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Cost-Sharing Limits; Provider Discrimination FAQ Released | Panama City Employee Benefits

June 30th, 2015 by Clemons

By Danielle Capilla, Chief Compliance Officer at United Benefit Advisors

Recently, federal agencies, including the Department of Labor (DOL), issued a short five-question FAQ on two ACA-related issues: limitations on cost-sharing and provider discrimination.

The FAQ further clarified that the self-only maximum annual limitation on cost sharing applies to each individual, regardless of whether the individual is enrolled in self-only coverage or coverage that is other than self-only (such as family). This echoes what all federal agencies have been stating on the topic. The FAQ further noted that this FAQ releasedrequirement applies to all non-grandfathered group health plans, and applies to plan or policy years that begin in or after 2016. This included non-grandfathered high deductible health plans (HDHPs).

The FAQ also confirmed that enforcement of the ACA’s provider non-discrimination requirements is delayed so long as the plan or issuer is using in good faith a reasonable interpretation of the statutory provision, which states:

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.

The agencies stated they are working with employers, plans, issuers, states, providers, and stakeholders to help them comply with nondiscrimination provisions and are working on further guidance.

To stay compliant with the ACA, visit UBA’s Compliance Solutions Center for an extensive library of UBA publications.

Topics: PPACA Affordable Care Act, Group health plans, cost-sharing limit, provider discrimination

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Highlights of Employer and Insurer Reporting Requirements | Panama City Employee Benefits

February 24th, 2015 by United Benefit Advisors

The Patient Protection and Affordable Care Act (PPACA) provides that individuals who do not have minimum essential (basic medical) coverage will owe a penalty unless they qualify for an exemption.

Extending 40-Hour Workweek – Employee Benefits Panama City

February 19th, 2015 by Clemons

Question: Are there any wage and hour regulations limiting an exempt, salaried worker to a 40-hour work week? We would like to impose a 48-hour, six-day workweek for our exempt employees.

Answer: Exempt employees are paid for the work they do regardless of the hours actually worked. If an exempt employee is required to work additional hours beyond a traditional 40-hour workweek, the employer is not obligated to pay overtime or any additional compensation.

Part of the rules of exemptions indicate that there is not necessarily a fixed schedule, so if an employer is regularly requiring specific hours, it is recommended that the employer look carefully at the employee’s classification as exempt. An employer should not be using the classification simply to avoid paying for hours actually worked if the nature of the work does not meet exempt classification testing, and is therefore nonexempt.

Section 13(a)(1) of the Fair Labor Standards Act (FLSA) provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional, and outside sales employees. Sections 13(a)(1) and 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department of Labor’s regulations.

The Department of Labor provides more information on the exemptions for executive, administrative, professional, computer, and outside sales employees. Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work.

While there are no wage and hour regulation prohibiting requiring exempt employees to work 48-hour weeks, there could be employee relations issues for requiring such a schedule as it is outside the norm for American business. In general, many exempt employees work longer hours and weekends to do their jobs without an employer schedule mandating the extra work. Employers considering a mandated longer schedule should consider the needs of the business and the company culture in setting such a mandate.



United Benefit Advisors Welcomes New Partner Firm Benefitdecisions – Benefit Broker Panama City

February 17th, 2015 by United Benefit Advisors

Chicago Agency Adds to UBA’s Growing Network of Independent Employee Benefits Advisory Firms Spanning North America and Europe

Tips for Handling Employee Pay Issues Caused By Mother Nature – Employee Benefits Panama City

February 10th, 2015 by Clemons

If you are inclined to believe “Punxsutawney Phil,” we’re in for another six weeks of wintry weather. When the groundhog emerged from his dwelling at Gobbler’s Knob in west-central Pennsylvania on February 2nd, he did not see his shadow. Let’s all hope for an early spring while we stay vigilant for more bad weather. Super storms packed punches in the Midwest and Northeast to start the New Year and continue adding to the area’s already taxed weather relief efforts. While your business may not have been affected by the recent superstorms, it is a great wakeup call to think through how businesses should handle the employee relations and pay issues that arise when they are forced to close due to inclement weather and/or when employees simply cannot get to work due to transportation or personal difficulties.

What should an employer do? Pay employees to stay at home? After all, in most cases, they are not at work through no fault of their own. Many businesses, however, do not have the financial resources to pay employees not to work. What follows are the rules regarding paying employees who miss work due to Mother Nature, along with some practical tips. From an employee relations perspective, the more generous you can afford to be to your employees who are suffering as a result of a weather-related disaster, the better. Employees (and their families) do pay attention to how they are treated, and a little extra time off and compassion for individual circumstances can go a long way towards enhancing employee loyalty.

