from employer-to-employer. Employers with stable workforces to whom they have traditionally provided broad-based, robust, major medical coverage—e.g., banking, finance, and information technology—will have little difficulty satisfying the Act’s pay-or-play rules. In contrast, employers with large cohorts of variable and contingent workers to whom robust coverage was not previously offered will find these rules daunting. Examples of affected industries and sectors include staffing, restaurants, retail, franchise, and hospitality. It is this latter group of employers that is scrambling to find solutions that enable them to limit their exposure to penalties (or in the parlance of Code § 4980H, “assessable payments”). “Solutions” for this purpose means, simply, inexpensive group health plan coverage. And there is some urgency since the Act’s pay-or-play requirements take effect January 1, 2015 (or 2016 for certain employers with between 50 and 100 full-time and full-time equivalent employees).

Continue Reading The Affordable Care Act—Countdown to Compliance for Employers, Week 18: Emerging Strategies to Reduce or Eliminate Exposure for Assessable Payments under the Affordable Care Act’s Pay-or-Play Rules