If the company has no power and sends employees home for the day, should they be paid? And does it matter if the employee is exempt or nonexempt?

In general, there are two sets of rules for paying employees depending upon their classification under the Fair Labor Standards Act (FLSA) as it relates to eligibility for overtime. With nonexempt employees (those eligible for overtime pay), there is no obligation under federal or state law to pay for time not worked. However, under certain state laws, employers may have an obligation to compensate nonexempt employees under call-in/reporting pay laws, especially if the employees were not advised that they should not report to work and were denied work upon arrival at the workplace.

These pay obligations vary by state. With respect to salaried exempt employees who must be paid on a “salary basis” under the FLSA, employers may not make salary deductions for absences that result from an employer’s partial-week closing of operations, including closings due to weather-related emergencies or disasters. The bottom line is that exempt employees must be paid their full salary if they perform any work in a workweek and only miss work time due to the employer’s closure of operations. Closures for a full workweek need not be paid if no work is performed.

Are these rules different if the company can tell the employee not to come to work the next day?

For nonexempt employees, if they are told in advance not to come to work and the employees stay home, then the employer is under no obligation to pay them for the time off. The employer and the employee can choose to use accrued paid time off to compensate the employee for the missed workdays.

For exempt employees, the “salary basis” rule still applies. In some cases the employee may be working from home during the bad weather days. If state laws permit employers to do so, employers may deduct from the exempt employees’ accrued paid time off balances to resolve the issues related to “salary basis” compliance. The employer should ensure, however, that these employees have not done any work from home during the office closure prior to deducting time from the accrued paid time off bank balances.

If an employee is on Family and Medical Leave Act (FMLA) leave, do those “bad weather days” count against the employee’s 12-week allotment of time off?

The FMLA regulations are silent about bad weather office closures. However, the regulations do allow for situations when the employer’s business stops operating for a period of time and employees are not expected to come to work (plants closing for a few weeks to retool, mandatory company-wide summer vacation, etc). In that case, the week the business is closed and no employees are reporting to work would not count against the employee’s FMLA leave entitlement. If the business is closed for a shorter period of time, the general thinking is that the FMLA regulations relating to holidays would likely apply. Under those rules, if the business is closed for a day or two during a week in which the employee is on FMLA leave, then the entire week would count against the employee’s FMLA leave entitlement. If, however, the employee is on intermittent FMLA leave, then only the days that the business is closed and the employee is expected to be at work would count against the leave entitlement.

How do we handle attendance issues where the office is open but public transportation is not available due to the weather and employees cannot come to work?

If the business remains open but employees cannot get to work because of the weather, employers will need to consider their own attendance policies and practices in determining what flexibility to give employees as it relates to attendance. Employers may encourage employees to car pool or assist them in establishing alternative methods of transportation to get to work.

Under the FLSA rules as it relates to pay, however, employers do not need to pay nonexempt employees if they perform no work. For exempt employees, if the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence taken for personal reasons without jeopardizing the employee’s exempt status. Employers cannot, however, deduct an exempt employee’s salary for less than a full-day absence without jeopardizing the employee’s exempt status.

Does a company have to allow employees to work from home (exempt or nonexempt) if the office is closed due to bad weather?

No, the employer does not need to allow employee to work from home, regardless of their FLSA status (exempt or nonexempt). The employer can make those decisions based upon the work that can be done remotely and based on the needs of the business. The employer should have clearly communicated policies and expectations regarding working from home during office closures.

The bottom line is that every employer should think about the needs of the business, its financial resources, and employees’ needs and have plans in place to manage business issues due to inclement weather. Thinking through what the wage and hour laws require and developing your policies and then applying them consistently and fairly with all employees can reap huge dividends in employee loyalty and retention.


OFCCP Proposes Updated Sex Discrimination Rules – Employee Benefits Panama City

February 3rd, 2015 by Clemons

The Office of Federal Contract Compliance Programs announced a proposed rule to update the agency’s sex discrimination regulations. The OFCCP’s existing guidelines on sex discrimination were issued in 1970 and, admittedly, do not align with existing law and precedent in some areas.

The OFCCP’s proposed rule would “eliminate current provisions that are outdated, revise[] others to align… with current law and interpretations, and include[] new provisions that address contemporary problems.” For example, the OFCCP proposes to remove references to “male only” hiring practices, as employers rarely (hopefully, never!) use such language in job advertisements. Another outdated reference in the existing guidelines refers to sex-segregated newspaper columns, which no longer exist. (Thank goodness!)

As the OFCCP notes in its Fact Sheet, the agency “interprets the nondiscrimination provisions of [Executive Order] 11246 as being consistent with the principles of Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission.” Thus, it is not surprising that the OFCCP’s proposed rule parrots the EEOC’s enforcement positions. Some of the new provisions highlighted by the OFCCP include the following:

  • It is discrimination to treat an employee adversely because of gender-based stereotyped assumptions about family caretaking responsibility. (The EEOC addressed this several years ago.)
  • Leave for childcare must be available to men on the same terms as it is available to women.
  • Adopting the EEOC’s recent guidance on pregnancy discrimination, contractors must provide workplace accommodations, such as extra bathroom breaks and light duty assignments, to pregnant women that are comparable to accommodations made for other workers similar in their ability — or inability — to work. (The OFCCP says that it will revise this provision, if needed, depending on the outcome of a case involving pregnancy discrimination and accommodation that is currently pending before the U.S. Supreme Court.)
  • It is discrimination to treat an employee adversely because he or she does not conform to gender norms and expectations about appearance, attire, and behavior.

For the most part, the proposed rule is business as usual. The OFCCP does include a few provisions, however, that may raise some eyebrows. For example, the proposal would ban the use of “gender-specific terms for jobs (such as ‘lineman’).” This seems to address “political correctness” more than actual discrimination, as most such terms are treated as generic titles rather than references to gender.

The proposal would also expressly require that contractors provide transgender employees access to bathrooms used by the gender with which they identify. Although many employers currently do this, such a requirement has not been previously mandated by federal law.

The OFCCP is also proposing to add a discrete section to the regulations addressing compensation discrimination. The provisions largely incorporate the agency’s controversial Directive on this topic. Although the agency says that compensation comparisons must be made between “similarly situated” individuals, the government’s view of what constitutes “similarly situated” is broader than most employers’ perspectives.

In addition, although the proposed rule does not specifically address a prohibition against sexual orientation discrimination, “[a]dverse treatment of an employee because he or she does not conform to sex-role expectations by being in a relationship with a person of the same sex” is classified as sex discrimination based on sex-based stereotypes. This goes well beyond any position taken by the EEOC or the OFCCP in its recent Directive outlining why discrimination on the basis of gender identity is discrimination on the basis of sex. However, this is of little import to federal contractors because the revised Executive Order prohibits discrimination on the basis of sexual orientation anyway.

What’s the point?

Do federal contractors or the OFCCP really need these additional rules? After all, the EEOC has already pronounced its interpretations and enforcement positions on these topics, and the OFCCP interprets the prohibition on sex discrimination in E.O. 11246 the same way. Why do we need duplicative rules from the OFCCP? Furthermore, the OFCCP does not have regulations addressing race discrimination or national discrimination, so why issue this proposal?

One possible reason is that the EEOC has not issued regulations addressing many of these issues; the Commission simply issues Enforcement Guidance or Informal Discussion Letters in most cases. Although these statements of agency position have some weight and authority, they do not have the strength of a regulation issued after notice and an opportunity for comment. Thus, if the OFCCP finalizes these rules, they will carry greater weight and require more deference from courts than the EEOC’s informal guidance does. The OFCCP specifically states that its final regulations will have “the full force and effect of law.”

Could that be why the OFCCP has proposed these rules? Or is the government issuing meaningless and duplicative regulations that will have to be updated whenever the EEOC changes its position or the Supreme Court rules against the EEOC? Why isn’t the best approach to simply rescind the existing OFCCP guidelines and rely on the EEOC’s sex discrimination regulations and informal guidance instead of creating new and different regulations for federal contractors? Certainly, the federal contracting community will weigh in on these issues in comments to the agency. And we will continue to keep you updated.


IRS Releases Guidance on Retroactive Transit Benefit Increase for 2014 – Employee Benefits Panama City Beach

January 12th, 2015 by Clemons

Yesterday, the Internal Revenue Service (IRS) released Notice 2015-2 providing guidance on the retroactive transit benefit increase recently enacted by Congress. Employers that offered a commuter or transit benefit plan in 2014 must comply with the guidance if their 2014 plan had provided both pretax and aftertax benefits. No action is required, however, for employers that did not offer a transit benefit plan in 2014 or whose plan provided benefits only on a pretax basis.

Many employers sponsor a qualified transportation benefit (QTB) plan which often is referred to as a “commuter benefit,” “transit benefit,” or Internal Revenue Code § 132 plan. These plans allow employers and employees to make pretax contributions to QTB accounts and then use the funds to reimburse the employee’s qualified parking expenses or qualified mass transit expenses. Pretax contributions save money, both for the employer and employee, since the funds are exempt from personal income taxes and from payroll taxes (FICA/FUTA). Federal tax law sets monthly limits, however, on the amount eligible for pretax reimbursement.

For 2014, the monthly limits on pretax commuter benefits were:

  • $250 for parking expenses.
  • $130 for mass transit and vanpooling expenses.

In late December, Congress passed and the President signed legislation that increased the 2014 monthly limit for pretax mass transit/vanpooling benefits from $130 to $250. Although the increase applies retroactively to January 1, 2014, it has no effect on pretax-only plans since pretax benefit elections cannot be changed retroactively.

The change does affect employer plans that provided both pretax and aftertax benefits in 2014. For instance, if the employer’s 2014 plan was designed to provide up to $250 per month for mass transit/vanpooling benefits, the first $130 was on a pretax basis while the additional $120 was an aftertax benefit. In that case, the employer now must follow the administrative procedures outlined in IRS Notice 2015-2 so that the entire $250 per month can be reported as a pretax benefit. Employers should work with their payroll administrators and tax advisors to ensure that 2014 W-2s and 2014 FICA/FUTA filings are prepared or revised correctly.

Lastly, note that there is no change with respect to 2015 benefits. For 2015, pretax benefits are limited to $250 for parking expenses and $130 for mass transit/vanpooling expenses each month.


Rate Trends and Delay Strategies – Employee Benefits Panama City Beach

January 9th, 2015 by United Benefit Advisors

There was a nearly 322% increase in the number of plans utilizing an early renewal strategy on December 1, 2013, which delayed many effects of PPACA until December 1, 2014. Of the employers who postponed their renewal date, 94% were small businesses that employ fewer than 100 employees.

Should Benefit Communications Go Mobile? Three Reasons Why the Answer is YES! – Employee Benefits Panama City

December 29th, 2014 by United Benefit Advisors

Today, more than 4 billion (out of 6.8 billion) people own a mobile phone. This includes people across all socio-economic classes around the world. They have become part of everyday life.

Decoding Dress Codes – Employee Benefits Panama City

December 22nd, 2014 by Clemons

Most places of business have some sort of dress code, but what if a large company doesn’t and then decides it wants to implement one? Such was the case with Wal-Mart and the backlash its new policy triggered. This can provide useful information for employers that may be thinking twice about instituting new rules.

Regardless of where one works, there are always certain rules to follow. If a business does have a dress code, in an office setting it’s usually to keep people from wearing unprofessional attire. In an industrial setting, this ensures that people are wearing safety-related gear.

In the Wal-Mart example, they decided to implement a dress code that mimicked a uniform policy. The difference, according to an article in Human Resource Executive Online titled What to Wear, is that most uniforms require an employer to pay for, maintain, and clean the items. If safety gear is required for compliance with Occupational Safety and Health Administration (OSHA) regulations, then a business must pay for them.  But Wal-Mart found a loophole in that they simply stated a dress code of khaki pants and a collared shirt, defined by the U.S. Department of Labor as “street clothes.” Furthermore, the senior-level staff at Wal-Mart probably reasoned that most people already have these articles of clothing in their wardrobe.

While that may be true, the backlash came when employees who were already making a low salary now had to add the expense of these clothes.  This dress code requirement quickly ballooned into a public relations nightmare for Wal-Mart and highlights the fine line that a business must walk to keep its costs in check, while maintaining good morale among its employees and the public.

If a business decides to introduce a new, or modify an existing, dress code policy, it should consider all ramifications before implementation. Plus, the decision makers need to figuratively put themselves into the shoes of the employees being affected by the policy. Will the added cost be too much of a burden? Will the public look at this as a good thing in terms of an improved, professional appearance, or will they look at it as just another way the company is shifting costs to its already weary workforce? And finally, can such a requirement spur the heavy burden of a class action lawsuit?

It’s clearly important for a company to have its employees looking their best, but at the same time it should tread carefully when enforcing a new and unpopular dress code policy.